Tenemasa-Lema v. Moniz et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
JORGE RAUL TENEMASA-LEMA, 	)
)
Petitioner, 	)
) 	Civil Action No.
v. 	) 	25-13029-BEM
)
PATRICIA HYDE, et al., 	)
)
Respondents. 	)
_______________________________________)
MEMORANDUM AND ORDER ON
PETITION FOR WRIT OF HABEAS CORPUS
MURPHY, J.
On September 4, 2021, U.S. Customs and Border Protection (“CBP”) paroled Petitioner
into the United States. For the next four years, Petitioner lived here, in regular contact with U.S.
Immigration and Customs Enforcement (“ICE”), largely without incident. Yet, on
October 9, 2025, ICE arrested Petitioner. Petitioner has since been detained, and denied a bond
hearing, based on the mandatory detention statute applicable to arriving aliens.
“[T]he indefinite detention without access to bond or bail of any person in the United States
violates due process.” Castaneda v. Souza, 810 F.3d 15, 44 (1st Cir. 2015) (Torruella, J.,
concurring) (emphasis in original) (citing Wong Wing v. United States, 163 U.S. 228, 238 (1896),
and Yick Wo v. Hopkins, 118 U.S. 356, 369–70 (1886)). Petitioner’s incarceration falls squarely
within that rule. Accordingly, the Court will grant this Petition in part and order that Petitioner
receive a constitutionally adequate bond hearing.
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I. 	Background
Petitioner is a native and citizen of Ecuador.1 Dkt. 9-1 ¶ 5. On September 4, 2021,
Petitioner entered the United States without inspection at or near the Eagle Pass International
Bridge in Texas. Id. ¶ 6. Shortly thereafter, roughly one mile away, Petitioner was detained by
CBP. Id. ¶ 7.
The next day, on September 5, 2021, CBP paroled Petitioner into the United States pursuant
to 8 U.S.C. § 1182(d)(5)(A) (“section 1182(d)(5)(A)”). Id. ¶ 8. By its terms, that grant of parole
expired about two weeks later, on September 21, 2021. Id.; see also id. at 5.
Two months later, on November 16, 2021, ICE served Petitioner with a Notice to Appear
in immigration court, charging him as inadmissible. Id. ¶ 9. ICE also served Petitioner a Warrant
for Arrest of Alien (Form I-200), “pursuant to sections 236 and 287 of the Immigration and
Nationality Act,” codified at 8 U.S.C. §§ 1226, 1357. Id. ¶ 10; see also Dkt. 1-4; Dkt. 1-5. Despite
serving Petitioner a Warrant for Arrest, however, ICE did not then detain him. Dkt. 9-1 ¶ 10.
Four years later, on October 9, 2025, Petitioner appeared for a scheduled check-in at an
ICE office in Burlington, Massachusetts. Id. ¶ 13. Without further explanation, ICE detained him.
Id. Respondents have since held Petitioner in a prison in Plymouth, Massachusetts. Id. ¶ 15. Prior
to detention, Petitioner had lived with his wife and daughter. Dkt. 1 ¶ 4.
On October 16, 2025, Petitioner sought a writ of habeas corpus in this Court. Dkt. 1. On
October 24, 2025, Respondents opposed. Dkt. 9. On November 14, 2025, the Court held a hearing
and took the matter under advisement. Dkt. 16.
1 Unless otherwise noted, the relevant facts are not in dispute and are drawn variously from the Petition and
its exhibits, see generally Dkt. 1, and from a declaration and exhibit submitted by Respondents’ agent, see Dkt. 9-1.
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II. 	Discussion
A. 	Statutory Issues
1. 	Section 1225 or 1226 (“Arriving” or “Present”)
As a threshold matter, the Court must determine which of the two pre-removal immigration
detention statutes—8 U.S.C. §§ 1225 or 1226 (“sections 1225 or 1226”)—governs this detention.
That assessment turns on whether Petitioner was an “arriving alien” at the time of his detention or
instead already “present in the United States.” See Aguiriano Romero v. Hyde, — F. Supp. —,
2025 WL 2403827, at *8, 11 (D. Mass. Aug. 19, 2025) (“[S]ection 1225 governs detention of
non-citizens ‘seeking admission into the country,’ whereas section 1226 governs detention of
non-citizens ‘already in the country.’” (quoting Jennings v. Rodriguez, 583 U.S. 281, 288–89
(2018)). For reasons stated in Section II(A)(2), the Court finds that the relevant point in time is
when CBP first encountered and detained Petitioner on September 4, 2021. Cf. Diaz Martinez v.
Hyde, 792 F. Supp. 3d 211, 222–23 (D. Mass. 2025) (finding that the relevant point in time was
when ICE detained a petitioner “more than a year after her initial encounter” with CBP).
