Nicolae v. Noem et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Dumitru Nicolae,
Petitioner,
v.
Kristi Noem, et al.,
Respondents.
No. CV-25-04884-PHX-KML (MTM)
ORDER
Petitioner filed a petition under 28 U.S.C. § 2241. (Doc. 1.) The petition presents
the recurring issue whether a particular individual is subject to mandatory detention under
8 U.S.C. § 1225(b)(2). District courts have split on this issue as set forth in Zepeda v. Noem,
CV-25-4236-PHX-KML (JFM), ECF No. 13 at 2–3 (D. Ariz. Dec. 11, 2025). On
December 11, 2025, the Seventh Circuit concluded the Department of Homeland Security
and U.S. Immigration and Customs Enforcement were “not likely to succeed on the merits
of their argument” regarding “mandatory detention under § 1225(b)(2)(A).” Castanon-
Nava v. U.S. Dep’t of Homeland Sec., --- F.4th ----, 2025 WL 3552514, at *9 (7th Cir. Dec.
11, 2025). And on December 18, 2025, the Central District of California entered judgment
in a class action likely covering petitioner declaring “the Bond Eligible Class members are
detained under 8 U.S.C. § 1226(a) and are not subject to mandatory detention under
§ 1225(b)(2)” and vacating “the Department of Homeland Security policy described in the
July 8, 2025, ‘Interim Guidance Regarding Detention Authority for Applicants for
Admission’ under the Administrative Procedure Act as not in accordance with law. 5
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U.S.C. § 706(2)(A).” Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, Doc. 94 (C.D.
Cal. Dec. 18, 2025).
Based on prior decisions in the District of Arizona, the Seventh Circuit’s opinion,
and the final judgment entered by the Central District of California, respondents must show
cause why the petition should not be granted to the extent that petitioner be released or
provided a bond hearing under 8 U.S.C. § 1226. If respondents conclude petitioner is a
member of the class certified in Bautista, respondents must explain why an individualized
order is necessary for them to comply with their obligation to provide bond hearings to
individuals who are properly classified under 8 U.S.C. § 1226(a). Respondents should
address, alongside any other authority they believe relevant, the reasoning in: Sanchez-
Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (declaratory judgment “where
federal officers are defendants” is “the practical equivalent of specific relief such as
injunction or mandamus, since it must be presumed that federal officers will adhere to the
law as declared by the court”); Redd v. Guerrero, 84 F.4th 874, 884-85 (9th Cir. 2023)
(discussing presumed effects of declaratory judgments against state-officer defendants);
and Badger Cath., Inc. v. Walsh, 620 F.3d 775, 782 (7th Cir. 2010) (“A litigant who tries
to evade a federal court’s judgment—and a declaratory judgment is a real judgment, not
just a bit of friendly advice—will come to regret it.”).
Accordingly,
IT IS ORDERED:
1. Counsel for petitioner must immediately serve the petition upon respondents.
2. If not already issued, the clerk’s office must issue any properly completed
summonses.
3. The clerk of court must immediately transmit by email a copy of this order and the
petition to the United States Attorney for the District of Arizona, to the attention of
Katherine Branch at katherine.branch@usdoj.gov, Melissa Kroeger at
melissa.kroeger@usdoj.gov, Lon Leavitt at lon.leavitt@usdoj.gov, and Theo
Nickerson at Theo.Nickerson2@usdoj.gov.
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4. Respondents must show cause no later than January 6, 2026 why the petition
should not be granted. Petitioner may file a reply no later than January 7, 2026.
Dated this 2nd day of January, 2026.
Case 2:25-cv-04884-KML--MTM Document 4 Filed 01/05/26 Page 3 of 3