Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RIAZ KHAN, : 1:25-CV-02098
:
Petitioner : (Judge Saporito)
:
v. : (Magistrate Judge Schwab)
:
:
GRAIG LOWE, et al., :
:
Respondents :
REPORT AND RECOMMENDATION
I. Introduction.
Petitioner Riaz Khan, an alien in immigration custody, filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued
detention without a bond hearing. The question is whether Khan is detained under
8 U.S.C. § 1225(b)(2) or whether he is detained under 8 U.S.C. § 1226(a). If he is
detained under § 1225(b)(2), he is not entitled to a bond hearing. But if he is
detained under § 1226(a), he is entitled to a bond hearing. Khan requests, among
other things, that the court declare that his detention violates the Immigration and
Nationality Act, the Administrative Procedure Act, and/or the Due Process Clause
of the Fifth Amendment. And he seeks, among other things, immediate release
from custody unless he receives a bond hearing before an Immigration Judge
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within ten days, or, in the alternative, immediate release from custody. For the
following reasons, we conclude the Khan is detained under 8 U.S.C. § 1226(a).
Accordingly, we recommend that the court grant Khan’s petition for a writ of
habeas corpus to the extent the court orders the respondents to provide Khan with a
bond hearing before an Immigration Judge pursuant to 8 U.S.C. § 1226(a).
II. Background and Procedural History.
Khan, who is a native and citizen of Pakistan, entered the United States on
June 10, 2024. See doc. 1 at ¶¶ 1, 2, 26, 27. Border Patrol agents encountered him
on that date near the Port of Entry in Lukeville, Arizona. See doc. 7-2 at 4–6. He
was apprehended within a group of 64 individuals. Id. at 5. A Border Patrol agent
determined that Khan had unlawfully entered the United States at a time and place
other than as designated by the Secretary of Homeland Security. Id. Khan was
arrested and transported to a facility in Tucson for further processing. Id.
According to immigration records, there Khan stated that he was a citizen and
national of Pakistan without the necessary legal documents to enter, pass through,
or remain in the United States. Id. And he admitted to illegally crossing the border
on June 10, 2024, without being inspected by an immigration officer at a designed
port of entry. Id. at 5–6.
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Further, Khan’s immigration record indicates that he “exhibited NO
manifestation of fear or expressed an intention to apply for asylum or related
protection while in Border Patrol custody.” Id. at 6. The record states that Khan
was being held in “custody pending removal proceedings as an Expedited Removal
as per [8 U.S.C. § 1225(b)(1)(A)(iii)].” Id. at 6.1 It further states that he was
“apprehended within fourteen days of his last entry into the United States and
within 100 air miles from the United States/Mexico international boundary.” Id. at
1 The document cites to Section 235(b)(1)(A)(iii) of the Immigration and
Nationality Act (“INA”), which is codified as 8 U.S.C. § 1225(b)(1)(A)(iii). For
ease of reference and consistency, here and elsewhere, when we refer to a section
of the INA or when an immigration document refers to a section of the INA, we
cite to the actual section of the United States Code. 8 U.S.C. § 1225(b) provides
for two types of removal proceedings for applicants for admission: expedited
removal proceedings under § 1225(b)(1) and regular removal proceedings under
§ 1225(b)(2). Although the record cited here refers to expedited removal per 8
U.S.C. § 1225(b)(1), it does not appear that Khan was put in expedited removal
proceedings—at least not for long—because as set forth below, a Notice to Appear
was issued in August 2024, indicating that Khan was in removal proceedings
pursuant to 8 U.S.C. § 1229a, which are regular removal proceedings. Neither
party here contends that Khan is subject to § 1225(b)(1). Rather, as discussed
below, the respondents contend that Khan is in custody under § 1225(b)(2)(A), and
Khan argues that he is not subject to § 1225(b)(2)(A), but instead he is subject to
§ 1226(a).
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6.2 It also provides that Khan “will be removed at a time, place and in a manner
consistent with removal proceedings for a citizen of their respective nation.” Id.
