Q. LI
29 I&N Dec. 66 (2025)
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Rule of Law:
An applicant for admission who is arrested without a warrant while arriving in the United States and placed in removal proceedings is detained under INA § 235(b) and is ineligible for a bond hearing under INA § 236(a). If such an alien is granted parole and later re-detained, they return to the same mandatory detention status under § 235(b) from which they were paroled.
Facts:
- On June 27, 2022, Q. Li, a citizen of China, crossed the southern U.S. border without inspection.
- A Department of Homeland Security (DHS) officer encountered Li approximately 5.4 miles from a port of entry and 100 yards north of the border.
- Li informed the officer that she did not have any documents permitting her to legally enter or remain in the United States.
- The officer arrested Li without a warrant.
- The next day, DHS released Li from custody on parole under INA § 212(d)(5)(A), which required her to report regularly to a DHS field office.
- On October 30, 2024, Interpol issued a Red Notice for Li's arrest related to travel document forgery and human smuggling crimes in Spain.
- On November 25, 2024, when Li reported for a scheduled appointment at a DHS field office, officers took her back into custody.
Procedural Posture:
- The Department of Homeland Security took Q. Li into custody and issued her a notice to appear, initiating removal proceedings.
- Li requested a custody redetermination (a bond hearing) before an Immigration Judge.
- The Immigration Judge denied the request on December 30, 2024, finding a lack of jurisdiction because Li was detained under INA § 235(b).
- Li, the respondent, appealed the Immigration Judge's bond denial to the Board of Immigration Appeals.
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Issue:
Is an arriving alien who was arrested without a warrant, released on parole, and subsequently taken back into custody for removal proceedings eligible for release on bond under section 236(a) of the Immigration and Nationality Act?
Opinions:
Majority - Malphrus, Chief Appellate Immigration Judge
No. An arriving alien arrested without a warrant is subject to mandatory detention under INA § 235(b) and is therefore ineligible for release on bond. Section 235(b) governs the detention of aliens 'arriving in the United States,' which includes those like Li who are apprehended shortly after unlawful entry. This provision mandates detention for applicants for admission. In contrast, § 236(a), which allows for discretionary bond, applies to aliens arrested on a warrant who are already present in the United States. Li's temporary release on parole under § 212(d)(5)(A) did not change her underlying status; upon termination of parole, the law requires the alien to be returned to the custody from which she was paroled—in this case, mandatory detention under § 235(b).
Concurring - Mullane, Appellate Immigration Judge
No. The appeal should be dismissed on a simpler regulatory basis. Federal regulations, specifically 8 C.F.R. § 1003.19(h)(2)(i)(B), explicitly state that an immigration judge may not redetermine the custody conditions for 'arriving aliens in removal proceedings, including aliens paroled after arrival.' The fact that DHS granted Li parole confirms her status as an 'arriving alien.' Therefore, under the plain language of the regulation, the Immigration Judge lacks jurisdiction to consider her request for bond.
Analysis:
This decision solidifies the bright-line distinction between the detention authority for 'arriving aliens' under INA § 235(b) and aliens apprehended in the interior of the U.S. under § 236(a). It clarifies that a grant of parole is merely a temporary release from mandatory custody and does not convert an arriving alien's status into one eligible for a bond hearing. This ruling significantly curtails the ability of aliens apprehended at or near the border to seek release from an immigration judge, reinforcing DHS's authority to detain such individuals throughout their removal proceedings.
