Case Name in Immigration Case - Unavailable

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDDER ARNALDO SANTOS
FRANCO,
Petitioner, 	Case No. 2:25-cv-13188
v. 	Hon. Brandy R. McMillion
United States District Judge
KEVIN RAYCRAFT, et al,
Respondents.
________________________________/
OPINION AND ORDER GRANTING
WRIT OF HABEAS CORPUS (ECF NO. 1)
Petitioner Edder Arnaldo Santos Franco (“Santos Franco” or “Petitioner”) has
filed a Petition for Writ of Habeas Corpus (“Petition”), pursuant to 28 U.S.C. § 2241,
alleging he is being unlawfully detained at the North Lake Correctional Facility in
violation of the Immigration and Nationality Act (“INA”). 	See generally ECF No.
1. 	Santos Franco, a Guatemala citizen, is pending immigration proceedings to
remove him from the United States. Despite having been in this country since 2001,
raising three children who are all U.S. citizens, and never engaging in criminal
activity, Respondent1 is holding Santos Franco and refusing to provide him with a
1 Petitioner files this action against Kevin Raycraft (“Raycraft”), Acting Field Director of
Enforcement and Removal Operation (“ERO”), Detroit Field Office, Immigration and Customs
Enforcement (“ICE”); Kristi Noem, Secretary, U.S. Department of Homeland Security; U.S.
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bond hearing pending his removal proceedings. 	Id. 	For the reasons below, this
Court finds that Santos Franco’s detention without a bond hearing is unlawful, a
violation of his due process rights, and orders his immediate release, or in the
alternative, a bond hearing within seven (7) days. Accordingly, his Petition for Writ
of Habeas Corpus (ECF No. 1) is GRANTED.
I.
Santos Franco is a citizen of Guatemala, who entered the United States at an
unknown dated and time and has resided in New York since at least 2001. ECF No.
1, PageID.14; ECF No.7-2, PageID.80. He has three children, ages 22 months, five
and nine years old who are all United States citizens. ECF No. 1, PageID.2. Santos
Franco has no criminal history. ECF No. 8, PageID.114.
In 	December 	2016, 	Santos 	Franco 	filed 	an 	affirmative 	Form 	I-589,
Application for Asylum and for Withholding of Removal, with the United States
Citizenship and Immigrations Services. 	ECF No. 7-2, PageID.80. 	In December
2019, an asylum officer from USCIS issued Santos Franco a Form I-862, Notice to
Appear (“NTA”), charging him with inadmissibility under INA § 212(a)(6)(A)(i),
and referred his asylum application to the immigration court for adjudication. Id.
Department of Homeland Security (“DHS”); Pamela Bondi, U.S. Attorney General; and the
Executive Office for Immigration Review (“EOIR”). In response to this Petition, the Government
contends that Petitioner’s claim should only be brought against Raycraft, ECF No. 5, PageID.53,
and Petitioner does not oppose, ECF No. 6, PageID.105. Thus, the Court will dismiss the Petition
against all Respondents except for Raycraft (hereinafter referred to as “Respondent” or the
“Government”).
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In NTA, DHS alleged the following:
1. You are not a citizen or national of the United States.
2. You are a native of Guatemala and a citizen of Guatemala[;]
3. You entered the United States at or near UNNOWN [PLACE OF
ENTRY] on or about UNKOWN [DATE OF ENTRY].
4. You were not then admitted or paroled after inspection by an
Immigration Officer.
See ECF No. 1-3, PageID.25 (alternation in original). 	The Notice to Appear also
include that Santos Franco was subject to removal pursuant to:
212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended, as
an alien present in the United States without begin admitted or paroled,
or who arrived in the United States at any time or place other than as
designated by the Attorney General.
See ECF No. 1-3, PageID.25. On March 6, 2020, Santos Franco appeared before an
Immigration Judge (“IJ”) at the New York Immigrations Court for a master calendar
hearing. ECF No. 7-2, PageID.81. He admitted to the factual allegations in the NTA
and conceded removability. Id. At the hearing, Santos Franco filed a Form EOIR-
42B, Application for Cancellation of Removal and Adjustment of Status and
withdrew his asylum application. Id.
On October 16, 2023, Santos Franco appeared for a Merits Hearing on his
application for cancellation of removal before the New York immigration court. Id.
Fifteen days later, an IJ issued an oral decision denying Santos Franco application
for cancellation of removal and ordered him removed back to Guatemala; which he
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appealed. See id. From the best the Court can discern from the record, Santos Franco
was never held in custody during any of these proceedings.