2 In addition to arriving aliens described in 8 U.S.C. § 1225(b)(1)(A)(i),
pursuant to 8 U.S.C. § 1225(b)(1)(A)(iii), the Attorney General may designate that
the expedited removal proceedings set forth in § 1225(b)(1) apply to certain other
aliens. With the exception of “an alien who is a native or citizen of a country in
the Western Hemisphere with whose government the United States does not have
full diplomatic relations and who arrives by aircraft at a port of entry,” the
Attorney General may designate as subject to expedited removal proceedings any
alien “who has not been admitted or paroled into the United States, and who has
not affirmatively shown, to the satisfaction of an immigration officer, that the alien
has been physically present in the United States continuously for the 2-year period
immediately prior to the date of the determination of inadmissibility under this
subparagraph.” 8 U.S.C. § 1225(b)(1)(A)(iii), (F). Although the statute provides
that the Attorney General has the discretion to make a designation under
§ 1225(b)(1)(A)(iii), the Attorney General “has since delegated this authority to the
[Department of Homeland Security] Secretary[.]” Coalition for Humane Immigrant
Rts. v. Noem, No. 25-CV-872 (JMC), 2025 WL 2192986, at *5 (D.D.C. Aug. 1,
2025), appeal docketed, No. 25-2589 (D.C. Cir. Aug. 11, 2025). In 2024, at the
time Khan entered the United States, the Secretary of the Department of Homeland
Security had designated that the expedited removal proceedings of § 1225(b)(1)
apply to aliens “who are physically present in the U.S. without having been
admitted or paroled following inspection by an immigration officer at a designated
port-of-entry, who are encountered by an immigration officer within 100 air miles
of any U.S. international land border, and who have not established to the
satisfaction of an immigration officer that they have been physically present in the
U.S. continuously for the 14-day period immediately prior to the date of
encounter.” Id. (quoting Designating Aliens For Expedited Removal, 69 Fed. Reg.
48877, 48880 (Aug. 11, 2004), and explaining how the designations under
§ 1225(b)(1)(A)(iii) have changed over the years including that the 2004
designation quoted above was changed in 2019, that the 2019 change was
rescinded in 2022, and that “as of January 21, 2025, DHS asserts the authority to
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On August 14, 2024, by a Notice to Appear, the United States Department of
Homeland Security charged Khan with being subject to removal from the United
States pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) of the INA because he is “an alien
present in the United States without being admitted or paroled, or who arrived in
the United States at any time or place other than as designated by the Attorney
General.” Doc. 7-3 at 2. This Notice to Appear ordered Khan to appear before an
Immigration Judge in Philadelphia on July 14, 2026, to show cause why he should
not be removed from the United States. Id.
On August 23, 2024, United States Immigration and Customs Enforcement
(“ICE”) issued an “Interim Notice Authorizing Parole” to Khan informing him that
it decided to parole him from its custody pursuant to 8 U.S.C. § 1182(d)(5)(A).3
apply expedited removal to all noncitizens described in the Designation Provision”
of § 1225(b)(1)(A)(iii)).
3 That provision provides:
The Secretary of Homeland Security may, except as provided in
subparagraph (B) [which deals with refugees] or in section
1184(f) of this title [which deals with nonimmigrant
crewmember status], in his discretion parole into the United
States temporarily under such conditions as he may prescribe
only on a case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to
the United States, but such parole of such alien shall not be
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Doc. 7-4 at 2. The Notice provides, among other things, that the “parole
authorization is valid for one year beginning on the date on this notice and will
automatically terminate upon your departure or removal from the United States or
at the end of the one-year period unless ICE provides you with an extension at its
discretion.” Id. The Notice also provides that the parole “is not an admission in
lawful status.” Id.
On November 11, 2024, Khan filed an Application for Asylum and for
Withholding of Removal. Doc. 1-5. In this document, in addition to explaining
why he is applying for asylum and withholding of removal, Khan states that he
“crossed the border from Mexico into the United States without authorization and
was detained for three months upon entry.” Id. at 9.
Khan’s one-year parole ended on or about August 22, 2025. Khan was
detained by ICE on September 19, 2025. Doc. 1-6. He was detained while
regarded as an admission of the alien and when the purposes of
such parole shall, in the opinion of the Secretary of Homeland
Security, have been served the alien shall forthwith return or be
returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the
United States.
8 U.S.C.A. § 1182(d)(5)(A).
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reporting to a scheduled check-in with ICE in Philadelphia. Doc. 1 ¶ 5. He was
initially detained at the Moshannon Valley Processing Center in Philipsburg,
Pennsylvania. Id. But on September 27, 2025, he was transferred to the Pike
County Correctional Facility. Doc. 1-7 at 2.
On September 29, 2025, the Department of Homeland Security lodged an
additional charge of inadmissibility against Khan. Doc. 7-6. More specifically, it
charged Khan with being inadmissible pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I)
“as an immigrant who, at the time of application for admission, is not in possession
of a valid unexpired immigrant visa, reentry permit, border crossing card, or other
valid entry document required by the Act, and a valid unexpired passport, or other
suitable travel document, or document of identity and nationality as required under
the regulations issued by the Attorney General under” 8 U.S.C. § 1181(a). Id. at 2.
On October 27, 2025, the Immigration Court issued a “Notice of In-Person
Hearing” for January 9, 2026, in Elizabeth, New Jersey. Doc. 7-7 at 2. That
hearing was subsequently continued until March 17, 2026. Doc. 9 at 1.
On November 5, 2025, Khan began this action by filing a petition for a writ
of habeas corpus. Doc. 1. The respondents filed a response to the petition and
related documents. Doc. 7. Khan then filed a reply. Doc.8.
