A Bus Ride to Texas Is Now a Constitutional Question. Here Is How to Stay Ahead of It.

Two men. Same facts. Two different Americas.

In Buffalo, Ricardo Aparecido Barbosa da Cunha went home. He is a Brazilian who entered the United States without inspection more than twenty years ago. He owns a home in Massachusetts. He raised two U.S. citizen children. He runs a small construction business. He has never been arrested for anything. ICE took him in September 2025. In April 2026, the Second Circuit ruled that the immigration statute does not require him to be detained without bond. He got a hearing. He went home.

In Houston, Victor Buenrostro-Mendez was sent back to detention. He is a Mexican who entered without inspection in 2009. No criminal record. The same year. Same kinds of facts. In February 2026, the Fifth Circuit ruled that the same statute does require mandatory detention without bond, and reversed the district judge who had ordered his bond hearing.

Same statute. Same lives. Different American.

If your husband, your wife, your son, your daughter, your father, your mother, or your friend is in immigration custody right now, that contradiction is your problem. And there is one piece of it almost no one is saying out loud: ICE controls the bus. With a single transfer order, with no judge, with no warning to the family, ICE can move someone from a Second Circuit detention facility to a Fifth Circuit one overnight. Their legal universe, including whether they ever get to ask a judge for bond, can change while they sleep.

This post does two things. The first half walks through what the courts have actually said, name by name, and where it is heading. The second half lays out the Bardavid Law Habeas Playbook. That is the practical, step-by-step preparation we do for clients who are already detained, and for clients who are at risk of being detained. It is, in plain English, detention insurance. Like life insurance, the time to buy it is before you need it.

Part One: What Is Happening in the Courts

The two statutes, in plain English

Federal immigration law has two main detention provisions. They look similar. The difference between them decides whether a person gets a bond hearing or sits in a cell for the duration of their case.

The first is 8 U.S.C. section 1226(a). It is the default rule for someone who is already living inside the United States. It says ICE may detain that person while removal proceedings are pending, but it allows release on bond if the person is not a danger to the community and not a flight risk. An immigration judge holds a bond hearing. The judge decides. People go home to their families and come back for their hearings.

The second is 8 U.S.C. section 1225(b)(2)(A). It is the rule for people arriving at the border or at a port of entry. It says those people shall be detained while their case is decided. There is no bond hearing. There is no release. The statute uses the words "applicant for admission" and "alien seeking admission."

For nearly thirty years, across five Presidential administrations, the government applied these two statutes the way the words read. Section 1225 was for the border. Section 1226 was for the inside of the country. People living here for years, even those who entered without inspection, got bond hearings under section 1226. That was the practice from 1996, when Congress passed the law, until July 2025.

July 2025: the rule changes overnight

In July 2025, the Department of Homeland Security and the Department of Justice issued an interim guidance memo. The memo announced a new legal position. It said that section 1225(b)(2)(A) applies not only to people at the border, but to every non-citizen present in the United States who has not been formally admitted. That is, by the dissent’s own count, roughly two million people, including spouses, parents, and grandparents of U.S. citizens. Many have lived here for decades.

In September 2025, the Board of Immigration Appeals ratified the new policy in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). The BIA held that anyone who entered the United States without inspection is subject to mandatory detention under section 1225(b)(2)(A), no matter how long they have been here. Bond hearings stopped.

At the same time, ICE began a parallel strategy at the immigration courts themselves. ICE trial attorneys started moving to dismiss pending cases at scheduled hearings, often without notice, so that ICE officers waiting in the hallway could arrest the respondent on the spot, place them into expedited removal, and ship them out of the courthouse. We wrote about that practice in a separate post on in-court detentions. The mandatory detention rule and the dismiss-and-detain practice are two halves of the same machine. The first decides what happens after the arrest. The second decides where the arrest happens.

The tsunami of habeas filings

When the rule changed, people started filing federal habeas corpus petitions. By the dissent’s count in February 2026, more than eleven thousand petitions had already been filed nationwide. By the time the Second Circuit decided Cunha v. Freden in April 2026, more than three hundred and seventy district court judges across the country had ruled in favor of the detained person. Roughly nine out of every ten federal judges who reached the merits told the government no. Even judges appointed by President Trump ruled against the new policy. It is one of the most lopsided lower-court records of the modern era.

