© Attorney Farhad Sethna, 2025
Reference: BIA decision – Matter of Q Li, 29 I&N Dec. 66 (BIA) 2025)
Since the Board of Immigration Appeals (BIA) issued Matter of Q Li on May 15, 2025, immigration judges across the country are denying bond to almost all aliens in removal (deportation) proceedings who entered the USA without inspection and legal admission. Matter of Q Li does not apply to aliens who were inspected at a Port of Entry and legally admitted, on some other visa status or exemption from such status (example – Canadian citizens). Those aliens continue to be eligible for release on ICE custody on bond, unless of course, they are foreclosed by some other immigration or legal impediment, for example, a criminal conviction or arrest on certain criminal charges.
Briefly, in Matter of Q Li, the Board of Immigration Appeals held that an alien, who is arrested and detained without a warrant, while arriving at the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is deemed to be detained under section 235 (b) of the Immigration and Nationality Act (INA), and is therefore ineligible for any subsequent release on bond under section 236 (a) of the INA.
Matter of Q Li goes on to extend the bar on release on bond to anyone who was allowed into the USA under a grant of parole, if that parole was subsequently terminated. This returns such alien back into the status he or she held before parole was granted, and if the alien is therefore an arriving alien, section 235(b) will apply, and hence, the alien is also not eligible for release on bond.
In Q Li, the respondent argued that she was not detained under section 235(b) of the INA, but instead was detained under section 236(a) of the INA, which allows for release on bond.
“Bad Facts Make Bad Law”
However, it is an aphorism in the law that “bad facts make bad law.“. So it is with Q Li. Q Li entered the United States, and was arrested promptly on entry, (the decision states: ‘A Department of Homeland Security (“DHS”) officer encountered her approximately 5.4 miles away from a designated port of entry and 100 yards north of the border.) She was held by US Customs and Border Protection (CBP) and subsequently released on parole the next day.
While Q Li was on parole, she reported regularly to ICE. In October 2024, Interpol sent DHS a “red notice” that Q Li was wanted in Spain for travel document forgery and human smuggling. Hence, when Q Li reported to her next DHS check-in at an ICE office, DHS officers took her into custody and issued her a notice to appear for removal proceedings, and a notice of custody determination.
Q Li requested a custody re-determination. (i.e., a bond) from an immigration judge. The immigration judge denied bond, and hence Q Li appealed. This decision arises as a consequence of Q Li‘s appeal to the BIA.
The BIA’s holding in Q Li:
The BIA held that any alien who is a “applicant for admission” is not eligible for release on bond once placed in removal proceedings.
The Board also held at any applicant who entered the country, was detained by ICE, and was subsequently released on parole is also subject to mandatory detention if that parole status is revoked, because the alien, then reverts back to the original status he or she held before parole was granted, i.e., an applicant for admission who has entered without inspection.
The Board also cited two US Supreme Court cases in support of this proposition. Citing DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020) , the Supreme Court held that INA 235 (a) applies to any alien who tries to enter the country illegally. [(an alien “who tries to enter the country illegally is treated as an ‘applicant for admission.’”]
The Board further quoted from Zadvydas v. Davis, 533 U.S. 678, 693 (2001), [“an alien who is detained shortly after unlawful entry cannot be said to have ‘effected an entry,’”]. Thus, per the Board’s interpretation, suc an alien is in the same position as an alien seeking admission at a port of entry.
The Board also admitted that in other contexts, the term “arriving” applied to aliens who are apprehended just inside the southern border, and not at a port of entry, on the same day that the alien crossed into the United States. [“Similarly, we have held, in other contexts, that the term “arriving” applies to aliens, like the respondent, “who [are] apprehended” just inside “the southern border, and not at a point of entry, on the same day [they] crossed into the United States.” Matter of M-D-C-V-, 28 I&N Dec. 18, 23 (BIA 2020).”]
Finally, in what appears to be the clincher, the Board holds that “….we hold that an applicant for admission who is arrested and detained without a warrant while arriving in the United States, whether or not at a port of entry, and subsequently placed in removal proceedings is detained under section 235(b) of the INA, 8 U.S.C. § 1225(b), and is ineligible for any subsequent release on bond under section 236(a) of the INA….” (Emphasis added.)
All of the forgoing distinguishes the case of Q Li from that of other aliens who don’t find themselves in the same circumstances.
