Preserving Equitable Discretion After Vacatur: Why Habeas Remands Must Explicitly Require Pre-July 8, 2025 Bond Standards for Entry-Without-Inspection Noncitizens
Abstract
The Department of Homeland Security’s July 8, 2025 Interim Guidance reclassified interior entry-without-inspection noncitizens as “applicants for admission” subject to mandatory detention under 8 U.S.C. § 1225(b)(2). Federal courts repudiated the policy in more than 700 cases and vacated it nationwide in Lazaro Maldonado Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM (C.D. Cal. Nov. 25, 2025). Restoration of § 1226(a) bond hearings, however, is only half the victory. Without explicit remand orders requiring Immigration Judges to apply the discretionary standards that existed before July 8, 2025, the Department will argue that entry without inspection itself demonstrates flight risk or danger. That argument would nullify the hearings that courts have just ordered. This Article draws on the non-retroactivity principle announced in INS v. St. Cyr, 533 U.S. 289 (2001) and reinforced in Judulang v. Holder, 565 U.S. 42 (2011) to demonstrate that habeas courts must direct Immigration Judges to use only pre-policy standards. The Rhode Island District Court’s grant of immediate release in De Macedo Mendes v. Hyde, No. 25-cv-627-JJM-AEM (D.R.I. Dec. 5, 2025) illustrates the substantive result that pre-policy standards produce, but its silence on the point proves that practitioners cannot rely on inference. Explicit orders are the only reliable safeguard.
I. The July 8, 2025 Policy and Its Judicial Repudiation
On July 8, 2025 the Department of Homeland Security announced that all noncitizens arrested interiorly after entry without inspection would be treated as applicants for admission under 8 U.S.C. § 1225(b)(2).1 The Board of Immigration Appeals codified the shift in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025).2 Bond hearings disappeared overnight.
Federal courts struck the policy down with extraordinary speed and unanimity. By December 5, 2025 at least 225 district judges had rejected it in more than 700 cases.3 The decisive blow came in Lazaro Maldonado Bautista v. Santacruz. On November 20, 2025 Judge Sunshine S. Sykes granted partial summary judgment and vacated the policy as contrary to the Immigration and Nationality Act, the Administrative Procedure Act, and the Fifth Amendment.4 Five days later she certified a nationwide Bond Eligible Class and extended declaratory relief class-wide.5 Class members are now entitled to bond hearings under 8 U.S.C. § 1226(a).
II. The Retroactivity Trap: Lessons from § 212(c)
The § 212(c) saga supplies the controlling framework. When Congress repealed former INA § 212(c) in 1996, the Executive argued that the new statute justified harsher discretionary standards for any remaining relief. The Supreme Court rejected that position.
INS v. St. Cyr, 533 U.S. 289 (2001) held that non-retroactivity requires preservation of both eligibility and pre-repeal discretionary standards for those who acted in reliance on the old law.6 Judulang v. Holder, 565 U.S. 42 (2011) invalidated the Board’s post-repeal “comparable-grounds” rule because it narrowed the equitable discretion that had existed under § 212(c).7 The Sixth Circuit in Attia v. Gonzales, 553 F.3d 509, 514-15 (6th Cir. 2009) and the Seventh Circuit in Restrepo v. Ashcroft, 365 F.3d 615, 620-21 (7th Cir. 2004) required relief to be granted “as liberally” as before the statutory change.8The Board itself acknowledged the principle in Matter of C-V-T-, 22 I&N Dec. 7, 16 (BIA 1998) and Matter of K-F-C-, 26 I&N Dec. 661, 664-65 (BIA 2015).9
The parallel is precise. The July 8 Guidance and Yajure Hurtado effectively repealed § 1226(a) bond hearings for EWI noncitizens by creating a presumption that entry without inspection demonstrates flight risk or danger. Bautista vacated that repeal and restored the hearings. Restoration of the hearing necessarily restores the pre-policy discretionary standards. Immigration Judges may not retroactively treat entry without inspection as presumptive evidence of risk. They must weigh the traditional factors (length of residence, family ties, employment history, rehabilitation) exactly as they did before July 8, 2025.
