BIA Rules Illegal Entrants Are Ineligible for Bond
Nearly three decades of erroneous statutory interpretation ends, because DHS finally asked
By Andrew R. Arthur on September 10, 2025
On September 5, the Board of Immigration Appeals (BIA) — the administrative component of DOJ that considers appeals from trial-level immigration court decisions — issued what is likely the most important bond decision in at least two decades, Matter of Yajure Hurtado. In that case, a three-member panel concluded that under the plain language of the Immigration and Nationality Act (INA), immigration judges lack jurisdiction to grant bond to illegal entrants. It’s a point I’ve been making for years, but for now, nearly three decades of bad statutory interpretation has ended, because DHS finally asked.
The Attorney General’s Authority
Congress in section 103 of the INA gave various immigration authorities to executive branch agencies.
Not surprisingly, most of those powers were assigned to the secretary of Homeland Security, who controls not only the two main immigration-enforcement agencies (ICE and CBP), but also the main immigration-benefits adjudications agency (USCIS).
The president retains certain immigration powers, however, and the DHS secretary shares some of her authority over immigration benefits with the secretary of State, as is clear from the first paragraph of section 103, which states in pertinent part:
The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President ... the Secretary of State, the officers of the Department of State, or diplomatic or consular officers.
https://cis.org/Arthur/BIA-Rules-Illegal-Entrants-Are-Ineligible-Bond
