Trejo Arenas v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:26-cv-00024-SBP
CRISTHIAN LEOPOLDO TREJO ARENAS,
Petitioner,
v.
KRISTI NOEM, in her official capacity as Secretary of the Department of Homeland Security;
TODD LYONS, in his official capacity as Acting Director of Immigration and Customs
Enforcement; ARTHUR WILSON, in his official capacity as ICE Field Office Director;
JOHNNY CHOATE, in his official capacity as the Warden of the Aurora Immigration Detention
Facility; PAMELA BONDI, in her official capacity as the United States Attorney General; THE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; UNITED STATES IMMIGRATION
AND CUSTOMS ENFORCEMENT; and THE BOARD OF IMMIGRATION APPEALS,
Respondents.
MEMORANDUM OPINION AND ORDER
Susan Prose, United States Magistrate Judge
Before the Court is Petitioner Cristhian Leopoldo Trejo Arenas (“Petitioner”)’s
Application for Writ of Habeas Corpus. ECF No. 1 (“Petition”). For the reasons outlined below,
the court respectfully GRANTS the Petition.
I. 	BACKGROUND
Petitioner is a native and a citizen of Mexico who is currently in the custody of the
Department of Homeland Security in Aurora, Colorado. Petition at 1. Respondents are Kristi
Noem, the Secretary of the Department of Homeland Security—the parent agency of United
States Immigration and Customs Enforcement (“ICE”)—sued in her official capacity; Todd
Lyons, the acting director of ICE, sued in his official capacity; Arthur Wilson, the Field Office
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Director of ICE in Colorado, sued in his official capacity; Pamela Bondi, the Attorney General of
the United States, sued in her official capacity; the Executive Office for Immigration Review, the
federal agency responsible for custody redeterminations relating to non-citizens charged with
being removable from the United States; Johnny Choate, the warden of the Aurora Detention
Center, where Petitioner is held in custody, sued in his official capacity; ICE, the federal agency
responsible for custody decisions relating to non-citizens charged with being removable from the
United States, including the arrest, detention, and custody status of non-citizens; and the Board
of Immigration Appeals, the federal agency responsible for appeals of custody redeterminations
relating to non-citizens charged with being removable from the United States (collectively,
“Respondents”). Id. at 6-8.
The parties do not appear to dispute that Petitioner entered the United States in November
2022 and had not left the United States before he was detained in September 2025. Id. at 2; see
generally ECF No. 8. Neither party asserts that Petitioner has ever been convicted of any crime.
Petition at 2; see generally ECF No. 8.
Petitioner filed an application for bond determination on December 13, 2025, requesting
bond relief after over two months in immigration detention. Petition at 2. A hearing was set for
December 17, 2025, before the immigration court. Id. On December 17th, 2025, the immigration
court determined that it lacked jurisdiction to grant Petitioner bond pursuant to Matter of Yajure
Hurtado, 29 I&N Dec. 216, 225 (BIA 2025) and 8 U.S.C. § 1225(b)(2)(A). Id.
Petitioner filed his Petition on January 5, 2026, seeking, inter alia, a declaration that
Petitioner’s detention without the possibility of bond is unlawful, an order directing that
Petitioner be released on bond, and attorneys’ fees and costs. See generally id. In making these
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requests, Petitioner argues that by detaining Petitioner without a bond hearing, Respondents have
violated Petitioner’s Fifth Amendment due process rights and have also violated the Immigration
and Nationality Act (“INA”). Id. Respondents filed a response to the Petition on January 20,
2026. “Response,” ECF No. 8. The parties have consented to this magistrate judge’s jurisdiction.
ECF No. 10; see 28 U.S.C. § 636(c); Fed. R. Civ. P. § 72; ECF No. 11.
II. 	ANALYSIS
District courts may grant a writ of habeas corpus to any person who demonstrates he is
“in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). The individual in custody bears the burden of proving that his detention is
unlawful. Walker v. Johnston, 312 U.S. 275, 286 (1941).
