Garcia Cano v. Holt et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MIGUEL ANGEL GARCIA CANO, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-25-01228-JD
)
RUSSELL HOLT, et al., 	)
)
Respondents. 	)
ORDER
Courts across the country are seeking to determine on federal habeas review under
28 U.S.C. § 2241 whether an alien who is pending removal proceedings is entitled to a
bond hearing.1 Miguel Angel Garcia Cano’s (“Petitioner”) § 2241 Petition for Writ of
Habeas Corpus presents that question to the Court (“Petition”). [Doc. No. 1].2
Respondents United States Attorney General Pamela Bondi, United States Secretary of
the Department of Homeland Security Kristi Noem, and United States Immigration and
Customs Enforcement Field Office Director Russell Holt (together “Government”) filed a
1 The Court uses “alien” in this order, as that is the word used to describe someone
of Petitioner’s status in the applicable statutes. See 8 U.S.C. § 1101(a)(3) (“The term
‘alien’ means any person not a citizen or national of the United States.”). Congress wrote
these statutes many years ago. See infra n.9. And while the Court understands some
modern case law uses “noncitizen” instead of “alien,” because this is a case of statutory
construction, the Court uses Congress’s language.
2 In this order, the Court uses page numbering from the CM/ECF stamp across the
top of the district court docket.
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Response in Opposition to the Petition for Writ of Habeas Corpus.3 [Doc. No. 9].
Petitioner replied to the Government’s opposition. [Doc. No. 11]. The Court referred the
matter to United States Magistrate Judge Shon T. Erwin, who entered a Report and
Recommendation. (“R. & R.”) [Doc. No. 12]. The Government filed objections. [Doc.
No. 13].
The Court begins with the relevant statutory text. The opening provision of 8
U.S.C. § 1225(a)(1) states that “[a]n alien present in the United States who has not been
admitted or who arrives in the United States . . . shall be deemed for purposes of this
chapter an applicant for admission.” Section 1225(b)(2)(A) then provides that “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 proceedings, without bond. 8 U.S.C.
§ 1225(b)(2)(A). By contrast, § 1226(a) authorizes detention of any “alien” “[o]n a
warrant issued by the Attorney General” and permits release on bond pending removal.
Id. § 1226(a).
While most courts agree that district courts have jurisdiction under § 2241 to
resolve the issue, courts have taken diverging paths in statutory interpretation in
3 Petitioner additionally names Scarlet Grant, Warden of the Cimarron
Correctional Facility, as a defendant in her official capacity. While the Government does
not represent Warden Grant (and she has not entered an appearance or response in this
action), the Government submits that her “interests in this litigation are contractually
derivative of the federal respondents’ interests,” making “a separate response from
Warden Grant . . . [un]necessary.” [Doc. No. 9 at 7 n.1].
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answering the bond hearing question.4 The Supreme Court and United States Court of
Appeals for the Tenth Circuit have not spoken; thus, this Court has no binding precedent
to apply in answering the question about whether Petitioner is entitled to a bond hearing.5
4 The Court is aware that multiple courts of appeals are currently examining the
issue, as of the filing of this order. The Tenth Circuit has several appeals currently
pending raising this issue. See infra n.5. Other circuits also have appeals pending with
this issue. See, e.g., Lopez-Campos v. Raycraft, et al., Consolidated Appeal, No. 25-1965
(6th Cir.) (filed Oct. 27, 2025); Avila v. Bondi, et al., Case No. 25-3248 (8th Cir.) (filed
Nov. 10, 2025); Alvarez v. Warden, et al., Consolidated Appeal, Lead Case No. 25-14065
(11th Cir.) (filed Nov. 18, 2025); Garcia v. Guadian, et al., Consolidated Appeal, Lead
Case No. 25-7044 (4th Cir.) (filed Dec. 17, 2025); Barbosa da Cunha v. Lyons, No. 25-
3141 (2d Cir.) (filed Dec. 12, 2025). Although new orders are being issued daily, the
Court’s most recent research indicates that only the Fifth and Seventh Circuits have
examined the interplay between §§ 1225 and 1226, with the remaining orders being from
district courts. See Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1060–
62 (7th Cir. 2025) (in a request over a stay pending appeal relating to a 2022 consent
decree, stating the arguments over §§ 1225 and 1226 were waived by the consent decree
but also “likely to fail on the merits too” and then proceeding to examine in dicta);
Buenrostro-Mendez v. Bondi, 166 F.4th 494, 502–03 (5th Cir. 2026) (holding that
unadmitted aliens present in the United States are “applicants for admission” subject to
mandatory detention without bond under § 1225(b)(2)(A) because “seeking admission” is
not an independent requirement but is necessarily entailed by the statutorily deemed
status of “applicant for admission”). District court orders, while they may be persuasive,
do not create any binding precedent. Cf. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)
(“A decision of a federal district court judge is not binding precedent in either a different
judicial district, the same judicial district, or even upon the same judge in a different
case.”) (quoting 18 Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)). The Court
considered the Seventh Circuit’s dicta in Castanon-Nava, which follows the R. & R.’s
analysis in terms of “applicant for admission” and “seeking admission.” Ultimately, for
the reasons explained, the Court follows the analysis in Buenrostro-Mendez, which
largely tracks this Court’s prior reasoning in a similar case. See Montoya v. Holt, No. 25-
CV-01231-JD, 2025 WL 3733302 (W.D. Okla. Dec. 26, 2025).
5 The cases pending before the Tenth Circuit raising this issue currently include:
Marin v. Baltazar, et al., No. 26-1060 (10th Cir.) (filed Mar. 3, 2026) (appeal of District
Court of Colorado granting habeas relief); Garcia v. Holt, et al., No. 26-6026 (10th Cir.)
(filed Feb. 9, 2026) (same issue arising from appeal of the Western District of Oklahoma
granting habeas relief); Quiroz v. Grant, et al., No. 26-6019 (10th Cir.) (filed Jan. 28,
2026) (appeal of the Western District of Oklahoma denying habeas petition).
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The majority of district courts have granted bond hearings, reasoning that
§ 1225(b)(2)(A)’s use of “applicant for admission” alongside “alien seeking admission”
means that mandatory detention applies only to the subset who are presently “seeking
admission”—that is, those actively arriving. Those courts bolster that conclusion by
pointing to potential surplusage issues created in § 1226(c)(1). Under this construction,
the statutory scheme present in 8 U.S.C. §§ 1225 and 1226 creates an implied third
category of immigrants: Unadmitted aliens who are not seeking admission.
In contrast, a growing minority of courts have reached the opposite conclusion.
