Dana M. Douglas, Circuit Judge, dissenting: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was passed in part out of a desire to equalize the treatment of noncitizens presenting at ports of entry for inspection and those apprehended in the interior after effecting an unlawful entry. It pursued this aim in several ways, most prominently by deeming both classes of noncitizens “applicants for admission” subject to the same removal procedures and excluding noncitizens detained based on certain criminal offenses from eligibility for bond. The Congress that passed IIRIRA would be surprised to learn it had also required the detention without bond of two million people. For almost thirty years there was no sign anyone thought it had done so, and nothing in the congressional record or the history of the statute’s enforcement suggests that it did. Nonetheless, the government today asserts the authority and mandate to detain millions of noncitizens in the interior, some of them present here for decades, on the same terms as if they were apprehended at the border.1 No matter that this newly discovered mandate arrives without historical precedent, and in the teeth of one of the core distinctions of immigration law. The overwhelming majority of courts in this circuit and
elsewhere have recognized that the government’s position is totally unsupported. Undeterred, the majority and the government distort the statutory text, abstract it from its context and history, ignore the Supreme Court’s clearly stated understanding of the statutory scheme, and wave away the agency’s previous failure to detain millions of noncitizens as if it were a rounding error. And for what? The majority stakes the largest detention initiative in American history on the possibility that “seeking admission” is like being an “applicant for admission,” in a statute that has never been applied in this way, based on little more than an apparent conviction that Congress must have wanted these noncitizens detained—some of them the spouses, mothers, fathers, and grandparents of American citizens. Straining at a gnat, the majority swallows a camel. I dissent.
1 Despite the long period of undisturbed interpretation of the statutory provisions at issue here, the government has insisted that we take up this issue with unprecedented urgency, in a manner that does not reflect the gravity of the outcome Petitioners face. After our court granted the government’s request to expedite this case, the government requested that we further expedite our disposition of the case by issuing an order resolving the appeal with a notation that the opinion would follow. This request appears to be virtually unprecedented in this circuit. Notably, as of February 5, 2026, the government has not made a similar request in its case pending before the Seventh Circuit, the only other circuit that thus far has heard the government’s argument on this statutory issue. See Castañon-Nava v. U.S. Dep’t of Homeland Sec., No. 1:18-cv-03757 (7th Cir.), docket.
Judge Dana Douglas's dissent sets up the unusual circumstances of this appeal, the stakes of this case, and the error of the majority very well from the start.
"Straining at a gnat, the majority swallows a camel."
