Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Darvin M.,
Petitioner,
v.
Pamela Bondi, Attorney General; Kristi
Noem, Secretary, U.S. Department of
Homeland Security; Todd M. Lyons, Acting
Director of Immigration and Customs
Enforcement; Marcos Charles, Acting
Executive Associate Director for Enforcement
and Removal Operations; David Easterwood,
Acting Director, St. Paul Field Office,
Immigration and Customs Enforcement; and
Ted H. Kim, Associate Director of USCIS
Refugee, Asylum and International
Operations Directorate,
Respondents.
No. 26-CV-0437 (SRN/EMB)
ORDER
Cameron 	Lane 	Youngs 	Giebink, 	Wilson 	Law 	Group, 	3019 	Minnehaha 	Ave.,
Minneapolis, MN 55406, for Petitioner
Ana Voss and Julie T. Le, U.S. Attorney’s Office, 300 S. 4th St., Minneapolis, MN
55415, for Respondents
SUSAN RICHARD NELSON, United States District Judge
Before the Court is the Petition for a Writ of Habeas Corpus (“Petition”) [Doc. No.
1] and an Emergency Motion for a Temporary Restraining Order (“TRO Motion”) [Doc.
No. 2] filed by Darvin M., who seeks immediate release from detention. 	Respondents
oppose the Petition. (Resp’ts’ Opp’n [Doc. No. 8].)
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The Court has taken the Petition and TRO Motion under advisement on the papers.
For the reasons set forth below, the Petition is granted and the Court orders Darvin M. to
be released immediately. Because the Court grants the Petition, it denies the TRO Motion
as moot.
I. 	BACKGROUND
Petitioner is a citizen of Nicaragua who entered the United States as a refugee on
October 26, 2023. (Pet. [Doc. No. 1] ¶ 2; Pet’r’s Ex. A.) 	His application for lawful
permanent resident status is pending with United States Citizenship and Immigration
Services (“USCIS”), which issued a notice of receipt on February 22, 2025. 	(Pet. ¶ 2;
Pet’r’s Ex. D.) Petitioner also has a valid work permit, which remains valid through March
17, 2029. (Id. ¶ 2 & Ex. C.)
On January 19, 2026, ICE agents arrested Petitioner at his place of employment, the
Hilton Homewood Suites in St. Louis Park, Minnesota, which was housing ICE agents
deployed to Minnesota to participate in Operation Metro Surge. (Pet. ¶ 4.) Respondents
were previously aware of Petitioner’s legal status and had verbally informed his boss that
he would not be detained if he reported to work. 	(Id. ¶ 5.) 	Despite their reassurance,
Respondents arrested Petitioner as part of Operation PARRIS [Post-Admission Refugee
Reverification and Integrity Strengthening] in Minnesota, a process ostensibly “designed
to re-examine refugee cases approved in recent years.” 	(Pet’r’s Ex. H at 2.) 	“But
resettlement agencies say the rollout has included early-morning arrests, detentions, family
separations and little to no explanation of what refugees are accused of or where they are
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being taken.” (Pet’r’s Ex. H.) Petitioner has committed no crime, is not a suspect, and was
arrested in the absence of a warrant. (Pet. ¶ 6.)
That same day, January 19, Petitioner filed the instant Petition and TRO Motion,
seeking release. 	He requested an order enjoining Respondents from transferring him
outside the District of Minnesota. 	He also requested that Respondents be enjoined from
interviewing or speaking with him regarding his refugee application process, the validity
of his refugee status, the prior approval of his refugee status, any termination of his refugee
status, his application for lawful permanent residence status, or any other matter relevant
to his refugee status or pending application for lawful permanent residence status in the
absence of counsel and with at least 72 hours’ advance notice as to the purpose of the
interview and standard of law to be applied. (TRO Mot. at 2.)
Also on the day of Petitioner’s arrest, January 19, the Court issued an Order to Show
Cause, ordering Respondents to respond to the Petition, and granting in part Petitioner’s
TRO Motion as follows:
Respondents are ENJOINED from moving petitioner outside of Minnesota
until further order of the Court, so that petitioner may consult with his
counsel while the Court is considering his petition, and so that there is no
risk that removal of petitioner from Minnesota will deprive this Court of
jurisdiction over this petition. 	If petitioner has already been removed from
Minnesota, respondents are ORDERED to immediately return petitioner to
Minnesota.