Under their view, § 1225(a)(1)’s definition of “applicant for admission” unambiguously
encompasses all aliens “present in the United States who ha[ve] not been admitted”
without temporal or geographic limitation. Those courts have also reasoned that the better
reading of the statute imputes the state of “seeking admission” to all applicants for
admission.
Judge Erwin produced a well-drafted R. & R. reflecting the reasoning adopted by
most federal district courts addressing these emerging statutory questions. The Court
adopts the portion of the R. & R. finding that the Court has jurisdiction. But the Court
takes a different path on the statutory questions and respectfully rejects the portion of the
R. & R. holding that Petitioner is detained under 8 U.S.C. § 1226 rather than § 1225.6
6 The Court’s first duty is to the rule of law, and to misplace that duty would
undermine our system of ordered liberty. The Court takes no solace in the human realities
on the other end of its pen.
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Section 1225 of title 8 of the United States Code contemplates only (1) aliens who
have been lawfully admitted and (2) aliens who are applicants for admission. The statute
does not create a third “non-seeking applicant” category, and the “applicant for
admission” category explicitly includes both arriving and present unadmitted aliens. The
statute gives no temporal or geographic limitations on the status of being an applicant for
admission. And the statute itself unambiguously shows that all applicants for admission
are seeking admission.
Moreover, there are prudential reasons to hesitate at the path embraced by most
courts thus far. Creating an undefined “non-seeking applicant” immigration category
presages further judicial gloss. How does a court determine when an unadmitted alien is
no longer an “applicant for admission” or “seeking admission?” Is two years of
unadmitted residence long enough? Three? How far must an alien travel from the border?
50 miles? 100? If an alien has been in the interior a short time but resides far away from
the border, can the distance make up for a short duration? Or, if an alien lives close to the
border but resides in the country for decades, can the time period make up for the short
distance?
These important questions sound in the province of an elected Congress rather
than an unelected judge. This Court limits itself to the plain meaning of the law. For the
reasons explained below, the Court denies Petitioner’s statutory violation claim and
dismisses the due process violation claim with leave to amend.
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I. 	FACTUAL BACKGROUND
Petitioner is a Mexican citizen who has resided in the United States since 2004.
[Doc. No. 1 ¶¶ 15, 40]. United States Immigration and Customs Enforcement (“ICE”)
detained Petitioner in August 2025. Id. ¶¶ 15, 41; [Doc. No. 9 at 14]. Petitioner is charged
as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) for entering without inspection. [Doc.
No. 1 ¶ 42].
Following his arrest, ICE issued a custody determination continuing Petitioner’s
detention without bond. Id. ¶ 44. Petitioner was unable to request bond due to the Board
of Immigration Appeals’ ruling in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA
2025). Id. ¶¶ 15, 45. Petitioner remains detained at the Cimarron Correctional Facility in
Cushing, Oklahoma. Id. ¶ 41.
Thus, Petitioner filed his Petition in this Court, challenging the lawfulness of his
detention without a bond hearing and asserting statutory and due process violation
claims. Petitioner seeks (1) an order restricting transfer during the pendency of this
action;7 (2) a show cause order against the Government; (3) a declaration “that
Petitioner’s detention is unlawful”; (4) attorney’s fees and costs; and (5) release or,
7 The Petition is not styled as an application for a temporary restraining order.
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alternatively, a bond hearing to determine whether he presents a flight risk or danger to
the community. Id. at 13–14.
II. 	LEGAL STANDARDS
A. 	Reports and Recommendations
When a magistrate judge issues a report and recommendation on a dispositive
motion, the district judge “shall make a de novo determination of those portions of the
report . . . to which objection is made.” 28 U.S.C. § 636(b)(1). “[A] party may serve and
file specific written objections to the proposed findings and recommendations” within
fourteen days after being served with a copy of the magistrate judge’s report. Fed. R. Civ.
P. 72(b)(2). The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions. 28 U.S.C. § 636(b)(1). That the district judge performs a “de novo
determination” does not mandate additional or repeat evidentiary hearings. United States
v. Raddatz, 447 U.S. 667, 674 (1980).
B. 	Writs of Habeas Corpus
The writ of habeas corpus is available to those held “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). And
§ 2241(c)(3) generally gives district courts jurisdiction over challenges to the legality of
an alien’s detention. Rasul v. Bush, 542 U.S. 466, 483 (2004); see also Soberanes v.
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Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (“Challenges to immigration detention are
properly brought directly through habeas.”).
III. 	ANALYSIS
The Court first examines whether 8 U.S.C. § 1252 bars this Court’s jurisdiction.
Although the Government did not expressly object to the R. & R.’s conclusion that the
Court has jurisdiction to review Petitioner’s § 2241 Petition,8 the Court sua sponte
examines its jurisdiction and agrees with the R. & R. that it has jurisdiction.
The Court next analyzes whether the Government may detain Petitioner under the
mandatory detention provisions of 8 U.S.C. § 1225(b)(2)(A) or must instead proceed
under the bond-eligible framework of 8 U.S.C. § 1226(a).9 Here, the Court interprets the
language of the statutes and explains why the text counsels a different conclusion than
that reached by the R. & R.
The Court then turns to whether Petitioner’s detention violates the Due Process
Clause of the Fifth Amendment. Although the R. & R. did not reach this issue because of
its analysis on statutory interpretation, the Court reaches this issue raised in the Petition
8 The Government states in its objections that it “expressly reasserts and does not
waive the arguments set forth in the Response.” [Doc. No. 13 at 6] (citing Doc. No. 9).
Regardless of the lack of any express objections to the R. & R.’s analysis on the Court’s
jurisdiction to hear the Petition, the Court has an independent obligation to examine that
issue.
9 These statutes, part of the Immigration and Nationality Act (“INA”), took most
of their current form in 1996 with Congress’s passage of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat.
3009 (1996).
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and dismisses this claim as insufficient on the pleading standards but with leave to
amend.
A. 	The Court has jurisdiction to decide Petitioner’s § 2241 Petition.
Petitioner alleges the Court has jurisdiction under the plain language of 28 U.S.C.
§ 2241(c)(3) and because Petitioner is being held in a locale within the bounds of this
district. [Doc. No. 1 ¶¶ 8–10]; see also 28 U.S.C. § 2241(a) (“Writs of habeas corpus may
be granted by the Supreme Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.”); id. § 116(c). The Government argues the
Court lacks jurisdiction via the jurisdiction stripping and channeling provisions of 8
U.S.C. § 1252(a)(5), (b)(9), and (g). See [Doc. No. 9 at 16–19]. The R. & R. found
jurisdiction. See [Doc. No. 12 at 4–7].
The Government contends that the following provisions from 8 U.S.C. § 1252
channel the Petition to the court of appeals:
Notwithstanding any other provision of law . . . including section 2241 of
Title 28, or any other habeas corpus provision . . . a petition for review filed
with an appropriate court of appeals in accordance with this section shall be
the sole and exclusive means for judicial review of an order of removal
entered or issued under any provision of this chapter.
