Padilla: Asylum Seekers Could Pursue Their Constitutional Detention Claim

Passing a credible-fear interview can mean a chance to explain why returning home would be dangerous. For a person who remains detained, it can also raise another urgent question: Who will decide whether they must stay in custody while that case continues?

In Padilla v. U.S. Immigration and Customs Enforcement, No. 24-2801 (9th Cir. Sept. 21, 2026), the Ninth Circuit allowed a class of asylum seekers to continue their constitutional challenge to detention. The court affirmed an order denying the government’s motion to dismiss on two questions accepted for an early appeal: whether federal courts could hear this challenge, and whether an earlier Supreme Court decision defeated it. That result kept the lawsuit moving; the constitutional protections the class should receive remained for further proceedings.

A Positive Screening Result and Continued Custody

The people described in the bond-hearing class had entered without inspection, initially faced expedited removal and received a positive finding of credible fear of persecution or torture. That finding moved them into full removal proceedings, where they could seek protection. It was a screening result, rather than a decision granting asylum.

The detention rule still mattered. Under 8 U.S.C. section 1225(b)(1)(B)(ii), a person with a positive credible-fear finding is detained for further consideration of the asylum application. As Jennings v. Rodriguez explains, the statute requires detention during those proceedings rather than supplying an ordinary immigration-judge bond hearing. In its account of the class’s history, Padilla also described the Attorney General’s decision in Matter of M-S-, which ended the earlier administrative route to such hearings. The statutory parole exception is a separate avenue from an ordinary bond hearing.

This combination explains the constitutional claim: The class challenged continued confinement under that statutory scheme without an adequate opportunity to seek release. A positive screening result opened a fuller protection case while leaving a serious dispute about custody.

Why This Appeal Followed Earlier Injunctions

The litigation began in 2018, and the requested relief changed as higher-court decisions changed the legal setting. An earlier injunction required bond-hearing procedures, including a seven-day timetable. The Supreme Court vacated the Ninth Circuit’s earlier decision for reconsideration after Department of Homeland Security v. Thuraissigiam. Later, the Ninth Circuit directed that the injunction be vacated in light of Garland v. Aleman Gonzalez and the statutory restriction on lower-court classwide injunctions.

The fourth amended complaint then sought declaratory relief: a judicial determination of the class’s constitutional rights. The government again sought dismissal. The district court rejected that request and certified two legal questions for an appeal before the rest of the case was finished. The Padilla opinion’s account of that history explains why the September decision concerned access to court and the viability of the constitutional claim. The seven-day language in its description of the class came from the litigation’s history, rather than a new hearing order issued in this appeal.

The Court Looked at What the Class Was Challenging

The government relied on 8 U.S.C. section 1252(a)(2)(A), which restricts judicial review of expedited-removal decisions and related matters. The Ninth Circuit examined the four parts of that restriction separately. The distinction between a challenge to a removal decision and a challenge to detention drove its analysis.

Two parts concern individual determinations, orders or the application of the expedited-removal provisions to particular people. The class was challenging the constitutionality of statutory detention while its members’ asylum and related protection claims remained undecided. It was seeking neither review of final removal orders nor new decisions on individual protection claims. Another part concerns the decision to invoke expedited removal in a particular case. The class’s constitutional custody challenge was different from that decision as well.

The fourth part covers procedures and policies adopted to implement expedited removal. The government characterized the lawsuit as a challenge to the Attorney General’s M-S- policy. But Jennings had already interpreted the statute itself to require detention. The class therefore had a constitutional challenge to the statutory requirement, even if its complaint also challenged the Attorney General’s decision. Padilla tied the right to proceed to that statutory constitutional claim, rather than treating every objection to an agency policy as reviewable.

Why the Special Washington, D.C., Review Route Was Different

The government also pointed to section 1252(e)(3), which provides a route in the federal district court in Washington, D.C., for specified challenges to the validity of the expedited-removal system. That route has a 60-day deadline measured from first implementation of the challenged provision, regulation, directive, guideline or procedure.

The Ninth Circuit explained the relationship between the provisions: Subsection (e)(3) preserves some review that subsection (a)(2)(A) would otherwise restrict. It is an exception to that restriction, rather than a separate bar sweeping in claims outside it. Because this constitutional detention claim fell outside the asserted restrictions in subsection (a)(2)(A), the special D.C. route supplied no independent reason to dismiss it. The district court could hear the federal constitutional question under its ordinary federal-question jurisdiction. Padilla explained that statutory relationship before turning to the constitutional argument.

For someone assessing a possible lawsuit, the task is to identify the decision, law or practice being challenged and the relief requested. A request to reconsider an individual protection decision, a challenge to the validity of an expedited-removal policy and a challenge to continued detention can raise different review rules. Calling a claim “constitutional” by itself does not explain which rule applies.

The Earlier Supreme Court Case Concerned the Threshold of Entry

The government’s second argument relied on Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020). There, immigration officers apprehended a man about 25 yards inside the border shortly after he crossed. He received a negative credible-fear decision and sought another opportunity to pursue asylum. The government argued that the decision meant these asylum seekers had only the procedures Congress supplied, defeating their constitutional demand for a detention hearing.

The Ninth Circuit rejected that reading for this class. It emphasized the Supreme Court’s focus on a person at the threshold of initial entry. The Padilla class was broader: It included people found well inside the United States after their arrival. Treating everyone who entered without admission as permanently standing at the border would erase the territorial distinction the court found important.

That distinction also required attention to the class definition. Padilla explained that the class included many people beyond the threshold-of-entry setting. Its footnote recognized that the district court could address a narrower subset within the definition. The useful factual questions therefore include where and when a person entered, where and when officers encountered them, the screening result and the basis for continuing detention. A label such as “unadmitted” does not supply all those facts.

The Majority’s Liberty Reasoning and the Concurrence

The majority gave an additional reason for distinguishing Thuraissigiam: Deciding who may enter the country and deciding whether a person may remain confined are different exercises of government power. It traced the historical protection of personal liberty through bail and habeas corpus, then discussed constitutional limits on detention of noncitizens. In that account, the government’s broad authority over admission coexists with constitutional protection against arbitrary confinement.

Judge Michelle Friedland joined the result and the rest of the opinion, but withheld her joinder from that additional admission-versus-detention discussion. In her Padilla concurrence, the narrower threshold-of-entry reasoning and the breadth of the class were enough to resolve the certified questions. Reading the opinions together shows both the shared basis for allowing the case to proceed and the majority’s further explanation of why liberty matters independently of admission.

What the Result Meant for the Detention Claim

The immediate result was an affirmed denial of dismissal. The district court could proceed with the class’s due-process claim despite the government’s two asserted barriers. The actual protections required were outside the two questions certified for this early appeal, as the Padilla conclusion and accompanying footnote explain.

For a detained person and their family, that procedural distinction has practical consequences. The screening decision, custody paperwork, hearing requests and orders in the person’s own case help show which legal route fits. The September opinion provides a reasoned path for the class’s constitutional claim to continue; obtaining an individual hearing or release still requires identifying the applicable procedure and relief.