The court first notes that although Petitioner requests an order directing that he be
released on bond, his arguments instead assert that he has the right to a bond hearing before an
immigration judge, not the right to be released without a bond hearing.1 Accordingly, the court
construes Petitioner’s Petition as though he has requested an order directing that he is entitled to
a bond hearing before an immigration judge.
The parties appear to agree that the primary conflict between them centers around
whether 8 U.S.C. § 1225 (“Section 1225”) or 8 U.S.C. § 1226 (“Section 1226”) applies to
Petitioner. The parties agree, as does the court, that Sections 1225 and 1226 govern detention of
noncitizens prior to a final order of removal. See Jennings v. Rodriguez, 583 U.S. 281, 287
1 Petitioner cursorily asserts that “[b]ecause the Petitioner does not fall within any statutory class
that would substantiate a basis for mandatory detention under the INA, his continued
confinement is ultra vires, and he should be released immediately.” Petition at 11. However,
Petitioner offers no actual argument in support of this statement.
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(2018). The parties also agree that Petitioner has been denied a bond hearing based on the
immigration court’s conclusion that Petitioner is properly detained pursuant to 8 U.S.C.
§ 1225(b)(2)(A) and that this provision does not entitle Petitioner to a bond hearing.
At this point, the parties diverge. While Respondents argue that the immigration court
was correct in reaching its determination that 8 U.S.C. § 1225(b)(2)(A) applied to Petitioner,
Petitioner asserts that the immigration court should have instead found he was properly detained
pursuant to 8 U.S.C. § 1226(a), under which Petitioner asserts he is entitled to a bond hearing.
In response, Respondents argue that Section 1225 applies to “applicants for admission,” a
term of art that Respondents assert includes noncitizens who are unlawfully present in the United
States but were never admitted; that “applicants for admission” are not limited to noncitizens
who have submitted an immigration application; that Section 1225(b) does not just apply to
arriving aliens or those who unlawfully entered the United States “recently”; and that Section
1226, in contrast, provides for detention and bond hearings for other categories of noncitizens
who are subject to removal.2
Key to each of Respondents’ arguments is that a close reading of both Section 1225 and
Jennings reflects that Petitioner is an “applicant for admission” who is therefore properly
detained subject to 8 U.S.C. § 1225(b)(2)(A) and thus does not have a right to a bond hearing. In
fact, a close reading of both Section 1225 and Jennings reflects the opposite.
As both this court and other courts have previously observed, Jennings states that Section
1226 “sets forth ‘the default rule’ for detaining noncitizens ‘already present in the United
2 Respondents also argue that Section 1225 does not grant applicants for admission a right to a
bond hearing, but Petitioner does not dispute this assertion here.
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States.’” Quispe-Ardiles v. Noem, No. 25-cv-01382-MSN-WEF, 2025 WL 2783800, at *5 (E.D.
Va. Sept. 30, 2025) (quoting Jennings, 583 U.S. at 303). This section permits, but does not
require, the Attorney General to detain noncitizens pending removal proceedings, subject to
certain exceptions not applicable here. Jennings, 583 U.S. at 303; 8 U.S.C. § 1226(a)(1)-(2) (the
Attorney General “may continue to detain” or “may release” the noncitizen (emphasis added)).
“Section 1226(a) thus establishes a discretionary framework for the detention of noncitizens
pending removal proceedings.” Briales-Zuniga v. Baltazar, No. 25-cv-03439-NYW, 2026 WL
35227, at *2 (D. Colo. Jan. 6, 2026).
Meanwhile, also according to Jennings, Section 1225(b) “applies primarily to
[noncitizens] seeking entry into the United States,” i.e., “applicants for admission.” Jennings,
583 U.S. at 297. This section provides, in relevant part, 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”
pending removal proceedings. 8 U.S.C. § 1225(b)(2)(A) (emphasis added). Under § 1225(a)(1),
an “applicant for admission” is
[a]n 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).