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On January 16, 2026, the respondents filed a notice of supplemental
authority citing the United States Court of Appeals for the Third Circuit’s January
15, 2026 decision in Khalil v. President, United States, 164 F.4th 259 (3d Cir.
2026). Doc. 10. We then ordered the parties to file supplemental briefs regarding
the impact of Khalil. Doc. 13. And the parties have filed such supplemental briefs.
Docs. 17, 18.
III. The only proper respondent in this case is Warden Lowe.
The petition names as respondents: (1) Graig Lowe, the Warden of the Pike
County Correctional Facility; (2) David O’Neill, the Acting Philadelphia Field
Office Director of Enforcement and Removal Operations of ICE; (3) Todd Lyons,
the Acting Director of ICE; (4) Kristi Noem, the Secretary of the Department of
Homeland Security; and (5) Pamela Bondi, the United States Attorney General.
Doc. 1 at 1 (caption), ¶¶ 12–16.
28 U.S.C. § 2242 provides that a petition for a writ of habeas corpus shall
name “the person who has custody over” the petitioner. And pursuant to 28 U.S.C.
§ 2243, the writ of habeas corpus, or order to show cause, shall be directed to the
petitioner’s custodian. “[T]here is generally only one proper respondent to a given
prisoner’s habeas petition.” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). And
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that respondent is the petitioner’s immediate custodian, i.e., the ‘“person who has
the immediate custody of the party detained, with the power to produce the body of
such party before the court or judge, that he may be liberated if no sufficient reason
is shown to the contrary.’” Id. at 435 (quoting Wales v. Whitney, 114 U.S. 564, 574
(1885) (emphasis added)). The warden of the prison where the petitioner is held is
considered the petitioner’s immediate custodian for purposes of a habeas action. Id.
at 435–42. Thus, “[w]henever a§ 2241 habeas petitioner seeks to challenge his
present physical custody within the United States, he should name his warden as
respondent and file the petition in the district of confinement.” Id. at 445.
Here, Khan was incarcerated at the Pike County Correctional Facility at the
time he filed this petition. Thus, Warden Lowe is his immediate custodian and the
proper respondent. O’Neill, Lyons, Noem, and Bondi are not Khan’s immediate
custodians for purposes of a petition for a writ of habeas corpus. Thus, we
recommend that they be dismissed as respondents.
IV. This Court has jurisdiction over Khan’s petition.
This court has jurisdiction over Khan’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 1331, and the court may grant a writ of habeas corpus to,
among others, an individual who “is in custody in violation of the Constitution or
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laws or treaties of the United States.” 28 U.S.C. §§ 2241(a), (c)(3). In their
response to the petition, the respondents asserted, however, that various provisions
of 8 U.S.C. § 1252 strips this court of jurisdiction over Khan’s petition. And the
respondents filed a notice of supplemental authority pointing to the Third Circuit’s
recent decision in Khalil, 164 F.4th 259, and suggesting that that case supports its
contention that 8 U.S.C. § 1252(b)(9) strips the court of jurisdiction in this case.
Doc. 10. After we ordered supplemental briefing regarding the impact of Khalil,
the respondents filed a supplemental brief and notice of withdrawal of argument.
Doc. 17. In this document, the respondents concede that the court has jurisdiction
over Khan’s petition. Id. Thus, we need not address in detail the jurisdictional
arguments previously raised by the respondents. Nevertheless, the court is
required to consider sua sponte whether it has subject-matter jurisdiction. Fort
Bend Cnty., Tex. v. Davis, 587 U.S. 541, 548 (2019).
The court has subject-matter jurisdiction. Many courts have addressed
whether the INA strips the court of jurisdiction in cases where the petitioner is
challenging whether he or she is properly detained under 8 U.S.C. § 1225(b)(2)(A),
and they have concluded that it does not. See e.g., Viantsko v. Lowe, No. 4:25-CV-
02523, 2026 WL 313473, at *3 (M.D. Pa. Feb. 5, 2026) (8 U.S.C. §§ 1252(a)(2),
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1252(b)(9), and 1252(g)); Gonzalez Centeno v. Lowe, 3:25-CV-2518, 2026 WL
94642, at *2 (M.D. Pa. Jan. 13, 2026) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9),
and 1252(g)); Vadel v. Lowe, No. 3:25-CV-02452, 2025 WL 3772059, at *2–3
(M.D. Pa. Dec. 31, 2025) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g));
Quispe v. Rose, No. 3:25-CV-02276, 2025 WL 3537279, at *3–4 (M.D. Pa. Dec.
10, 2025) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Samassa v.
Lowe, No. 1:25-CV-02197, 2025 WL 3653751, at *1–2 (M.D. Pa. Dec. 17, 2025)
(8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Patel v. O’Neil, No.
