Guerrero Orellana v. Moniz

United States Court of Appeals For the First Circuit Nos. 25-2152, 26-1094 JOSÉ ARNULFO GUERRERO ORELLANA, Petitioner, Appellee, v. ANTONE MONIZ, Superintendent, Plymouth County Correctional Facility; DAVID J. VENTURELLA, Acting Director, U.S. Immigration and Customs Enforcement; MARKWAYNE MULLIN, Secretary of the U.S. Department of Homeland Security; TODD BLANCHE, U.S. Attorney General; DAVID WESLING, Acting Field Office Director; DAREN K. MARGOLIN, Director, Executive Office for Immigration Review, Respondents, Appellants, PATRICIA H. HYDE, Acting Director of Boston Field Office, U.S. Immigration and Customs Enforcement, Respondent. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge] Before Montecalvo, Lynch, and Dunlap, Circuit Judges. John Bailey, Counsel to the Assistant Attorney General, with whom Brett A. Shumate, Assistant Attorney General, Yaakov M. Roth, Principal Deputy Assistant Attorney General, Drew C. Ensign, Deputy Assistant Attorney General, and Benjamin Hayes, Senior Counsel to the Assistant Attorney General, Civil Division, U.S. Department of Justice, and August Flentje, Special Counsel, Katherine J. Shinners, Senior Litigation Counsel, and Laurie Wiesner, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, were on brief, for appellants. Matt A. Crapo and Christopher J. Hajec, on brief for the Federation for American Immigration Reform as amicus curiae supporting appellants. Adriana Lafaille, with whom Jessie J. Rossman, Daniel L. McFadden, and Julian Bava, American Civil Liberties Union Foundation of Massachusetts, Inc., Michael K.T. Tan, My Khanh Ngo, Oscar Sarabia Roman, Judy Rabinovitz, and Natalie Behr, American Civil Liberties Union Foundation, Gilles R. Bissonnette, SangYeob Kim, and Chelsea Eddy, American Civil Liberties Union of New Hampshire, Annelise M. Jatoba de Araujo, Annelise Araujo Law, LLC, Christopher E. Hart, Foley Hoag LLP, Carol J. Garvan and Max I. Brooks, American Civil Liberties Union of Maine Foundation, and Sameer Ahmed, Harvard Immigration and Refugee Clinical Program, Harvard Law School, were on brief, for appellee. Emma Winger, Rebecca Cassler, and Suchita Mathur, on brief for the American Immigration Council and the American Immigration Lawyers Association as amici curiae supporting appellee. Amit Jain, Kathleen Pleiss, Roderick & Solange, and MacArthur Justice Center, on brief for Immigration Law Scholars as amici curiae supporting appellee. Robert Bonta, Attorney General, State of California, Letitia James, Attorney General, State of New York, Michael L. Newman, Senior Assistant Attorney General, Robin L. Goldfaden, Marissa Malouff, Supervising Deputy Attorney General, and Julia Heming Segal, Deputy Attorney General, California Attorney General's Office, Barbara D. Underwood, Solicitor General, Philip J. Levitz, Senior Assistant Solicitor General, Gillian Barna, Assistant Solicitor General, and Julie Dona, Special Counsel, NYS Office of the Attorney General, Kristin K. Mayes, Attorney General, State of Arizona, Philip J. Weiser, Attorney General, State of Colorado, William Tong, Attorney General, State of Connecticut, Kathleen Jennings, Attorney General, State of Delaware, Brian L. Schwalb, Attorney General, District of Columbia, Anne E. Lopez, Attorney General, State of Hawai'i, Kwame Raoul, Attorney General, State of Illinois, Aaron M. Frey, Attorney General, State of Maine, Anthony G. Brown, Attorney General, State of Maryland, Andrea Joy Campbell, Attorney General, Commonwealth of Massachusetts, Dana Nessel, Attorney General, State of Michigan, Keith Ellison, Attorney General, State of Minnesota, Aaron D. Ford, Attorney General, State of Nevada, Jennifer Davenport, Acting Attorney General, State of New Jersey, Dan Rayfield, Attorney General, State of Oregon, Peter F. Neronha, Attorney General, State of Rhode Island, Charity R. Clark, Attorney General, State of Vermont, Jay Jones, Attorney General, Commonwealth of Virginia, Nicholas W. Brown, Attorney General, State of Washington, on brief for States of New York, California, Arizona, Colorado, Connecticut, Delaware, Hawai'i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia as amici curiae supporting appellee. James Joseph Beha, II and Baker Bott LLP, on brief for Former Immigration Judges and Appellate Immigration Judges as amici curiae supporting appellee. August 13, 2026  MONTECALVO, Circuit Judge. The Immigration and Nationality Act (INA) requires the detention of certain noncitizens pending removal proceedings under 8 U.S.C. § 1225(b)(2)(A) and allows for the