Absent an exception for urgent humanitarian reasons not implicated in this case, “detention
under § 1225(b)(2) is considered mandatory,” and “[i]ndividuals detained under § 1225 are not
entitled to a bond hearing.” Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 484 (S.D.N.Y. 2025)
(citing Jennings, 583 U.S. at 297); see also Briales-Zuniga, 2026 WL 35227, at *2.
Again, the parties agree that the immigration court found that Petitioner was detained
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pursuant to § 1225(b) and that this provision applies exclusively to “applicants for admission.”
Respondents argue that Jennings establishes that an “applicant for admission” would include an
individual who is present in the United States but has never been lawfully admitted, like
Petitioner. As noted above, Respondents also argue that “applicants for admission” are not
limited to noncitizens who have submitted an immigration application and that Section 1225(b)
applies to all applicants for admission, not just arriving aliens or those who unlawfully entered
the United States recently.
Respondents state that “[t]he Court in Jennings recognized that the statute uses the term
‘applicant for admission’ as a term of art,” quoting Jennings for the proposition that “[u]nder . . .
8 U.S.C. § 1225, an alien who ‘arrives in the United States,’ or ‘is present’ in this country but
‘has not been admitted,’ is treated as ‘an applicant for admission.’” Response at 4 (quoting
Jennings, 583 U.S. at 287) (emphasis added). Respondents additionally state that this language
signifies that “noncitizens who are present in the country and were never lawfully admitted are
‘deemed’ to be ‘applicants for admission.’” Id. However, Respondents ignore that the language
they cite from Jennings is immediately preceded by the Supreme Court’s clarification that the
process of deciding who may enter the country “generally begins at the Nation’s borders and
ports of entry, where the Government must determine whether an alien seeking to enter the
country is admissible.” Jennings, 583 U.S. at 287. The Court directly contrasts this process with
considerations regarding “who may stay here after entering,” id. at 286 (emphasis added); the
Court notes that “an alien present in the country may still be removed if he or she [was] . . .
inadmissible at the time of entry . . .” but states that Section 1226, not 1225, governs such cases.
Id. at 288. Accordingly, the court disagrees with Respondents that the language they quote from
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Jennings suggests that the term “applicant for admission” is a term of art referring to all
noncitizens who were never lawfully admitted to the United States. Based on the plain language
of Jennings, and in direct contrast to Respondents’ arguments, at least some noncitizens who
were never deemed admissible upon entry to the United States or otherwise lawfully admitted,
but who are nonetheless present in the United States, are properly detained pursuant to Section
1226, not 1225.
Additionally, and also dispositively, Respondents’ arguments as to why Section 1225
applies to Petitioner rather than Section 1226, including Respondents’ arguments regarding the
text of the two provisions, in large part echo arguments rejected by courts across the country and
in this judicial district.3 Courts within this District and throughout the country have concluded
that “the plain text and structure of § 1225 and § 1226 support a determination that
3 Compare ECF Nos. 1 and 8 with, e.g., Espinoza Ruiz v. Baltazar, No. 25-cv-03642-CNS, 2025
WL 3294762 (D. Colo. Nov. 26, 2025); Arauz v. Baltazar, No. 25-cv-03260-CNS, 2025 WL
3041840 (D. Colo. Oct. 31, 2025); Hernandez Vazquez v. Baltasar, et al., No. 25-cv-3049-GPG,
ECF No. 22 (D. Colo. Oct. 23, 2025); Loa Caballero v. Baltazar, et al., No. 25-cv-3120-NYW,
2025 WL 2977650 (D. Colo. Oct. 22, 2025); Moya Pineda v. Baltasar, et al., No. 25-cv-2955-
GPG, ECF No. 21 (D. Colo. Oct. 20, 2025); Mendoza Gutierrez v. Baltasar, et al., No. 25-cv-
2720-RMR, 2025 WL 2962908 (D. Colo. Oct. 17, 2025); Garcia Cortes v. Noem, No. 25-cv-
02677-CNS, 2025 WL 2652880 (D. Colo. Sept. 16, 2025); Marquez Rico v. Baltazar, et al., No.