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The Court considers this a close call. Petitioner was detained roughly one mile inland from
the Eagle Pass International Bridge, on the border between the United States and Mexico.2 See
Dkt. 1 ¶ 1; Dkt. 9-1 at 5. This is substantially more than the 25 yards at issue in Dep’t of Homeland
Sec. v. Thuraissigiam, 591 U.S. 103, 139–40 (2020) (concluding that a petitioner had not effected
an entry into the United States for purposes of the Due Process Clause).3 In many cases, a mile’s
distance may clearly and sufficiently indicate that an entrance has occurred. See, e.g., United
States v. Guzman-Hernandez, 487 F. Supp. 3d 985, 990–91 (E.D. Wash. 2020) (concluding that
an individual detained “three-quarters of a mile from the border” had effected an entry).
In this case, however, the Court finds that it lacks sufficient information to draw that
conclusion. See Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009) (“The burden of proof of
showing deprivation of rights leading to unlawful detention is on the petitioner.”). In the legal
sense, entry “requires more than just ‘physical presence’ in U.S. territory.” See United States v.
2 Petitioner states that he was apprehended “one mile inland into Eagle Pass, Texas.” Dkt. 1 ¶ 1. CBP records
submitted by Respondents state that Petitioner was detained “1 mile(s) W of EGP,” which the Court takes to mean
one mile west of Eagle Pass. Dkt. 9-1 at 5. The Court further accepts as undisputed Respondents’ clarification that
the relevant “Eagle Pass” reference point is the “Eagle Pass International Bridge,” rather than the city of Eagle Pass,
Texas, generally. See id. ¶ 6; Dkt. 10 at 2–3.
At the hearing, Respondents questioned whether the CBP record, stating that Petitioner was detained “1
mile[] W[est],” Dkt. 9-1 at 5 (emphasis added), corroborates Petitioner’s claim that he was detained “one mile inland,”
see Dkt. 1 ¶ 1 (emphasis added). However, since then, the Court has noted that Eagle Pass is on a westerly border
with Mexico, such that one mile west of Eagle Pass would necessarily be in Mexico. See Jones v. Jasper Wyman &
Son, 2022 WL 2802889, at *13 (D. Me. July 18, 2022) (“Courts commonly use internet mapping tools to take judicial
notice of distance and geography.” (quoting Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp. 2d 246, 259 n.13
(E.D.N.Y. 2010) (collecting cases))). Obviously, that cannot be right. The Court thus takes the CBP record as
mistaken and credits Petitioner’s assertion that he was detained one mile “inland.” This finding is consistent with the
relevant times indicated on the CBP record, which states that Petitioner was apprehended fifteen minutes after entry,
see Dkt. 9-1 at 5 (stating that the “Time . . . of Last/Attempted Entry” was “2050” and that the “Hour [of
Apprehension]” was “2105”), insofar as 4 miles per hour is a believably brisk walking speed. For the reasons stated
in this section, however, accepting Petitioner’s assertion does not ultimately prove dispositive on this issue.
3 The Court’s analysis in this section concerns entry for purposes of the immigration detention statutes rather
than the Due Process Clause. In the absence of any contrary argument, the Court assumes that those analyses are
identical. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“The distinction between an alien who has effected an
entry into the United States and one who has never entered runs throughout immigration law.”). The Court notes,
however, that, theoretically, they might diverge.
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Liberato, 142 F.4th 1174, 1179 (9th Cir. 2025) (quoting United States v. Pacheco-Medina, 212
F.3d 1162, 1163 (9th Cir. 2000), and citing Matter of Pierre et al., 14 I. & N. Dec. 467, 469 (B.I.A.
1973)). Rather, “[a]n ‘entry’ involves (1) a crossing into the territorial limits of the United States,
i.e. physical presence; plus (2) inspection and admission by an immigration officer; or (3) actual
and intentional evasion of inspection at the nearest inspection point; coupled with (4) freedom
from restraint.” Matter of Pierre et al., 14 I. & N. Dec. at 468 (internal citations omitted).4 Here,
other than an approximate distance between the border and his place of apprehension (“one mile
inland into Eagle Pass, Texas,” Dkt. 1 ¶ 1), Petitioner has not specifically asserted or otherwise
offered any evidence to show that he “actual[ly] . . . eva[ded] . . . inspection” or was “free[] from
restraint” after achieving “physical presence” in the United States. See Matter of Pierre et al., 14
I. & N. Dec. at 468. Having considered aerial maps of the relevant area, the Court notes that a
substantial portion of the one-mile radius extending from the Eagle Pass International Bridge
consists of the inspection point itself.5 Thus, considering the facts available, it is unclear whether
Petitioner, for example, even passed the nearest immigration checkpoint.6
4 Although the Thuraissigiam Court did not flesh out its entry analysis, its conclusion is nonetheless
consistent with this long-standing definition. Having only made it 25 yards past the border, one can reasonably argue
that the Thuraissigiam petitioner was never “free[] from restraint,” such to constitute an entry. See Matter of Pierre
et al., 14 I. & N. Dec. at 468; Thuraissigiam, 591 U.S. at 139–40; see also Diana G. Li, Due Process in Removal
Proceedings After Thuraissigiam, 74 STAN. L. REV. 793, 817–18 (2022) (making this point).
