Morocho Morocho v. Kelley et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
SEGUNDO MOROCHO 	)
MOROCHO , 	)
)
Petitioner, 	)
v. 	) 	Case No. CIV-25-1247-R
)
STEVE KELLY, et al., 	)
)
Respondents. 	)
ORDER
Petitioner, a citizen of Ecuador who entered the United States in 2006, is a
noncitizen of the United States who is currently being detained pursuant to the mandatory
detention provision contained in 8 U.S.C. § 1225(b)(2)(A). He filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 [Doc. No. 1] contending that § 1225(b)(2)(A)
does not apply to noncitizens like him who previously entered the country without
inspection and that his continued detention without a bond hearing violates his due process
rights.
The matter was referred to United States Magistrate Judge Shon T. Erwin under 28
U.S.C. § 636(b)(1)(B), (C). Judge Erwin issued a Report and Recommendation [Doc. No.
15] recommending that the Court partially grant the Petition for habeas relief by ordering
Respondents to provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within
seven business days or otherwise release Petitioner. Respondents filed a timely Objection
to the Report [Doc. No. 17] and Petitioner filed a Response to their Objection [Doc. No.
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18]. The Court must now make a de novo determination of the portions of the Report to
which a specific objection was made. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(3).
The key question in this case is whether Petitioner is properly detained pursuant to
§ 1225(b)(2)(A) or whether he must instead be detained pursuant to § 1226(a). The issue
is significant because § 1225(b)(2)(A) provides for mandatory detention whereas § 1226(a)
provides for conditional parole or release on bond pending a decision in the removal
proceedings. Section 1225(b)(2)(A) states:
Subject to subparagraphs (B) and (C), in the case of an alien who is an
applicant for admission, if the examining immigration officer determines that
an alien seeking admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a proceeding under section 1229a of
this title.
8 U.S.C. § 1225(b)(2)(A).
Respondents contend this provision applies to Petitioner because he is plainly an
“applicant for admission,” which is defined as “[a]n alien present in the United States who
has not been admitted or who arrives in the United States.” 8 U.S.C. § 1225(a)(1).
Petitioner argues that § 1225(b)(2)(A) does not apply to those who have resided in the
United States for many years and are not arriving or recently arrived to the United States,
and that a different provision, § 1226(a), applies to aliens who have been unlawfully living
in the United States. See 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney General,
an alien may be arrested and detained pending a decision on whether the alien is to be
removed from the United States.”).
The Seventh Circuit recently considered this issue in Castañon-Nava v. U.S. Dep’t
of Homeland Sec., No. 25-3050, 2025 WL 3552514 (7th Cir. Dec. 11, 2025). Although the
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Seventh Circuit was considering the issue in a “preliminary” posture, id. at *12, the analysis
is persuasive. Relying on the text and structure of the two provisions, the Seventh Circuit
concluded that the government’s argument was likely to fail on the merits:
That’s because § 1225(a)(1) defines an “applicant for admission” as “an alien
present in the United States who has not been admitted or who arrives in the
United States.” 8 U.S.C. § 1225(a)(1). And while a noncitizen arrested in the
Midwest might qualify as “an alien present in the United States who has not
been admitted,” § 1225(a)(1), the mandatory detention provision upon which
Defendants rely, limits its scope to an “applicant for admission” who is
“seeking admission,” § 1225(b)(2)(A). Put another way, “U.S. immigration
law authorizes the Government to detain certain aliens seeking admission
into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the
Government to detain certain aliens already in the country pending the
outcome of removal proceedings under §§ 1226(a) and (c).”
Id. at *9 (quoting Jennings v. Rodriguez, 583 U.S. 281, 289 (2018)). Petitioner, who has
been residing in the United States for many years and was already in the country when he
was apprehended, falls outside the scope of § 1225(b)(2)(A) because he is not also an “alien
seeking admission.”
Respondents contest this reading, positing that the statute unambiguously provides
that an alien who is an “applicant for admission” is “seeking admission.” Again, the
Seventh Circuit’s analysis is apt:
[A]dmittedly, this argument has some superficial appeal. After all, a person
does not apply for something they are not seeking. Moreover, § 1225(a)(3),
which Defendants point to, refers to noncitizens “who are applicants for
admission or otherwise seeking admission,” 8 U.S.C. § 1225(a)(3) (emphasis
added), suggesting that “applicants for admission” are those “seeking
admission.” But it is Congress's prerogative to define a term however it
wishes, and it has chosen to limit the definition of an “applicant for
admission” to “an alien present in the United States who has not been
admitted or who arrives in the United States.” 8 U.S.C. § 1225(a)(1). It could
easily have included noncitizens who are “seeking admission” within the
definition but elected not to do so.
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What is more, Defendants’ construction would render § 1225(b)(2)(A)’s use
of the phrase “seeking admission” superfluous, violating one of the cardinal
rules of statutory construction.
Id. See also Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176, at *4 (W.D. Okla. Dec.
