October 13, 2026 | Volume 34, Issue 1
This Report summarizes cases granted review on September 29 and October 1, 2026 (Part I).
Cases Granted Review
Rhoney v. Barbosa da Cunha, 26-104.
At issue is “[w]hether 8 U.S.C. 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like respondent, are present in the United States without having been admitted.” Respondent is a Brazilian citizen who entered the United States illegally around 2004 or 2005 and has a pending 2016 application for asylum. In a September 2025 traffic stop, Immigration and Customs Enforcement officers took respondent into custody, and the Department of Homeland Security began deportation proceedings. DHS asserted that under 8 U.S.C. §225(b)(2)(A) respondent must remain detained throughout the duration of those proceedings. Section 1225(b)(2)(A), which Congress enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), provides that (subject to exceptions not relevant here) “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 doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.”
Agreeing with DHS, the immigration court denied respondent a bond hearing. Respondent filed a habeas petition in federal district court. That court held that the mandatory detention requirement of §1225(b)(2)(A) did not apply to respondent. Holding that the detention provisions of 8 U.S.C. §1226(a) instead applied, the district court granted the habeas petition and ordered the immigration court to provide a bond hearing. Because DHS agreed that respondent was not a flight risk and did not pose a danger to the community, the immigration court released him on bond. The Second Circuit affirmed. 175 F.4th 61.
The Second Circuit held that the “plain text of §1226(a) demonstrates that it clearly applies to” respondent. That text states: “[o]n 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.” In so holding, the Second Circuit rejected the government’s argument that §1226(a) applies only to “aliens who were admitted to the country but later become deportable and are subject to removal proceedings,” such as aliens who overstay their visas. In support, the Second Circuit noted that the reference in §1226(a) to being “removed” applies to both (1) aliens who become deportable and (2) aliens who are inadmissible by virtue of entering the country illegally. The Second Circuit further held that, contrary to the government’s position, §1225(b)(2)(A) “applies only to (1) noncitizens who are present and have not been admitted, and (2) are requesting (3) lawful entry into the United States after inspection and authorization.” The Second Circuit concluded that although respondent was a noncitizen who was present and had not been admitted, respondent was not currently requesting lawful entry after inspection and authorization. As such, respondent was not subject to mandatory detention. In further support of its holding, the Second Circuit noted that in the thirty years since Congress passed §1225(b)(2)(A) in IIRIRA, no federal administration had taken the position that its mandatory detention provision applies to all aliens who have unlawfully entered the country and are in removal proceedings. The court also observed that even if §§1225(b)(2)(A) and 1226(a) were ambiguous, it would still reject the government’s interpretation because that interpretation raised significant due process concerns.
In its petition, the government argues that through IIRIRA, Congress “acted to correct” a “disparity” between (1) “aliens who managed to evade detection and physically ‘enter’ the United States illegally,” who would be “subject to deportation proceedings and eligible for bond,” and (2) “aliens who presented themselves for inspection at a port of entry,” who would be “subject to exclusion proceedings, and to mandatory detention during such proceedings.” According to the government, §1225(b) “sets out procedures for removing aliens who have not been admitted, and mandates that aliens be detained during those proceedings.” The government suggests that every prior federal administration’s failure to impose mandatory detention for all aliens unlawfully in the country constituted erroneous interpretations of §1225(b).
Of note, the government requested that the Court hold this petition and instead grant the government’s petition in Putra v. Lopez-Campos, 25-1415. The government argued that Lopez-Campos addressed not only the statutory basis for its mandatory detention argument but also whether its policy complied with due process. Respondents in Lopez-Campos and in this case (represented by the same counsel, the ACLU) asked the Court instead to take this petition to address only the statutory arguments.
Department of Homeland Security v. D.V.D., 26-426.
The Court will decide whether federal courts may review and set aside DHS’s policy for removing aliens to “third countries,” meaning countries not named in the removal orders, and whether that policy is lawful. More specifically, the Court directed the parties to address: (1) whether the district court had jurisdiction; (2) whether 8 U.S.C. §1252(f)(1) barred its classwide declaratory relief and vacatur under the Administrative Procedure Act; (3) whether the policy violates the Immigration and Nationality Act (INA), the Due Process Clause, or the Foreign Affairs Reform and Restructuring Act (FARRA), which implements the Convention Against Torture (CAT); and (4) any other questions the government considers appropriate. The Court granted the government’s application to stay a district court judgment, treated the application as a petition for certiorari, and granted the petition.