3:25-CV-2185, 2025 WL 3516865, at *3 (M.D. Pa. Dec. 8, 2025) (8 U.S.C.
§§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Santana-Rivas v. Warden of
Clinton Cnty. Corr. Facility, No. 3:25-CV-01896, 2025 WL 3513152, at *2 (M.D.
Pa. Dec. 8, 2025) (8 U.S.C. §§ 1252(b)(9), and 1252(g)). We agree with the
reasoning in those cases.
We also agree with the reasoning in cases where courts have considered the
effect of Khalil and have concluded that Khalil is distinguishable, as the
respondents now concede, because unlike in Khalil, Khan’s challenge to his
detention without a bond hearing is wholly collateral to the removal process and
does not raise questions that can be reviewed in connection with a petition for
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review of a final order of removal. See, e.g., Viantsko, 2026 WL 313473, at *3
(discussing Khalil and concluding that because Viantsko is challenging only his
continued detention without a bond hearing, he is bringing a detention-specific
claim like the ones the court in Khalil stated may be brought in a § 2241 habeas
petition); Giyosov v. Jamison, No. CV 26-0298, 2026 WL 209839, at *1 (E.D. Pa.
Jan. 27, 2026) (concluding “that Khalil is distinguishable because Giyosov’s
petition does not present legal or factual questions that can be meaningfully
reviewed alongside review of a final order of removal”); Kourouma v. Jamison,
No. CV 26-0182-KSM, 2026 WL 120208, at *3 (E.D. Pa. Jan. 15, 2026) (“Unlike
the challenge to detention in Khalil, Petitioner’s challenge here is not ‘inextricably
linked’ to his removal proceedings” given that the “Petitioner does not argue that
his confinement is unlawful because the Government’s removal action is itself
invalid” and the petitioner is challenging the Government’s authority to detain him
without a bond hearing rather than “the Government’s broader authority to detain
him pending a final decision on removal”).
Having concluded that the court has jurisdiction over Khan’s petition, we
turn to the parties’ other arguments.
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V. Exhaustion of administrative remedies is excused because such would be
futile.
The respondents contend that the court should dismiss Khan’s petition
because he failed to exhaust administrative remedies. We disagree.
“Under the immigration laws, exhaustion of administrative remedies is
statutorily required only on appeals of final orders of removal.” Cox v. Monica,
No. CIV.A. 1:07-CV-0534, 2007 WL 1804335, at *3 (M.D. Pa. June 20, 2007).
There is also no statutory exhaustion requirement applicable to habeas petitions
brought pursuant to 28 U.S.C. § 2241. But the courts have created a rule that
“prisoners are ordinarily required to exhaust their administrative remedies before
petitioning for a writ of habeas corpus pursuant to § 2241.” Moscato v. Federal
Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). The basic rationale for the
exhaustion requirement is that judicial review may be facilitated by the agency’s
development of a factual record, that judicial time may be conserved if the agency
grants the relief sought, and that administrative autonomy requires that an agency
be given an opportunity to correct its own errors. Arias v. United States Parole
Comm’n, 648 F.2d 196, 199 (3d Cir. 1981).
Exhaustion of administrative remedies in § 2241 habeas cases is not
required, however, in every situation. One situation where exhaustion is not
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required is where administrative procedures are unavailable or incompetent to
provide adequate redress or where exhaustion would be futile. Gambino v. Morris,
134 F.3d 156, 171 (3d Cir. 1998) (Roth, J., concurring) (exhaustion is not required
when petitioner demonstrates that exhaustion is futile). And here, exhaustion is
not required because it would be futile in light of the Board of Immigration
Appeals decision in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). In
that decision, the Board of Immigration Appeals decided that Immigration Judges
do not have the authority to grant bond hearings to applicants for admission. Thus,
exhaustion of administrative remedies would be futile.
VI. Khan is not properly detained under 8 U.S.C. § 1225(b)(2)(A). Rather, he
is subject to detention under 8 U.S.C. § 1226(a).
“Federal immigration law contains various provisions authorizing the
Government to detain aliens during the removal process.” Johnson v. Guzman
Chavez, 594 U.S. 523, 526 (2021). This case, like hundreds of others filed in the
past several months across the country,4 requires us to determine whether an
4 See Patel, 2025 WL 3516865, at *4 n.7 (citing more than 50 cases decided
by district judges in the Third Circuit); Santana-Rivas v. Warden of Clinton Cnty.
Corr. Facility, No. 3:25-CV-01896, 2025 WL 3522932, at *8–9 (M.D. Pa. Nov.
