In a decision remarkably coincident with increased enforcement by Immigration and Customs Enforcement (ICE), the Board of Immigration Appeals (BIA) reaffirmed that noncitizens who arrive at the border, whether or not at a port of entry, are processed under INA § 235(b) and are therefore ineligible for bond under INA § 236. It also found that where the Department of Homeland Security (DHS) has paroled such a noncitizen from custody and subsequently terminates that parole, the noncitizen is returned to DHS custody pending their removal proceedings, pursuant to INA § 235(b)(2). Matter of Q. Li, 29 I&N Dec. 66 (BIA 2025).

More remarkable still, the BIA found a month later, ignoring Matter of Q. Li, that a respondent who had been released from DHS custody at the border and later argued that he had been given humanitarian parole under INA § 212(d)(5) had not presented evidence of that humanitarian parole and did not “meaningfully distinguish[]” his release from DHS custody from conditional parole under INA § 236(a)(2)(B). For that reason, the BIA found, he was not eligible for adjustment under the Cuban Adjustment Act (CAA). Matter of Roque-Izada, 29 I&N Dec. 106 (BIA 2025).

Comparison of Facts

Q. Li crossed into the United States without inspection on June 27, 2022. That same day, she was encountered by a DHS official several miles from a port of entry and 100 yards north of the border. Not having any entry documents, Q. Li was arrested without a warrant, taken to a processing center, and released on parole the following day pursuant to INA § 212(d)(5)(A). She was paroled on the condition that she report to DHS regularly. Q. Li was ultimately re-detained, charged with being inadmissible for being present without admission or parole under INA § 212(a)(6)(A)(i), and denied a request for a custody redetermination by the immigration judge. Q. Li appealed.

Roque-Izada’s circumstances of entry appear similar to Q. Li’s: the Notice to Appear (NTA) alleged, and Roque-Izada did not deny, that he initially entered the United States at or near San Luis, Arizona, on April 30, 2022. “At or near” typically indicates an entry without inspection. Roque-Izada was released from detention on May 2, 2022, which he argued in proceedings was pursuant to humanitarian parole under INA § 212(d)(5). The immigration judge disagreed with Roque-Izada that he had been paroled, but granted his motion to terminate in order to seek parole and CAA adjustment with USCIS. DHS appealed.

How Do the Analyses Compare?

Q. Li

The BIA in Q. Li first found that Q. Li met the definition of an “applicant for admission,” such that she was subject to INA § 235(b)(2)(A). “Applicant[s] for admission,” the BIA stated, include, in addition to noncitizens who arrive at a port of entry, those who “tr[y] to enter the country illegally,” and are shortly thereafter detained. That would include those “who [are] apprehended just inside the southern border, and not at a point of entry, on the same day [they] crossed into the United States.” Q. Li at 68, citing INA § 235(a)(1), DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020), Zadvydas v. Davis, 533 U.S. 678, 693 (2001), and Matter of M-D-C-V-, 28 I&N Dec. 18, 23 (BIA 2020). Q. Li was, therefore, an applicant for admission under the statute.

The BIA next found that, as an applicant for admission, Q. Li was to be returned to custody upon termination of her parole. Under INA § 235(b), the BIA found, DHS has the option to process applicants for admission either for expedited removal (INA § 235(b)(1)) or place them in full INA § 240 removal proceedings (INA § 235(b)(2)). Either way, the BIA reasoned, the statute mandates continued detention of the noncitizen pending further proceedings. Q. Li at 68, citing Jennings v. Rodriguez, 583 U.S. 281, 299 (2018). Because such noncitizens are inspected and detained under INA § 235 and not pursuant to a warrant of arrest under INA § 236, the BIA held that they are ineligible for bond under the latter statute.

Finally, quoting the language of INA § 212(d)(5)(A), the BIA stated that when parole from custody previously granted by DHS is terminated, a noncitizen “shall forthwith return or be returned to the custody from which he was paroled,” pending completion of removal proceedings. Q. Li at 69-70. The BIA rejected the respondent’s argument that she was already in the United States and thus subject to INA § 236 and its subsections governing arrest, detention, conditional parole and bond. Instead, it found that, as an applicant for admission, Q. Li was to be returned to custody upon termination of her parole. Under INA § 235(b), the BIA found, DHS has the option to process applicants for admission either for expedited removal (INA § 235(b)(1)) or place them in full INA § 240 removal proceedings (INA § 235(b)(2)). Either way, the BIA reasoned, the statute mandates continued detention of the noncitizen pending further proceedings. Q. Li at 68, citing Jennings v. Rodriguez, 583 U.S. 281, 299 (2018). Because such noncitizens are inspected and detained under INA § 235 and not pursuant to a warrant of arrest under INA § 236, the BIA held that they are ineligible for bond under the latter statute.

In doing so, the BIA made clear that an individual who is apprehended at the border — whether at a port of entry or outside one — shortly after entry, continues to be subject to the provisions of INA § 235(b), whether or not they are subsequently released from custody pursuant to INA § 212(d)(5) parole.

Roque-Izada

The BIA in Roque-Izada seemed completely unaware of the decision of a mere few weeks earlier in Q. Li. First, the BIA in Roque-Izada did not even address whether the respondent was an “applicant for admission,” even though he was clearly apprehended shortly after entry and met the definition articulated by the BIA in Q. Li. Indeed, the BIA never once mentioned INA § 235 or any of the Supreme Court cases cited by Q. Li.