The cases that mattered most for our client base are the four below.

Texas, October 2025: two district judges grant habeas

On October 7, 2025, Senior United States District Judge Lee H. Rosenthal granted the habeas petition of Victor Buenrostro-Mendez in Buenrostro-Mendez v. Bondi, No. H-25-3726 (S.D. Tex. Oct. 7, 2025). The Houston Division opinion held that section 1226(a), not section 1225(b)(2)(A), applied to Mr. Buenrostro-Mendez, that the immigration judge had wrongly told him she had no jurisdiction to set bond, and that the government had to either give him a bond hearing within fourteen days or release him.

The next day, October 8, 2025, United States District Judge John A. Kazen granted the habeas petition of Jose Padron Covarrubias in Padron Covarrubias v. Vergara, No. 5:25-CV-112 (S.D. Tex. Oct. 8, 2025). The Laredo Division opinion went further on the statutory analysis. Judge Kazen explained that the phrase "seeking admission" in section 1225(b)(2)(A) is in the present tense, and that it does not describe someone like Mr. Padron Covarrubias, who had been working in construction in Tallahassee, Florida for more than twenty years when ICE raided his job site. He was not actively seeking to enter the country. He was already here.

Both judges read the law the same way the government had read it for the previous twenty-nine years. Both ordered relief.

Fifth Circuit, February 6, 2026: the reversal

The government appealed and asked for unprecedented expedition. The Fifth Circuit granted that request. On February 6, 2026, in a consolidated opinion, the Fifth Circuit reversed both district courts. The case is Buenrostro-Mendez v. Bondi, Nos. 25-20496, 25-40701, slip op. (5th Cir. Feb. 6, 2026). Judge Edith H. Jones wrote the majority opinion, joined by Judge Stuart Kyle Duncan. Judge Dana M. Douglas dissented.

The majority held that an "applicant for admission" under section 1225(a)(1) is by operation of law also "seeking admission" under section 1225(b)(2)(A), regardless of how long the person has been in the country and regardless of whether they are taking any present action toward lawful entry. The court drew an analogy to a college applicant whose application is pending. On that reading, every person who entered without inspection, no matter when, is subject to mandatory detention without bond.

Judge Douglas dissented sharply. She wrote that the government’s reading would mean "for purposes of immigration detention, the border is now everywhere." She catalogued the tools of statutory interpretation that, in her view, all pointed the other way. She noted that the Congress that passed the law in 1996 would be surprised to learn that it had silently required the detention without bond of two million people. She noted that the Supreme Court had already described section 1225 as covering people "seeking admission" and section 1226 as covering people "already in the country." She accused the majority of "straining at a gnat" and "swallow[ing] a camel."

On April 9, 2026, the Fifth Circuit denied rehearing en banc. No active judge requested a poll. The cert window to the Supreme Court is now open.

Eighth Circuit, March 2026: a second adverse ruling

On March 25, 2026, a divided Eighth Circuit panel followed the Fifth in Avila v. Bondi (8th Cir. 2026). The majority adopted essentially the same statutory analysis as Buenrostro-Mendez. Judge Erickson dissented. Like the Fifth Circuit ruling, Avila ratifies mandatory detention without bond for people who entered without inspection and are anywhere within the geographic boundaries of the Eighth Circuit, which include Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Second Circuit, April 28, 2026: the answer back

On April 28, 2026, the Second Circuit answered. In Cunha v. Freden, No. 25-3141-pr (2d Cir. Apr. 28, 2026), Judge Joseph F. Bianco wrote for a unanimous panel that included Judge Alison J. Nathan and Judge Jose A. Cabranes, who concurred separately. The court affirmed the district court’s grant of habeas to Mr. Barbosa da Cunha and held that section 1226(a), not section 1225(b)(2)(A), governs the detention of people present in the United States who are not at the border.