Federal law generally bars removing an alien to a country if his “life or freedom would be threatened” because of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §1231(b)(3)(A). Likewise, FARRA bars removal to a country if the alien likely would be tortured. Under DHS’s 2025 Guidance, an alien may be removed “without the need for further procedures” if the receiving country has given assurances against persecution and torture that the State Department finds credible. Otherwise, the alien generally receives at least 24 hours’ notice and receives screening before an asylum officer if he “affirmatively states a fear.”
A class of aliens with final removal orders challenged the Guidance. After the Supreme Court stayed a preliminary injunction in 2025, the district court entered final judgment for the class, declaring that class members are entitled to meaningful notice and a meaningful opportunity to raise fear-based claims before removal to a third country. Among other things, the court held that “the Guidance does not provide class members constitutionally adequate notice or opportunity to raise CAT (or withholding) claims before being removed to a third country. The court additionally held that Section 1231(b) itself requires notice and an opportunity to raise statutory withholding claims[.]” (Citation omitted.) The court therefore vacated the Guidance. The First Circuit mostly affirmed.
The First Circuit held that the INA and FARRA provisions limiting judicial review did not bar the suit. It read §1231(b)(3) to require effective notice and a meaningful opportunity to raise a fear-of-persecution claim before removal. And, applying constitutional avoidance, the court read FARRA to require the same for torture claims, not reaching due process. The First Circuit also held that §1252(f)(1), which bars lower courts from classwide orders that “enjoin or restrain” specified INA provisions, does not reach declaratory relief or vacatur.
The government argues that the lower courts lacked jurisdiction because respondents’ claims arise from the execution of their removal orders and belong, if anywhere, in petitions for review. The government also argues that §1252(f)(1) bars declarations and vacatur that operate like injunctions. On the merits, it argues that nothing in the statutes requires procedures beyond those in the Guidance. It adds that, under Munaf v. Geren, 553 U.S. 674 (2008), the Executive’s determination, based on adequate diplomatic assurances, that a receiving country will not persecute or torture an alien is “conclusive.”
Respondents counter that §1252(f)(1), “[b]y its plain terms,” “is nothing more or less than a limit on injunctive relief,” Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 481 (1999). They also argue that the statutory protections against persecution and torture are “illusory” without notice and an opportunity to invoke them. They further argue that aliens who have entered the United States are entitled to due process before removal to a third country. And they point to the government’s statements at oral argument in Riley v. Bondi, 606 U.S. 259 (2025), and Johnson v. Guzman Chavez, 594 U.S. 523 (2021), that third-country removal requires notice and an opportunity to raise a fear of persecution or torture.
Missionaries of St. John the Baptist, Inc. v. Frederic, 25-1131.
The question presented is “[w]hether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a ‘substantial burden’ on religious exercise under the Substantial Burden Provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §2000cc(a).” RLUIPA bars a government from imposing a land-use regulation “in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution,” unless the burden is the least restrictive means of furthering a compelling governmental interest. §2000cc(a)(1). “Religious exercise” includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” §2000cc-5(7)(A), and “[t]he use, building, or conversion of real property for the purpose of religious exercise,” §2000cc-5(7)(B). The statute does not define “substantial burden,” and the Court has not construed the term in the land-use context.
Petitioner, a Catholic nonprofit, owns the property on which Our Lady of Lourdes church sits in Park Hills, Kentucky. The church predates the city’s zoning code and is a grandfathered nonconforming use in a residential zone. In 2021, petitioner sought a conditional-use permit and variances to build a 16-by-39-foot grotto honoring the Virgin Mary on an adjacent parcel, which it held under a perpetual lease. Petitioner believes the shrine must be next to the church because, in its account of the Lourdes apparition, the Virgin asked Saint Bernadette to “tell the Priests that a chapel must be built” next to the grotto. Its application acknowledged that the project was “not directly permitted” by the ordinance. The city’s zoning board approved it on the condition that the grotto site be deeded to petitioner, which occurred later that year. Respondents, neighbors concerned about traffic and parking, filed suit alleging violations of states and local law. Petitioner raised RLUIPA as a defense at summary judgment. After the trial court ruled for petitioner on state-law grounds, the Kentucky Court of Appeals held that the board lacked authority to approve the project, a holding petitioner did not challenge in the Kentucky Supreme Court. The court of appeals also rejected the RLUIPA defense. The Kentucky Supreme Court affirmed. 727 S.W.3d 400.