13, 2025) (report and recommendation citing cases decided by district judges
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applicant for admission who has already entered the country is properly detained
under 8 U.S.C. § 1225(b)(2)(A), or whether that alien is subject to detention under
8 U.S.C. § 1226(a). Here, the respondents contend that Khan is properly detained
under § 1225(b)(2)(A), which provides for mandatory detention, and thus, he is not
entitled to a bond hearing. On the other hand, Khan contends that he is subject to
detention under § 1226(a), which is discretionary, and under which he may be
released on bond.
A. 8 U.S.C. § 1225; 8 U.S.C. 1226; and DHS’s recent change in detention
policy.
8 U.S.C. § 1225 is titled “Inspection by immigration officers; expedited
removal of inadmissible arriving aliens; referral for hearing.” Subsection (a) of
§ 1225, titled “Inspection,” specifies which aliens are treated as applicants for
admission:
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
across the country as well as district judges in the Third Circuit), report and
recommendation adopted in part and rejected in part, 2025 WL 3513152, at *1
(M.D. Pa. Dec. 8, 2025).
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international or United States waters) shall be deemed for
purposes of this chapter an applicant for admission.
8 U.S.C.A. § 1225(a)(1). And § 1225(a)(3) provides that “[a]ll aliens (including
alien crewmen) who are applicants for admission or otherwise seeking admission
or readmission to or transit through the United States shall be inspected by
immigration officers.” 8 U.S.C. § 1225(a)(3). Subsection (b) of § 1225, titled
“Inspection of applicants for admission,” provides for two types of removal
proceedings for applicants for admission: expedited removal proceedings under
§ 1225(b)(1) and regular removal proceedings under § 1225(b)(2). 8 U.S.C.
§ 1225(b). Sections 1225(b)(1) and 1225(b)(2) both provide for detention of the
applicants for admission to which those subsections apply. Id.
8 U.S.C. § 1226, which is titled “Apprehension and detention of aliens,”
“distinguishes between two different categories of aliens”—those detained under
§ 1226(a) and those detained under § 1226(c). Jennings v. Rodriguez, 583 U.S.
281, 288 (2018).5 Subsection (a), titled “Arrest, detention, and release,” provides
5 “Section 1226(c) . . . carves out a statutory category of aliens who may not
be released under§ 1226(a).” Jennings, 583 U.S. at 289. “Under § 1226(c), the
‘Attorney General shall take into custody any alien’ who falls into one of several
enumerated categories involving criminal offenses and terrorist activities.” Id.
(quoting § 1226(c)(1)). “The Attorney General may release aliens in those
categories ‘only if the Attorney General decides . . . that release of the alien from
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that “[o]n a warrant issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be removed from the United
States.” 8 U.S.C. 1226(a). It continues, in relevant part, that “[e]xcept as provided
in subsection (c) and pending such decision, the Attorney General—(1) may
continue to detain the arrested alien; and (2) may release the alien on—(A) bond of
at least $1,500 with security approved by, and containing conditions prescribed by,
the Attorney General, or (B) conditional parole.” Id.
The reason why the issue of whether applicants for admission who have
already entered the country are subject to detention under § 1225(b)(2)(A) or
§ 1226(a) is being raised in so many cases nationwide now is that the Department
of Homeland Security recently changed its position on the issue. See Maldonado
Vazquez v. Feeley, No. 2:25-CV-01542-RFB-EJY, 2025 WL 2676082, at *5 (D.
Nev. Sept. 17, 2025) (discussing the July 8, 2025 policy change by the Department
of Homeland Security). And on September 5, 2025, in Matter of Yajure Hurtado,
the Board of Immigration Appeals held that immigration judges “have no authority
custody is necessary’ for witness-protection purposes and ‘the alien satisfies the
Attorney General that the alien will not pose a danger to the safety of other persons
or of property and is likely to appear for any scheduled proceeding.’” Id. (quoting
§ 1226(c)(2)). The respondents do not contend that § 1226(c) applies to Khan.
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to redetermine the custody conditions of an alien who crossed the border
unlawfully without inspection, even if that alien has avoided apprehension for
more than 2 years.” 29 I. & N. Dec. at 228. In Matter of Yajure Hurtado, the
Board of Immigration Appeals “acknowledged that for years Immigration Judges
have conducted bond hearings for aliens who entered the United States without
inspection,” but it noted that the issue had not been presented to it before. Id. at
225 n.6. And it further noted that “the supplemental information for the 1997
Interim Rule titled ‘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), reflects that the Immigration and
Naturalization Service took the position at that time that ‘[d]espite being applicants
for admission, aliens who are present without having been admitted or paroled
(formerly referred to as aliens who entered without inspection) will be eligible for
bond and bond redetermination.’” Id. Nevertheless, although acknowledging this
history, the Board of Immigration Appeals rejected Hurtado’s argument that the
Department of Homeland Security’s prior practice of treating aliens who are
arrested after having lived in the United States for more than 2 years as detained
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under § 1226 reflected that Congress did not intend § 1225(b)(2)(A) to apply to
those aliens. 29 I. & N. Dec. at 225–26.