(Order to Show Cause [Doc. No. 5] at 2.)
Respondents violated the Order to Show Cause by transferring Petitioner to the El
Paso Camp East Montana, in Texas, and not immediately returning him to Minnesota.
(Second Giebink Decl., Ex. B [Doc. No. 9-3].) 	He remains in Texas. 	Moreover, one of
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the express purposes 	of enjoining Respondents from moving Petitioner outside of
Minnesota was to enable him access to counsel. (Order to Show Cause at 2.) On January
24, 2026, his counsel, Cameron Giebink, filed a declaration detailing his total denial of
access to Petitioner. 	Mr. Giebink recounts his unsuccessful efforts to communicate via
telephone with Darvin M. on January 23 and 24, on multiple occasions, due to disconnected
calls, redirected calls, and disconnected numbers. (Giebink Jan. 24, 2026 Decl. [Doc. No.
10] ¶¶ 1–19.) When he contacted Respondents’ counsel, Ana Voss by email, she directed
him to the DHS duty attorney. 	(Id. ¶ 16.) 	Mr. Giebink left a voicemail message for the
DHS duty attorney, but received no response. (Id. ¶¶ 17–18.) Mr. Giebink has been unable
to contact his client in any way since his detention on January 19. (Id. ¶ 19.)
In response to the Petition, Respondents state that Petitioner entered the country as
a refugee over a year ago and that his status had not been adjusted to lawful permanent
resident at the time of his arrest. (Resp’ts’ Opp’n at 2–3.) Thus, according to Respondents,
8 U.S.C. § 1159(a) authorizes Petitioner’s mandatory detention. (Id.) Respondents do not
address the Constitutional arguments that Petitioner raises in his Petition.
II. 	DISCUSSION
A. Statutory Authority
Following lengthy screening and vetting procedures, refugees may be lawfully
admitted 	to 	the 	United 	States 	under 	8 	U.S.C. 	§ 	1157. 	USCIS, 	Refugees,
https://www.uscis.gov/humanitarian/refugees-and-asylum/refugees (last visited January
15, 2026). Admission as a refugee is a distinct lawful immigration status. After residing
in the United States for one year, refugees are required to apply for adjustment of status to
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lawful permanent residence. 8 U.S.C. § 1159(a). Specifically, 8 U.S.C. § 1159(a) states
that an individual admitted as a refugee who has been physically present in the United
States for over one year “shall, at the end of such year period, return or be returned to the
custody of the Department of Homeland Security for inspection and examination for
admission to the United States as an immigrant in accordance with the provisions of
sections 1225, 1229a, and 1231 of this title.” 8 U.S.C. § 1159(a).
Section 1159 only contemplates DHS’s “custody” of refugees for the limited
purpose of conducting an inspection necessary to adjudicate adjustment of status under
§ 1159(a)(2). 	E.E. v. Bondi, No. 26-cv-314 (JWB/DTS) (D. Minn. Jan. 17, 2026) [Doc.
No. 7 at 7]. Respondents conflate custody with mandatory detention, (Resp’ts’ Opp’n at
2–3), but “where Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.” 	Russello v. United
States, 464 U.S. 16, 23 (1983). As Petitioner correctly observes, “custody” contemplates
the exercise of control absent physical detention, and refugees were not previously
detained, therefore, they cannot be “returned” to detention. (Reply [Doc. No. 9].)
Nothing in § 1159 authorizes detention untethered from that function [of
inspection 	and 	examination]. 	Nor 	does 	the 	statute 	mandate 	detention,
prescribe a minimum duration of custody, or reclassify an admitted refugee
as an “arriving alien” or “applicant for admission.” The cross-reference to §
1225 provides the procedural mechanics of inspection, not an independent or
mandatory detention regime. Custody under § 1159(a) is therefore lawful
only to the extent it serves the inspection and examination contemplated by
the statute.
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Roman N. v. Trump, No. 26-cv-282 (JWB/DLM) (D. Minn. Jan. 19, 2026) [Doc. No. 6 at
5].
In fact, none of the cross-referenced provisions in 8 U.S.C. § 1159(a) from which
custody following “inspection and examination for admission” may lawfully emanate—§§
1225, 1229a, or 1231—support Petitioner’s detention.