The opinion is sixty-one pages of textual, structural, historical, and constitutional analysis. It is, frankly, the most thorough rejection of the government’s position any appellate court has issued. A few of its central points:

• The phrase "seeking admission" is in the present tense and means presently requesting lawful entry into the country. It does not describe someone who entered without inspection twenty years ago and is now living and working here.
• Reading the two statutes the government’s way would render large portions of section 1226, including the recently passed Laken Riley Act, mostly superfluous. Congress does not pass laws to do nothing.
• The Supreme Court itself, in Jennings v. Rodriguez, 583 U.S. 281 (2018), described section 1225(b) as covering "aliens seeking admission" and section 1226 as covering "aliens already in the country." That is not dicta the lower courts can wave away.
• Five presidential administrations and twenty-nine years of consistent agency practice cut against the idea that Congress in 1996 secretly delegated authority to detain millions of people without bond. Congress does not, as the Supreme Court has put it, "hide elephants in mouseholes."
• Even if the statute were ambiguous, the canon of constitutional avoidance would still require rejecting the government’s reading because mandatory detention without a bond hearing for people with no criminal record and no risk of flight raises serious Fifth Amendment due process problems under Zadvydas v. Davis, 533 U.S. 678 (2001), and this Circuit’s decision in Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020).

The Second Circuit covers New York, Connecticut, and Vermont. For our clients in those three states, Cunha is binding. Federal district courts within the Second Circuit are required to grant habeas in cases like Mr. Barbosa da Cunha’s.

Seventh, First, and Ninth Circuits: more is coming

In December 2025, in Castañon-Nava v. U.S. Department of Homeland Security, the Seventh Circuit issued a stay-motion ruling that found the government’s new section 1225 expansion likely unlawful. That case has now been fully briefed on the merits and a decision is expected. If the Seventh Circuit follows the Second on the merits, the lower court split widens.

In May 2026, the First Circuit heard oral argument in Guerrero Orellana v. Moniz. A decision is pending. Whatever the First Circuit does, it will deepen the split.

In the Ninth Circuit, the same issue is being litigated as a class action. In Maldonado Bautista v. Noem, the Central District of California issued a class-wide declaratory judgment in favor of detainees in November 2025. On March 6, 2026, the Ninth Circuit issued a temporary stay of that judgment pending appeal. The merits panel has not yet ruled. The Ninth Circuit covers California, Arizona, Nevada, Oregon, Washington, Alaska, Hawaii, Idaho, Montana, Guam, and the Northern Mariana Islands. Anyone detained in those jurisdictions is currently in legal limbo.

Where this is going: the Supreme Court

A circuit split this clean, on a question this important, will go to the Supreme Court. The split currently runs at least three to two: the Fifth and Eighth Circuits side with the government; the Second Circuit and (preliminarily) the Seventh side with detainees. The First Circuit and Ninth Circuit decisions, expected within months, will sharpen it further. The Fifth Circuit’s en banc denial in April 2026 cleared the procedural runway for a cert petition. The government has its own incentives to seek cert if any other circuit rules against it.

Until the Supreme Court speaks, the law of detention in the United States is, for many people, a question of geography. That is the second half of this post.

Part Two: Why Venue Could Decide Your Case, and the Bardavid Law Habeas Playbook

ICE controls the bus

A federal habeas corpus petition under 28 U.S.C. section 2241 must be filed in the federal district where the person is being held. The Supreme Court settled this rule in Rumsfeld v. Padilla, 542 U.S. 426 (2004). It is sometimes called the immediate custodian rule. If your loved one is detained at a facility in Buffalo, New York, the petition is filed in the Western District of New York, which sits within the Second Circuit. If they are detained at a facility in Jena, Louisiana, or in Pearsall, Texas, the petition is filed in those federal districts, which sit within the Fifth Circuit.

That makes ICE, in practice, the keeper of the courthouse keys. ICE chooses the facility. ICE chooses when to transfer. ICE does not need a judge’s permission. There is no statute that requires ICE to give the family or the lawyer notice in advance of a transfer. There is no statute that requires the facility to wait. A bus can leave at three in the morning. A flight can leave at six.