ICE officials arrested Santos Franco in Brewster, New York on August 16,
2025, under INA § 235 as an applicant for admission to the United States seeking
admission.2 Id. Three days later, Santos Franco was transferred to the North Lake
Correctional Facility in Baldwin, Michigan and has remined in DHS custody. 	See
id. at PageID.82. On October 1, 2025, he appeared before an immigration judge at
the Detroit Immigration Court for a bond hearing. Id. The immigration judge denied
bond, finding Santos Franco subject to mandatory detention as an applicant for
admission under INA § 235. Id. Santos Franco reserved his right to appeal. Id.
On October 9, 2025, Santos Franco filed a petition for habeas corpus before
this Court, pursuant to 28 U.S.C. § 2241. ECF No. 1.3 His Petition alleges violations
of the INA, Bond regulations, and the Fifth Amendment Due Process Clause. 	See
id. at PageID.16-18. Santos Franco argues that as a noncitizen residing in the United
States, charged as inadmissible for having initially entered the country without
inspection, 8 U.S.C. § 1226(a) allows for his release on conditional parole or bond
2 The Court notes Respondents dispute this fact, alleging Santos Franco was arrested on August
26, 2025, instead of August 16. See ECF No. 7, PageID.53.
3 This matter was originally assigned to the Honorable Jonathan J.C. Grey and reassigned to the
undersigned as a companion to Lopez-Campos v. Raycraft, Case No. 25-cv-12987-BRM-EAS.
The Court previously considered nearly identical factual issues and the same legal issues in Lopez-
Campos.
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pending removal hearings, after a detention hearing to evaluate his risk of flight and
dangerousness. See generally id.; ECF No. 8. The Government asserts that under 8
U.S.C. § 1225(b)(2)(A), Santos Franco is properly detained because he falls in a
category of noncitizens that the statute mandates be detained pending removal
proceedings. See generally ECF No. 7. Santos Franco seeks immediate release from
custody or, in the alternative, a bond hearing. ECF No. 1, PageID.18.
Santos Franco’s Petition has been fully briefed. See ECF Nos. 7, 8. The Court
has reviewed the filings and finds that the issues have been adequately briefed;
therefore, a hearing is unnecessary. 	See E.D. Mich. L.R. 7.1(f)(2). As the Petition
is now ripe for decision, the Court will rule on the record before it. Id.
II.
Habeas relief is available when a person is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Santos
Franco seeks habeas relief arguing he is being unlawfully detained in violation of
the INA, because “[t]he mandatory detention provision at 8 U.S.C. § 1225(b)(2) does
not apply to all noncitizens residing in the United States who are subject to the
grounds of inadmissibility. 	As relevant here, it does not apply to those who
previously entered the country and have been residing in the United States prior to
being apprehended and placed in removal proceedings by Respondents.” ECF No.
1, PageID.16.
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Congress established two statutes which principally govern detention of
noncitizens pending removal proceedings. 8 U.S.C. §§ 1225 and 1226. The first –
Section 1225 – is titled: “Inspection by immigration officers; expedited removal of
inadmissible arriving aliens; referral for hearing.” The use of “the word ‘arriving’
indicates that the statute governs ‘arriving’ noncitizens, not those present already.”
See Barrera v. Tindall, No. 3:25-cv-541-RGJ, 2025 WL 2690565, at *4 (W.D. Ky.
Sept. 19, 2025) (citing Pizarro Reyes v. Raycraft, 2025 WL 2609425, at *5 (E.D.
Mich. Sep. 9, 2025)). And here, the title of the statute is instructive and “especially
valuable [where] it reinforces what the text’s nouns and verbs independently
suggest.” Barrera, 2025 WL 2690565 at *4 (citing Yates v. United States, 574 U.S.
528, 552 (Alito, J., concurring in judgment)).
This section is a mandatory detention provision that states, in relevant part:
(2) INSPECTION OF OTHER ALIENS
(A) In general
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). 	Key to the issues raised here, Section 1225 applies to
“applicants for admission,” who are noncitizens “present in the United States who
[have] not been admitted or who arrive[] in the United States” 8 U.S.C. § 1225(a)(1).