First, mandatory detention under § 1225 only applies to certain arriving aliens who
are 	inadmissible, 	8 	U.S.C. 	§ 	1225(b)(1), 	or 	who 	are 	considered 	“applicant[s] 	for
admission,” id. § 1225(b)(2)(A). See also Maldonado v. Olson, 795 F. Supp. 3d 1134 (D.
Minn. 	2025) 	(distinguishing 	between 	detention 	under 	§§ 	1225(b)(2) 	and 	1226(a)).
Petitioner is not “arriving.” He has been residing in the United States. Nor is he a person
who has “not been admitted or paroled,” as he was lawfully admitted to the United States
on October 26, 2023. Accordingly, neither §§ 1225(b)(1) nor 1225(b)(2) subject Petitioner
to mandatory detention.
Second, § 1231 does not support Petitioner’s continued detention either. 	Section
1231 provides for the mandatory detention and removal of noncitizens ordered removed,
directing that “[d]uring the removal period, the Attorney General shall detain the alien”
during the 90-day “removal period” that generally runs from date that a removal order is
administratively final. 	8 U.S.C. § 1231(a)(1)(A)–(B), (a)(2)(A). 	Detention may be
extended beyond 90 days if DHS determines that the person is “a risk to the community or
unlikely to comply with the order of removal.” 	Zadvydas v. Davis, 533 U.S. 678, 682
(2001) (citing 8 U.S.C. 1231(a)(6)). Nothing in the record demonstrates that Petitioner has
been ordered removed, therefore he cannot be detained in accordance with § 1231. Abdi
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F.W. v. Trump, No. 26-cv-208 (KMM/SGE) (D. Minn. Jan. 21, 2026) [Doc. No. 7 at 6]
(finding detention under § 1231 inapplicable where no evidence showed petitioner had
been ordered removed from the United States).
Finally, § 1229a applies to “removal proceedings” and contains no standalone
detention provisions. 	See 8 U.S.C. § 1229a. 	Even when removal proceedings are
underway, “most aliens may be released on bond or paroled.” Zadvydas, 533 U.S. at 683
(citing 8 U.S.C. § 1226(a)(2), (c)). 	Again, nothing here demonstrates that Petitioner has
been placed in removal proceedings. The detention provision that corresponds to § 1229a
is 8 U.S.C. § 1226, but mandatory detention under § 1226(c) only applies to noncitizens
who have been convicted of serious crimes, and discretionary detention under 1226(a)
requires the issuance of a warrant. There is no showing here of a conviction for a serious
crime, let alone any crime, nor is there evidence of a warrant. Accordingly, detention under
§ 1229a is inapplicable to Petitioner.
Section 1159’s implementing regulations confirm the limited purpose of DHS’s
“inspection” under the statute. See 8 C.F.R. § 209.1(b), (d). 	After one year of presence in
the United States, a refugee must submit an adjustment application and biometrics, and
USCIS determines whether an interview or further examination is necessary. Id. Detention
is not mandatory under the regulations, which do not contemplate prolonged custody in the
absence of the statutory inspection, in any event.
Likewise, the agency’s own guidance confirms that a refugee’s failure to apply for
adjustment of status “is not a sufficient ground to place them in removal proceedings, and
therefore not a proper basis for detaining them.” ICE Policy Memorandum 11039.1, issued
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on May 10, 2010 by ICE’s Director, James Chaparro, addresses “Detention of Refugees
Admitted Under INA [Immigration and Nationality Act] § 207 Who Have Failed to Adjust
to Lawful Permanent Residence Status.” 	(Pet’r Ex. E (P.M. 11039.1).) 	Again, here,
Petitioner did not fail to apply for adjustment of status. 	USCIS received his application,
but almost one year later, the agency has thus far failed to adjudicate it.