8 U.S.C. § 1252(a)(5).
Judicial review of all questions of law and fact . . . arising from any action
taken or proceeding brought to remove an alien . . . shall be available only
in judicial review of a final order [of removal] under this section. . . . [N]o
court shall have jurisdiction, by habeas corpus under section 2241 of Title
28 . . . to review such an order or such questions of law or fact.
Id. § 1252(b)(9).
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The Government also contends that § 1252(g) completely strips the Court of
jurisdiction. That provision reads in relevant part as follows:
notwithstanding . . . section 2241 of Title 28, or any other habeas corpus
provision . . . no court shall have jurisdiction to hear any cause or claim by
or on behalf of any alien arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute removal
orders against any alien . . . .
Id. § 1252(g).
The Government argues the jurisdiction channeling provisions apply because
“[t]he decision to effectively begin th[e] proceedings [against Petitioner] via
§ 1225(b)(2)(A) . . . is integral to the removal proceedings” and that it is “a question of
law that can be reviewed by the appropriate court of appeals as part of any appeal of a
final order of removal.” [Doc. No. 9 at 16]. The Government also argues the jurisdiction
stripping provision applies because Petitioner “expressly challenges the basis of the
commencement of proceedings against him,” which goes to the Department of Homeland
Security’s (“DHS”) “election to commence proceedings under § 1225(b)(2)(A)” rather
than § 1226. Id. at 18, 32.
The R. & R. found the jurisdiction channeling provisions inapplicable, reasoning
that “Petitioner is only challenging the way his detention is being conducted—the lack of
bond hearing.” [Doc. No. 12 at 5] (citing Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th
Cir. 2006) (holding that § 1252(a)(5) does “not eliminate a district court’s jurisdiction to
review habeas petitions challenging an alien’s detention”)). Relying on the Supreme
Court’s analysis in Jennings v. Rodriguez, 583 U.S. 281 (2018), the R. & R. concluded
that § 1252(b)(9) does not present a jurisdictional bar where, as here, “Petitioner is not
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asking the Court to review a removal order (which has not been issued), or [the
Government’s] decision to detain him or seek his removal.” Id. Thus, according to the R.
& R., “the Court is not reviewing any part of the process by which [the Government] will
determine his eligibility for removal.” Id. at 5–6 (citing Jennings, 583 U.S. at 294–95,
and Caballero v. Baltazar, No. 25-cv-03120-NYW, 2025 WL 2977650, at *4 (D. Colo.
Oct. 22, 2025)).
Regarding the jurisdiction stripping provision, the R. & R. pointed to the Supreme
Court’s reasoning in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S.
471 (1999), to support its view that the Petition “falls outside the narrow jurisdictional
limitations of § 1252(g).” Id. at 6. In Reno, the Supreme Court said that § 1252(g)’s
jurisdictional bar is narrow and “applies only to three discrete actions”—the
commencement of removal proceedings, adjudication of removal proceedings, and
execution of removal orders. 525 U.S. at 482. And, as noted by the R. & R., the Supreme
Court recognized that it was “implausible” that “the mention of three discrete events
along the road to deportation was . . . a shorthand way of referring to all claims arising
from deportation proceedings.” [Doc. No. 12 at 6] (quoting Reno, 525 U.S. at 482).
Indeed, the Supreme Court in Jennings held that § 1252(b)(9) was inapplicable
because the petitioners in that case were not “asking for review of an order of
removal; . . . challenging the decision to detain them in the first place or to seek
removal; . . . [or] challenging any part of the process by which their removability will be
determined.” 583 U.S. at 294. Jennings invoked Reno’s reasoning on § 1252(g) in the
Jennings Court’s own treatment of § 1252(b)(9), stating that with “capacious phrases like
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‘arising from,’” the Supreme Court has “eschewed ‘uncritical literalism’” allowing for an
expansive reading beyond the discrete actions laid out in the statute. 583 U.S. at 293–94
(quoting Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312, 319 (2016)). This narrow
construction must apply here as well. That Petitioner is not challenging the detention
itself is evident by his averment that his detention falls under § 1226(a) rather than
§ 1225(b)(2)(A). [Doc. No. 1 ¶ 5]. Both statutes contemplate detention during removal
proceedings; the key difference is that the former affords a bond hearing while the latter
does not.
The Government’s citation to an Eleventh Circuit case applying § 1252(g) to a
Bivens claim does not change the analysis. [Doc. No. 9 at 17] (citing Alvarez v. U.S.
Immigr. & Customs Enf’t, 818 F.3d 1194, 1203 (11th Cir. 2016)). While the Eleventh
Circuit in Alvarez held that § 1252(g) “prevents [courts] from considering whether the
agency should have used a different statutory procedure to initiate the removal process,”
that argument cannot collapse the distinction between a challenge to detention without
bond and a challenge to an agency’s choice to commence removal proceedings. 818 F.3d
at 1203. This is especially so where the Supreme Court has counseled against precisely
that kind of “‘uncritical literalism’” applied to the “capacious” phrase “arising from.”
Jennings, 583 U.S. at 293–94 (quoting Gobeille, 577 U.S. at 319). A challenge to a
manner of detention based on statutory construction cannot be transformed into a
challenge to an agency’s decision to commence proceedings.
Considering the Supreme Court’s consistent use of an exceedingly narrow
construction on the jurisdiction channeling and stripping provisions, and that this Court is
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bound to follow Supreme Court precedent as it exists and should not expand the analysis
where the Court itself has not done so,10 the Court agrees with the R. & R. that those
provisions do not block the Court’s jurisdiction. The Court accepts the R. & R. to this
extent.
B. 	Petitioner is properly detained under 8 U.S.C. § 1225(b)(2)(A).
The statutory question boils down to whether Petitioner may be held under the
mandatory detention provisions of 8 U.S.C. § 1225(b)(2)(A), or if he instead must be
detained under 8 U.S.C. § 1226(a), under which he would be entitled to a bond hearing.
The Court proceeds to examine (1) whether Petitioner is an applicant for admission, (2)
whether Petitioner is seeking admission, and (3) whether statutory overlap between
§ 1225(b)(2)(A) and § 1226(c)(1) counsels a different interpretation.
1. 	Petitioner is an applicant for admission.
Petitioner argues that he “is not an ‘applicant for admission’” at all, much less one
“seeking admission.” [Doc. No. 11 at 6–7]; see also [Doc. No. 1 ¶¶ 5, 22, 38–39, 48]. The
Government, in contrast, contends that Petitioner “does not advance a meaningful
argument as to why he is not an ‘applicant for admission’” under § 1225(a)(1) and that he
qualifies as an “applicant for admission” because he is an “alien present in the United
States who has not been admitted.” [Doc. No. 9 at 10–11].