Upon arrival, all applicants for admission must undergo screening by an examining
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immigration officer, and if it is determined that the applicant for admission “is not
clearly and beyond a doubt entitled to be admitted,” they “shall be detained for”
standard removal proceedings. 	8 U.S.C. § 1225(b)(2)(A) (emphasis added). 	The
only exception to this mandatory detention provision is for noncitizens who are
released “for urgent humanitarian reasons or significant public benefit.” 8 U.S.C. §
1182(d)(5)(A).
The second statutory provision – Section 1226, titled: “Apprehension and
detention of aliens” – provides for a discretionary detention framework, and states,
in relevant part:
(a) ARREST, DETENTION, AND RELEASE
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. Except 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 …
8 U.S.C. § 1226(a). 	Subsection (c) of Section 1226 prohibits certain noncitizens
who are inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) by virtue of their presence
in the country without being admitted (like Petitioner) from being released on bond,
but only if the noncitizen has also been:
charged 	with, 	is 	arrested 	for, 	is 	convicted 	of, 	admits 	having
committed, or admits committing acts which constitute the essential
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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.
8 U.S.C. § 1226(c)(1)(E)4. Relevant here, noncitizens arrested and detained under
Section 1226 have a right to request a custody redetermination (i.e., a bond hearing)
before an Immigration Judge. See 8 C.F.R. §§ 1236.1(c)(8), (d)(1).
III.
A. 	ADMINISTRATIVE EXHAUSTION
Before determining the merits of this Petition, the Court must first address
Respondent’s argument that it should require Petitioner to exhaust his administrative
remedies (e.g. appeal the IJ’s decision to deny him a bond hearing to the BIA), before
Santos Franco is permitted to proceed with his habeas Petition. 	See ECF No. 7,
PageID.58-59. The Court disagrees exhaustion is necessary.
“Where Congress specifically mandates, exhaustion is required.” 	McCarthy
v. Madigan, 503 U.S. 140, 144 (1991). But when it is not mandated, the decision to
require exhaustion is within the sound discretion of the court. Id.; see also Shearson
v. Holder, 725 F.3d 588, 593 (6th Cir. 2013). Exhaustion requirements not written
into the text of the statute are prudential. 	See Perkovic v. I.N.S., 33 F.3d 615, 619
(6th Cir. 1994). “Prudential exhaustion is a judge-made doctrine that enables courts
4 This section that subjects certain noncitizens to mandatory detention was added by Congress in
January 2025 with the passing of the Laken Riley Act. Pub. L. No. 119-1, 139 Stat. 3 (2025).
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to require administrative exhaustion even when the statute or regulations do not.”
Island Creek Coal Co. v. Bryan, 937 F.3d 738, 747 (6th Cir. 2019).
In determining when to require prudential exhaustion, courts apply the three-
factor test, set forth in United States v. California Care Corp., 709 F.2d 1241, 1248
(9th Cir. 1983) (derived from McGee v. United States, 402 U.S. 479, 484 (1971);
McKart v. United States, 395 U.S. 185, 193-95 (1969)), which weighs whether:
(1) agency expertise makes agency consideration necessary to
generate a proper record and reach a proper decision;
(2) relaxation of the requirement would encourage the deliberate
bypass of the administrative scheme; and
(3) administrative review is likely to allow the agency to correct
its own mistakes and to preclude the need for judicial review.
See Shweika v. Dep’t of Homeland Sec., No. 1:06-cv-11781, 2015 WL 6541689, at
*12 (E.D. Mich. Oct. 29, 2015). 	Here, all three factors weigh against requiring
exhaustion. First, the issues raised in the habeas petition are purely legal in nature
and do not require the agency to develop the record. 	Second, because Santos
Franco’s habeas petition includes a due process claim, the administrative scheme
(i.e., appeal to the BIA) would be futile. 	And third, administrative review is not
likely to change Respondent’s position that Section 1225(b)(2)(A) applies in this
context.
While the Court would ordinarily enforce the exhaustion doctrine when it
serves the dual purpose of promoting judicial economy and protecting administrative
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agency authority, waiver is appropriate when the interests of the individual weigh
heavily against requiring administrative exhaustion, or exhaustion would be futile
and unable to afford the petitioner the relief he seeks. 	See McCarthy, 503 U.S. at
145; see also Fazzani v. NE Ohio Corr. Ctr., 473 F.3d 229 (6th Cir. 2006) (citing
Aron v. LaManna, 4 F. App’x 232, 233 (6th Cir. 2001) and Goar v. Civiletti, 688
F.2d 27, 28-29 (6th Cir. 1982)); Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093
(6th Cir. 1981). Exhaustion is also excused when delay means hardship. See Shalala
v. Illinois Council, 529 U.S. 1, 13 (2000).