As to the decision to detain or release an unadjusted refugee, the ICE Policy
Memorandum provides express time limits:
Except in the case of emergency or other extraordinary circumstances, upon
the arrest of an unadjusted refugee upon reasonable belief of removability, a
DRO [Detention and Removal Operations] Field Office must determine, no
later than 48 hours after the arrest, whether to release the individual or issue
a Notice to Appear (NTA), Form I-862, indicating the removal charge(s)
applicable to the alien. 	See 8 C.F.R. § 287.3(d); Memorandum from Asa
Hutchinson, Undersecretary for Border and Transp. Sec., Guidance on ICE
Implementation of Policy and Practice Changes Recommended by the Dep’t
of Justice Inspector Gen. 2 (Mar. 30, 2004). If it becomes apparent earlier
that no removability 	ground applies, the individual 	must be 	released
promptly.
(Id.) (emphasis added). If a refugee is to be issued an NTA, it must be served “promptly,”
and, in any case, within 72 hours of arrest, absent an emergency or other extraordinary
circumstances. (Id. at 3.) Ultimately, if ICE fails to reach a determination about placing
an unadjusted refugee in removal proceedings within 48 hours, “the DRO Field Office
should release the alien with a reminder that the INA imposes an obligation upon him or
her to apply for adjustment of status under section 209(a) and to provide DHS with updated
address information. . . .” (Id. at 3–4.)
Regarding the effect of the failure to adjust status on removability, the ICE Policy
Memorandum states,
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A refugee may not be placed in removal proceedings based on a failure to
adjust status or to apply for adjustment of status because an alien’s failure to
adjust status or apply for adjustment under INA § 209(a) is not a ground of
removability. 	Therefore, the only way DRO may place an unadjusted
refugee in proceedings is if a violation of the INA can be established that is
unrelated to the alien’s failure to adjust, such as fraud or a criminal conviction
that forms the basis for a charge under INA §§ 212 or 237.
(Id.)
Respondents do not challenge Petitioner’s claim that he applied to adjust his status
to that of lawful permanent resident when he was eligible to do so and that he is awaiting
a decision from USCIS. 	Instead, they claim that Petitioner’s detention is mandatory
because he entered the United States on October 26, 2023, and despite their receipt of his
pending application for adjustment of status on February 22, 2025, “it has been more than
one year since Petitioner entered the United States.” (Resp’ts’ Opp’n at 2.) But refugees
are not eligible to apply for adjustment of status until they have “been physically present
in the United States for at least one year,” 8 U.S.C. § 1159(a)(1)(B) (emphasis added), and
USCIS controls the length of the review process. Even if a refugee filed an application for
adjustment of status at the earliest possible opportunity—366 days after entry into the
United States—Respondents still control the length of adjudication. 	The reason that
Petitioner has not acquired permanent resident status is because Respondents have failed
to adjudicate his pending application for permanent residence. 	It has been pending with
USCIS for nearly a year. 	“Respondents cannot justify [Petitioner’s] continued detention
through an open-ended assurance that they will get around to conducting the inspection
and examination required by § 1159(a), which presents their only identified basis for
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continued detention.” Abdi F.W., No. 26-cv-208 (D. Minn. Jan. 21, 2026) [Doc. No. 7 at
8.].
Respondents’ claims that Petitioner’s detention “is not indefinite,” his status is
“preliminary,” and that his “inspection will occur in due course” fail to justify his detention.
(Resp’ts’ Opp’n at 2–3.) There is no indication of whether and when inspection will occur.
This Orwellian situation, in which a lawfully admitted refugee’s personal liberty hangs in
the balance, is rooted in USCIS’s delay. Vague assurances of inspection “in due course”
cannot serve as a lawful basis for Petitioner’s open-ended detention.
Again, when “unadjusted” refugees are arrested for an inspection under § 1159, ICE
must determine whether to release the individual or issue an NTA indicating the removal
charges “no later than 48 hours after the arrest.”1 	(Pet’r Ex. E (PM 11039.1) at 2.)
Respondents have unlawfully detained Petitioner for far longer than 48 hours. He has been
detained since January 19, 2026 and ICE has now detained him for five days. His detention
is unsupported under the law.
1 Certain provisions of the INA and its implementing regulations, not at issue here, also
contain time limits for review and examination. 	See 8 U.S.C. § 1357(a)(2) (addressing
powers of immigration officers without a warrant and requiring that certain arrested aliens
“shall be taken without unnecessary delay for examination before an officer of the Service
having authority to examine aliens as to their right to enter or remain in the United States.”)