5 See Jones, 2022 WL 2802889, at *13 (noting courts’ common use of internet mapping tools).
6 The Court further notes that CBP’s paroling Petitioner into the United States under section 1182(d)(5)(A)
is at least consistent with a contemporaneous, subjective understanding of Petitioner as having not yet effected an
entry at the time of his apprehension. See Dkt. 9-1 ¶ 8; cf. Diaz Martinez, 792 F. Supp. 3d at 215 (reaching the opposite
conclusion where the petitioner was released under different authority); Portillo Martinez v. Hyde, — F. Supp. 3d —,
2025 WL 3152847 at *8 & n.32 (D. Mass. Nov. 12, 2025) (similar). This is not to say that parole into the United
States can have no application where an individual is already present in the United States. See Doe v. Noem, 152 F.4th
272, 277 (1st Cir. 2025) (noting that parole can confer benefits “[b]esides allowing legal access to the United States.”).
If Petitioner had already effected an entry, prior to his apprehension, CBP’s grant of parole might just be a legal
nullity, or at least irrelevant for present purposes. However, in this instance, the Court has found that it lacks sufficient
information to reach that conclusion.
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Accordingly, the Court accepts Respondents’ contention that Petitioner’s detention,
pursuant to his September 4, 2021 apprehension, is governed by section 1225, rather than by
section 1226.7
2. 	Effect of Parole
Petitioner’s history of parole under section 1182(d)(5)(A) does not necessarily change that
result. Petitioner was paroled into the United States on September 5, 2021, which parole expired
on September 21, 2021. Dkt. 9-1 ¶ 8. At the expiration of his parole, Petitioner was required to
“forthwith return”—or else the Department of Homeland Security (“DHS”) was required to return
Petitioner—“to the custody from which he was paroled.” 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R.
§§ 212.5(e)(1)(ii), 212.5(e)(2)(i) (providing that, when parole expires, a non-citizen “shall be
restored to the status that he or she had at the time of parole”); see also Velasquez Rincon v. Hyde,
— F. Supp. 3d —, 2025 WL 3122784, at *4 (D. Mass. Nov. 7, 2025) (further explaining this
mechanism). DHS apparently failed, or declined, however, to detain Petitioner when his parole
expired, see Dkt. 9-1 ¶ 8; and then again when it served him with a Notice to Appear in
immigration court in November 2021, id. ¶¶ 9–10;8 and then, repeatedly, “for years,” as
Respondents concede, “despite interacting with [him] . . . at his check-ins and during his removal
proceedings,” Dkt. 9 at 14.
One might expect that, at some point in those four years of inaction, DHS waived its right
to “return” Petitioner to detention under section 1225. However, as a matter of statutory
interpretation and federal common law, courts generally must assume that “an official’s crucial
7 Specifically, Respondents assert that Petitioner is detained under section 1225(b)(2), which applies to
certain non-citizens who are placed, in the first instance, in full removal proceedings under 8 U.S.C. § 1229a, rather
than expedited removal under section 1225(b)(1). See generally 8 U.S.C. §§ 1225(b)(1)–(2).
8 Even if Petitioner’s parole had not expired, it would have automatically terminated upon issuance of a
Notice to Appear. See 8 C.F.R. § 212.5(e)(2(i).
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duties are better carried out late than never.” See Nielsen v. Preap, 586 U.S. 392, 411 (2019).
Indeed, the Supreme Court has repeatedly held that, “if a statute does not specify a consequence
for noncompliance with statutory timing provisions”—which, here, would have to be read into the
statute as a matter of equity or reasonableness—“the federal courts will not in the ordinary course
impose their own coercive sanction.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 159 (2003)
(quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 63 (1993)). Admittedly,
the Court here would not necessarily view this as a matter of “coercive sanction” against the
Government, cf. id., rather than as a recognition of rights and expectations Petitioner might have
accrued as a result of DHS’s repeated and seemingly deliberate inaction.9 Nevertheless, the
Supreme Court has instructed that the proper way to consider such interests is as a constitutional
claim, see Preap, 586 U.S. at 420 (“While respondents might have raised a head-on constitutional
challenge . . . , they did not.”), to which guidance the Court adheres in the following section.
In sum, because DHS’s statutory power to “return” Petitioner to custody under section
1225 at the expiration of his parole, see 8 U.S.C. § 1182(d)(5)(A), was not lost through DHS’s
inaction, that remains a proper authority for his current detention.
B. 	Constitutional Issues
1. 	Due Process
In the intervening years, however, Petitioner “developed strong ties to the country” that
highlight the serious concern his detention without bond raises under the Fifth Amendment’s Due
9 In this respect, DHS’s failure to detain following the expiration of parole is unlike its failure to detain
criminally convicted non-citizens under section 1226(c) as considered by the Supreme Court in Preap. See 586 U.S.
at 413 (noting that DHS’s failure to detain as required under section 1226(c) is often the product of its not knowing
when an individual subject to detention has been released from criminal custody). Here, all relevant information is in
DHS’s possession, and, especially where an individual is the subject of ongoing monitoring and removal proceedings,
it is difficult to suggest that DHS is not actively cognizant of that person’s status.