Exhaustion would be futile because a bond appeal before the BIA would take
too long. See Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1245 (W.D. Wash. 2025)
(finding BIA bond appeals on average take six months to complete). So, its senseless
to require him to wait six months for the BIA to reach a decision on whether he is
entitled to a bond hearing, when a removal determination would likely come before
that decision. This is especially true here where Santos Franco already has an appeal
pending before the BIA which has been pending for years. 	See ECF No. 7-2,
PageID.81.
And as further evidence of futility, the Government itself points out, “Santos
Franco is unlikely to obtain the relief he seeks through the administrative process
based on a recent decision by the Board of Immigration Appeals in Matter of Yajure
Hurtado, 29 I &N Dec. 216 (BIA 2025), which is binding on the agency and the
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immigration courts, and which conclusively rejects Santos Franco’s arguments in
this case.” 	See ECF No. 7, PageID.58.5 Consequently, any administrative remedy
would leave Santos Franco without recourse; and therefore, should be excused. See
Shawnee Coal, 661 F.2d at 1093 (recognizing that administrative exhaustion may be
excused if it would be futile). It’s unmistakable that waiver is appropriate because
depriving Santos Franco of his liberty while awaiting a BIA appeal decision certainly
equates to hardship, and any delay results in the very harm Santos Franco is trying
to avoid by seeking the bond hearing – detention. See Gomes v. Hyde, No. 1:25-cv-
11571-JEK, 2025 WL 1869299, at *8 n.9 (D. Mass. July 7, 2025).
Aside from waiver, the Sixth Circuit has also previously held that a due
process challenge generally does not require exhaustion since the BIA lacks
authority to review constitutional challenges. See Sterkaj v. Gonzales, 439 F.3d 273,
279 (6th Cir. 2006); accord Bangura v. Hansen, 434 F.3d 487, 494 (6th Cir. 2006)
(“exhaustion of administrative remedies may not be required in cases of non-
frivolous constitutional challenges to an agency’s procedures.”) (citation omitted).
Since Santos Franco’s Petition includes a due process claim, an appeal to the BIA
5 While BIA decisions may be binding upon the agency at large, they are not binding on this Court.
See 8 C.F.R. § 1003.1(g)(1) (“[D]ecisions of the [BIA] …are binding on all officers and employees
of DHS or immigration judges in the administration of the immigration laws of the United
States.”); see also Sulivan v. Zebley, 493 U.S. 521, 530 n.9 (1990) (noting agency rulings are
binging on all components of the agency itself but not federal courts); Loper Bright Enter. v.
Raimondo, 603 U.S. 369, 386 (2024) (discussing interruption of laws is the solemn duty of the
Judiciary).
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would be pointless. 	The fact that Santos Franco reserved his right to appeal the
denial of a detention hearing to the BIA further persuades the Court to exercise its
discretion to decide this habeas petition. See ECF No. 1-2, PageID.23.
Furthermore, this Court and many others have waived exhaustion in similar
proceedings. 	See e.g. Shweika, 2015 WL 6541689 at *13; Lopez-Campos v.
Raycraft, --- F. Supp. 3d ----, No. 2:25-CV-12486, 2025 WL 2496379 (E.D. Mich.
Aug. 29, 2025); Pizarro Reyes v. Raycraft, et al., No. 2:25-cv-12546, 2025 WL
2609425 (E.D. Mich. Sept. 9, 2025); Romero v. Hyde, et al., ---F.Supp.3d----, No.
1:25-cv-11631-BEM, 2025 WL 2403827 (D. Mass. Aug. 19, 2025); Lopez Benitez
v. Francis et al., ---F.Supp.3d----, No. 1:25-cv-05937-DEH, 2025 WL 2371588
(S.D.N.Y. Aug. 13, 2025). And this Court has previously held, “[w]hen the liberty
of a person is at stake, every day that passes is a critical one, and the Court cannot
fault [a detainee] for taking appropriate measures to pursue his claims through the
habeas process, with the expectation that his claims would be met with a sense of
urgency, and he would receive a decision in a more expedient manner.” See Lopez-
Campos, 2025 WL 2496379 at *5. The same holds true for Santos Franco.
Hence, because exhaustion would be futile and unable to provide Santos
Franco 	with 	the 	relief 	he 	requests 	in 	a 	timely 	manner, 	the 	Court 	waives
administrative exhaustion and will address the merits of the habeas petition.