25-cv-3543-CNS (D. Colo. Dec. 16, 2025); Carrillo Fernandez v. Knight, No. 2:25-CV-02221-
RFB-BNW, 2025 WL 3485800 (D. Nev. Dec. 4, 2025); Garcia-Arauz v. Noem, No. 2:25-cv-
02117-RFB-EJY, 2025 WL 3470902 (D. Nev. Dec. 3, 2025); Escobar Salgado v. Mattos, No.
2:25-cv-01872-RFB-EJY, 2025 WL 3205356 (D. Nev. Nov. 17, 2025); Ramos v. Rokosky, No.
25-cv-15892 (EP), 2025 WL 3063588 (D.N.J. Nov. 3, 2025); Godinez-Lopez v. Ladwig, 2025
WL 3047889 (W.D. Tenn. Oct. 31, 2025); Jimenez v. FCI Berlin, Warden, No. 25-CV-326-LM-
AJ, 2025 WL 2639390 (D.N.H. Sept. 8, 2025); Lopez-Campos v. Raycraft, No. 2:25-cv-12486,
2025 WL 2496379 (E.D. Mich. Aug. 29, 2025); Romero v. Hyde, No. 25-cv-11631-BEM, 2025
WL 2403827 (D. Mass. Aug. 19, 2025); Lopez Benitez v. Francis, No. 25-cv-5937 (DEH), 795
F.Supp.3d 475 (S.D.N.Y. Aug. 13, 2025).
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§ 1225(b)(2)(A)’s provision for mandatory detention ‘does not apply to someone like
[Petitioner], who has been residing in the United States for more than two years.’” Hernandez v.
Baltazar, No. 25-cv-03094-CNS, 2025 WL 2996643, at *4 (D. Colo. Oct. 24, 2025) (quoting
Lopez Benitez v. Francis, 795 F.Supp.3d 475, 484 (S.D.N.Y. 2025); see also, e.g., Gomes v.
Hyde, No. 25-cv-11571-JEK, 2025 WL 1869299, at *7 (D. Mass. July 7, 2025) (“[T]he plain text
of Sections 1225 and 1226, together with the structure of the larger statutory scheme, indicates
that Section 1225(b)(2) does not apply to noncitizens who are arrested on a warrant issued by the
Attorney General while residing in the United States.”); Martinez v. Hyde, No. 25-cv-11613-
BEM, 2025 WL 2084238, at *7-8 (D. Mass. July 24, 2025) (concluding that the textual “tension
between sections 1225 and 1226 motivates the conclusion that they apply to different classes of
aliens,” and that given the “line historically drawn between these two sections, making sense of
their text and the overall statutory scheme, is that section 1225 governs detention of non-citizens
‘seeking admission into the country,’ whereas section 1226 governs detention of non-citizens
‘already in the country’”) (citations omitted); Mendoza Gutierrez, 2025 WL 2962908, at *5
(“[Section] 1225’s provision for mandatory detention of noncitizens ‘seeking admission’ does
not apply to someone like [Mr. Gutierrez], who has been residing in the United States for more
than two years.” (collecting cases)); Jimenez, 2025 WL 2639390, at *8 (“Because
§ 1225(b)(2)(A) applies to applicants for admission who are seeking to enter the United States, it
cannot apply to Jimenez, who has already entered the country and has been residing here for over
two years.”).
Because of, inter alia, the title of Section 1225, which reads “Inspection by immigration
officers; expedited removal of inadmissible arriving aliens; referral for hearing,” and limiting
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language within a sub-provision of Section 1225 regarding detention of noncitizens who cannot
show they have been in the United States for more than two years, this court agrees with these
prior decisions. See, e.g., Hernandez v. Baltazar, 2025 WL 2996643, at *5 (the title of Section
1225 clearly indicates that the statute governs “arriving” noncitizens, not those present in the
United States already), *6 (the fact that “§ 1225(b)(1)(A)(iii)(II)’s language explicitly limit[s]
mandatory detention to noncitizens who have been in the U.S. for less than two years” suggests
that Section 1225 is not meant to apply to noncitizens who have been in the U.S. for significantly
longer) (emphasis in original) (collecting cases); Barrera v. Tindall, No. 25-cv-541-RGJ, 2025
WL 2690565, at *4 (W.D. Ky. Sept. 19, 2025) (the title of Section 1225 reflects that it “is limited
to noncitizens arriving at a border or port and [ ] presently ‘seeking admission’ into the United
States”); Pizarro Reyes v. Raycraft, No. 25-cv-12546, 2025 WL 2609425, at *5 (E.D. Mich. Sept.