To explain: Q Li applies only to aliens with the following particular immigration characteristics:
- Unauthorized or undocumented entry into the United States.
- Entering either at a port or entry, or between ports of entry (for the latter, that means, illegal or unlawful entry)
- Lacking valid documentation to enter the United States (that means, without a valid US visa or visa waiver eligible)
- Apprehended either upon entry into the United States, or very shortly thereafter, within the same day, and within proximity to the border.
- Detained by USCBP and paroled Into the United States.
Thus, if an alien does not meet all the above criteria as can be determined from a careful reading of Matter of Q Li, that alien is not subject to mandatory detention under section 235(b) of the INA. The board itself has noted, as quoted above, that an applicant for admission who is arrested and detained without a warrant while arriving in the United State is not eligible for any subsequent release on bond. The key word in the Board’s determination is “while”…that word connotes a commonly held meaning, “in the act of”.
The Supreme Court clearly limited the class of “applicants for admission” as follows:
1. Anyone who tries to enter the country illegally. Thuraissigiam, 591 U.S. 103, 140
(2020) ; and
- Any alien who was detained shortly after unlawful entry. Zadvydas v. Davis, 533 U.S. 678, 693 (2001)
Thus, by the Supreme Court’s own definition, aliens who are not in the actual act of trying to enter the United States illegally are not applicants for admission. (Must meet both requirements, in the actual act and illegal entry).
Likewise, aliens who are not detained shortly after unlawful entry are again not aliens seeking admission. (Must meet both requirements, detained shortly and unlawful entry)
Therefore, Matter of Q Li is valid only insofar as it restricts release on bond for a certain class of aliens, those who entered illegally, were detained at the border, and subsequently paroled into the United States. Other aliens who are not similar situated, may still be eligible for bond.
Aliens who have entered the United States without any detection, and have lived and worked here for years, and are now detected and detained by ICE, and placed in removal proceedings thus remain eligible for bond.
Therefore, distinguishing Q Li from any number of cases in which aliens have been recently detained by ICE, and immigration courts have denied their requests for release on bond, the following pattern emerges:
Aliens who entered the United States
1. Illegally without any kind of inspection,
2. Were never apprehended the border,
3. Have traveled into the interior of the United States, and
4. Have been in the United States for at least two years or more (based on the expanded definition of expedited removal)
are NOT “applicants for admission” and consequently, are eligible for release on bond.
The BIA’s recent decision in Yagure Hurtado does not change this analysis
Hard on the heels of drafting this article regarding Q Li, the BIA issued a new decision in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) on September 5, 2025, on the same topic of alien eligibility for bond.
In Yajure Hurtado, the Board decided that under a plain language reading of INA section 235 (b)(2)(A), immigration judges lack any authority whatsoever to hear bond requests or to grant bond to aliens who are present in the United States without admission.
The lynchpin of this decision rests on whether or not an alien is an “applicant for admission”.
As I discussed in analyzing Matter of Q Li, above, the Supreme Court has held that someone who is in the act of actually trying to enter the United States is treated as an applicant for admission. Likewise, the Supreme Court held that an alien who is detained shortly after unlawful entry cannot be set to have affected an entry, and is therefore also an applicant for admission. The “applicant for admission” standard is thus defined by what it clearly seems to be – the specific action of the alien trying to enter the USA. The Supreme Court has clearly truncated that event to be either at the time of entry, or shortly thereafter. It does not apply to an alien who is arrested and detained years and years after entry, nor does it apply to someone who has already been granted TPS or some other valid form of temporary status in the United States, whether or not that status is revoked by the DHS.
In Yajure Hurtado, the respondent is a citizen of Venezuela. He received a grant of TPS from the US government, and that status expired on April 2, 2025. He was promptly arrested by DHS, in its quest to deport as many aliens as possible from the United States, the law notwithstanding.
Hence, while Yajure Hurtado purports to close off a potential loophole that Q Li had left open, as explained above, that legal avenue still exists, thanks to the two Supreme Court decisions which the BIA cited in its ruling and as discussed above.
Indeed, it’s worth noting that the ruling in Yajure Hurtado was issued by a panel of three BIA judges which is completely different from the panel which ruled in earlier in Q Li.
I am sure that this will NOT be the last word on whether or not IJ’s have the authority to hear bond requests. Stay tuned……..
© Farhad Sethna, Attorney, 2025
Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.