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B. 	STATUTORY INTERPRETATION
The Court then turns to the central question in this case, like it and so many
other courts have had to do in recent months. Which detention framework properly
applies to a Guatemalan citizen, who has lived in the United States since 2001, was
never lawfully admitted to the country, encountered ICE ERO Officers nearly six
years after his removal proceedings began, and has now been arrested? 	Santos
Franco says Section 1226(a), and the Government says Section 1225(b)(2)(A). This
Court has previously ruled that Section 1226(a) applies and finds the facts of this
case warrant the same result. See Lopez Campos, 2025 WL 2496379.
For the past 30 years, the Government has applied Section 1226(a) in seeking
detention in this context. 	But now that the Government’s immigration policy has
changed, and Section 1225(b)(2)(A) is more favorable, it wants the Court to declare
that the historical application of Section 1226(a) is incorrect. That, the Court will
not do. 	The plain language of the statutes, the overall structure, the intent of
Congress, and over 30 years of agency action make clear that Section 1226(a) is the
appropriate statutory framework for determining bond for noncitizens who are
already in the country and facing removal.
In harmonizing Sections 1225 and 1226 of the INA, the Court must interpret
the meaning of the statutes that apply at the time of inspection by immigration
officials and at the time of apprehension. 	“A statute should be construed so that
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effect is given to all its provisions[.]” 	Corley v. United States, 556 U.S. 303, 314
(2009); Kentucky v. Biden, 23 F.4th 585, 603 (6th Cir. 2022) (discussing how courts
“must give effect to the clear meaning of statutes as written.”). Each word within
the statute must be given “‘it’s ordinary, contemporary, common meaning,’ while
keeping in mind that ‘statutory language has meaning only in context.’” Kentucky,
23 F.4th at 603 (citing Walters v. Metro Edu. Enters., Inc., 519 U.S. 202, 207 (1997);
Graham Cnty. Soil & Water Conservation Dist. et al. v. United States ex rel. Wilson,
545 U.S. 409, 415 (2005)). “The words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.” 	Roberts v. Sea-land
Servs., Inc., 566 U.S. 93, 101 (2012). 	Courts must also “use every tool at their
disposal to determine the best reading of the statute.” 	Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 400 (2024). In doing so here, the Court must determine
whether Santos Franco is lawfully detained under Section 1225(b)(2)(A), as
Respondent claims. And the Court finds he is not.
Beginning with the language of the statute itself. 	The plain text of Section
1225(b)(2)(A) and Section 1226(a) do not support Respondent’s contention that “§
1225(b)(2) requires mandatory detention for noncitizens who fall within its terms
until the conclusion of their administrative proceedings and detaining a noncitizen
under § 1226(a), which allows release on bond, would nullify the mandatory
detention required by § 1225(b)(2).” 	ECF No. 7, PageID.69. 	Section 1225(b)
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applies to “Inspection for applicants for admission,” and subsection (1) governs
“Inspection of aliens arriving in the United States and certain other aliens who have
not been admitted or paroled.” 	Id. (emphasis added). 	Section 1226, on the other
hand, applies to the “[a]pprehension and detention of aliens.” 	While not binding,
statutory headings/titles are instructive and provide the Court with the necessary
assurance that it is at least applying the right part of the statute in a given
circumstance. See Merit Mang. Grp, LP v. FIT Consulting, Inc., 583 U.S. 366, 380
(2018); Dubin v. United States, 599 U.S. 110, 120-21 (2023) (“This Court has long
considered that the title of a statute and the heading of a section are tools available
for the resolution of a doubt about the meaning of a statute.”). Here, it is as simple
as looking to which statute makes the most sense – was Santos Franco arriving and
being inspected, or was he apprehended and detained. The facts could not be more
clear that it was the latter.
Looking 	to 	Section 1225(b)(2)(A), when 	dealing 	with 	“inspection 	and
removal of arriving aliens,” immigration officials “shall” detain “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.” 	8 U.S.C. §
1225(b)(2)(A). Respondent argues that the term “applicant for admission” is defined
as any “unadmitted noncitizens present in the United States,” and therefore applies
to anyone here unlawfully, even if they are already physically present—regardless
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of the length of time they have been present. 	See ECF No. 7, PageID.60 (citing 8
U.S.C. § 1225(a)(1)). They similarly argue that “seeking admission” is an inquiry
of seeking a “lawful entry.” 	Id. at PageID.61. 	Thus, “[a] noncitizen’s previous
unlawful physical entry has no bearing on this analysis.” Id. So, under Respondent’s
interpretation, Section 1225(b)(2)(A) requires detention of any noncitizen “present”
in the country who has not been lawfully admitted. The Court finds this much too
broad.