9, 2025) (“The use of ‘arriving’ to describe noncitizens strongly indicates that the statute governs
the entrance of noncitizens to the United States,” and this reading is bolstered by the “inspection
scheme” and discussions of stowaways and crewmen in Section 1225); Zumba v. Bondi, No. 25-
cv-14626 (KSH), 2025 WL 2753496, at *8 (D.N.J. Sept. 26, 2025) (concluding that detention
authority arising from Section 1225 is properly exercised at or near the port of entry, while
detention authority arises from Section 1226 when a noncitizen is arrested in the interior of the
United States, in part because “the titles and headings of § 1225 repeatedly cabin its application
to ‘Inspections,’ which, as petitioner convincingly argues, occur at ports of entry, their functional
equivalent, or near the border”); cf. Dubin v. United States, 599 U.S. 110, 120-21 (2023) (the
Supreme Court has “long considered” that the title of a statute and the heading of a section are
tools available for resolution of a doubt about the meaning of a statute). The court finds the
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reasoning set forth in these cases compelling and agrees with these numerous decisions holding
that Section 1225 applies to arriving noncitizens seeking admission, while Section 1226 applies
to noncitizens like Petitioner who are already present in the United States.
Respondents also argue that the legislative history here supports Respondents’ view of
Sections 1225 and 1226, stating that “Congress enacted the Illegal Immigration Reform and
Immigration Responsibility Act of 1996 (‘IIRIRA’) to stop conferring greater privileges and
benefits on those who entered the United States unlawfully as compared to those who lawfully
present themselves for inspection at a port of entry.” Response at 8. This argument, too, has
previously been rejected on numerous occasions by courts within this District and other courts
nationwide. See Hernandez v. Baltazar, 2025 WL 2996643, at *7 (concluding of a substantively
identical legislative history argument regarding the IIRIRA that “[t]he Court joins the many other
courts nationwide who have declined to accept Respondents’ novel new interpretation of
decades-old law”); *7 n.3 (collecting cases); Buenrostro-Mendez v. Bondi, No. H-25-3726, 2025
WL 2886346, at *3 (S.D. Tex. Oct. 7, 2025) (“As almost every district court to consider this
issue has concluded, ‘the statutory text, the statute’s history, Congressional intent, and
§ 1226(a)’s application for the past three decades’ support finding that § 1226 applies to these
circumstances.”) (citation omitted).
Additionally, the court notes that long after the IIRIRA was enacted, the Laken Riley Act
amended Section 1226. Respondents entirely fail to address this aspect of the legislative history,
and the Laken Riley Act directly contradicts Respondents’ arguments regarding the IIRIRA.
“Now, as codified in Section 1226(c), the Attorney General must detain a noncitizen if (i) the
noncitizen is inadmissible because they are in the United States without being admitted or
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paroled, obtained documents for admission through misrepresentation or fraud, or lacks valid
documentation, or, ‘is charged with, is arrested for, is convicted of, admits having committed, or
admits committing acts which constitute the essential elements of any burglary, theft, larceny,
shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or
serious bodily injury to another person.’” Edahi v. Lewis, No. 25-cv-129-RGJ, 2025 WL
3466682, at *5 (W.D. Ky. Nov. 27, 2025) (emphasis added). “When Congress acts to amend a
statute, we presume it intends its amendment to have real and substantial effect.” Stone v. I.N.S.,
514 U.S. 386, 397 (1995). “The Laken Riley Act added new mandatory detention provisions to
an otherwise discretionary statute. If Section 1225(b)(2)(A) governed certain noncitizens as the
United States claims it does, the Laken Riley Act would have been redundant and unnecessary.”