Section 1225(a)(1) states:
10 Courts must “leav[e] to th[e] [Supreme] Court the prerogative of overruling its
own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989).
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An alien present in the United States who has not been admitted or who
arrives in the United States (whether or not at a designated port of arrival
and including an alien who is brought to the United States after having been
interdicted in international or United States waters) shall be deemed for
purposes of this chapter an applicant for admission.
The R. & R. acknowledged the technical definition of “applicant for admission,”
noting that “[w]hile the undersigned [magistrate judge] may agree with that technical
interpretation, that does not mean Petitioner is subject to mandatory detention under
§ 1225(b)(2)(A).” [Doc. No. 12 at 11]. The R. & R. reinforced this through § 1225’s
titular reference to “expedited removal of inadmissible arriving aliens,” positing that the
“[u]se of the term ‘arriving’ to describe [aliens] clarifies that the section governs the
entrance of [aliens] to the United States.” Id. at 10. On this, the Court respectfully
disagrees with its colleague.
Instead, the Court starts with the “fundamental principle of statutory
interpretation,” Rotkiske v. Klemm, 589 U.S. 8, 14 (2019), that courts “ordinarily resist
reading words or elements into a statute that do not appear on its face,” Bates v. United
States, 522 U.S. 23, 29 (1997). “Atextual judicial supplementation is particularly
inappropriate when . . . Congress has shown that it knows how to adopt the omitted
language or provision.” Rotkiske, 589 U.S. at 14.
The R. & R.’s reasoning that “Congress’s enactment of § 1225 was for a specific,
limited purpose” focused on “arriving aliens” reads in a temporal limitation on the state
of being an “applicant for admission.” [Doc. No. 12 at 13]. But Congress omitted from
§ 1225(a)(1) and (b)(2)(A) any such temporal limitation. That omission takes on
increased significance considering Congress did include a temporal limitation elsewhere
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in the statute—one pertaining to asylum claims and expedited removal proceedings. 8
U.S.C. § 1225(b)(1)(A)(iii). “It is not [this Court’s] role to second-guess Congress’
decision” to intentionally omit such words of limitation. Rotkiske, 589 U.S. at 14.
The Government also correctly points out that the R. & R.’s focus on § 1225’s title
is misplaced. [Doc. No. 13 at 15–16]. First, titles of laws “cannot substitute for the
operative text of the statute.” Id. at 15 (quoting Fla. Dep’t of Revenue v. Piccadilly
Cafeterias, Inc., 554 U.S. 33, 47 (2008)). Second, by focusing on the middle part of
§ 1225’s title, “expedited removal of inadmissible arriving aliens,” the R. & R. failed to
appreciate the next part: “referral for hearing.” This latter portion encompasses aliens
subject to § 1225(b)(2)(A), who are “referr[ed]” to a removal hearing under § 1229a. Id.
at 16. In contrast, the middle title phrase “expedited removal of inadmissible arriving
aliens” refers to aliens subject to § 1225(b)(1), who do not receive a removal hearing. Id.
The lack of a removal hearing is what makes the removal “expedited.” 8 U.S.C.
§ 1225(b)(1).
The R. & R. made the same mistake in saying that “section[] [1225’s]
subheadings” are “all related to ‘arriving’ noncitizens.” [Doc. No. 12 at 10]. Naturally,
§ 1225(b)(1)’s subheading reads “[i]nspection of aliens arriving in the United States and
certain other aliens who have not been admitted or paroled.” Id. (quoting 8 U.S.C.
§ 1225(b)(1)). That subheading title is unsurprising—as explained, a particular subset of
“arriving” applicants for admission are subject to expedited removal under § 1225(b)(1).
And § 1225(d)’s listing of port-specific inspection powers is unsurprising considering
most inspections presumably take place at ports, and obviously aliens presenting at ports
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are indeed “arriving.” Id. at 10.11 But the other subheadings make no reference to
“arriving” aliens alone, indicating that § 1225(a)(1)’s prefatory use of “present” operates
in those sections, § 1225(b)(2)(A) included.
In sum, the R. & R.’s analysis hinged on a removal provision not at issue in this
case to infer that § 1225(a)(1)’s use of the word “present” has no real meaning. The Court
disagrees with that construction. Petitioner is an applicant for admission under the plain
language of § 1225(a)(1) because he is present in the United States and charged with
being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the United
States without inspection. [Doc. No. 1 ¶ 42; Doc. No. 9 at 14; Doc. No. 12 at 2].
But § 1225(b)(2)(A) also uses the phrase “seeking admission.” That phrase is the
next subject of inquiry.
2. 	Applicants for admission are seeking admission.
In concluding that § 1225 “primarily ‘applies to noncitizens who [are] presently
and actively seeking lawful entry into the United States . . . at the border,’” the R. & R.
also focused on § 1225(b)(2)(A)’s use of the phrase “an alien seeking admission.” [Doc.
No. 12 at 11–12] (quoting Escarcega v. Olson, No. CIV-25-1129-J, 2025 WL 3243438, at
*2 (W.D. Okla. Nov. 20, 2025)) (citation omitted). As above, the R. & R. applied
legitimate structural canons, but it applied those canons to address ambiguities that are
resolved on their own terms. Before invoking structural canons of interpretation, the
11 Further, any suggestion that § 1225 does not apply to aliens entering other than
through a port of entry is contradicted by the plain text of § 1225(a)(1), which
specifically covers “present” and “arriv[ing]” aliens regardless of “whether or not” they
enter “at a designated port of arrival.” 8 U.S.C. § 1225(a)(1).
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Court must first determine whether the text explains the relationship between “applicant
for admission” and “alien seeking admission” so as to avoid contradicting the plain text
of § 1225(a)(1). See United States v. Rentz, 777 F.3d 1105, 1110 (10th Cir. 2015)
(contrasting a preferred “reading of the statute” that “like most good [readings][,] flows
from plain . . . grammar” with a disfavored reading that “requires some sophisticated
syntactical somersaults”).
a) 	Section 1225(a)(3) creates a logical category relationship between
the phrases.
Here, § 1225(a)(3) explains how the contested phrases relate. Specifically,
“applicants for admission or otherwise seeking admission” creates a formal logical
relationship between the two concepts. 8 U.S.C. § 1225(a)(3).
