A recent ruling by the Board of Immigration Appeals (BIA) has determined that individuals who entered the U.S. without inspection are subject to mandatory detention and are ineligible for a bond hearing. However, a New York-based immigration attorney, Bashu Phulara, clarifies that this ruling does not apply to individuals who entered the country legally and have since overstayed their visa.
Phulara explained that those with overstayed visas are considered “admitted” under immigration law and therefore remain eligible for bond hearings to seek release from detention while their cases are pending. “Individuals who entered legally but overstayed their visa are treated differently,” Phulara stated. “They are considered admitted, so immigration judges can grant bond unless other detention bars exist. Overstayed visitors retain access to bond hearings, unlike non-admitted individuals.”
The ruling also has a nuanced impact on Temporary Protected Status (TPS) holders. Phulara explained that those with a valid TPS are considered “lawfully present,” meaning they are still eligible for bond hearings before an immigration judge. “TPS holders enjoy judicial discretion and are not affected by this ruling while their status is valid,” he said.
The situation becomes more complex once TPS expires. Phulara highlighted that a TPS holder’s eligibility for bond after expiration depends on their original method of entry. “Once TPS expires, if there is no other lawful status, the person becomes out of status,” he explained.
If the individual was originally legally admitted before obtaining TPS, they would be treated like an overstayed visitor after their status expires and could still be eligible for bond. “If originally admitted, they are treated as overstayed visitors, and bond may still be granted,” Phulara said. “If never admitted, they may now fall under the ‘applicant for admission’ category, making bond hearings unavailable, with release only possible through DHS parole.”
According to Phulara, this decision provides clarity and uniformity for future cases. He stressed the importance for immigration professionals to adjust their legal strategies accordingly. This means focusing on DHS parole requests for non-admitted individuals and preparing strong bond cases for those who were legally admitted, including overstayed visitors and individuals with expired TPS.
“Legal representatives must guide clients within lawful avenues, including parole requests and bond eligibility for admitted individuals,” Phulara said. “Understanding one’s status—admitted, non-admitted, or TPS—is critical to navigating detention and release options.” He added that awareness of these distinctions is essential to protecting immigrants’ rights and effectively navigating removal proceedings.
On September 5, the U.S. Department of Justice’s Board of Immigration Appeals (BIA) determined that immigration judges lack the authority to grant bond to migrants who entered the country without inspection. This ruling, which overturned a previous policy, had allowed individuals who could prove they had been living in the U.S. for at least two years to request a bond hearing.
The ruling, in the case of Matter of Jonathan Javier Yajure Hurtado, affirms an immigration judge’s prior decision that he lacked jurisdiction to set bond for the respondent, a native and citizen of Venezuela. Hurtado entered the U.S. without inspection in November 2022 and had been granted Temporary Protected Status, which expires in April 2025.
The BIA’s decision is based on a “plain language” reading of Section 235(b)(2)(A) of the Immigration and Nationality Act (INA). According to the ruling, individuals who are present in the U.S. without admission are considered “applicants for admission” and are subject to mandatory detention for the duration of their removal proceedings.
This ruling could significantly impact Nepalis, as thousands who entered the U.S. unlawfully without a visa have pending cases. According to data compiled by the Transactional Records Access Clearinghouse, there are 9,628 pending cases for Nepalis in immigration courts, with 3,544 in New York alone.
Department of Homeland Security (DHS) data shows that approximately 9,000 Nepalis have entered the U.S. during the Biden administration. In fiscal year 2024, there were 3,690 Nepalis who entered without a visa, followed by 3,140 in fiscal year 2023. This is a sharp increase from the 1,850 Nepalis who entered without a visa during the four years of the previous Trump administration.
Customs and Border Protection (CBP) encountered only 5,190 Nepalis attempting to enter without a visa between 2014 and 2022. However, in the 24 months beginning in October 2022, that number rose dramatically to 6,830. The number of unlawful entries for Nepalis has shown a clear upward trend in recent years.
Kishor Panthi
View More PostsKishor Panthi is the founder and editor-in-chief of Khasokhas and NepYork. He is the author of three books, “Kampan,” "UNTRANSLATABLE" and “Zero Mile.” He writes about social issues, immigration, and politics.