Edahi, 2025 WL 3466682, at *7. This is “because 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,’ [so] ICE would never need to rely on § 1226(c)(1)(E) to detain them.” Pizzaro Reyes
v. Raycraft, No. 25-cv-12546, 2025 WL 2609425, at *5 (E.D. Mich. Sept. 9, 2025) (quoting
§ 1225(b)(2)(A)). And further, “[courts] do not lightly assume Congress adopts two separate
clauses in the same law to perform the same work.” United States v. Taylor, 596 U.S. 845, 857
(2022).
Accordingly, Respondents’ proposed interpretation of the statutory scheme “would either
result in a statutory scheme that ‘ICE would never need to rely on’ or [ ] Section
1226(c)(1)(E) would now be ‘redundant’ with 1225(b)(2)(A) as both provisions regulate the
mandatory detention of the same category of noncitizens as defined in Section 1182(a)(6)(A)(i).”
Edahi, 2025 WL 3466682, at *11. In other words, there would be no need to enact
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§ 1226(c)(1)(E) if § 1225(b)(2)(A) already covers the same ground. “Therefore . . . the ‘newly
added provisions’ of the Laken Riley Act do indicate that a better interpretation of the interplay
between Section 1225 and Section 1226 likely does exist.” Id. Moreover, this reading of the
interplay between Section 1225 and Section 1226 “avoid[s] a reading which renders some words
altogether redundant.” Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995); see also, e.g., Chilel v.
Sheehan, No. C25-4053-LTS-KEM, 2025 WL 3158617, at *2 (N.D. Iowa Nov. 12, 2025)
(declining to follow the United States’s interpretation of Section 1225 as it relates to the Laken
Riley Act, and finding that the court “must reject reading in the superfluousness that the
Government requests”). The court therefore rejects Respondents’ legislative history arguments
and instead finds that the legislative history supports Petitioner here.
Turning briefly to Petitioner’s allegations, Petitioner refers to Matter of Yajure Hurtado,
29 I&N Dec. 216 (2025), a BIA decision, as the ruling that the immigration court relied upon in
determining that Petitioner was properly detained pursuant to Section 1225. The court notes that
Hurtado has no precedential value here. See, e.g., Loper Bright Enters. v. Raimondo, 603 U.S.
369, 400 (2024) (district courts have no obligation to defer to the BIA); Murillo-Chavez v. Bondi,
128 F.4th 1076, 1086-87 (9th Cir. 2025) (holding that after Loper Bright, BIA decisions “have
only that power [to persuade] and we ‘need not and under the APA may not defer to an agency
interpretation of the law simply because a statute is ambiguous’”) (quoting Loper Bright, 603
U.S. at 413); Rodriguez v. Bostock, No. 25-cv-05240-TMC, 2025 WL 2782499, at *26 (W.D.
Wash. Sept. 30, 2025) (holding the same). And the court also finds Hurtado’s analysis
unpersuasive. The ruling in Hurtado would appear to suggest that the legislative history of the
IIRIRA would reflect that the Petitioner here is properly detained under Section 1225. As noted
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above, this argument has previously been rejected on numerous occasions, and the court finds the
analysis articulated in these prior cases compelling.
Additionally, the court notes that “the BIA’s current position is inconsistent with its
earlier pronouncements.” Rodriguez v. Bostock, 2025 WL 2782499, at *26. Among other
inconsistencies, the BIA previously “stated unequivocally that a noncitizen who had entered the
United States unlawfully three years earlier was subject to discretionary detention under section
1226(a)” in Matter of Akhmedov, 29 I&N Dec. 166 (BIA 2025). Rodriguez v. Bostock, 2025 WL
2782499, at *26. And “[a]s recently as August 4, 2025, the Attorney General designated the
Board’s decision in Matter of Akhmedov ‘as precedent in all proceedings involving the same
issue or issues.’” Id. (citing 29 I&N Dec. at 166 n.1). “An agency’s power to persuade rests at
least in part on its consistency with earlier and later pronouncements.” Id. (cleaned up) (citing
Loper Bright, 603 U.S. at 432-33) (also noting other inconsistencies between the BIA’s current
position and earlier pronouncements). The court finds Hurtado’s analysis to be inconsistent with
its earlier pronouncements and therefore unpersuasive.