When a transfer happens from a Second Circuit facility to a Fifth Circuit facility, the legal universe changes. In the Second Circuit, after Cunha, the detained person is entitled to a bond hearing as a matter of law. In the Fifth Circuit, after Buenrostro-Mendez, that same person is subject to mandatory detention. Same human being. Same statute. Different result, because the bus crossed a circuit line.

This is not theoretical

We have seen it. Other practitioners have reported it. Civil rights organizations are tracking it. Detainees are being moved out of New York, New Jersey, Massachusetts, and California, and into Louisiana, Mississippi, and Texas, sometimes within hours of arrest, sometimes within days of an adverse ruling somewhere else. The pattern is consistent enough that any practitioner who tells you transfer is not a real risk in 2026 is not paying attention.

In the absence of a court order blocking transfer, ICE’s discretion is essentially unreviewable in the moment. By the time a habeas petition is filed in, say, the Southern District of New York, if the petitioner has already been moved to Louisiana, the Southern District of New York may no longer have jurisdiction. The lawyer has to start over in the Western District of Louisiana, where the law is now Buenrostro-Mendez.

That is the race we are talking about. It is a real race. It can be won. It cannot be won by reacting. It can only be won by preparing.

Detention insurance: the life insurance analogy

Think about why people buy life insurance. Not because they expect to die tomorrow. They buy it because the cost of being wrong, of leaving a family unprotected, is unacceptable. They buy it while they are healthy, because that is the only time it is available at a price that makes sense and on terms that actually pay out.

A pre-prepared habeas petition is detention insurance. It is something you do while your loved one is still home. While they are still going to work. While they are still sleeping in their own bed. We sit down with the family. We gather the documents. We draft the petition. We have it ready, signed, and reviewable on the day it is needed. If the day never comes, the file lives in a drawer and nothing is lost. If the day does come, the petition can be filed within hours of the arrest. Not days. Not weeks. Hours.

That is the difference between a habeas petition and a habeas filing. Anybody can file a habeas petition once they have a lawyer, an admission, exhibits, a declaration, jurisdiction, and a quiet morning. The question is how fast. The Bardavid Law Playbook is built around a single answer: faster than ICE can move the bus.

The Bardavid Law Habeas Playbook

We use this protocol with two kinds of clients. The first is anyone already detained, where every minute counts. The second, and this is the more important one for purposes of this post, is anyone at meaningful risk of being detained: a person with prior removal orders, a person who has been targeted on social media or in the press, a person with a master calendar hearing approaching, a person who has been seen by ICE at a check-in, a person who lives or works in a community ICE has been raiding, a person whose employer is in the construction or service industries that have been raid targets, a person whose name appears in any database the new administration is scraping. If you do not know whether you are in that group, assume you are.

Here is what we do. The numbered steps are simplified. The actual file we build is more detailed.

Step 1: Identify the risk profile

We sit down with the client and we ask the questions that matter. When did you enter the country, and how. Do you have a final order of removal from years ago. Have you ever been to immigration court before. Have you ever been arrested. Do you have any pending applications with USCIS. Do you have a check-in at ICE. Where are your hearings being held. Who is your immigration judge. What is your home address, and is it the same as the address ICE has on file. We score the risk. We tell the truth about it.

Step 2: Pre-draft the habeas petition

Before anything happens, we draft the petition. The factual narrative is built from the client’s declaration, prepared while they are calm, sober, and free, not when they are frightened and on speakerphone from a detention facility. The legal argument is built around Cunha for clients in the Second Circuit, around the most favorable available authority for clients in other circuits, and around due process and Zadvydas in every circuit. The petition is reviewed, edited, and saved. The exhibits are organized. The declaration is signed.

Step 3: Stage the exhibits and identification

We collect originals or certified copies of the documents that show the client’s ties to the United States and to this jurisdiction in particular. Tax returns. Lease or deed. Children’s birth certificates. Marriage certificate. School records. Employment letter. Pastor’s letter. Country conditions evidence if asylum is in play. Medical records. We make a digital copy and a physical copy. We put the physical copies in a labeled folder kept in a safe place that the family can access without the client.