The Government correctly points to § 1225(a)(3), which requires inspection of “all
aliens ‘who are applicants for admission or otherwise seeking admission.’” [Doc. No. 9 at
28] (quoting 8 U.S.C. § 1225(a)(3)). The Government quotes United States v. Woods, 571
U.S. 31, 45 (2013), to argue that the word “or” in § 1225(a)(3) “introduce[s] an
appositive—a word or phrase that is synonymous with what precedes it (‘Vienna or
Wien,’ ‘Batman or the Caped Crusader’).” [Doc. No. 9 at 28–29]. The Government
argues the use of an appositive with “applicant for admission” and “otherwise seeking
admission” shows Congress treats the phrases as synonymous. Id. at 28.
Although the R. & R. did not directly engage with this “appositive” argument,
other district courts have rejected it, stating that “the case cited by [the government] to
suggest that the word ‘or’ ‘introduce[s] an appositive’ actually says that the opposite is
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generally true.” Romero v. Hyde, 795 F. Supp. 3d 271, 284 n.31 (D. Mass. 2025); see
Rodriguez v. Bostock, 802 F. Supp. 3d 1297, 1327 n.7 (W.D. Wash. Sept. 30, 2025)
(same). Those cases quote the portion of Woods that explains the “ordinary use [of ‘or’] is
almost always disjunctive.” 571 U.S. at 45.
And indeed, “or” is not really an appositive here. Section 1225(a)(3) does not
indicate the phrases are truly synonymous, because “applicants for admission” is a noun
phrase and “seeking admission” is a category applicable to applicants for admission as
well as other aliens. Strictly speaking, a noun phrase and a category encompassing that
noun phrase are not synonyms because the latter is broader than the former.
The better reading starts with the period-correct definitions of “otherwise,” which
are “[i]n a different manner; in another way, or in other ways.” Otherwise, Black’s Law
Dictionary (6th ed. 1990). Those definitions imply that the condition preceding
“otherwise” shares a category with the condition following it.
Two examples show the impact of the word “otherwise” in “applicants for
admission or otherwise seeking admission.” 8 U.S.C. § 1225(a)(3).12 Consider an
inventory list that includes the following two entries:
(1) “Animals that are housecats or otherwise canine.”
(2) “Animals that are housecats or otherwise feline.”
12 The words following “otherwise seeking admission,” which are “or readmission
to or transit through the United States,” simply repeat and clarify the substance of
“otherwise seeking admission.” 8 U.S.C. § 1225(a)(3). Including the entire phrase would
bring the same analysis, and so the Court uses the shorter “otherwise seeking admission”
for ease of reading.
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The first entry is absurd—no canines are housecats, or vice versa. But the second entry
makes sense because the word “otherwise” creates a formal logical syllogism, and that
syllogism is valid. Not all felines are housecats, but all housecats are feline. And
critically, housecats are housecats in the first instance, involuntarily. Using the plain
language definition of “otherwise” in the context of an involuntary legal status, the
preceding noun must share the condition that follows.13
Now apply this logic from the start: Section 1225(a)(1) “deem[s]” “an alien
present in the United States who has not been admitted . . . an applicant for admission.”
The statute imposes a status by operation of law. Section 1225(a)(3) then says “[a]ll
aliens . . . who are applicants for admission or otherwise seeking admission” shall be
inspected. The word “otherwise” establishes that “aliens . . . seeking admission” is the
category to which “applicants for admission” belong. “Applicants for admission” are
subject to inspection because they fall within the broader class of those “seeking
admission.” So the statute necessarily treats “seeking admission” as a condition that
attaches to anyone deemed an “applicant for admission.”
And because § 1225(a)(1) imposes that label on every “alien present in the United
States who has not been admitted,” the condition of “seeking admission” is likewise
imposed. “Seeking” does not describe what the alien is voluntarily doing or the alien’s
13 To object that § 1225(a)(3)’s syllogism is invalid is an objection to be heard by
Congress, not the Court. Congress’s determination that all “applicants for admission” are
“seeking admission” is not facially absurd, and so the Court must take Congress at face
value. To conclude otherwise creates a third category of aliens having undefined legal
status—a result contrary to both the text and common sense.
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mindset. The alien is “seeking admission” in the same way the alien is “an applicant for
admission”—by congressional decree.
So, all “applicants for admission” are “seeking admission.” The former is
sufficient (but not necessary) for the latter, and the latter is necessary (but not sufficient)
for the former. Congress used a straightforward logical syllogism. Stated another way,
§ 1225(a)(3) leaves open the possibility that some aliens who are not applicants for
admission may nonetheless be “seeking admission.” But it does not leave open the
possibility that some “applicants for admission” are not “seeking admission.”14
Other district courts that have grappled with § 1225(a)(3) have seemingly
sidestepped the word “otherwise” by failing to appreciate the involuntary legal nature of
being an “applicant for admission.” For example, in Romero v. Hyde, the United States
District Court for the District of Massachusetts used two example statutes to show why
the Government’s reading did “not follow from the text.” 795 F. Supp. 3d at 284–85; see
also [Doc. No. 1 ¶ 33] (citing Romero v. Hyde). The court in Romero compared
§ 1225(a)(3)’s inspection requirement to a statute requiring “[a]ll craftsmen . . . who are
carpenters or otherwise woodworking” to be inspected by workplace safety personnel. Id.
at 285. The court then compared § 1225(b)(2)(A)’s removal provision to a statute fining
“craftsmen woodworking” for failing to wear eye protection. Id. The Romero court
14 If the statute contained indicia of temporal or geographic limitation on the state
of being an “applicant for admission,” this might lend the structural inference that § 1225
pertains only to aliens inspected at or near the border, close in time to their entry. But as
§ 1225(a)(1) unambiguously encompasses both those “present” and “arriving,” the Court
must defer to the statute’s plain language.
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reasoned that “no reasonable person” would think the carpenter could be fined for “not
wearing his safety goggles when not woodworking.” Id. (emphasis added). And so the
court concluded that “the mandatory detention provision” of § 1225(b)(2)(A) “applies
only if the . . . applicant . . . is ‘seeking admission.’” Id. (citation omitted).
But that reasoning ignores the fact that no law “deems” someone a “carpenter.”
Unlike a volitional occupation, the law “deem[s]” an “alien present in the United States
who has not been admitted” an “applicant for admission.” 8 U.S.C. § 1225(a)(1). Section
1225(a)(3)’s inspection requirement for “[a]ll aliens . . . who are applicants for admission
or otherwise seeking admission” does not contemplate voluntary statuses.
Moreover, the formal syllogistic relationship created in § 1225(a)(3) must apply to
§ 1225(b)(2)(A)’s use of the same phrases. Neither Petitioner nor the R. & R. provides a
reason to “abandon [the] usual presumption that ‘identical words used in different parts of
the same statute’ carry ‘the same meaning.’” Henson v. Santander Consumer USA, Inc.,
582 U.S. 79, 85 (2017) (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005)). And courts
“do ‘not lightly assume that Congress silently attaches different meanings to the same
term in the same . . . statute[.]’” U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 590
U.S. 604, 614 (2020) (quoting Azar v. Allina Health Servs., 587 U.S. 566, 574 (2019)).