The BIA instead found that because Roque-Izada had no proof of release on humanitarian parole, the case was indistinguishable from Matter of Cabrera-Fernandez, in which the respondent had conceded his release was conditional parole under INA § 236(a)(1)(B), rendering him ineligible for adjustment. 28 I&N Dec. 747, 750 (BIA 2023). Notably, in Cabrera-Fernandez, the BIA had also failed to follow the Supreme Court’s reasoned analysis in Jennings v. Rodriguez of INA § 235. The outcome of the Court’s analysis in Jennings was that all border entrants are subject to the provisions of INA § 235 such that INA § 212(d)(5) parole is the sole form of release from border apprehensions. It is as though the left hand in Roque-Izada and Cabrera-Fernandez has no idea what the right hand in Q. Li or even the Supreme Court, is doing.

What Do These Conflicting Decisions Mean for Practitioners and Noncitizens?

The timing of the decision in Q. Li could not have come at a more convenient time for the government. It came right on the heels of various policies announced by DHS interpreting the INA and regulations to mean that the agency could terminate the status of thousands of individuals paroled into the United States by the Biden administration, detain those parolees, and then place them in full or expedited removal proceedings. DHS will undoubtedly use Q. Li as further authority to justify its arrest, detention, and removal of many more noncitizens in the coming months.

Practitioners must remain vigilant of potential enforcement against their clients who have had any apprehension by DHS in the past and prepare their clients and themselves for it. Attorneys and Fully Accredited Representatives who can provide continued representation to clients who become detained should be prepared with G-28s signed by their clients, as Immigration and Customs Enforcement (ICE) will not communicate with practitioners without them. Practitioners should keep in mind that ICE Enforcement and Removal Operations (ERO) is a separate division from the Office of the Principal Legal Advisor (OPLA), so even if they’ve submitted a G-28 to OPLA, they should still be prepared to submit one to ERO. See ice.gov/eroefile. They should also be prepared with motions to change venue as an additional tool to fight their clients’ potential transfer to detention outside of their local court’s jurisdiction. Where clients are already in removal proceedings, practitioners should consider filing motions for telephonic or internet-based hearings to avoid having to present themselves in court in person. Where DHS is claiming a noncitizen is subject to mandatory detention under INA § 235(b), advocates may consider arguing that their clients are instead subject to the provisions under INA § 236(a) and thus eligible for bond, while keeping in mind that they are losing potential adjustment eligibility under Matter of Cabrera-Fernandez and Roque-Izada. Attorneys may also consider filing habeas corpus petitions with the district courts that have jurisdiction over their clients’ detention centers to challenge their clients’ detention if there are indicia of unlawfulness or unconstitutionality. Practitioners who cannot provide representation in removal proceedings should be prepared to refer clients to qualified counsel and promptly share any relevant case information with referral counsel once the client is detained.

Practitioners should also advise their clients who may be subject to expedited removal and have a valid fear of return to their home country to be prepared, to immediately state that fear. This would trigger the required credible fear interview (CFI) and possible further review in INA § 240 proceedings under INA § 235(b)(1)(A)(ii). Indeed, advocates should review their case list comprehensively to determine whether their clients qualify for asylum such that an application should be filed proactively. However, representatives should keep in mind DHS’s indication that it will not accept, in the context of expedited removal proceedings, “manifestations” of fear made by representatives on behalf of their clients; clients must make claims themselves to trigger the CFI requirements.

There could be, as many advocates are noting, at least one possible silver lining to Q. Li. By reaffirming that the only way DHS can release a noncitizen arriving at the border is via INA § 212(d)(5) parole, the BIA is reiterating that anyone released from a border apprehension must have been paroled in under that statutory provision, regardless of what their paperwork says. Noncitizens have for years been provided paperwork stating their releases are “on own recognizance” under INA § 236, or conditional parole. ICE has pointed to this paperwork to argue that such noncitizens, if otherwise eligible, cannot qualify for adjustment under INA § 245(a) or the CAA because they have not been paroled. For several years, advocates have argued, based on a close reading of Jennings v. Rodriguez, that these noncitizens have to have been paroled under the statute. Now, Q. Li might be another tool in practitioners’ arsenal to support this argument. Practitioners who have clients who meet all other requirements for adjustment under INA § 245(a) or the CAA should discuss these options with their clients, especially if they are in removal proceedings.

However, the decision in Roque-Izada calls into question whether the BIA will follow respondents’ arguments that a release at the border must be a parole and thus qualify them for adjustment. The BIA could, instead, find that without clear parole paperwork, a release is necessarily conditional parole under INA § 236(a), thus not qualifying them for adjustment eligibility. Indeed, it appears that the BIA wants to have it both ways – when a noncitizen is simply trying to argue that they should be eligible for bond, it is finding that the noncitizen is an “applicant for admission” subject to INA § 235(b) and not eligible for bond. On the other hand, when a noncitizen seeks adjustment based on the argument that their apprehension was pursuant to INA § 235(b) and thus their release must have been an INA § 212(d)(5)(A), the BIA instead is finding they are subject to INA § 236 and not eligible for adjustment. Until this conflict is resolved either by the BIA or the judiciary, practitioners should be prepared to mirror the BIA and make the argument that helps your client, citing the case that supports it: Q. Li or Roque-Izada.

Practitioners are directed to CLINIC’s webpage, “Responding to the New Administration,” where they can find a number of sources on the topics of parole, enforcement, and removal proceedings under the current administration. Additionally, the National Immigration Litigation Alliance has produced a helpful advisory, “Habeas Corpus Petitions.”