B. Khan does not fall within the scope of 8 U.S.C. § 1225(b)(2)(A)
because he is not an alien seeking admission.
The dispute here centers on the language of § 1225(b)(2)(A), which
provides:
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.A. § 1225(b)(2)(A).6 The respondents contend that § 1225(b)(2)(A)
applies to all applicants for admission except those who fall within one of its
exceptions. But the majority of courts to have considered the issue have rejected
6 Subparagraph (B) of § 1225(b)(2) provides that subparagraph (A) does not
apply to aliens who are crewmen, aliens to whom § 1225(b)(1) applies, or aliens
who are stowaways. 8 U.S.C. § 1225(b)(2)(B). And Subparagraph (C) of
§ 1225(b)(2) provides that “[i]n the case of alien described in subparagraph (A)
who is arriving on land (whether or not at a designated port of arrival) from a
foreign territory contiguous to the United States, the Attorney General may return
the alien to that territory pending a proceeding under section 1229a of this title.” 8
U.S.C. § 1225(b)(2)(C).
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that contention, and they have construed the phrase “alien seeking admission,” as
not synonymous with applicant for admission.
The majority of courts construe the phrase “alien seeking admission,” which
is not defined in the INA, as describing “active and ongoing conduct, such as
physically attempting to come into the United States at a border or port of entry.”
Vadel, 2025 WL 3772059 at *4 (citing cases). Although the INA does not define
the phrase “alien seeking admission,” it does define the terms “admission” and
“admitted” to “mean, with respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an immigration officer.” 8
U.S.C. § 1101(a)(13)(A). And the majority of courts have concluded that the
phrase “alien seeking admission” does not describe aliens “who have resided in the
United States for years.” Patel, 2025 WL 3516865, at *5 (footnote omitted).
Those aliens have already entered the country; they are “no longer seeking to enter
the United States (lawfully or otherwise).” Jimenez v. FCI Berlin, Warden, 799 F.
Supp. 3d 59, 71 (D.N.H. 2025). “As thoroughly reviewed in these decisions, for
Section 1225(b)(2)(A) to apply and subject a noncitizen to mandatory detention:
‘(1) there must be an “examining immigration officer” who determines; (2) that an
“applicant for admission”; (3) is “seeking admission”; and (4) “not clearly and
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beyond a doubt entitled to be admitted.”’” Gonzalez Centeno, 2026 WL 94642, at
*3 (quoting Bethancourt Soto v. Soto, No. 25-CV-16200, 2025 WL 2976572, at *5
(D.N.J. Oct. 22, 2025) (quoting § 1225(b)(2)(A)).7 The majority of courts reason
that “to adopt the government’s position would violate the rule against surplusage,
negate the plain meaning of the text, and render the mandatory detention of
‘criminal aliens’ under Section 1226(c) (as expanded last year by the Laken Riley
Act) as arising from a redundant statutory provision.” Id.
To be fair, some courts have accepted the government’s position.8 Those
courts, however, are a small minority compared the large number of courts that
7 Sometimes, courts set forth the requirements of § 1225(b)(2)(A) as
containing three, rather than four, elements. See e.g. Vadel, 2025 WL 3772059 at
*4 (“To trigger § 1225(b)(2)(A), an examining immigration officer must determine
that an individual is (1) an applicant for admission, (2) seeking admission, and
(3) not clearly and beyond doubt entitled to be admitted.” ). There is no material
difference, however, between these expositions of § 1225(b)(2)(A). And the
important point here is that however described, these courts conclude that
§ 1225(b)(2)(A) requires both that the alien be an “applicant for admission” and an
alien “seeking admission.”
8 See, e.g., Lopez v. Director of Enforcement and Removal Operations, No.
3:25-CV-1313-JEP-SJH, 2026 WL 261938 (M.D. Fla. Jan. 26, 2026); Goyo
Martinez v. Villegas, No. 1:25-CV-256-H, 2026 WL 114418, at *1 (N.D. Tex. Jan.
15, 2026); Cutiopala, v. Noem, No. 1:25-CV-00211-MAL, 2026 WL 113567, at *1
(E.D. Mo. Jan. 15, 2026); Chen v. Almodovar, No. 25 CIV. 9670 (JPC), 2026 WL
100761, at *1 (S.D.N.Y. Jan. 14, 2026); Singh v. Noem, No. 2:25-CV-00157-SCM,
2026 WL 74558, at *1 (E.D. Ky. Jan. 9, 2026); Gutierrez Sosa v. Holt, No. CIV-
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have rejected the government’s arguments. After considering the parties’
arguments and the court cases—both majority and minority—we conclude that the
majority’s construction of the statute, which is the construction that the
Department of Homeland Security had for many years until recently and which
avoids making the phrase “alien seeking admission” surplusage—is the better
reading of § 1225(b)(2)(A).