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Process Clause. See Preap, 586 U.S. at 419–20.10 Respondents argue that Petitioner has no rights
under the Due Process Clause regarding his detention because, by way of the statutory mechanism
outlined above, Congress has said that Petitioner is to be treated as if he were still “on the threshold
of initial entry,” as if he were not literally here in the United States. Dkt. 9 at 16–19 (quoting
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)).
Recently, in a similar case, this Court rejected this argument, highlighting that
constitutional due-process protections regarding detention flow simply as a matter of “geographic”
presence within the United States, see Velasquez Rincon, 2025 WL 3122784, at *5–7 (quoting
Zadvydas v. Davis, 533 U.S. 678, 693 (2001)), notwithstanding any legal fiction that might affect
a non-citizen’s “rights regarding admission,” see id. (emphasis added) (quoting Thuraissigiam,
591 U.S. at 140).
The Court stands by its reasoning, as articulated in Velasquez Rincon, which applies with
equal force here. Petitioner’s case moreover presents an opportunity to show how the same result
might obtain from a slightly different logic. Much like the Velasquez Rincon petitioner, Petitioner
has lived “with relative freedom in the United States for [more than] four years, finding his way
across the country from Texas to Massachusetts.” Id. at *6. Indeed, Petitioner has since made a
home here with his wife and their daughter. Dkt. 1 ¶ 4. In Thuraissigiam, the Supreme Court
affirmed the long-held principle that “aliens who have established connections in this country have
10 See also Jennings, 583 U.S. at 312 (declining to address the constitutionality of mandatory detention under
section 1225(b) and remanding the issue for further consideration); id. at 332–37 (Breyer, J., dissenting) (expressing
“grave doubts” about the constitutionality of mandatory detention under section 1225(b) after considering the history
of the Due Process Clause and its common-law antecedents (quoting United States v. Jin Fuey Moy, 241 U.S. 394,
401 (1916))).
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due process rights.”11 591 U.S. at 107. Indeed, the Supreme Court has previously recognized that
a non-citizen’s “ties” to this country can inform the substance of their constitutional protections,
even in the absence of strict physical presence. See Plasencia, 459 U.S. at 32–34 (holding that a
permanent resident was “entitled to due process in assessing his right to admission” upon returning
from a short trip).12 Thus, even without disturbing the metaphysical “entry fiction” that may
obstruct, in some senses, our ability to admit that a non-citizen is really “here,” one can still
constitutionally recognize Petitioner’s actual life in this country—his years as part of our
community—not so easily set aside.
Whatever theoretical route one takes, the only conclusion that makes sense to this Court is
that Petitioner is a “person” who cannot “be deprived of life, liberty, or property, without due
process of law.” U.S. CONST. amend. V.
2. 	Application
Having established that Petitioner is due some quantum of process before being “deprived
of . . . [his] liberty,” id., the three-part balancing test articulated in Mathews v. Eldridge, 424 U.S.
319 (1976), provides the framework for assessing what exactly is required to protect that interest.
See Hernandez-Lara v. Lyons, 10 F.4th 19, 27–28 (1st Cir. 2021).
11 The Supreme Court here was referring to “due process rights in deportation proceedings.” Thuraissigiam,
591 U.S. at 107. The same reasoning should apply, a fortiori, to rights regarding detention, insofar as the former have
far greater implications for Congress’s plenary immigration powers.
12 Although Petitioner is not as established in this country as was the Plasencia petitioner, the detention rights
he puts at issue are also much less fraught. See Plasencia, 459 U.S. at 32 (“This Court has long held that an alien
seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his
application, for the power to admit or exclude aliens is a sovereign prerogative.” (emphasis added)); see also United
States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“[A]liens receive constitutional protections when they have
come within the territory of the United States and developed substantial connections with this country.”).
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a. 	Why Mathews?
A brief detour here is appropriate to explain why analysis under Mathews is appropriate.
Most decisively, this is the framework that the First Circuit applied in Hernandez-Lara to assess
what process was due an individual detained under section 1226(a). See id. Under that authority,
applicable to non-citizens apprehended from within the United States, see Jennings, 583 U.S. at
288–89, the Attorney General has discretion to order the release of an individual “on ‘bond . . . or
conditional parole.’” Hernandez-Lara, 10 F.4th at 26 (ellipsis in original) (quoting 8 U.S.C.
§ 1226(a)). By regulation, those decisions were delegated to immigration courts, which required
detained non-citizens to “demonstrate ‘to the satisfaction of the Immigration Judge that he or she
merit[ed] release on bond.’” Id. at 27 (quoting Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A.
2006)). “In contrast, the government “[did not] need . . . [to] show anything to justify
incarceration.” Id. (quoting Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020)).
The First Circuit held that scheme unconstitutional. Id. at 27–30 (considering the Mathews
factors). Although Congress had granted the Attorney General “discretion in each case to grant or
deny bond,” that discretion was ultimately “cabin[ed]” by “the constitutional restraints applicable
to all government action.” Id. at 34. Accordingly, the court affirmed the district court’s conclusion
that the Government was required to conduct a new bond hearing wherein it bore the burden of
demonstrating that the petitioner’s detention was necessary.13 Id. at 23–24.