III. The Rhode Island Decision and the Danger of Implicit Assumptions
De Macedo Mendes v. Hyde, No. 25-cv-627-JJM-AEM (D.R.I. Dec. 5, 2025) is the clearest illustration of what pre-policy standards produce in practice.10 The court found the petitioner eligible for a § 1226(a) bond hearing. The Government offered no evidence of flight risk or danger to the community. The court ordered immediate release. Notably, the decision never cited entry without inspection as a factor bearing on risk. The court treated EWI entrants as categorically eligible for bond and placed the burden on the Government to prove danger or flight risk. That is exactly the analysis Immigration Judges applied nationwide before July 8, 2025.
The Rhode Island court did not, however, expressly state that it was applying pre-July 8 standards. Practitioners cannot safely assume that every habeas judge or Immigration Judge will make the same inference. The Department of Homeland Security will argue in every remanded case that entry without inspection remains powerful evidence of flight risk. Immigration Judges who wish to deny bond will have a ready-made justification. The hearing will exist on paper but will be meaningless in practice.
IV. Crafting the Remedy: Explicit Remand Orders Are Required
Habeas courts possess broad authority under 28 U.S.C. § 2243 to “dispose of the matter as law and justice require.”11 That authority includes the power to direct the precise standards that must govern any remanded bond hearing. Practitioners must request, and courts must grant, remand orders that contain the following or equivalent language:
Upon granting the writ, Respondents are ordered to produce Petitioner for an individualized bond hearing under 8 U.S.C. § 1226(a) within fourteen (14) days. The Immigration Judge shall apply only the discretionary standards in effect prior to the Department of Homeland Security’s July 8, 2025 Interim Guidance. The Immigration Judge may not presume flight risk or danger to the community from the fact of entry without inspection alone. The traditional factors (length of residence in the United States, family and community ties, employment and education history, criminal record or lack thereof, and conditions of release) shall be weighed exactly as they were before July 8, 2025. Any deviation violates the non-retroactivity principle of INS v. St. Cyr, 533 U.S. 289 (2001) and Judulang v. Holder, 565 U.S. 42 (2011).
Such orders transform vacatur into liberty. They prevent the Executive from achieving through discretionary denials what it lost through statutory and APA defeat.
Conclusion
The July 8, 2025 policy is dead. More than 225 federal judges have buried it. The Bautista class certification has restored bond hearings nationwide. But restoration is not enough. Without explicit habeas orders requiring pre-policy discretionary standards, the Department will resurrect the policy in every bond courtroom. The Rhode Island release order shows what genuine § 1226(a) hearings look like when entry without inspection is not treated as evidence of risk. Practitioners must demand, and courts must impose, the same result everywhere. Only then will vacatur mean a real chance at release from detention.
1 Dep’t of Homeland Sec., Interim Guidance Regarding Detention Authority for Applicants for Admission (July 8, 2025).
2 Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025).
3 Kyle Cheney, More Than 220 Judges Have Now Rejected the Trump Admin’s Mass Detention Policy, Politico (Nov. 28, 2025).
4 Lazaro Maldonado Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM (C.D. Cal. Nov. 20, 2025) (Dkt. 81).
5 Id. (Nov. 25, 2025) (Dkt. 82).
6 INS v. St. Cyr, 533 U.S. 289, 326 (2001).
7 Judulang v. Holder, 565 U.S. 42, 60-64 (2011).
8 Attia v. Gonzales, 553 F.3d 509, 514-15 (6th Cir. 2009); Restrepo v. Ashcroft, 365 F.3d 615, 620-21 (7th Cir. 2004).
9 Matter of C-V-T-, 22 I&N Dec. 7, 16 (BIA 1998); Matter of K-F-C-, 26 I&N Dec. 661, 664-65 (BIA 2015).
10 De Macedo Mendes v. Hyde, No. 25-cv-627-JJM-AEM (D.R.I. Dec. 5, 2025).
11 28 U.S.C. § 2243.