16, 2025) (“The Court finds that § 1225(b)(2)(A) unambiguously requires that an
‘applicant for admission’ also be ‘seeking admission’ for the section to control.”); Medina-
Herrera v. Noem, No. CIV-25-1203-J, 2025 WL 3460946, at *3 (W.D. Okla. Dec. 2, 2025)
(“[I]f all applicants for admission are also ‘seeking admission,’ then § 1225(b)(2)(A)’s
inclusion of the phrase ‘seeking admission’ would be redundant.”); Corona Diaz v. Olson,
No. 25 CV 12141, 2025 WL 3022170, at *4 (N.D. Ill. Oct. 29, 2025) (“Because of
§ 1225(a)(1), the universe of ‘applicants for admission’ is not coextensive with noncitizens
‘seeking admission.’ If the categories overlapped perfectly, there would be no need for
Congress to have used the phrase ‘seeking admission’ in § 1225(b)(2)(A).”).
Another Court in this district has held otherwise on this issue, finding that
§ 1225(a)(1) imposes the label “seeking admission” on all “applicants for admission.”
Montoya v. Holt, No. CIV-25-01231-JD, 2025 WL 3733302, at *7-9 (W.D. Okla. Dec. 26,
2025). Other district courts across the country have held similarly, but the weight of
authority in this district and other district courts in Oklahoma coincides with the Seventh
Circuit’s analysis. See Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at
*2-3 (W.D. Okla. Jan. 2, 2026); Medina-Herrera, 2025 WL 3460946, at *2-4; Garcia v.
Holt, No. CIV-25-1225-J, 2025 WL 3516071, at *2-4 (W.D. Okla. Dec. 8, 2025); Diaz v.
Holt, No. CIV-25-1179-J, 2025 WL 3296310, at *2-3 (W.D. Okla. Nov. 26, 2025);
Escarcega v. Olson, No. CIV-25-1129-J, 2025 WL 3243438, at *2-3 (W.D. Okla. Nov. 20,
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2025); Colin, 2025 WL 3645176, at *2-5; Leonardo G.Z v. Noem, No. 25-CV-0600-SEH-
MTS, 2025 WL 3755590, at *8-11 (N.D. Okla. Dec. 29, 2025).
The Court agrees with the majority of the other courts in this district and the Seventh
Circuit’s reasoning. “[B]ased on § 1225(b)(2)(A)’s plain language, the Court concludes
that the section only applies when a noncitizen ‘applicant for admission’ is actively
‘seeking admission’ into the United States.” Diaz, 2025 WL 3296310, at *3. Because
Petitioner has been unlawfully living in the United States for many years without seeking
admission, the provision does not apply to him.
Alternatively, Respondents assert Petitioner seeks admission because he has filed a
42B application to cancel his removal proceedings and to obtain legal residency [See Doc.
No. 17-1]. Petitioner argues, and other courts in this district and elsewhere agree, that
[a]lthough the Petitioners in these cases have not been lawfully admitted and
at various times took some action that would allow them to lawfully remain
in the United States, these actions were taken outside the context of
§ 1225(b)(2)’s “seeking admission” requirement. They did not involve a
preliminary examination by an examining immigration officer upon initial
entry to the United States, nor did they occur in close temporal proximity to
their initial arrival. Accordingly, mandatory detention under § 1225(b)(2) is
not authorized in these cases.
Medina-Herrera, 2025 WL 3460946, at *4 (quoting P.R.S. v. Streeval, Nos. 4:25-cv-330,
4:25-cv-337, 2025 WL 3269947, at *2 (M.D. Ga. Nov. 24, 2025)) (finding petitioners’ 42B
applications “fell outside the context of” § 1225(b)(2)’s “seeking admission” requirement).
This Court agrees. Petitioner’s application to cancel removal does not make him a person
“seeking admission” within the context of § 1225(b)(2).
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Because Petitioner is not “seeking” admission, § 1225(b)(2)(A) does not apply to
him. Instead, Petitioner’s detention is controlled by § 1226(a). 1
“Noncitizens detained under § 1226(a) are generally entitled to a prompt bond
hearing before an immigration judge” and “Respondents raise no objection challenging
their obligation to provide bond hearings for noncitizens under § 1226(a).” Diaz, 2025 WL
3296310, at *3. Accordingly, Petitioner is entitled to a bond hearing as set out in § 1226(a).
After conducting a full de novo review, the Court ADOPTS the Report and
Recommendation [Doc. No. 15] and GRANTS the Petition, in part, as set out above.2
Respondents are directed to provide Petitioner with a prompt bond hearing under 8 U.S.C.
§ 1226(a) or otherwise release Petitioner if he has not received a prompt bond hearing.
IT IS SO ORDERED this 6th day of January, 2026.
1 Because the Court concludes that the plain language of § 1225 does not apply to
Petitioner, there is no need to address Respondents’ arguments regarding the title, purpose,
and historical interpretation of the statute.
2 Given that the Court has granted Petitioner’s request for a bond hearing, the Court
declines to address Petitioner’s due process claim at this time.
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