13 Although Hernandez-Lara might reasonably be summed as about the burdens of proof applicable in
immigration bond hearings, it is worth remembering that the issue was framed as such only because of the groundwork
laid by the Attorney General in establishing by regulation the immigration courts and their jurisdiction over bond
decisions. See Hernandez-Lara, 10 F.4th at 26–27. Had the Attorney General established some other process (or, as
in this case, virtually no process), the court’s question would have been whether that process (or lack thereof) was
sufficient, with a separate question of remedy to follow. See Application of Gault, 387 U.S. 1, 71–72 (1967)
(Harlan, J., concurring in part) (describing courts’ task in remedying procedural due process violations as requiring
“no more restrictions . . . than are imperative” and stating that such restrictions “should be those which preserve, so
far as possible, the . . . [administrator’s] purpose”). In other words, Respondents cannot make Hernandez-Lara
inapposite (because it is about burdens of proof in bond hearings rather than entitlement to a bond hearing) simply by
committing a greater procedural due-process violation here than was considered in that case.
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The circumstances for detention under section 1225(b)(2) are essentially identical. As
under section 1226(a), the Government has statutory discretion to release an individual detained
under section 1225(b)(2), albeit based on slightly differently considerations.14 See 8 U.S.C.
§ 1182(d)(5)(A). That discretion (or any purported lack thereof) is likewise “cabin[ed]” by “the
constitutional restraints applicable to all government action.”15 See Hernandez-Lara, 10 F.4th at
34 (emphasis added). It follows that the process attending detention and release under section
1225(b)(2) may be assessed in the same manner.
It is further significant that the classes of individuals subject to detention under sections
1225(b)(2) and 1226(a) can be virtually identical, as illustrated by the facts of Hernandez-Lara
and this very case. Both statutes “appl[y] to a wide swath of noncitizens, many of whom . . . have
no criminal record at all.” See id. at 36. “The exact length of detention under [either statute] is
impossible to predict and can be quite lengthy.” See id. at 29. For all practical purposes, Petitioner
is in the same position as was the petitioner in Hernandez-Lara—detained pending the outcome
of full removal proceedings to determine his admissibility. Dkt. 9-1 ¶¶ 9, 11; cf. Hernandez-Lara,
10 F.4th at 34 & n.7.
14 It is thus admittedly somewhat of a misnomer to call detention under section 1225(b) “mandatory,” see
Jennings, 583 U.S. at 300 (“[T]here is a specific provision authorizing release from § 1225(b) detention.”), albeit a
useful one for distinguishing how the two detention statutes operate, see id. (“Here, by contrast, §§ 1225(b)(1) and
(b)(2) do not use the word ‘may.’ Instead, they unequivocally mandate that aliens falling within their scope ‘shall’ be
detained.”).
15 DHS, rather than the Attorney General, has discretion to grant parole under section 1182(d)(5)(A), as it
did for Petitioner when he first arrived in the United States, based on “urgent humanitarian reasons or significant
public benefit.” Dkt. 9-1 ¶ 8; 8 U.S.C. § 1182(d)(5)(A). Strict parallelism between this case and Hernandez-Lara
might suggest that the proper remedy would then be to require that DHS’s parole discretion be exercised subject to
the same “constitutional restraints applicable to all government action,” rather than grant Petitioner access to process
established pursuant to the Attorney General’s authority under section 1226. See Hernandez-Lara, 10 F.4th at 34.
However, for obvious reasons, the Court is disinclined to order that DHS invent its own bond procedures out of whole
cloth where its sister agency’s familiar and fitting process stands readily available nearby. See Milliken v. Bradley,
433 U.S. 267, 281 (1977) (“[T]he scope of a district court’s equitable powers to remedy past wrongs is broad.” (quoting
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971))).
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Indeed, it is telling that, if the Hernandez-Lara petitioner were arrested today, Respondents
would almost certainly argue that she is detained under section 1225(b)(2), rather than under
section 1226(a). The Hernandez-Lara petitioner “entered the United States in 2013 without being
admitted or paroled.” Hernandez-Lara, 10 F.4th at 23. When she was arrested in 2018, DHS did
so “pursuant to 8 U.S.C. § 1226(a).” Id. at 24. However, just recently, in July 2025, DHS
“revisited its legal position on detention and release authorities” and “determined that [section
1225] . . . , rather than [section 1226], is the applicable immigration detention authority for all
applicants for admission,” meaning all non-citizens who, like the Hernandez-Lara petitioner, were
“present in the United States [without having] been admitted,” 8 U.S.C. § 1225(a)(1). See Diaz
Martinez v. Hyde, 792 F. Supp. 3d 211, 217–18 & n.10 (D. Mass. 2025) (quoting an internal ICE
memorandum issued by Acting Director Todd M. Lyons). Granted, district courts across the
country have rejected this interpretation.16 Nonetheless, it demonstrates the decidedly thin line
determining who might fall in one class versus another.
