BIA Ruling Puts Thousands of Nepalis in the U.S. at Risk of Mandatory Detention

In a decision expected to have far-reaching implications for the nation’s immigration system, the U.S. Department of Justice’s Board of Immigration Appeals (BIA) has determined that immigration judges lack the authority to grant bond to migrants who entered the country without inspection. This ruling overturns a previous policy that 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.

During the four years of the previous Trump administration, a total of 1,850 Nepalis entered the country without a visa. Department of Homeland Security (DHS) data shows that approximately 9,000 Nepalis have entered during the Biden administration. Fiscal year 2024 recorded the highest number, with 3,690 Nepalis entering without a visa, followed by 3,140 in fiscal year 2023.

From 2014 to 2022, only 5,190 Nepalis were encountered by Customs and Border Protection (CBP) while attempting to enter without a visa. However, in the 24 months starting in October 2022, that number was 6,830.

The number of unlawful entries for Nepalis over recent years is as follows: fiscal year 2025 recorded 740 entries in October and November. Fiscal year 2024 had the highest number, with 3,690, followed by 3,140 in fiscal year 2023.

In earlier years, the numbers were 1,490 in fiscal year 2022 and 420 in fiscal year 2021. During the previous Trump administration, from 2017 to 2020, the numbers were 650, 720, 340, and 140, respectively. Prior to that, fiscal years 2014, 2015, and 2016 saw 470, 410, and 550 entries, respectively.

New York-based immigration attorney Ramesh Shrestha called the BIA decision in Matter of Jonathan Javier Yajure Hurtado (BIA September 5, 2025) “the last nail in the coffin on the issue of whether an immigration judge has the authority under the INA to hear a request for a bond.” He explained that while restrictions on a judge’s authority began with the 2019 AG decision in Matter of M-S-, this new ruling “strips Immigration Judges of their entire authority to hear a bond hearing” regardless of how long the respondent has been in the U.S.

According to Shrestha, anyone who entered the U.S. without inspection is considered an “applicant for admission” and is therefore “subject to mandatory detention throughout removal proceedings under INA section 235.” He emphasized that this applies regardless of the length of their presence in the country.

Shrestha highlighted that the BIA’s new decision “carefully nullifies its own decision” in Matter of Akhmedov, which had previously held that immigration judges did have the authority to hear bond requests for detained respondents. With the BIA’s decision, the “only authority to release a detained respondent pending removal proceedings… solely rests with DHS.” He said this point by stating that in light of the suspension of DHS’s “catch and release” policy, “getting released on parole by DHS is almost nonexistent.”