Moreover, Hurtado relies in part on the conclusion that this court’s preferred
interpretation of the interplay between Section 1225 and Section 1226 subsequent to the Laken
Riley Act, as discussed above, “would, in fact, render . . . § 1225(b)(2)(A)[ ] superfluous.” 29
I&N Dec. at 222. Hurtado does not elaborate upon this point, and the court finds it to be
incorrect. That provision refers to “the case of an alien who is an applicant for admission,” 8
U.S.C. § 1225(b)(2)(A); this court’s interpretation of Section 1226 would not cover aliens who
present themselves or are detained when they are crossing the border, so § 1225(b)(2)(A) would
still be applicable to such aliens. Thus, despite what Hurtado says, the provision would not be
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rendered superfluous under this court’s preferred interpretation. The court therefore rejects the
legislative history analysis delineated in Hurtado, as well as its ultimate holding, and
additionally concludes that the case has no precedential value here.
The above is sufficient for this court to conclude that Petitioner is properly detained
pursuant to Section 1226, not 1225. Respondents’ arguments each rely upon the concept that
Petitioner is an “application for admission,” but as the court explains above, the court does not
find that Jennings, the language of the provisions at issue, or the legislative history reflect that
Petitioner is an applicant for admission. Instead, the court concludes that Petitioner is subject to
Section 1226 as “an alien present in the country . . . [who was] inadmissible at the time of entry
. . .” Jennings, 583 U.S. at 288.
Respondents argue cursorily that Petitioner has no due process right to a bond hearing.
First, Respondents argue that to show that he has been denied due process, Petitioner would need
to show that he has been deprived of some statutory right. Respondents assert that because he is a
noncitizen, Petitioner only has rights provided for via statute, and Petitioner has not shown that
he has been deprived of a statutory right because Section 1226 only grants the Attorney General
the discretion to grant bond rather than granting detainees the right to a bond hearing.
The court finds this argument to be insufficiently developed. Moreover, contrary to
Respondents’ assertions, “[i]t is well established that the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.” Demore v. Kim, 538 U.S. 510, 523 (2003) (citing
Reno v. Flores, 507 U.S. 292, 306 (1993)). The due process protections of the Fifth Amendment
extend to “all persons within the territory of the United States . . . [and] even aliens shall not be
. . . deprived of life, liberty, or property without due process of law.” Wong Wing v. United
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States, 163 U.S. 228, 238 (1896); see also Zadvydas v. Davis, 533 U.S. 678, 679 (2001) (“[T]he
Due Process Clause applies to all ‘persons' within the United States, including aliens, whether
their presence here is lawful, unlawful, temporary, or permanent.”). Additionally, the “fact that
some detention is permissible does not change the fact that a detainee suffers significant liberty
deprivations. Moreover, the government’s exercise of its power to detain immigrants pending
removal ‘is subject to important constitutional limitations.’” Hernandez-Lara v. Lyons, 10 F.4th
19, 28 (1st Cir. 2021) (quoting Zadvydas, 533 U.S. at 695). “Even if Petitioner is a noncitizen in
removal proceedings, that does not mean that he does not have a strong private interest in being
free from civil detention.” L.G. v. Choate, 744 F. Supp. 3d 1172, 1182 (D. Colo. 2024)
(concluding under similar circumstances that petitioner was entitled to an individualized bond
hearing). The court accordingly rejects this argument.