Most importantly, neither class can reasonably be analogized to those unique cases where
Congress has “made specific findings as to the dangerousness of a class of noncitizens” and where
“those findings were found to have justified the detention of noncitizens even in the absence of
individualized determinations as to danger and flight risk.”17 See Hernandez-Lara, 10 F.4th at
35–39 (distinguishing categorical detention for convicted criminals under section 1226(c), for
16 See Kyle Cheney, More Than 100 Judges Have Ruled Against the Trump Admin’s Mandatory Detention
Policy, POLITICO (Oct. 31, 2025, 4:29 PM), https://www.politico.com/news/2025/10/31/trump-administration-
mandatory-detention-deportation-00632086 [https://perma.cc/4NXW-GDM8].
17 “As the Supreme Court has observed, a noncitizen’s ‘removable status itself . . . bears no relation to a
detainee’s dangerousness.’” Hernandez-Lara, 10 F.4th at 31 (quoting Zadvydas, 533 U.S. at 691–92). To the extent
one finds any support for section 1225(b)’s detention mandate in arriving aliens’ perceived flight risk, see e.g., H.R.
Rep. No. 104-469, pt. 1, at 117 (1996) (stating generally that a “majority” of non-citizens caught being “smuggled”
into the country fail to appear for their immigration hearings), such facts are hard to make applicable to someone like
Petitioner who was arrested while appearing for a scheduled ICE check-in, Dkt. 9-1 ¶ 13, which he had apparently
been doing “for years,” Dkt. 9 at 14.
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Communists during the Cold War, and for those subject to final orders of removal under 8 U.S.C.
§ 1231 (“section 1231”)). For this reason, as in Hernandez-Lara, the Court need not reach the
question of whether Petitioner’s detention has become unreasonably “prolonged” before
considering whether an absence of process problematizes that detention in the first instance.18 See
id. at 25 n.2.
Finally, the Court notes that it does not write here upon a blank slate. Notably, in Black v.
Decker, 103 F.4th 133 (2d Cir. 2024), the Second Circuit, citing the First Circuit’s decision in
Hernandez-Lara, concluded that procedural due-process challenges to detention under
18 As the Court has recognized, other courts to consider as-applied, constitutional challenges to detention
under section 1225(b) have often focused on the question of whether detention has become unreasonably “prolonged.”
See Velasquez Rincon, 2025 WL 3122784, at *8 n.23 (noting that such courts have generally done so under very
different circumstances, citing, e.g., Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019)). As the
First Circuit has recognized, however, prolonged detention is a distinct (and not necessarily first-order) basis for a
due-process claim. See Hernandez-Lara, 10 F.4th at 25 n.2. Thus, it is sufficient to say that those courts were simply
considering a different kind of claim and thus reasonably did so with a different kind of analysis. To the extent one
might argue that the only claim an individual detained under section 1225(b) may bring is that their detention has
become unreasonably prolonged, that logical jump requires analogizing the circumstances of detention under
section 1225(b) to one of the other categorical bases whereby Congress’s “specific findings . . . were found to have
justified the detention of noncitizens even in the absence of individualized determinations.” See id. at 36. For the
reasons stated in this section, the Court finds that analogy untenable.
Furthermore, the Court notes the logical mismatch in finding detention pending removal proceedings
unconstitutional only when it is “prolonged.” Where removal is neither imminent nor inevitable—which would likely
be the case on ‘day one’ of detention as much as it is months later—“the ultimate purpose behind the detention”
becomes abstract and thus the detention itself suspect. See Demore v. Kim, 538 U.S. 510, 531 (2003) (Kennedy, J.,
concurring). This logic is apparent in the context of convicted-criminal detention under section 1226(c), where the
length of an individual’s detention may certainly demonstrate that removal will not be as quick and easy as the
Supreme Court assumed in Demore but where lengthy detention is not necessarily a prerequisite to make that showing.
See Reid v. Donelan, 17 F.4th 1, 8 (1st Cir. 2021) (declining to adopt a “bright-line” rule that all individuals detained
under section 1226(c) must be given a bond hearing after six months but stating that, on a case-by-case basis, hearings
might be required after “even less time”). The exception further proves the rule when one considers detention pursuant
to a final order of removal under section 1231. See Zadvydas, 533 U.S. at 700–01 (adopting a six-month
“presumption” of reasonableness). In that context, the fact that the Government has not managed to remove an
individual within six months provides for the inference that it never will, at least not in the foreseeable future. In both
cases, it is not the prolongedness of the detention, per se, that makes the violation but rather what that duration shows
about the ongoing detention’s lawful purpose (or lack thereof).
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section 1226(c) should be analyzed under Mathews.19 Id. at 147–48 (likewise citing decisions
from the Third, Fourth, and Ninth Circuits). Following that decision, district courts in the Second
Circuit have concluded that procedural due-process claims concerning detention under
section 1225(b) should likewise be analyzed under Mathews. See, e.g., Al-Thuraya v. Warden,
Orange Cnty. Corr. Facility, 2025 WL 2858422, at 2–3 (S.D.N.Y. Oct. 9, 2025) (ordering that a
petitioner be given a bond hearing); Rashid v. Trump, — F. Supp. —, 2025 WL 3210955, at *10
(D. Vt. Oct. 27, 2025) (same); see also, e.g., Rodrigues De Oliveira v. Joyce, 2025 WL 1826118,
at *6 (D. Me. July 2, 2025) (same). Given the significant analytic overlap between these cases,
Petitioner’s, Black, and Hernandez-Lara, the Court sees no reason to invent or adopt a new
procedural due-process test just for this occasion.
b. 	Mathews Factors
Consideration of the Mathews factors clearly demonstrates that Petitioner has not received
sufficient process to justify his ongoing deprivation of liberty.