The Kentucky Supreme Court accepted that building the grotto is religious exercise. In assessing substantial burden, the court applied the Sixth Circuit’s framework in Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996 (6th Cir. 2017), which weighs alternative locations; delay, uncertainty, and expense; and self-imposition, among other factors. The court found no substantial burden, relying principally on alternative locations and self-imposition. It found that petitioner offered only “conclusory statements” that it lacked alternatives and had not asserted that it could not build a smaller shrine on the church lot, a limitation the court deemed “a mere inconvenience.” The court also noted that petitioner “had every reason to know, and in fact explicitly acknowledged, that building the grotto was not permitted by the ordinance” because the grotto would not be adjacent to an arterial street. The court therefore concluded that petitioner’s burden was self-imposed.
Petitioner asserts that a complete prohibition on building at its chosen site is a substantial burden and that alternatives and foreknowledge are irrelevant. On alternative locations, petitioner relies on Holt v. Hobbs, 574 U.S. 352 (2015), which held that the substantial-burden inquiry asks whether the government has substantially burdened the religious exercise at issue, “not whether the RLUIPA claimant is able to engage in other forms of religious exercise.” Petitioner calls the institutionalized-persons provision at issue in Holt “materially identical” to the land-use provision. Petitioner also argues that courts are not competent to decide that a modified version of the exercise elsewhere is adequate. On foreknowledge, petitioner maintains that RLUIPA has no exception for known burdens, and that otherwise governments could burden religious exercise “so long as they give adequate notice.”
Respondents counter that appellate courts routinely consider alternatives and self-imposition. They argue that RLUIPA protects only against burdens the government creates. In their view, a claimant that acquires property knowing the zoning rules forbid its planned use creates the burden itself. They also argue that Holt addressed “other forms of religious exercise,” not the same exercise elsewhere, and that the burden here concerns “preferred scale—not whether the exercise itself may occur.” Respondents further assert that “when a claimant contends that a regulation substantially burdens religious exercise,” it is reasonable to ask “whether the claimant could engage in the same exercise without ‘running afoul’ of the regulation.”
Marschner v. Marschner, 25-1349.
The question presented is whether the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. §1408, “require[s] state courts to refuse enforcement of indemnification provisions in divorce settlement agreements,” specifically a settlement that requires a veteran to indemnify his or her ex-spouse for disability pay that otherwise would be indivisible property in divorce proceedings. The USFSPA provides that retirement pay based on veterans’ time in service is divisible in divorce proceedings, but that veterans’ disability pay is not. The statute further provides that the Department of Defense will allocate retirement pay between divorced spouses as outlined in divorce decrees. Because disability pay is not taxable as income, veterans generally opt to receive disability pay and have the Department of Defense reduce their retirement pay accordingly.
In 2016, Richard Marschner, a veteran, and Roxane Marschner reached a divorce settlement in which Richard agreed that Roxane would receive 27.907% of his retirement pay. Richard further agreed that he would indemnify Roxane to the extent that he received disability pay in lieu of retirement pay. In exchange, Roxane paid Richard more than $140,000 in cash and retirement assets. In 2021, Richard left military service for medical reasons and opted to receive disability pay in lieu of retirement pay. Consistent with the USFSPA, the Department of Defense refused to allocate any amount of Richard’s disability payments to Roxane. Then, in contravention of the divorce settlement, Richard refused to indemnify Roxane for her portion of the payments. Roxane sought relief in North Dakota state court, which Richard opposed, arguing that the USFSPA rendered the divorce settlement agreement void. The district court ruled in Roxane’s favor, but the North Dakota Supreme Court reversed. 33 N.W.3d 9 (N.D. 2026).
The North Dakota Supreme Court held that “federal law prohibits North Dakota district courts from dividing military disability retired pay.” The court looked to the U.S. Supreme Court’s decision in Howell v. Howell, 581 U.S. 214 (2017). There, the Court held that where veterans enter into divorce settlement agreements addressing only division of retirement pay, state courts could not require veterans to indemnify their ex-spouses if they subsequently opted to receive some or all of their payments as disability pay. The North Dakota Supreme Court reasoned that “[e]ven if the parties’ agreement obligated Richard to indemnify Roxane for waived retired pay, federal law renders the obligation unenforceable.”
Roxane argues that “[n]othing in the [USFSPA]—or in Howell—suggests federal law preempts state law where the parties themselves, through negotiation, have chosen to contractually allocate the risk of a future disability election.” She asserts that statutory rights are presumptively waivable and that nothing in the USFSPA suggests that veterans cannot waive their right to disability pay not being divisible in divorce proceedings. Roxane further claims that the North Dakota Supreme Court overread Howell because it did not address voluntary divorce settlement agreements.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Lee Green, Supreme Court Fellow
- Erica Connolly, Supreme Court Fellow
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