09/03/2026
DOES SOMEONE WHO ENTERED WITHOUT INSPECTION STILL NEED HABEAS JUST TO ASK FOR BOND?
In light of the Third Circuit’s August 2026 decision in Buele Morocho v. Warden, the bond map needs updating.
The Third Circuit was the eighth federal circuit to hold that certain immigrants have a direct right to request a bond hearing before an Immigration Judge, without first needing a federal habeas court order.
This generally concerns people who entered without inspection, were not apprehended while attempting to enter at the border, later lived inside the United States, and were eventually arrested in the interior by Immigration authorities. These circuits hold that INA 236(a) governs and that an Immigration Judge has authority to consider bond:
NO HABEAS REQUIRED:
• First Circuit: Guerrero Orellana v. Moniz
• Second Circuit: Barbosa da Cunha v. Freden
• Third Circuit: Buele Morocho v. Warden
• Sixth Circuit: Lopez-Campos v. Raycraft
• Seventh Circuit: Cirrus Rojas v. Olson
• Ninth Circuit: Rodriguez Vazquez v. Bostock
• Tenth Circuit: Santillan Quiroz v. Mullin
• Eleventh Circuit: Hernandez Alvarez v. Warden
HABEAS REQUIRED:
• Fifth Circuit: Buenrostro-Mendez v. Bondi
• Eighth Circuit: Avila v. Bondi
NO CONTROLLING DECISION:
• Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia
• D.C. Circuit
**Virginia Judges are very favorable granting habeas**
THE SMALL PRINT:
This does not necessarily apply to arriving aliens, people placed in expedited removal, detention under §236(c), Laken Riley Act detention, reinstatement proceedings, withholding-only proceedings, or detention after a final removal order.
The Immigration Court’s venue also matters. Bond proceedings are separate from removal proceedings. The NTA filing generally establishes venue and controlling circuit law for the removal case, unless an Immigration Judge grants a change of venue. A detained person’s bond request, however, generally goes to the Immigration Court responsible for the place of detention. Counsel should confirm both after any ICE transfer
Finally, bond eligibility is not a guarantee of release. And even in a favorable circuit, habeas may still be necessary if the agency refuses to follow controlling law or if a different statutory or constitutional detention issue exists.
The Third Circuit decision is precedential now, but the government may seek rehearing or Supreme Court review. Other cases are already before the Supreme Court.
This area of law is changing rapidly. Verify the controlling authority before filing or appearing. This posting should not be relied upon as legal advice or replace and individualized legal analysis by a qualified lawyer.
Current as of September 3, 2026.