The Mathews factors are: (1) “the private interest that will be affected by the official
action”; (2) “the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards”; and (3) “the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.”
Hernandez-Lara, 10 F.4th at 28 (quoting Mathews, 424 U.S. at 335).
19 As the Second Circuit noted, its holding as to section 1226(c) is not inconsistent with Reid, wherein the
First Circuit “acknowledged ‘that the Due Process Clause imposes some form of “reasonableness” limitation upon the
duration of detention under section 1226(c),’ but did not address when and under what circumstances additional
procedural protections are due.” See Black, 103 F.4th at 146 n.17 (internal citation omitted) (quoting Reid, 17 F.4th
at 7 (internal quotation marks and alterations omitted)). In an earlier, now-withdrawn Reid opinion, the First Circuit
did identify a non-exhaustive list of “guideposts” (not drawn from Mathews) to assess the reasonableness of detention
under section 1226(c). See Reid v. Donelan, 819 F.3d 486, 500–01 (1st Cir. 2016), opinion withdrawn on
reconsideration, 2018 WL 4000993 (1st Cir. May 11, 2018). However, those were put forth for purposes of an implicit
reasonableness requirement that the court (at that time) found in the statute, rather than as a means of assessing a
constitutional claim. See Reid, 17 F.4th at 5 (discussing the prior Reid opinion). Thus, Black is not inconsistent even
with that initial, now-withdrawn Reid opinion.
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i. 	Private Interest
The first factor weighs heavily in favor of relief. “Freedom from imprisonment—from
government custody, detention, or other forms of physical restraint—lies at the heart of the liberty
that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. “The Supreme Court has
repeatedly affirmed that ‘[i]n our society liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.’” Hernandez-Lara, 10 F.4th at 27 (quoting United States
v. Salerno, 481 U.S. 739, 755 (1987)). “For this reason, ‘civil commitment for any purpose
constitutes a significant deprivation of liberty that requires due process protections.’” Id.
(emphasis in original) (quoting Addington v. Texas, 441 U.S. 418, 425 (emphasis added)).
Like the First Circuit, this Court “recognize[s] that removal proceedings have an end point
and that the liberty interest of a noncitizen detained under section [1225(b)(2)] may therefore be
slightly less weighty than that of individuals facing indefinite and prolonged detention.” See id.
at 29. But, also like the First Circuit, this Court finds that interest “only slightly less: The exact
length of detention under section [1225(b)(2)] is impossible to predict and can be quite lengthy, as
[Petitioner’s] case illustrates well.”20 See id. In the meantime, Petitioner sits in prison, away from
his wife and daughter. Dkt. 9-1 ¶ 13; Dkt. 1 ¶ 27.
20 Notwithstanding the Hernandez-Lara court’s distinction, the Court notes that, in common parlance, many
would just call that “indefinite,” since it lacks a definite, imminent, or predictable end. See Indefinite,
MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/indefinite (last visited Nov. 25, 2025) (“not
definite: such as . . . a: not precise: vague[;] b: having no exact limits[;] c: typically designating an unidentified,
generic, or unfamiliar person or thing”). It is certainly not “definite” in the sense that the Supreme Court used that
word in Demore. See 538 U.S. at 529 (referring to detention that, “in the majority of cases,” lasts for less than 90
days); see also Asylum in the United States, AM. IMMIGR. COUNCIL (May 9, 2025),
https://www.americanimmigrationcouncil.org/fact-sheet/asylum-united-states/ 	[https://perma.cc/HZ2P-FMN8]
(“Individuals with an immigration court case who were ultimately granted relief such as asylum in FY 2024 waited
more than 1,283 days on average for that outcome.”); Immigration Court Quick Facts, TRANSACTIONAL RECS. ACCESS
CLEARINGHOUSE, https://tracreports.org/immigration/quickfacts/eoir.html (last visited Nov. 25, 2025)
[https://perma.cc/555T-3R7X] (showing that, as of August 2025, there were 3,432,519 active cases pending in the
immigration courts).