release of other noncitizens on bond or conditional parole pursuant to § 1226(a). In this case, we evaluate which of these two statutory provisions govern Petitioner-Appellee José Arnulfo Guerrero Orellana, a Salvadoran national who entered the United States without inspection approximately thirteen years ago. To do so, we focus much of our inquiry on whether Guerrero Orellana, who entered this country unlawfully and thus, under the INA, is deemed an "applicant for admission," is defined in the statute to be necessarily also "seeking admission," as required by the mandatory detention provision at § 1225(b)(2)(A). Because we conclude that the term "seeking admission" means seeking lawful entry, and Guerrero Orellana already entered the country unlawfully, we hold that he is not "seeking admission." For this reason, and others discussed below, we agree with the district court that Guerrero Orellana and his fellow class members' detention (and eligibility for release) are governed by § 1226(a), not § 1225(b)(2)(A). Thus, the district court was right to order the government to release Guerrero Orellana or provide him with a bond hearing. We affirm. - 4 -  I. We begin with some background about the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), the legislation that amended the statutory provisions before us on appeal. Then we turn to the facts and procedure underlying this case. A. In 1996, Congress enacted IIRIRA, ushering in significant changes to the INA.1 See Pub. L. 104-208, 110 Stat. 3009 (1996). Most relevant to this appeal is how IIRIRA impacted the immigration detention provisions codified at § 1225 and § 1226. In broad terms, § 1226 serves as a source of discretionary detention authority and allows for the release, on bond or conditional parole, of noncitizens who are subject to this section. For example, IIRIRA introduced a singular "removal" 1 proceeding in place of prior "exclusion" and "deportation" proceedings. See Pub. L. 104-208, § 304, 110 Stat. 3009-587 to 3009-597 (1996). In the newly created "removal" proceedings, governed by § 1229a, noncitizens would be charged with grounds of "inadmissibility" or "deportability," a concept we will explain more later. IIRIRA also created procedures called "expedited removal" -- a swifter removal process with fewer procedural protections than § 1229a removals. See id. § 302, 110 Stat. 3009-579 to 3009-584. Expedited removal applies only to certain noncitizens (1) who are "arriving in the United States" or have "not been admitted or paroled" and fail to show their continuous presence in the United States for two years, and (2) who are inadmissible for misrepresentation under § 1182(a)(6)(C) or lack of valid entry documentation under § 1182(a)(7). See 8 U.S.C. § 1225(b)(1)(A)(i), (iii). - 5 - See 8 U.S.C. § 1226(a). But, through amendments at § 1226(c), IIRIRA required certain "criminal" noncitizens to remain detained throughout the pendency of their removal proceedings, disallowing their release on bond.2 § 303, 110 Stat. at 3009-585; see 8 U.S.C. § 1226(c). The question we address focuses on how IIRIRA applied mandatory detention in a different provision of the INA: § 1225(b)(2)(A). And it concerns whether that provision applies to noncitizens who entered the United States without inspection. For nearly thirty years after IIRIRA's enactment, immigration officials detained noncitizens who were present in the United States after entering without inspection pursuant to § 1226. Unless they were subject to the mandatory detention provision at § 1226(c) for certain criminal or terrorism-related reasons, they could be released on bond or conditional parole pending resolution of their removal proceedings.3 2 Following the lead of the title of § 1226(c) ("Detention of criminal aliens"), we will occasionally refer to noncitizens subject to mandatory detention under this provision as "criminal" noncitizens. See Nielsen v. Preap, 586 U.S. 392, 398-99. But we employ this shorthand only for brevity, noting that not all grounds that trigger mandatory detention under § 1226(c) require a criminal conviction. See, e.g., 8 U.S.C. § 1226(c)(1)(E) (requiring detention where the noncitizen has been "arrested for" or "charged with" certain offenses). 