Here, applying that construction of § 1225(b)(2)(A), the conclusion that
Khan is not properly detained under that section follows. Section 1225(b)(2)(A)
requires, among other things, that the alien be both an “applicant for admission”
and an “alien seeking admission.” 8 U.S.C. § 1225(b)(2)(A). Because Khan has
never been admitted to the United States, he is deemed an “applicant for
admission.” See 8 U.S.C. § 1225(a)(1) (“An alien present in the United States who
has not been admitted . . . shall be deemed for purposes of this chapter an
25-1257-PRW, 2026 WL 36344, at *1 (W.D. Okla. Jan. 6, 2026); Montoya v. Holt,
No. CIV-25-01231-JD, 2025 WL 3733302 (W.D. Okla. Dec. 26, 2025); Liang v.
Almodovar, No. 1:25-CV-09322-MKV, 2025 WL 3641512, at *1 (S.D.N.Y. Dec.
15, 2025), appeal docketed, No. 26-96 (2nd Cir. Jan. 15, 2026); Coronado v. Sec’y,
Dep’t of Homeland Sec., No. 1:25-CV-831, 2025 WL 3628229, at *1 (S.D. Ohio
Dec. 15, 2025); Candido v. Bondi, No. 25-CV-867 (JLS), 2025 WL 3484932, at *1
(W.D.N.Y. Dec. 4, 2025), appeal docketed, No. 25-3159 (2nd Cir. Dec. 17, 2025);
Rojas v. Olson, No. 25-CV-1437-BHL, 2025 WL 3033967, at *1 (E.D. Wis. Oct.
30, 2025), appeal docketed, No. 25-3127 (7th Cir. Nov. 25, 2025); Sandoval v.
Acuna, No. 6:25-CV-01467, 2025 WL 3048926, at *1 (W.D. La. Oct. 31, 2025).
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applicant for admission”). But Khan, whose current detention is based on an arrest
in Philadelphia, Pennsylvania—not at or near the border—and who was arrested
after having resided in the United States for over a year (most, but not all, of that
time on parole), is not an “alien seeking admission.” Accordingly, § 1225(b)(2)(A)
does not apply to him. Rather, 8 U.S.C. § 1226(a) applies, and under that
provision and the regulations implementing that provision,9 Khan is entitled to a
bond hearing. Thus, we conclude that the respondents are violating the INA by
holding him without a bond hearing.
VII. The Court need not reach Khan’s constitutional claim or his
Administrative Procedure Act claim.
In addition to his statutory claim, Khan contends that his detention without a
bond hearing violates his right to due process. “A fundamental and longstanding
principle of judicial restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). Here, because we conclude
9 “Federal regulations provide that aliens detained under § 1226(a) receive
bond hearings at the outset of detention.” Jennings, 583 U.S. at 306.
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that Khan is being held without a bond hearing in violation of the INA, we need
not reach the constitutional issue.10
Khan also asserts a claim under the Administrative Procedure Act, 5 U.S.C.
§ 701 et. seq. Because we recommend that Khan be granted habeas relief, we need
not reach that claim.
VIII. The Court should order that Khan be given a bond hearing before an
Immigration Judge.
Having determined that the respondents are violating the INA by holding
Khan without a bond hearing, we turn to the issue of the proper remedy. At times,
10 In the event that the district court disagrees with the conclusion that we
need not reach the constitutional issue, we note that the majority of courts often
also reach the constitutional issue and conclude that in these circumstances
detaining an alien who is subject to 1226(a) without a bond hearing violates due
process. See, e.g., Viantsko, 2026 WL 313473, at *5–6; Gonzalez Centeno, 2026
WL 94642, at *4; Vadel, 2025 WL 3772059, at *6; Ramirez-Montoya v. Rose, No.
3:25-CV-02411, 2025 WL 3709045, at *5–6 (M.D. Pa. Dec. 22, 2025); Quispe,
2025 WL 3537279, at *7; Patel, 2025 WL 3516865, at *5–6; See also Cunin v.
McShane, No. 3:25-CV-1887, 2025 WL 3542999, at *2 (M.D. Pa. Dec. 10, 2025)
(concluding in connection with a motion for a temporary restraining order that the
petitioner’s “constitutional challenge likely succeeds on the merits”); Hernandez v.
Rose, No. 1:25-CV-2221, 2025 WL 3284447, at *2 (M.D. Pa. Nov. 25, 2025)
(same). The court in Santana-Rivas also concluded that the petitioner in that case
was detained in violation of due process, but the due process analysis in that case
was based on the fact that the detention in that case of 15 months had become
unconstitutionally prolonged. Santana-Rivas, 2025 WL 3513152, at *3.