The Court finds that 1225(b)(2)(A) applies when people are being inspected,
which usually occurs at the border, when they are seeking lawful entry into this
country. Much like the petitioner in Lopez-Campos, Santos Franco was arrested by
ICE within the United States, over twenty-four years after arriving. 	See Lopez-
Campos, 2025 WL 2496379 at *7. There is no logical interpretation that would find
that Santos Franco was actively “seeking admission” after having resided here, albeit
unlawfully, for more than a quarter of a century. 	And even if Respondent argues
that Santos Franco is “seeking admission” because he applied for asylum or filed a
cancellation of removal, that was not done when he was “arriving” to this country.
So, the applicability of §1225(b)(2)(A) would still be incorrect.
In contrast, looking to the plain language of Section 1226, when dealing with
“apprehension and detention of aliens,” upon “a warrant issued by the Attorney
General, an alien may be arrested or detained pending a decision on whether the
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alien is to be removed from the United States.” 8 U.S.C. § 1226(a). This provision
is clearly applicable, as Santos Franco encountered ICE ERO Officers, then they
arrested and detained him. He is pending removal proceedings in the Immigration
Court, therefore the Attorney General, “may continue to detain” and “may release
on bond.” 	Id. 	While this language is discretionary, the statute provides that the
noncitizen has the right to request a custody redetermination (i.e., bond hearing)
before an IJ – which is precisely what Santos Franco has done. 	See 8 C.F.R. §§
1236.1(c)(8), (d)(1).
Notably, Respondent previously released Santos Franco and the Government
does not cite to anything to support its new interpretation that his current arrest is
under 1225(b)(2)(A). 	And the Court is not persuaded that Petitioner’s five-year-
pending application for cancellation of removal is enough to constitute “seeking
admission.” To hold otherwise, would allow the Government to sweepingly apply
a provision of the INA that is inapplicable, and the Court is not willing to do that.
Three years after having initially released Santos Franco, and following his rearrest
on August 16, 2025, Respondent now claims his detention was under Section
1225(b)(2)(A). ECF No. 7-2, PageID.81. The Court cannot credit this new position
that was adopted post-hac, despite clear indication that Santos Franco was not
detained under this provision when he was first encountered in 2016. 	Cf. Dep’t of
Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 22, 24 (2020) (holding
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that, under arbitrary and capricious review in the administrative law context, “[t]he
basic rule is clear: [a]n agency must defend its actions based on the reasons it gave
when it acted,” not on “impermissible post hoc rationalizations”).6 And nearly
every, if not all, courts addressing this very issue have held the same.7
The Supreme Court has looked at these statutes and clarified that they apply
in different circumstances. See Jennings v. Rodriguez, 583 U.S. 281, 287-88 (2018).
Section 1225 is “framed [] as a part of the process that ‘generally begins at the
Nation’s borders and ports of entry, where the Government must determine whether
[noncitizens] seeking to enter the country are admissible.’” Rosado v. Figueroa, et
al., No. 2:25-cv-02157-DLR-CDB, 2025 WL 2337099, at *8 (citing Jennings, 583
U.S. at 287). 	Whereas Section 1226(a) applies to the process of “arresting and
detaining” noncitizens who are already living “inside the United States” but still
subject to removal. Jennings, 538 U.S. at 288. Put simply, Section 1225 applies to
6 See Lopez Benitez v. Francis et al., ---F.Supp.3d----, No. 1:25-cv-05937-DEH, 2025 WL
2371588, at *5 (S.D.N.Y. Aug. 13, 2025).
7 See e.g. Gomes v. Hyde, No. 1:25-cv-11571-JEK, 2025 WL 1869299, at *8 n.9 (D. Mass. July 7,
2025) (“DHS cannot convert the statutory authority governing . . . detention from [Section
1225(b)] to [Section 1226(a)] through the post-hoc issuance of a warrant.” (citing Matter of Q. Li,
29 I. & N. Dec. 66, 69 n.4 (BIA 2025)); Martinez v. Hyde, ---F. Supp. 3d ---, 1:25-cv-11613-BEM,
2025 WL 208438 (D. Mass. July 24, 2025) (“[S]ection 1125(b)(2) cannot be read to mandate
detention of non-citizens already present within the United States, based on certain inadmissibility
grounds, as that would nullify a recent amendment to the immigration statues.”); Lopez Benitez,
2025 WL 2371588 at *5 (“The Court cannot credit Respondents’ new position as to the basis for
Mr. Lopez Benitez’s detention, which was adopted post hoc and raised for the first time in this
litigation.”).