3 When considering a noncitizen's eligibility for release from detention on bond, an immigration judge considers whether the individual poses a "danger to the community" or a "flight risk." See Hernandez-Lara v. Lyons, 10 F.4th 19, 27 (1st Cir. 2021). - 6 -  That understanding and administration of § 1226 through five different presidents changed on July 8, 2025, when the U.S. Department of Homeland Security (DHS) issued interim guidance requiring the detention of all noncitizens who had entered the United States without inspection pursuant to § 1225. In this new policy, DHS "revisited its legal position on detention and release authorities," and for the first time determined that § 1225, not § 1226, was "the applicable detention authority" for "applicants for admission." IIRIRA deems noncitizens (1) who are "present in the United States" and who "[have] not been admitted" and (2) those who "arrive[] in the United States" to be "applicant[s] for admission" under the INA. 8 U.S.C. § 1225(a)(1). Thus, noncitizens who have entered the United States without inspection are considered "applicant[s] for admission" as individuals present in the United States without admission. See id. The DHS guidance newly interpreted § 1225(b) to require that all applicants for admission would now be treated the same as "'arriving aliens' [had] historically been treated," and thus instructed U.S. Immigration and Customs Enforcement (ICE) to detain all applicants for admission under § 1225(b) throughout their removal proceedings, without access to a bond hearing. Instead of release after a bond hearing, noncitizens subject to the guidance could only be released pursuant to DHS's discretionary parole authority under § 1182(d)(5)(A), which allows the DHS Secretary to parole into the - 7 - United States, "on a case-by-case basis," certain noncitizens for "urgent humanitarian reasons or significant public benefit." See 8 U.S.C. § 1182(d)(5)(A). Two months later, this policy became precedent through the Board of Immigration Appeals' (BIA) decision in Matter of Yajure Hurtado. 29 I. & N. Dec. 216, 225 (B.I.A. 2025). There, the BIA held that, under the "plain language" of § 1225(b)(2)(A), immigration judges "lack authority" to release noncitizens "who are present in the United States without admission" on bond. Id. In consequence, the number of noncitizens held in detention increased. It was reported as of mid-January 2026 that the government's new mandatory detention policy had resulted in approximately 73,000 noncitizens being detained, "the highest level" of detention ever recorded. See Camilo Montoya-Galvez, ICE’s Detainee Population Reaches New Record High of 73,000, as Crackdown Widens, CBS News (Jan. 16, 2026), https://www.cbsnews.com/news/ices-detainee-population-record- high-of-73000/ [https://perma.cc/EY9J-QZ27]. B. With this context in mind, we turn now to the Petitioner in this appeal. While the specific place and time of Guerrero Orellana's entry to the United States are unknown, the parties - 8 - agree that he entered "without inspection, admission, or parole" and has resided here since 2013.4 On September 18, 2025, during a vehicle stop in Everett, Massachusetts, ICE arrested Guerrero Orellana. Shortly thereafter, officials placed him in removal proceedings, detained him, and transferred him to a detention center in Plymouth, Massachusetts. ICE charged Guerrero Orellana as inadmissible for being present in the United States without admission or parole and for lacking valid entry documentation. See 8 U.S.C. § 1182(a)(6)(A)(i), (a)(7)(A)(i)(I). Consequently, in appellants' view, he fell within the group of noncitizens that the BIA determined was ineligible for release on bond in Yajure Hurtado. See 29 I. & N. Dec. at 225. Guerrero Orellana challenged the legality of his detention without a bond hearing through a habeas petition filed on September 18, 2025, in the U.S. District Court for the District of Massachusetts. He later amended his petition to serve as a class representative for similarly situated noncitizens. On October 3, 2025, the district court, concluding that Guerrero Orellana was likely to succeed on the merits of his claim, entered a preliminary injunction ordering his release within seven days unless he was given a bond hearing. Six days later, Guerrero Guerrero Orellana's habeas petition indicates that 4 he "entered the United States without inspection in June 2013." - 9 - Orellana received a bond hearing, and the immigration judge found a change of custody status was warranted and ordered him released on a $3,500 bond. In his removal proceedings, which remain ongoing, Guerrero Orellana seeks cancellation of removal under 8 U.S.C. § 1229b(b). Following Guerrero Orellana's release from detention, the district court certified the proposed class and continued forward to the merits.5 On December 19, 2025, the district court granted