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Khan seeks immediate release from custody. Doc. 1 ¶ 80 (Prayer for Relief); Doc.
8 at 27; Doc. 18 at 2. Some courts have granted such relief. See, e.g., Gonzalez
Centeno, 2026 WL 94642, at *4; )); Vadel, 2025 WL 3772059, at *7; Patel, 2025
WL 3516865, at *6. But 28 U.S.C. § 1226(a) “requires only consideration on
bond, and a bond hearing is therefore sufficient to correct Respondents’ ongoing
violation of the INA.” Cotoc Yac De Yac v. Hermosillo, No. 2:25-CV-02593-DGE-
TLF, 2026 WL 124334, at *4 (W.D. Wash. Jan. 16, 2026). Thus, in the usual
course, we think that should be the relief provided. And that is often the relief
provided in these cases. See, e.g., Viantsko, 2026 WL 313473, at *6 (granting
petition for writ of habeas corpus and requiring the government to provide the
petitioner a bond hearing or release him from custody if such a hearing is not
provided); Cunin v. McShane, No. 3:25-CV-1887, 2025 WL 3542999, at *3 (M.D.
Pa. Dec. 10, 2025) (granting the petitioner’s motion for a temporary restraining
order in part and denying it in part, and ordering that the “Government must
provide [the petitioner] with a bond hearing”); A.D. v. Oddo, No. CV 25-460J,
2026 WL 101476, at *4 (W.D. Pa. Jan. 14, 2026) (concluding that “a hearing
before an immigration judge is the proper forum to determine whether bond is
appropriate under that statute and the applicable regulations”); Cordova v. Noem,
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26
No. 3:26-CV-97-K-BN, 2026 WL 218938, at *3 (N.D. Tex. Jan. 28, 2026)
(observing that “[m]ost courts, including this Court, confronting the issues here
have determined that the appropriate relief is a bond hearing”). It is also the relief
that the Third Circuit has ordered be provided in a different immigration context.
See German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 214 (3d
Cir. 2020) (remanding the case to the district court for the district court to order a
bond hearing within 10 days where the petitioner was subject to prolonged
detention under 8 U.S.C. § 1226(c)). Accordingly, we will recommend that the
court order that Khan be provided with a bond hearing in accordance with 8 U.S.C.
§ 1226(a) within 10 days, and if the respondents do not provide such a hearing
within ten days, he be released.
IX. Other Issues.
In his petition, Khan requests that the court order that he “remain in the State
of Pennsylvania and not be transferred outside the state of Pennsylvania until
further order of this Court in order to preserve [his] continued access to counsel.”
Doc. 1 ¶ 77 (Prayer for Relief). But apart from the request in his prayer for relief
in his petition, Khan has not briefed or made any attempt to show that he is entitled
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27
to an injunction prohibiting his transfer. Thus, we will not address that issue
further.
Khan also requests that the court award him fees and costs under the Equal
Access to Justice Act (“EAJA”). “The EAJA authorizes an award of attorneys’
fees and costs to the prevailing party ‘in any civil action (other than cases sounding
in tort)’ brought by or against the United States if the Government’s position was
not ‘substantially justified.’” Michelin v. Warden Moshannon Valley Corr. Ctr.,
No. 24-2990, 2026 WL 263483, at *13 (3d Cir. Feb. 2, 2026) (quoting 28 U.S.C.
§ 2412(d)(1)(A)). The Third Circuit recently dispelled any doubts about whether
the EAJA applies to petitions for writs of habeas corpus in the immigration
context, holding that it does. Id. But apart from a request in his petition, Khan has
not briefed whether he is entitled to fees and costs under the EAJA and, if so, the
amount of those fees and costs. Thus, at this time, we will not address that issue.
Pursuant to 28 U.S.C. § 2412(d)(1)(B), an application for fees and costs under the
EAJA shall be submitted within 30 days of the final judgment in the action.
X. Recommendations.
Accordingly, for the foregoing reasons, we recommend that the court
dismiss David O’Neill, Todd Lyons, Kristi Noem, and Pamela Bondi as
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respondents. It is also recommended that the court grant in part and deny in part
Khan’s petition. It is recommended that the court deny Khan’s petition to the
extent that the court denies Khan’s request for immediate release. It is further
recommended that the court grant Khan’s petition to the extent that the court orders
the respondents to either provide Khan with a bond hearing pursuant to 8 U.S.C.
§ 1226(a) within ten days of the Court’s order on this Report and Recommendation
or, if they do not provide such a hearing, to release him from custody. Finally, it is
recommended that the court close this case.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge’s proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within
fourteen (14) days after being served with a copy thereof. Such party
shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the
portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections. The
briefing requirements set forth in Local Rule 72.2 shall apply. A
judge shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.
The judge, however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the record
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developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.
Submitted this 6th day of February, 2026.
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge
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