Petitioner, for his part, does not address § 1225(a)(3). And the R. & R. addressed it
only in passing, asserting that the provision “supports th[e] distinction,” between § 1225’s
purported operation only on “arriving” aliens, versus § 1226’s operation on those
“present.” [Doc. No. 12 at 8–14]. The R. & R. invoked language from the Supreme
Court’s holding in Jennings, “noting that §§ 1225(b)(1) and (b)(2) ‘authorize[] the
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22
Government to detain certain aliens seeking admission into the country’ and that
§§ 1226(a) and (c) ‘authorize[] the Government to detain certain aliens already in the
country pending the outcome of removal proceedings.’” Id. at 13 (quoting Jennings, 583
U.S. at 289).15
The R. & R. instead reasoned that “[t]he plain meaning of the phrase ‘seeking
admission’ [in § 1225(b)(2)(A)] requires that the applicant must be presently and actively
seeking lawful entry,” because “the present participle in § 1225(b)(2)(A) implies action—
something that is currently occurring.” [Doc. No. 12 at 13] (quoting Caballero v.
Baltazar, No. 25-cv-03120-NYW, 2025 WL 2977650, at *6 (D. Colo. Oct. 22, 2025)).
Although not made explicit, that plain language grammatical reasoning implies a
meaningful variant canon argument: it assumes that § 1225 does not define “seeking
admission” like it does with “applicant for admission.” The meaningful variant canon
states “where [a] document has used one term in one place, and a materially different
term in another, the presumption is that the different term denotes a different idea.”
Southwest Airlines Co. v. Saxon, 596 U.S. 450, 457–58 (2022) (alteration in original)
(quoting Antonin Scalia & Bryan Garner, Reading Law 170 (2012)).
The R. & R. simply missed the significance of the word “otherwise.” Because
§ 1225(a)(3) creates a logical category relationship between “applicant for admission”
15 The R. & R. also quoted dicta from Zadvydas v. Davis, 533 U.S. 678, 693
(2001), regarding the impact of physical entry on due process rights, which is
inapplicable to the statutory question. [Doc. No. 12 at 13–14].
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23
and “alien . . . seeking admission,” the Court has no occasion to apply the meaningful
variant canon to § 1225(b)(2)(A)’s use of the phrases. Petitioner is seeking admission.
b) Section 1225(a)(4) specifies the process for ceasing to be an
applicant for admission.
Even if § 1225(a)(3) did not create a formal syllogistic relationship between
“applicant for admission” and “seeking admission,” § 1225(a)(4) provides more reasons
to read all “applicants for admission” as necessarily “seeking admission.”
In the same subsection deeming an “alien present in the United States who has not
been admitted” as an “applicant for admission,” 8 U.S.C. § 1225(a)(1), the statute also
describes the circumstances under which an alien may withdraw his or her application,
§ 1225(a)(4). That provision, titled “Withdrawal of application for admission,” states
“[a]n alien applying for admission may . . . at any time, be permitted to withdraw the
application for admission and depart immediately from the United States.” Id.
A plain language reading of the phrase “applicant for admission” alongside the
phrase “application for admission” lends the inference that the “application” to be
“withdraw[n]” is that of the “applicant for admission.” Id. (emphasis added). This in turn
lends the straightforward inference that “applicants for admission” apply for admission
until taking the actions prescribed under § 1225(a)(4).
Although neither the Petitioner nor the R. & R. addresses § 1225(a)(4), that
provision implies that Petitioner and the R. & R. would read all “applicants for
admission” as “applying” for admission yet not necessarily “seeking” admission. But this
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simply cannot be. What individual is “applying” for a given legal status without
“seeking” such a status?
Even without the impact of § 1225(a)(3), the better reading would be to take the
phrase “alien seeking admission” in the same way writers frequently use multiple
descriptors for a single subject. Two hypothetical statutes illustrate this:
(1) In the case of a felon in possession of a firearm, the arresting officer
shall verify the criminal record of a felon in possession of a firearm within
24 hours of arrest.
(2) In the case of a felon in possession of a firearm, the arresting officer
shall verify the criminal record of a felon having a firearm within 24 hours
of arrest.
The latter provision cannot rationally imply a category of felons who “possess” a firearm
yet do not actively “have” the firearm on their person after the arrest. No one would argue
that the officer’s duty to check the felon’s criminal record arises only if the felon keeps
the gun on his person after the arrest. Such a reading would denigrate the express and
plain purpose of the hypothetical statute to require verification of an arrestee’s felonious
history prior to being charged as a felon in possession. Everyone who “possesses” an
object “has” that object. And everyone legally “applying” for admission is also legally
“seeking” admission.
c) 	Section 1225(b)(2)(A)’s sentence structure indicates reference, not
modification.
The structure of § 1225(b)(2)(A)’s removal provision further suggests equivalent
usage. The prefatory language, “in the case of an alien who is an applicant for
admission,” sets the scope of what follows. 8 U.S.C. § 1225(b)(2)(A). Had Congress
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25
meant to imply a category of applicants for admission who might not be seeking
admission, the natural manner of doing so would read “in the case of an alien who is both
an applicant for admission and seeking admission.” Instead, the phrase “alien seeking
admission” comes after the operative language, “if the examining immigration officer
determines.” Id. This structure indicates that “alien seeking admission” refers to the prior
subject—it does not imply modification of the prior subject.
Moreover, any appearance of suboptimal drafting disappears with § 1225(a)(3)’s
establishment of a categorical relationship between the phrases “applicants for
admission” and “aliens . . . seeking admission.”16 Section 1225(b)(2)(A) can use those
phrases as categorically equivalent to one another because the statute itself explains how
the phrases are categorically equivalent to one another. A statute’s use of differing phrases
does not mandate categorically distinct meanings where the phrases’ categorical
equivalence is explicitly established elsewhere within the same statute. 17 Stated another
16 Even in the presence of inartful drafting, the fact remains that “[s]ometimes
drafters do repeat themselves and do include words that add nothing of substance, either
out of a flawed sense of style or to engage in the ill-conceived but lamentably common
belt-and-suspenders approach.” Antonin Scalia & Bryan Garner, Reading Law 176–77
(2012). And in such cases the surplusage canon ought not apply, lest “[a] clever
interpreter could create unforeseen meanings or legal effects from this stylistic
mannerism.” Id. at 177. To create an undefined third immigration status based on a single
instance of the phrase “alien seeking admission” (as a referent to a prefatory subject)
would be precisely this kind of “unforeseen meaning[] or legal effect[].” Id.