partial summary judgment and partial final judgment for Guerrero Orellana and the class and denied the government's cross- motion for partial summary judgment. The district court held that DHS's policy of detaining class members under § 1225(b)(2)(A) without access to a bond hearing violated the INA and its regulations. It further held that class members were not subject to mandatory detention under § 1225(b)(2)(A), but rather, were subject to § 1226(a) and thus must be considered for release on bond. The class, which the district court modified on December 5 19, 2025, includes noncitizens arrested or detained in Massachusetts or within a Massachusetts immigration court's jurisdiction who satisfy certain criteria. Because the government does not appeal the district court's class certification order, we need not address the scope of the class in detail. But we briefly highlight a few components of the class definition: namely, it includes noncitizens who were allegedly never admitted or paroled into the United States and excludes noncitizens subject to expedited removal orders or proceedings, as well as those subject to mandatory detention under § 1226(c). - 10 -  The government timely appealed the district court's orders granting a preliminary injunction and partial summary judgment. We now address those consolidated appeals. II. The questions before us are of pure statutory interpretation. The key question is: does § 1226 apply to Guerrero Orellana and his fellow class members, permitting their release on bond pending resolution of their removal proceedings, or does § 1225(b)(2)(A) apply, thus mandating their detention? The district court held that the class is governed by § 1226, thus permitting class members' potential release on bond. We review that legal determination de novo. Fraga v. Premium Retail Servs., Inc., 61 F.4th 228, 233 (1st Cir. 2023). A. To answer the question of interpretation before us, we begin, as we always do, with the text of the disputed statutory provisions: § 1226 and § 1225(b)(2)(A). See Lackey v. Stinnie, 604 U.S. 192, 199-200 (2025); Dor v. Bondi, 161 F.4th 1, 8 (1st Cir. 2025). i. Starting with § 1226, as discussed, this section authorizes the arrest and detention of certain noncitizens and permits their release on bond or conditional parole. Subsection (a) reads: - 11 -  (a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole . . . . 8 U.S.C. § 1226(a).6 Following subsection (a)'s general authorization for release on bond or conditional parole, subsection (c) carves out exceptions, mandating the detention of noncitizens charged with specific criminal and terrorism-related grounds of inadmissibility and deportability. See id. § 1226(c)(1); Jennings v. Rodriguez, 583 U.S. 281, 288-89 (2018). There is an important difference between "inadmissibility" and "deportability," as we outline in the footnote below.7 Subsection (c) states: 6 A note on terminology. The INA uses the term "alien" to refer to a "noncitizen." Throughout this opinion, we replicate quoted language as it appears in the original source but otherwise use the term "noncitizen." 7 In removal proceedings, DHS charges noncitizens with "inadmissibility" grounds if they entered the United States without being admitted or paroled, and places the burden of proof - 12 -  (c) Detention of criminal aliens (1) Custody The Attorney General shall take into custody any alien who- (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, (D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, or (E)(i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 1182(a) of this title; and (ii) is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury to another person, on them to demonstrate that they are not inadmissible. See generally 8 U.S.C. § 1182; see also id. § 1229a(c)(2)(A). In contrast, noncitizens who were admitted to the country (meaning they entered lawfully, such as with a valid visa) but later become removable (for example, due to certain criminal convictions), are charged with grounds of "deportability," which the government bears the burden of proving. See generally id. § 1227; see also id. § 1229a(c)(3)(A). - 13 -  when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. Id. § 1226(c)(1). Guerrero Orellana argues that the text of subsections (a) and (c) demonstrates that § 1226 applies to noncitizens who entered the United States without inspection and that this textual conclusion is supported by the structure of IIRIRA. Concerning subsection (a) allowing release, he points to its use of these terms: it applies