Step 4: Build the family contact tree

The client signs a Form G-28 in our office that authorizes Bardavid Law to represent them in any future immigration proceeding. The client signs a power of attorney for the spouse or trusted family member. The client gives us a list of three emergency contacts with phone numbers and email addresses. Each contact has a sealed envelope with simple, plain-language instructions. Step one: call us. Step two: do not let ICE in without a judicial warrant. Step three: do not sign anything. Step four: write down everything.

Step 5: The "if I do not text you by" protocol

On any day the client is going to a federal building, a courthouse, an ICE check-in, or a USCIS interview, the client agrees to text a designated family member at a designated time on the way out of the building. If that text does not come, the family member calls us immediately. We do not wait until the end of the business day. We do not wait for confirmation from ICE. We start moving when the text does not arrive. By the time ICE has finished their paperwork, our petition is on its way to a federal clerk.

Step 6: Use Webex or video appearance where possible

Some immigration judges, in some courts, will allow a represented respondent to appear by Webex. Where that is available and appropriate, we will request it, because it eliminates the courthouse arrest risk entirely. Many judges will not allow it. Where the answer is no, we go to court and we use Step 5. Either way, we are ready for both outcomes.

Step 7: If detained, file in the district of confinement immediately

The petition we drafted in Step 2 is now updated, signed, and filed in the federal district where the client is being held. We attach the declaration. We attach the exhibits. We file a motion for a temporary restraining order against transfer at the same time, asking the court to order ICE not to move the client outside the district while the habeas is pending. The TRO is the second-most important document in the file, after the petition itself, because it is the document that keeps ICE’s bus from leaving the parking lot. Federal judges in the Second Circuit have granted these orders in hours.

Step 8: Run the clock

Federal habeas can move within hours. We have filed petitions, gotten orders to show cause, and obtained temporary restraining orders against transfer in less than twenty-four hours. The reason that is possible is not that the lawyer is heroic. The reason is that the lawyer is not starting from scratch. The petition was already written. The exhibits were already organized. The judge’s assigned chambers email is already in our address book. Speed is preparation revealed.

What about clients already in the Fifth or Eighth Circuit

We do not pretend the law is what we wish it were. Buenrostro-Mendez is binding in the Fifth Circuit and Avila is binding in the Eighth. For clients already detained in those jurisdictions, the strategy shifts. We continue to file petitions, because the dissent in Buenrostro-Mendez is now a roadmap for the Supreme Court, and the constitutional arguments under Zadvydas remain alive even where the statutory ones are foreclosed. We pursue parole. We pursue prosecutorial discretion where it remains available. We file motions to terminate proceedings where the underlying charging document is defective. We seek release on humanitarian grounds. We do not give up because the Fifth Circuit told the government yes. We treat the Fifth Circuit as a temporary problem, because that is what circuit splits, in time, become.

And for clients in the Fifth or Eighth Circuit who are not yet detained, the same Playbook applies, with even more urgency. Prepare the habeas before the day. Prepare the constitutional argument before the day. Be ready to seek a transfer to a more favorable jurisdiction if and when one becomes lawful, and ready to fight to stay where you are when that is the better option. The Playbook is not geographically defensive. It is geographically aware.

You should not have to think about this

You should not have to learn the difference between section 1225 and section 1226. You should not have to memorize circuit boundaries. You should not have to lie awake at three in the morning wondering whether tonight is the night the bus leaves. You have already been carrying enough.

We do this so you do not have to. We have been practicing federal habeas and federal appeals for twenty years. We have a Playbook because we have run it under pressure, more than once, on more than one client, and we have seen what works. Whether you are detained right now and reading this from a phone you borrowed, or whether you are home and quietly afraid that one day you might not be, the conversation is the same conversation, and the file we build is the same file. The only difference is how much time we have.

If you or someone in your family is detained, or you think detention is a real possibility, contact Bardavid Law. The first conversation is to figure out the risk and the plan. We do not need a crisis to start. We prefer to start before there is one.