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noncitizens “arriving to the country” and Section 1226 governs detention of
noncitizens “already in the country.” Id.
Looking to the facts of this case, it is undisputed that Santos Franco, by
definition, is a noncitizen “present in the United States who has not been admitted
or paroled.” 8 U.S.C. § 1182(a)(6)(A). Respondent concedes that they do not know
when Santos Franco arrived in the U.S. See ECF No. 7-2, PageID.80; ECF No. 1-3,
PageID.25. But Santos Franco states that he has resided here for more than twenty-
four years. ECF No. 1, PageID.2. Prior to his arrest, he lived in the state of New
York. 	Id. at PageID.14. Under these circumstances, it cannot be said that Section
1225(b)(2)(A) applies to him. 	Santos Franco was not “arriving to the country.”
Quite the contrary, he was arrested while present and “already in the country,”
having lived here for decades, making Section 1226 applicable. 	See Jennings, 538
U.S. at 288; see also Lopez-Campos, 2025 WL 2496379 at *8.
Further, if Congress had intended for Section 1225 to govern all noncitizens
present in the country, who had not been admitted, then it would not have recently
adopted an amendment to Section 1226 that prescribes a subset of noncitizens be
exempt from the discretionary bond framework. 	The Laken Riley Act added a
subsection to Section 1226 that specifically mandated detention for noncitizens who
are inadmissible under Sections 1182(a)(6)(A) (noncitizens present in the United
States without being admitted or paroled, like Santos Franco), 1182(a)(6)(C)
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(misrepresentation), or 1182(a)(7) (lacking valid documentation) and have been
arrested for, charged with, or convicted of certain crimes. 	See 	8 U.S.C. §
1226(c)(1)(E). Respondent’s interpretation of the statutes would render this recently
amended section superfluous. As another court recently held,
[W]hile 	Section 	1226(a) 	expressly 	carves 	out 	certain 	“criminal”
noncitizens from its discretionary framework, it does not similarly
carve out noncitizens who would be subject to mandatory detention
under Section 1225(b)(2). See 8 U.S.C. § 1226(a) (“Except as provided
in subsection (c) ..., the Attorney General ... may” (emphases added)).
“That express exception” to Section 1226(a)’s discretionary framework
“implies that there are no other circumstances under which” detention
is mandated for noncitizens, like [Santos Franco], who are subject to
Section 1226(a). 	Jennings, 583 U.S. at 300 (citing A. SCALIA & B.
G ARNER, READING L AW 107 (2012)); see Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 400 (2010) (“that
Congress has created specific exceptions” to the applicability of a
statute or rule “proves” that the statute or rule generally applies absent
those exceptions).
dos Santos v. Noem, No. 1:25-cv-12052-JEK, 2025 WL 2370988 (D. Mass. Aug. 14,
2025). “If § 1225(b)(2) already mandated detention of any alien who has not been
admitted, regardless of how long they have been here, then adding § 1226(c)(1)(E)
to the statutory scheme was pointless” and this Court, too, “will not find that
Congress passed the Laken Riley Act to ‘perform the same work’ that was already
covered by § 1225(b)(2).” 	Maldonado v. Olsen, ---F. Supp.3d----, No. 0:25-cv-
03142, 2025 WL 237441, *12 (D. Minn. Aug. 15, 2025).
There can be no genuine dispute that Section 1226(a), and not Section
1225(b)(2)(A), applies to a noncitizen who has resided in this country for over
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twenty-five years and was already within the United States when he recently
encountered and was apprehended and arrested by ICE ERO. 	The reading of the
statutes supports this finding, as does every other Court that has had to address the
distinction between Section 1225(b)(2)(A) and Section 1226(a).8 Therefore, the
8 Rodriguez v. Bostock, 779 F. Supp. 3d 1239 (W.D. Wash. 2025); Gomes v. Hyde, No. 1:25-cv-
11571-JEK, 2025 WL 1869299 (D. Mass. July 7, 2025); Martinez v. Hyde, ---F. Supp. 3d ---, 1:25-
cv-11613-BEM, 2025 WL 2084238 (D. Mass. July 24, 2025); Bautista v. Santacruz, No. 5:25-cv-
01873-SSS-BFM (C.D. Cal. July 28, 2025); Rosado v. Figueroa et al., No. 2:25-cv-02157-DLR,