to "an alien," allowing for their arrest and detention, as well as release on bond or conditional parole "pending a decision" about whether they will be "removed." Id. § 1226(a). This broad language, he points out, makes "no exception based on the circumstances of a noncitizen's entry into the country." And by referencing a pending decision concerning removal, he argues, § 1226(a) applies both to noncitizens charged with deportability grounds and noncitizens like him who were never admitted and thus are subject to inadmissibility grounds. Concerning subsection (c), he points out that the mandatory detention carveouts cover both noncitizens charged with deportability and inadmissibility grounds, and argues that this, too, confirms § 1226's application to noncitizens who entered without inspection, who are subject to inadmissibility grounds. See id. § 1226(c)(1)(A), (D), (E). - 14 -  The government acknowledges that § 1226(a) authorizes the Executive to arrest and detain, as well as release "any 'alien' pending removal proceedings." But it also argues that "any 'alien' pending removal proceedings" does not mean all noncitizens subject to removal proceedings. It argues instead that the language applies only to those noncitizens "who are not 'applicants for admission' subject to § 1225(b)(2)(A)." Put simply, the government maintains that § 1226 applies only to noncitizens "who have been admitted to the United States but are now deportable," such as individuals who overstayed their visas. It cites no direct authority for this assertion, but instead, points us to the other disputed provision in this appeal, § 1225(b)(2)(A), to support its argument. ii. Separate from the detention authority in § 1226, which permits release on bond or conditional parole, § 1225(b)(2)(A) mandates the detention of certain noncitizens as follows: Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for [removal] proceeding[s] under section 1229a of this title. 8 U.S.C. § 1225(b)(2)(A). - 15 -  To interpret this provision more nimbly, we divide it by clauses, following the natural breaks indicated by punctuation. Doing so gives us four clauses: 1: Subject to subparagraphs (B) and (C), 2: in the case of an alien who is an applicant for admission, 3: if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, 4: the alien shall be detained for [removal] proceeding[s] under section 1229a of this title. Id. (citation modified). We start with what is not in dispute, which is clauses 1, 2, and 4. Clause 1 carves out individuals to whom § 1225(b)(2)(A) does not apply and provides the Attorney General with discretion to return certain noncitizens to territories bordering the United States, rather than detain them.8 See id.; see also id. § 1225(b)(2)(B)-(C). Next, under clause 2, a noncitizen must be an "applicant for admission" for § 1225(b)(2)(A) to apply. Id. § 1225(b)(2)(A). As mentioned, the Namely, under subparagraph (B), § 1225(b)(2)(A)'s mandatory 8 detention provision "shall not apply" to crewmen, stowaways, and individuals subject to expedited removal. Id. § 1225(b)(2)(B). And under subparagraph (C), for noncitizens described in § 1225(b)(2)(A) who are "arriving on land" to the United States from a contiguous foreign territory, "the Attorney General may return" them to that territory (rather than detain them), pending removal proceedings. Id. § 1225(b)(2)(C). - 16 - INA deems a noncitizen "an applicant for admission" if he or she is (1) "present in the United States" and has "not been admitted," or (2) "arrives in the United States." Id. § 1225(a)(1). Guerrero Orellana and class members concede (and we agree) that because they are present in this country and have not been admitted, they are deemed "applicants for admission." Finally, clause 4 mandates detention for noncitizens who meet the criteria set forth in the prior clauses, pending resolution of their removal proceedings. Id. § 1225(b)(2)(A). The parties vigorously dispute the meaning of clause 3, namely, whether its use of the phrase "seeking admission" must mean the same thing as "applicant for admission," as used in clause 2. We start by considering clause 3 -- which we will refer to from here on as the "if clause" -- once more. It states: if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted . . . Id. (emphases added). Under the "if clause," an "examining immigration officer" is tasked with making a determination about: (1) "an alien seeking admission," (2) concerning that person's "entitle[ment] to be admitted" and the strength of the noncitizen's argument for