Your husband passed his credible fear interview six weeks ago and ICE still has him. You were told that passing meant his asylum case would be heard — and it does. Nobody told you it also meant he would be held the entire time with no right to ask a judge for bond. On September 21, 2026, the Ninth Circuit issued a decision that finally lets that question be litigated. It did not order anyone released.
I want to be precise about what happened, because the difference between “the court opened the door” and “the court ordered bond hearings” is the difference between hope and a false expectation, and I am not going to sell you the second one.
What the Ninth Circuit actually decided
The case is Padilla v. U.S. Immigration and Customs Enforcement, No. 24-2801 (9th Cir. Sept. 21, 2026), published, opinion by Judge Berzon, with Judge Friedland concurring in part. It comes out of the Western District of Washington, No. 2:18-cv-00928-MJP, and it has been running for eight years.
The plaintiffs are a certified class: people who entered the United States without being admitted or paroled, were screened for expedited removal, passed a credible fear interview, and were then placed in regular removal proceedings under INA § 240 to have their asylum claims heard. (DHS has separately changed how some affirmative asylum cases get to court at all — see asylum referrals without an interview.) Because they were initially screened for expedited removal, their detention is governed by 8 U.S.C. § 1225(b)(1)(B)(ii), which says that after a positive credible fear finding the person “shall be detained for further consideration of the application for asylum.”
In Jennings v. Rodriguez, 583 U.S. 281, 297–99 (2018), the Supreme Court read that sentence to mean exactly what the government says it means: mandatory detention, with no bond hearing and no comparable individualized procedure at which the government has to justify keeping the person locked up. The class argued that detention with no individualized hearing violates the Fifth Amendment’s Due Process Clause.
The government moved to dismiss on two grounds — no jurisdiction under 8 U.S.C. § 1252(a)(2)(A), and the claim is foreclosed by Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020). Judge Pechman denied the motion and certified both questions.
The Ninth Circuit affirmed on both. That is the entire holding.
On jurisdiction, the panel walked through all four subsections of § 1252(a)(2)(A) and found none of them applicable, because the class is not challenging any individual removal determination, any individual detention decision, or the procedures DHS adopted to implement expedited removal. It is challenging the constitutionality of the statute itself. The panel also held that § 1252(e)(3) is an exception to those jurisdictional bars, not a freestanding limit on jurisdiction.
On Thuraissigiam, the government made a very large argument: that after Thuraissigiam, anyone who entered unlawfully has no procedural due process rights beyond whatever the statute gives them. Combine that with the January 2025 expansion of expedited removal and Jennings, and the result the government wanted is that any inadmissible person picked up anywhere in the country within two years of entry, who passes credible fear, must be detained for the entire length of their asylum case with no hearing of any kind.
The panel rejected it. Thuraissigiam rests on the “entry fiction” — the narrow rule that a person seeking admission at a port of entry may be physically let in for an admissibility determination while being treated, legally, as though still stopped at the border. Thuraissigiam extended that fiction a short distance, to a man apprehended twenty-five yards inside the border immediately after crossing. It did not, the panel held, abolish the bedrock principle that people physically present in the United States — lawfully or not — are within the protection of the Due Process Clause. This class is defined to exclude anyone encountered at a port of entry, and it includes people found far from the border long after arrival. Those people have full procedural due process rights.
Judge Berzon added a section reasoning that Thuraissigiam was an admission case, not a detention case, and that the government’s plenary power over who gets admitted is a different thing from its authority to lock someone up. Judge Friedland declined to join that section, on the ground that the narrower rationale already resolved the certified questions. Note that split — it tells you where the fight goes next.
What this does not decide
Footnote 16 of the opinion says it directly: what the due process protections entail is not before the court. The case now returns to Judge Pechman for the merits. There is no order requiring bond hearings, no timetable, and nothing you can hand an ICE officer this week.
If someone tells you the Ninth Circuit just gave credible fear grantees the right to bond, they have not read the opinion.
Why the class is now enormous
Until January 2025, DHS applied the “certain other” expedited removal category only to people apprehended within 100 miles of the border who could not show fourteen days of continuous presence. See 69 Fed. Reg. 48877 (Aug. 11, 2004). That designation was replaced: any inadmissible person apprehended anywhere in the United States who cannot show two years of continuous physical presence is now eligible for expedited removal. 90 Fed. Reg. 8139 (Jan. 24, 2025).
So the people this decision concerns are no longer a border population. They are people arrested in Long Beach, in Santa Ana, at a job site in the Inland Empire, who then pass credible fear and disappear into detention for the length of an asylum case.
The enforcement environment around that has not softened. On September 21, 2026, the same day Padilla issued, DHS published another 180-day extension of its finding of mass influx under INA § 103(a)(10), 91 Fed. Reg. 59795, which keeps in place the request for state and local law enforcement assistance in all fifty states and recites an ICE detention population of 67,022 against a capacity of 80,700.
The mistake that costs people their bond hearing
Here is what I see go wrong, and it is almost always the same thing. People accept the government’s characterization of how they were processed.
Whether you get a bond hearing turns on which statute you are detained under, and that turns on facts. Three of them are worth fighting about:
Were you properly in expedited removal at all? The “certain other” category requires that you cannot show two years of continuous physical presence. If you can show it — a lease, pay records, school enrollment, medical files, a utility account in your name — the “certain other” designation does not reach you, and § 1225(b)(1)(B)(ii) is not your detention statute.
Were you arrested in the interior? Last year this circuit held in Rodriguez Vazquez v. Bostock (9th Cir. July 30, 2026) that people apprehended in the interior are detained under 8 U.S.C. § 1226(a), where a bond hearing is available. That holding is the live route to a bond hearing right now, and it does not depend on Padilla going anywhere. I wrote it up when it came down: Ninth Circuit: interior arrests are § 1226(a) detention and bond hearings are available.
Has anyone asked for parole? Detention under § 1225(b) does not foreclose parole under INA § 212(d)(5) and 8 C.F.R. § 212.5. It is discretionary and it is not a bond hearing, but it is a request that in my experience often simply never gets made.
Understand the counterweight too. The Board held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that immigration judges have no authority to hear bond requests at all for people present without admission, reading 8 U.S.C. § 1225(b)(2)(A). Several circuits are now split over that position. In this circuit, Rodriguez Vazquez controls for interior arrests.
What to do this week
If a family member passed credible fear and is still detained, the useful questions are not about Padilla. They are: what did the Notice to Appear and the I-213 say about where and when he was arrested; how long had he actually been in the United States; is there documentary proof of that; and has a parole request been filed. Get the charging documents. Get the detention records. And if the asylum claim itself turns on conditions in the home country, that record has to be built at the same time — see changed country conditions after a government falls. Those facts, not the new opinion, decide whether there is a bond hearing available to you now.
Detention cases move faster than the people in them can, and the record you build in the first weeks is the record you are stuck with. If your family member is detained, call (562) 495-0554 or book a free consultation at blerner.timetap.com. Consultations on detention and removal matters are free.
This article is general information about United States immigration law and is not legal advice. Reading it does not create an attorney-client relationship. Immigration outcomes depend on the specific facts of each case. Law Offices of Brian D. Lerner, A Professional Corporation, 3233 E. Broadway, Long Beach, CA 90803. Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law, The State Bar of California Board of Legal Specialization.