(emphasis added); 8 C.F.R. § 287.3(d) (providing that for aliens arrested on criminal
charges without warrant, subject to certain exceptions, “a determination will be made
within 48 hours of the arrest, except in the event of an emergency or other extraordinary
circumstance in which case a determination will be made within an additional reasonable
period of time, whether the alien will be continued in custody or released on bond or
recognizance and whether a notice to appear and warrant of arrest as prescribed in 8 CFR
parts 236 and 239 will be issued.”).
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In sum, Respondents have had ample opportunity to conduct an examination and
inspection under § 1159(a). Under the circumstances here, in which Petitioner’s detention
has far exceeded the permissible 48-hour bounds and Respondents have violated an order
of this Court, the appropriate habeas remedy is immediate release. 	See Munaf v. Geren,
553 U.S. 674, 693 (2008) (describing release as the “typical remedy” for “unlawful
executive detention”).
B. Constitutional Authority
Petitioner has also established that he is being detained in violation of the Fifth
Amendment. 	Noncitizens are entitled to 	due process of the law under the Fifth
Amendment. Demore v. Kim, 538 U.S. 510, 523 (2003); Sanchez-Valasco v. Holder, 593
F.3d 733, 737 (8th Cir. 2010). To determine whether civil detention violates a detainee’s
Fifth Amendment due process rights, courts apply the three-part test in Mathews v.
Eldridge, 424 U.S. 319 (1976). Under Mathews, courts weigh the following three factors:
(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.” 424 U.S. at 335.
“The interest in being free from physical detention” is “the most elemental of liberty
interests.” Hamdi v. Rumsfeld, 542 U.S. 507, 529, 531 (2004). Not only have Respondents
infringed on this liberty interest, by moving Petitioner from detention in Minnesota, where
his legal counsel resides, to Texas, they impeded his legal representation by making
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communication with his counsel impossible. 	Thus, the private interest at stake here
supports a finding of a Fifth Amendment violation.
As to erroneous deprivation, courts must “assess whether the challenged procedure
creates a risk of erroneous deprivation of individuals’ private rights and the degree to which
alternative procedures could ameliorate these risks.” Günaydin v. Trump, 784 F. Supp. 3d
1175, 1187 (D. Minn. 2025). Respondents detained Petitioner and failed to afford him an
“inspection” within 48 hours, then moved him to Texas, in violation of a court order, and
failed to return him, in violation of the same court order. 	Their procedures created an
erroneous deprivation of Petitioner’s private rights when their own conduct—their failure
to adjudicate his application for adjustment in status—is the only basis for all the needless,
cruel conduct that followed. The risk of erroneous deprivation also supports the finding of
a Fifth Amendment violation.
Finally, 	consideration 	of 	the 	Government’s 	interest, 	including 	fiscal 	and
administrative burdens that additional or substitute procedural requirements would entail,
clearly supports the finding of a Fifth Amendment violation. 	All that was required of
Respondents was to adjudicate Petitioner’s application. They could have “inspected” him
by simply reviewing his application in a timely fashion and making an appointment, if
necessary, rather than by uprooting him from his home, family, and job, subjecting him to
days of detention, flying him to Texas in contravention of court order and at taxpayer
expense, depriving him of access to legal counsel, and subjecting him to further trauma, all
for the stated purpose of “inspection.” The Constitution does not abide this conduct. The
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private interests at stake here far outweigh the “burden” of Respondents’ alternative
procedural requirements.
In sum, the Court finds that all three Mathews factors support Petitioner’s claim that
Respondents 	have 	violated 	his 	due 	process 	rights 	under 	the 	Fifth 	Amendment.
Respondents’ Constitutional violations, as well as their statutory violations, in detaining
Petitioner support Petitioner’s immediate release. See Munaf, 553 U.S. at 693.
III. 	ORDER
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that
1. 	Petitioner Darvin M.’s Emergency Petition for a Writ of Habeas Corpus [Doc.
No. 1] is GRANTED.
2. 	Respondents shall release Petitioner from custody IMMEDIATELY, but no
later than noon on January 25, 2026 CST.
3. 	Respondents shall confirm Petitioner’s release within 2 hours of his release.
4. 	Petitioner’s Motion for Temporary Restraining Order [Doc. No. 2] is DENIED
AS MOOT.
Dated: January 24, 2026
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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