admission. Id. Only if the examining officer determines the noncitizen is not "clearly and beyond a doubt entitled to be admitted," (and only where the individual also meets - 17 - the requirements laid forth in the prior clauses), is that noncitizen subject to mandatory detention under § 1225(b)(2)(A). Noting that the examining officer's determination involves these two components, we analyze them each in turn. First, the officer's determination concerns "an alien seeking admission." Here, the parties dispute the meaning of part of that phrase: "seeking admission." To interpret this, we begin with any statutorily-defined terms, because when Congress defines a term, "we must follow that definition, even if it varies from a term's ordinary meaning." Van Buren v. United States, 593 U.S. 374, 387 (2021) (citation modified). As for undefined terms, our understanding is "gleaned from a consideration of the 'ordinary, contemporary, common meaning' of the terms." Delaware v. Pennsylvania, 598 U.S. 115, 128 (2023) (quoting Sandifer v. United States Steel Corp., 571 U.S. 220, 227 (2014)). The phrase "seeking admission" is not statutorily defined, but the term "admission" is defined in the statute. "[A]dmission" means "the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer."9 8 U.S.C. "Entry," although once defined in the INA, no longer is 9 defined there, so we look to its plain and ordinary meaning. It is defined as "the act of entering," and "enter," in turn, means "to go or come into a material place." Webster's Third New International Dictionary 756, 759 (Philip Babcock Gove ed., 1993). Indeed, this aligns with our precedent. While this circuit has stopped short of announcing a "definitive definition of 'entry,'" we have looked approvingly at definitions requiring "a crossing - 18 - § 1101(a)(13)(A) (emphasis added); Mullin v. Al Otro Lado, 146 S. Ct. 2079, 2087 (2026) (explaining that "an alien cannot lawfully enter this country without first being inspected by an immigration officer"). Next, we look to "seeking." As it is not defined in the INA, we consider its ordinary meaning: "to try to acquire or gain."10 Merriam-Webster's Collegiate Dictionary 1057 (10th ed. 1994); see City of Providence, 954 F.3d 23, 31 (1st Cir. 2020); American Heritage Dictionary 1633 (def. 2) (3d ed. 1992) ("[t]o endeavor to obtain or reach"); Oxford English Dictionary 876 (def. 5.1.a) (2d ed. 1989) ("[t]o go in search or quest of; to try to find, look for"). "Putting the pieces together," then, a noncitizen is "seeking admission" if they are trying to gain lawful entry into the United States after inspection and authorization by an immigration officer. Cf. Montgomery v. Caribe Transp. II, LLC, 146 S. Ct. 1199, 1204-05 (2026) (employing a similar analytical into the territorial limits of the United States," and have acknowledged that entry requires that the noncitizen "cross the United States border free from official restraint." Dimova v. Holder, 783 F.3d 30, 38-40 (1st Cir. 2015)(citation modified); cf. Mullin v. Al Otro Lado, 146 S. Ct. 2079, 2090 (2026) (considering the ordinary meaning of "arrives in the United States," and concluding that it "clear[ly]" means that "[a] person arrives in a geographic location only when he enters it"). 10 Notably, the present participle "seeking" implicates an active, present tense action. See United States v. Wilson, 503 U.S. 329, 333 (1992) ("Congress' use of a verb tense is significant in construing statutes."); see also Santillan Quiroz v. Mullin, 180 F.4th 1226, 1238 (10th Cir. 2026) (noting that the use of the present participle "seeking" rather than "seek" "requires present and continuing action"). - 19 - approach). It is clear on its face that Guerrero Orellana and his fellow class members entered the United States. And both parties agree that they did so unlawfully. Thus, the text leads us to the rather straightforward conclusion: Guerrero Orellana and his fellow class members are not "seeking admission" under § 1225(b)(2)(A) because they have already unlawfully entered the United States. To conclude otherwise would defy the plain language of the statute.11 Second, the examining officer's determination as described in the "if clause" concerns whether the noncitizen seeking admission is "entitled to be admitted." 