17 Alternatively, if not all applicants for admission are necessarily “seeking
admission,” Petitioner’s (1) long-term residence in the United States and (2) his five
United States citizen children “ranging in age from five to twelve years old” suggest that
Petitioner is seeking admission. [Doc. No. 1 ¶ 43]; see also [Doc. No. 9 at 30] (stating an
“alien unlawfully present in the country for 20 years was nonetheless an ‘applicant for
admission’” (citation omitted)). The Government also points to Petitioner’s application
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way, when the text shows that a variant is not meaningful, the meaningful variant canon
has no application. See Southwest Airlines, 596 U.S. at 457–58 (applying the canon only
where the term used is “materially different”).
3. 	Partial overlap with § 1226(c)(1) does not override § 1225’s
unambiguous text.
Finally, statutory overlap in relation to 8 U.S.C. § 1226(c)(1) cannot overcome the
evident meaning of § 1225. Still, the Court examines these arguments to explain why
§ 1225(b)(2)(A) does not render superfluous § 1226(c)(1)(A) and (c)(1)(D). The Court
also explains why redundancy in § 1226(c)(1)(E) cannot contradict the unambiguous
meaning of § 1225.
First, parts (A) and (D) of § 1226(c)(1) still operate when an alien is erroneously
found admissible. This is because the statutes referenced in parts (A) and (D) of
§ 1226(c)(1) apply to “any alien.” 8 U.S.C. § 1182(a)(2), (a)(3)(B). If an applicant for
admission is erroneously admitted, he or she is no longer subject to § 1225. Such an alien
may later be found to have been inadmissible in the first instance under parts (A) and (D)
of § 1226(c)(1). To define or narrow the scope of a statute does not render it superfluous.
The Laken Riley Act’s addition of part (E) to § 1226(c)(1) does create some
redundancy, though not total superfluity. The R. & R. highlighted that § 1226(c)(1)(E)
“mandates that ICE ‘shall take into custody’ any noncitizen who is . . . inadmissible under
§ 1182(a)(6)(A)(i),” [Doc. No. 12 at 14], and that statute in turn covers aliens “present in
for cancellation of removal as indicative of Petitioner seeking admission. See [Doc. No. 9
at 15] (citing Doc. No. 9-5); see also [Doc. No. 13 at 14–15].
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the United States without being admitted or paroled.” 8 U.S.C. § 1182(a)(6)(A)(i).
Although § 1226(c)(1)(E) only imposes the no-bond provision if the unadmitted alien
commits one of a list of specific crimes, redundancy might be present given “an alien
present in the United States without admittance would be unlikely to prove that they are
‘clearly and beyond a doubt entitled to be admitted’” within the meaning of
§ 1225(b)(2)(A). [Doc. No. 12 at 14–15] (quoting Pizarro Reyes v. Raycraft, No. 25-cv-
12546, 2025 WL 2609425, at *5 (E.D. Mich. Sept. 9, 2025)).
The Government also acknowledges that the “provisions have overlap much like a
Venn diagram,” but argues “they are not perfectly overlapping so as to make a provision
superfluous.” [Doc. No. 13 at 20]. The Government explains that § 1226(c)(1)(E) applies
to all aliens who commit certain crimes, while § 1225(b)(2)(A) reaches only applicants
for admission regardless of criminal history. See id. (“[Section] 1226(c)(1)(E) mandates
detention for a group of [aliens] that includes a narrow subset of applicants for admission
that may also be subject to § 1225(b)(2)(A) detention.”). The Government also argues
that the provisions employ distinct enforcement mechanisms: “Section 1225(b)(2)(A)
allows detention upon encountering an immigration agent and § 1226(c) provides for
detention by the issuance of a warrant. Two different routes to detention . . . .” Id. at 20–
21; see also [Doc. No. 9 at 26] (same); cf. SAS Inst. Inc. v. Iancu, 584 U.S. 357, 364
(2018) (“And just as Congress’ choice of words is presumed to be deliberate and
deserving of judicial respect, so too are its structural choices.” (citation modified)).
Lastly, the Government invokes Barton v. Barr for the proposition that even if some
overlap exists, “[r]edundancy in one portion of a statute is not a license to rewrite or
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eviscerate another portion of the statute contrary to its text.” [Doc. No. 13 at 20] (quoting
Barton v. Barr, 590 U.S. 222, 239 (2020)).
While overlap is present, total superfluity is not. The critical nuance resides in the
fact that the statutes do more than impose rules on aliens—they also impose duties on the
Executive. Section 1226(c) compels the Attorney General to actively “take into custody”
aliens who commit certain crimes. Section 1225(b)(2)(A) mandates “detention” upon
contact with an “examining immigration officer,” but without an affirmative mandate to
seek out and “take into custody.” That means the Attorney General has discretion
regarding whether to detain a non-criminal unadmitted alien in the first instance. See
Coronado v. DHS, 1:25-CV-831, 2025 WL 3628229, at *11 (S.D. Ohio Dec. 15, 2025).
The result is that § 1226(c)(1)(E) does not apply to all applicants for admission who are
subject to § 1225(b)(2). Redundancy remains as to the applicants for admission, but
§ 1226(c)(1)’s impact on the substantive obligations of the Attorney General means the
provision is not surplusage.
The R. & R. “overstates the significance of statutory surplusage or redundancy.”
Rimini St., Inc. v. Oracle USA, Inc., 586 U.S. 334, 346 (2019); see [Doc. No. 12 at 14–
15]. As the Supreme Court has explained, “[r]edundancy is not a silver bullet. . . .
Sometimes the better overall reading of the statute contains some redundancy.” Rimini
St., 586 U.S. at 346. Such is the case here. Like most interpretive devices, “[t]he canon
against surplusage is not an absolute rule,” Marx v. Gen. Revenue Corp., 568 U.S. 371,
385 (2013), and interpretative devices are “pretty weak when applied to acts of Congress
enacted at widely separated times,” Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 373 (3d
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Cir. 1999) (citation omitted). In that light, § 1225’s unambiguous language denies the
Court “license to . . . eviscerate” the word “present” from the statute’s opening definition.
Barton, 590 U.S. at 239; 8 U.S.C. § 1225(a)(1). And Congress’s intentional and selective
use of “arriving” similarly prohibits the Court from imputing that term to every
subsection of § 1225.
The recency of § 1226(c)(1)(E)’s passage does not mandate a contrary result.