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That disruption of established family ties further compounds Petitioner’s deprivation of
liberty. While Congress possesses broad power over immigration, often “mak[ing] rules that
would be unacceptable if applied to citizens,” that power is not absolute. See Demore v. Kim, 538
U.S. 510, 521 (2003) (quoting Mathews v. Diaz, 426 U.S. 67, 79–80 (1976)). “No one can claim,
nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held
within the United States are totally without constitutional protection.” Jennings, 583 U.S. at 332
(Breyer, J., dissenting).21
We could all stand to pause for a moment and consider what it would mean, personally, to
be separated from our families. Now, discount that loss by however much you think Petitioner’s
immigration status makes it actually not that big of a deal. The Court submits that there is no
humane way to perform that calculus without concluding that Petitioner has a tremendous interest
at stake here.
ii. 	Risk of Erroneous Deprivation
Likewise, the risk of erroneous deprivation is high. “In the absence of relief, the only
mechanism Petitioner has to test the propriety of his detention is DHS’s discretionary authority to
grant parole. Of course, that is no real test at all.” See Velasquez Rincon, 2025 WL 3122784, at
*9 (D. Mass. Nov. 7, 2025) (internal citation omitted) (citing 8 U.S.C. § 1182(d)(5)(A)); see also
Hernandez-Lara, 10 F.4th at 30 (finding that the risk “weigh[ed] heavily” in favor of relief where
the petitioner had access to a bond hearing but was disadvantaged at that hearing).
21 Although written in dissent, Justice Breyer’s constitutional analysis in Jennings was not directly
contradicted by the majority, which declined to reach those issues. See Jennings, 583 U.S. at 297–98, 306–12 (holding
that the constitutional-avoidance canon cannot be used to “rewrite a statute,” notwithstanding any “constitutional
issue[s]” with that statute); id. at 312 (remanding for further consideration of the constitutional arguments).
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iii. 	Government Interest
The third Mathews factor considers “‘the Government’s interest’ . . . which ultimately
entails an assessment of the ‘public interest.’” Hernandez-Lara, 10 F.4th at 32 (quoting Mathews,
424 U.S. at 335). Most straightforwardly, the Court recognizes that bond hearings entail an
“administrative burden[].” See Mathews, 424 U.S. at 335. That being said, “[c]ourts generally
have found that the cost of providing a bond hearing is relatively minimal.” Hilario M.R. v.
Warden, Mesa Verde Det. Ctr., 2025 WL 1158841, at *9 (E.D. Cal. Apr. 21, 2025) (citing cases).
More complicatedly, “[t]he prompt execution of removal orders is a legitimate
governmental interest, which detention may facilitate.” See Hernandez-Lara, 10 F.4th at 32
(internal citation omitted). In other words, the Government has an interest in detention insofar as
it makes more likely that it will be able to execute a removal order later, if one is ordered. That
interest, of course, is frustrated when an individual flees. But, put simply, the Court is unaware of
any evidence that the immigration courts have proven incapable of preventing that result. As such,
“[t]he government fails to explain why its proffered interest in securing appearance at removal
proceedings and for deportation holds sway where a noncitizen is not a flight risk.” See id. Of
course, any process with an eye toward safeguarding liberty will admit of some tolerated
residuum—the Court does not doubt that there may be cases where an individual has slipped
through the cracks—but if that argument were sufficient, then there would be no justification for
bail or due process at all.
On the other side of the ledger, there are “substantial societal costs,” borne by the public:
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[N]oncitizens subject to immigration detention include spouses, children, and
parents of U.S. citizens, caretakers of children and elderly relatives, and leaders in
religious, cultural, and social groups. The needless detention of those individuals
thus “separates families and removes from the community breadwinners,
caregivers, parents, siblings and employees.” Those ruptures in the fabric of
communal life impact society in intangible ways that are difficult to calculate in
dollars and cents. Even so, as twenty states report in an amicus brief to this court,
the financial costs imposed by such widespread communal disruption are severe:
“[States’] revenues drop because of reduced economic contributions and tax
payments by detained immigrants, and their expenses rise because of increased
social welfare payments in response to the harms caused by unnecessary detention.”
Id. (internal citation omitted) (second brackets in original) (first quoting Velasco Lopez v. Decker,
978 F.3d 842, 855 (2d Cir. 2020)). Indeed, given that a lack of procedure justifying Petitioner’s
detention may lead to an “instance[] of needless detention, entailing substantial social and financial
costs,” the public interest in denying him a bond hearing “is uncertain at best, and may well be
negative.” Id.; see also Velasco Lopez, 978 F.3d at 857 (“The irony in this case is that, in the end,
all interested parties prevailed. The Government has prevailed because it has no interest in the
continued incarceration of an individual who it cannot show to be either a flight risk or a danger
to his community. [The petitioner] has prevailed because he is no longer incarcerated. And the
public’s interest in seeing that individuals who need not be jailed are not incarcerated has been
vindicated.”). Thus, even assuming that the final Mathews factor still weighs overall against relief,
it does so with great unsurety and ambivalence and, as such, is substantially outweighed by
Petitioner’s liberty interest and the risk of its erroneous deprivation.
In sum, the Court finds that the Mathews factors weigh definitely in favor of relief, that
Petitioner’s detention without a bond hearing violates his due-process rights, and that a bond
hearing is an appropriate and minimally invasive additional procedure to ensure that right.
III. Conclusion
For the foregoing reasons, this Petition is GRANTED in part. The Court ORDERS that
Petitioner receive a constitutionally adequate bond hearing to consider the merits of his release.
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So Ordered.
/s/ Brian E. Murphy
Brian E. Murphy
Dated: November 25, 2025 	Judge, United States District Court
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