8 U.S.C. § 1225(b)(2)(A). "[A]dmitted," as used here, and "admission," as used in "seeking admission," carry the same statutory definition. See 8 U.S.C. § 1101(a)(13)(A). Both terms mean "the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer." Id. For § 1225(b)(2)(A) to apply then, the examining immigration officer necessarily must ascertain whether the noncitizen has a right to lawfully enter the United States. And logically, that determination takes place at 11When questioned at oral argument about how class members could possibly be seeking lawful entry to the United States from within the country, the government maintained that because class members have not "yet" entered the United States lawfully, "by operation of law, they are seeking admission." But this argument contorts the plain meaning of "entry," as used in the statutory definition of "admission" (lawful entry), beyond recognition. - 20 - the time the noncitizen seeks entry -- hence, the inclusion of this language immediately following "seeking admission." Id. § 1225(b)(2)(A). Here again, only after Guerrero Orellana was found in a traffic stop in Massachusetts was he identified as being in the country unlawfully by ICE. And whoever at ICE identified Guerrero Orellana was not evaluating whether he could lawfully enter the United States, since he had already entered the country without inspection years prior.12 This leads to our conclusion that the "if clause" is not satisfied here. The clause can only be satisfied if the examining immigration officer determines that a noncitizen "seeking admission" is not clearly "entitled to be admitted." Id. Guerrero Orellana and class members had already entered the country without inspection -- so, they are not "seeking admission." And thus, a determination concerning whether they are "entitled to be admitted," i.e. to be granted lawful entry, is impossible. The dissent takes issue with the word-by-word and clause-by-clause approach to interpreting § 1225(b)(2)(A) that we just employed, raising several arguments that it contends point to a contrary reading. Principally, the dissent avers that our "definitional exercise" is misguided and that the real task before 12 Rather, they were evaluating whether he should be charged with inadmissibility grounds and referred for removal proceedings, which he in fact was. - 21 - this court concerns "giving effect" to a different provision, namely, what the dissent refers to as the "deeming provision" in § 1225(a)(1). Our reading of § 1225(b)(2)(A), says the dissent, "nullifies" that deeming provision. We respectfully disagree for a number of reasons. We find that the dissent relies on an assumption that lacks textual support in the deeming provision it points to and, in so doing, violates the applicable rules of statutory construction the Supreme Court mandates lower courts must follow. Precisely because this deeming provision knowingly departs from reality to create a legal fiction different from Congress's normal legislative use of common language, this deeming provision cannot be read to include language which Congress chose not to use in creating that fiction. Additionally, the dissent, in attempting to reframe the issue before this court, fails to interpret the provision actually before us, § 1225(b)(2)(A). Indeed, the dissent reaches a reading of that provision that, in our view, defies the statutory language Congress used. Our interpretation, in contrast, gives effect to every word of § 1225(b)(2)(A) and, contrary to the dissent's assertion, does nothing to nullify § 1225(a)(1). We will explain, but before we do, we begin with our points of agreement. We agree with the dissent that § 1225(a)(1) informs our interpretation of § 1225(b)(2)(A), as § 1225(a)(1) describes who is deemed an "applicant for admission," and "applicant for - 22 - admission," in turn, appears in clause 2 of § 1225(b)(2)(A). And we agree that § 1225(a)(1) states that a noncitizen who "arrives in the United States" or who is "present" here and "has not been admitted" "shall be deemed for purposes of this chapter an applicant for admission."13 8 U.S.C. § 1225(a)(1) (emphasis added). Indeed, based on this text, earlier in this opinion, we easily concluded that Guerrero Orellana is deemed an "applicant for admission." Where we disagree with the dissent is in the leap in reasoning that it makes next. The dissent asserts that because the deeming language of § 1225(a)(1) creates "a legal fiction" 13 The dissent's argument rests on framing § 1225(a)(1) as a "deeming" provision rather than a "definitional" provision. We need not decide this issue because, as we will explain, even if we accept § 1225(a)(1) as a deeming provision rather than definitional, we remain unconvinced by the dissent's argument. We note that our sister circuits have cast doubt on the importance of that