Respondents also argue that pursuant to Demore, the Supreme Court has concluded that
detention during removal proceedings is constitutionally permissible and that because, as in
Demore, Petitioner’s detention here has a definite endpoint, Petitioner’s continued detention is
permissible as well. The court also finds this argument to be insufficiently developed. Moreover,
the court has previously analyzed Demore in ruling on a similar issue and concluded that, inter
alia, the regulations at issue here provide for fundamentally different treatment of noncitizens in
discretionary detention pursuant to § 1226(a)—the provision that this court rules Petitioner is
properly detained under—and noncitizens in mandatory detention pursuant to § 1225(b)(2)(A) or
§ 1226(c), as in Demore. See Merchan-Pacheo v. Noem, No. 25-cv-03860-SBP, 2026 WL 88526,
at *4-6, 13 (D. Colo. Jan. 12, 2026). The court refers the parties to the analysis set forth in this
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opinion and rejects Respondents’ argument for the reasons stated therein.4
“Having erroneously concluded that Petitioner was mandatorily detained under § 1225,
the [immigration judge] in Petitioner’s case declined to make an individualized assessment of
whether Petitioner posed any danger to the community, threatened national security, or was at
risk of flight.” Velasquez Salazar v. Dedos, No. 25-cv-00835-DHU-JMR, 2025 WL 2676729, at
*5 (D.N.M. Sept. 17, 2025). “Thereafter, Petitioner’s continued detention without the bond
hearing that should have been provided to him pursuant to § 1226 constitutes an ongoing
violation of his constitutional right to due process.” Id. The court may therefore conclude its
analysis here. Moreover, the court need not reach Petitioner’s other arguments for granting the
Petition, as—except for the limitations to the scope of the court’s analysis addressed above—the
court finds that the relief requested by Petitioner may be granted. Cf., e.g., Hernandez v.
Baltazar, 2025 WL 2996643, at *8 (where the parties disputed whether petitioner was properly
detained pursuant to § 1225 or § 1226(a), granting petitioner a bond hearing pursuant to
§ 1226(a), but declining to reach petitioner’s due process arguments due to having already
afforded him the relief he sought).
Accordingly, the court respectfully grants Petitioner’s Petition in part, declares
Petitioner’s detention without the possibility of bond unlawful pursuant to the Due Process
clause of the Fifth Amendment, and orders that Petitioner be granted a bond hearing before an
immigration judge pursuant to Section 1226 within seven days of publication of this Order. If
4 Respondents also argue that “[d]ue process does not require that the government bear the
burden of proof at any bond hearing.” Response at 11. However, Petitioner has not raised any
argument regarding burden of proof, nor has he asked the court to rule upon or otherwise address
the issue of burden of proof. Accordingly, the issue of burden of proof is not before this court.
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Petitioner has not been provided with such a bond hearing within ten days of publication of this
Order, he shall be immediately released. Velasquez Salazar, 2025 WL 2676729, at *5 (awarding
similar relief); Lopez-Campos v. Raycraft, 797 F. Supp. 3d 771, 786 (E.D. Mich. 2025) (same);
Kostak v. Trump, 2025 WL 2472136, at *4 (same); Lopez Benitez v. Francis, 2025 WL 2267803,
at *14 (S.D.N.Y. Aug. 8, 2025) (ordering immediate release).
As for Petitioner’s request for costs and fees, “the Court notes that under Local Rule 54.3,
‘a motion for attorney fees shall be supported by affidavit.’ Therefore, Petitioner may file a
motion for attorney fees that complies with the applicable rules.” L.G. v. Choate, 744 F. Supp. 3d
at 1187 (citations omitted); see also Loa Caballero v. Baltazar, No. 25-cv-03120-NYW, 2025
WL 2977650, at *9 n.8 (D. Colo. Oct. 22, 2025) (holding the same).
CONCLUSION
For the foregoing reasons, the court respectfully GRANTS Petitioner’s Petition for Writ
of Habeas Corpus, ECF No. 1, and orders Respondents to provide Petitioner with an
individualized bond hearing pursuant to Section 1226(a) no later than seven days from the date
of this Order. Respondents are also ordered to file a status report in order to certify compliance
within ten days of the issuance of this Order. If Petitioner has not been provided with such a
bond hearing at the time this status report is due, he shall be immediately released.
DATED: February 5, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
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