What circuits are following Yajure Hurtado?
Short answer
As of September 16, 2026, the Fifth and Eighth Circuits follow the position adopted in Matter of Yajure Hurtado: a person who entered without inspection and was never lawfully admitted is treated as an “applicant for admission” under 8 U.S.C. § 1225(a)(1), and therefore generally cannot obtain an immigration-judge bond redetermination under 8 U.S.C. § 1226(a).[1]
The Tenth Circuit has rejected that approach, while the supplied authority identifies a developing circuit split.[2]
Circuit-by-circuit practical map
| Circuit position | States principally covered | Bond-redetermination consequence |
|---|---|---|
| Following Hurtado | Fifth Circuit: Texas, Louisiana, Mississippi. Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota. | Generally no immigration-judge bond hearing for a person present without lawful admission; detention is treated as governed by 8 U.S.C. § 1225(b)(2)(A). |
| Not following Hurtado | Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming. | A person who entered without inspection years earlier may argue that detention is governed by 8 U.S.C. § 1226(a), permitting a bond redetermination hearing. |
| Not resolved by the supplied authorities | Other circuits and states | The answer may depend on circuit and district precedent, the person’s manner of entry, and the detention statute DHS invoked. |
The Congressional Research Service specifically reports that the Fifth and Eighth Circuits treat “applicant for admission” and “alien seeking admission” as synonymous, while the Tenth Circuit split with them.[2]
Important qualification
This issue generally concerns a person who:
- entered the United States without inspection or admission;
- was later arrested inside the country; and
- has lived in the United States for some period before being detained.
It does not necessarily apply the same way to an arriving alien, a person apprehended immediately at the border, a person in expedited removal, or a person subject to criminal mandatory detention under 8 U.S.C. § 1226(c). Under 8 U.S.C. § 1225(b)(2)(A), an applicant for admission who is not clearly entitled to admission “shall be detained” for removal proceedings.[5]
The BIA’s decision in Hurtado is binding on immigration judges unless displaced by controlling federal-court authority.[1] The governing regulations otherwise provide procedures for seeking bond redetermination under 8 C.F.R. §§ 1003.19, 1236.1.[3][4]
Accordingly, in the Fifth and Eighth Circuit states, such a person ordinarily cannot obtain an IJ bond hearing under current BIA precedent. In the Tenth Circuit states, the person has a stronger basis to seek habeas relief or a bond redetermination under § 1226(a), although the precise district-court precedent and detention paperwork remain critical.