Certainly, a later congressional enactment can help resolve statutory ambiguity when it
accords with original meaning. But the Supreme Court “ha[s] often observed . . . ‘the
views of a subsequent Congress form a hazardous basis for inferring the intent of an
earlier one.’” South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 355 (1998) (quoting
United States v. Phila. Nat’l Bank, 374 U.S. 321, 348–49 (1963)). The Court’s inquiry
must still center on the meaning of § 1225(b)(2)(A) when it was passed in 1996, as “the
whole point of having [a] written statute[]” is that it “ha[s] a single, best meaning[,] [and
that] ‘meaning is fixed at the time of enactment.’” Loper Bright Enters. v. Raimondo, 603
U.S. 369, 400 (2024) (quoting Wis. Cent. Ltd. v. United States, 585 U.S. 274, 284 (2018)
(emphasis omitted)).
And in 1997, the Executive promulgated a regulation stating that “[d]espite being
applicants for admission, aliens who are present without having been admitted or
paroled . . . will be eligible for bond and bond redetermination.” Inspection and
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). The initial
decision to give bond hearings to applicants for admission explicitly reflected an exercise
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of agency discretion.18 And the statutory propriety of denying bond hearings under
§ 1225(b)(2)(A) went without judicial inquiry until now for the simple reason that “the
judicial power of federal courts is constitutionally restricted to cases and controversies.”
Flast v. Cohen, 392 U.S. 83, 94 (1968) (internal quotations omitted).
In sum, § 1225 unambiguously deems Petitioner an “applicant for admission” who
is “seeking admission.”19 A restrained approach accepts statutory overlap before it will
invent an immigration status by inserting words that Congress deliberately omitted.
C. 	Petitioner fails to allege a due process violation.
Because the R. & R. recommended the Court grant the Petition on statutory
grounds, it naturally declined to reach the merits of Petitioner’s due process ground for
18 The Court recites this regulation to recount the past actions of the Executive, not
to suggest that the regulation controls the meaning of the statute. Cf. SAS Inst. Inc. v.
Iancu, 584 U.S. 357, 363 (2018) (“Where a statute’s language carries a plain meaning,
the duty of an administrative agency is to follow its commands as written, not to supplant
those commands with others it may prefer.”) (citing Soc. Sec. Bd. v. Nierotko, 327 U.S.
358, 369 (1946)).
19 Petitioner claims that “Courts have uniformly rejected” the Government’s “new
interpretation.” [Doc. No. 1 ¶ 34]. But that is not accurate, at least not anymore. See
Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); see, e.g., Montoya v. Holt,
No. 25-CV-01231-JD, 2025 WL 3733302 (W.D. Okla. Dec. 26, 2025); Coronado v. DHS,
No. 1:25-cv-831, 2025 WL 3628229 (S.D. Ohio Dec. 15, 2025); Ugarte-Arenas v. Olson,
No. 25-C-1721, 2025 WL 3514451 (E.D. Wis. Dec. 8, 2025); Hernandez Cruz v. Noem,
No. 8:25-cv-02566-SB-MAA, 2025 WL 3482630 (C.D. Cal. Dec. 2, 2025); Valencia v.
Chestnut, 809 F. Supp. 3d 1064 (E.D. Cal. Nov. 17, 2025); Cabanas v. Bondi, No. 4:25-
cv-04830, 2025 WL 3171331 (S.D. Tex. Nov. 13, 2025); Altamirano Ramos v. Lyons, 809
F. Supp. 3d 1015 (C.D. Cal. Nov. 12, 2025); Olalde v. Noem, No. 1:25-cv-00168-JMD,
2025 WL 3131942 (E.D. Mo. Nov. 10, 2025); Oliveira v. Patterson, No. 6:25-cv-01463,
2025 WL 3095972 (W.D. La. Nov. 4, 2025); Sandoval v. Acuna, No. 6:25-cv-01467, 2025
WL 3048926 (W.D. La. Oct. 31, 2025); Rojas v. Olson, No. 25-cv-1437-BHL, 2025 WL
3033967 (E.D. Wis. Oct. 30, 2025); Vargas Lopez v. Trump, 802 F. Supp. 3d 1132 (D.
Neb. Sept. 30, 2025); Chavez v. Noem, 801 F. Supp. 3d 1133 (S.D. Cal. Sept. 24, 2025).
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relief. As the Court departs from the R. & R.’s statutory conclusion, it must now reach
that ground.
On the due process claim, Petitioner’s claim consists of (1) one case quotation, (2)
the statement that “being free from official restraint” is “a fundamental [liberty] interest,”
(3) a summary of the Fifth Amendment, and (4) the conclusion that the Government’s
“detention of Petitioner without a bond redetermination hearing . . . violates his right to
due process.” [Doc. No. 1 ¶¶ 51–53]. The Government argues this “broad claim” is “not
well developed” and without basis. [Doc. No. 9 at 32].
The Court agrees with the Government. Petitioner’s “[t]hreadbare recital[] of the
elements of a cause of action, supported by mere conclusory statements” fails to satisfy
his pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also United States
v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (invoking pleadings standards in habeas
context).
However, the underlying material facts of the Petition may have changed with
respect to the length of Petitioner’s detention. The Tenth Circuit has counseled toward
granting leave to amend where a party “can correct the defect in the pleading or state a
claim for relief.” Brever v. Rockwell Int’l Corp., 40 F.3d 1119, 1131 (10th Cir. 1994)
(quoting 6 Wright & Miller’s Federal Practice & Procedure § 1483 (2d ed. 1990)); see
also Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances
relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits.”).
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Dismissal for failure to meet a pleading standard is without prejudice to refiling,
so no prejudice occurs to Respondents. Moreover, the Court sees no indication of “undue
delay, bad faith or dilatory motive” on the part of the Petitioner. Foman, 371 U.S. at 182.
For these reasons, the Court will grant leave to amend on the due process ground for
relief.
IV. 	CONCLUSION
For these reasons, the Court ACCEPTS IN PART and REJECTS IN PART the
Report and Recommendation. The Court accepts the Report and Recommendation to the
extent it finds the Court has jurisdiction over this matter and otherwise declines the
remainder. The Court DENIES Cano’s Petition for Writ of Habeas Corpus on Count 1,
Violation of the INA. The Court further DISMISSES Cano’s Petition for Writ of Habeas
Corpus on Count 2, Violation of Due Process, and grants leave to amend on that count
only within 14 days of this order or March 30, 2026.20 Should Petitioner not file an
amended petition by March 30, 2026, the Court will promptly enter its judgment denying
Count 1 and dismissing Count 2 without prejudice.
IT IS SO ORDERED this 16th day of March 2026.
20 The Tenth Circuit has stated that a certificate of appealability “is not required in
order to appeal a final order in a proceeding under 28 U.S.C. § 2241” for a federal
inmate. McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997) (citing
Bradshaw v. Story, 86 F.3d 164, 165–66 (10th Cir. 1996)).
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