2025 WL 2337099 (D. Ariz. Aug. 11, 2025); Lopez Benitez v. Francis et al., ---F.Supp.3d----, No.
1:25-cv-05937-DEH, 2025 WL 2371588 (S.D.N.Y. Aug. 13, 2025); Gonzalez et al. v. Noem et al.,
No. 5:25-cv-02054-ODW-BFM (C.D. Cal. Aug. 13, 2025); dos Santos v. Noem, No. 1:25-cv-
12052-JEK, 2025 WL 2370988 (D. Mass. Aug. 14, 2025); Garcia Jimenez v. Kramer, No. 4:25-
cv-03162-JFB-RCC, 2025 WL 2374223 (D. Neb. Aug. 14, 2025); Maldonado v. Olson, ---
F.Supp.3d ----, No. 0:25-cv-03142-SRN-SGE, 2025 WL 2374411 (D. Minn. Aug. 15, 2025);
Romero v. Hyde, et al., ---F.Supp.3d----, No. 1:25-cv-11631-BEM, 2025 WL 2403827 (D. Mass.
Aug. 19, 2025); Benitez et al. v. Noem et al., No. 5:25-cv-02190-RGK-AS (C.D. Cal. Aug. 26,
2025); Kostak v. Trump et al., No. 3:25-cv-01093-JE-KDM (W.D. La. Aug. 27, 2025); Jose J.O.E.
v. Bondi, --- F.Supp.3d ----, No. 0:25-cv-03051, 2025 WL 2466670 (D. Minn. Aug. 27, 2025);
Diaz Diaz v. Mattivelo, No. 25-cv-12226, 2025 WL 2457610 (D. Mass. Aug. 27, 2025); Doe v.
Moniz, --- F.Supp.3d ----, No. 1:25-cv-12094-IT, 2025 WL 2576819 (D. Mass. Sept. 5, 2025);
Pizarro Reyes v. Raycraft, et al., No. 2:25-cv-12546, 2025 WL 2609425 (E.D. Mich. Sept. 9,
2025); Salcedo Aceros v. Polly Kaiser et al., No. 25-cv-5624, 2025 WL 2637503 (N.D. Cal. Sept.
12, 2025); Lamidi v. FCI Berlin, Warden, No. 1:25-cv-00297-LM-TSM (D.N.H. Sept. 15, 2025);
Garcia Cortes, v. Noem et al., No. 25-cv-02677, 2025 WL 2652880 (D. Colo. Sept. 16, 2025);
Maldonado Vazquez v. Feeley et al., No. 25-cv-01542, 2025 WL 2676082 (D. Nev. Sept. 17,
2025); Velasquez Salazar v. Dedos et al., No. 25-cv-00835, 2025 WL 2676729 (D.N.M. Sept. 17,
2025); Hasan v. Crawford, ---F.Supp.3d ----, No. 25-cv-1408, 2025 WL 2682255 (E.D. Va. Sept.
19, 2025); Yumbillo v. Stamper, No. 25-cv-00479, 2025 WL 2688160 (D. Me. Sept. 19, 2025);
Barrera v. Tindall, No. 25-cv-541, 2025 WL 2690565 (W.D. Ky. Sept. 19, 2025); Barrera v.
Tindall, No. 3:25-cv-541-RGJ, 2025 WL2690565 (W.D. Ky. Sept. 19, 2025); Chogllo Chafla v.
Scott et al., No. 2:25-cv-00437-SDN, 2025 WL 2688541 (D. Me. Sept. 22, 2025); Lepe v. Andrews,
--- F. Supp. 3d ----, No. 1:25-cv-01163-KES-SKO, 2025 WL 2716910 (E.D. Cal. Sept. 23, 2025);
Giron Reyes v. Lyons, ---F. Supp. 3d ----, No. 25-CV-4048, 2025 WL 2712427 (N.D. Iowa Sept.
23, 2025); Barrajas v. Noem et al., No. 25-cv-00322, 2025 WL 2717650 (S.D. Iowa Sept. 23,
2025); Valencia Zapata v. Kaiser, ---F. Supp. 3d ----, No. 25-cv-07492, 2025 WL 2741654 (N.D.
Cal. Sept. 26, 2025); Quispe v. Crawford, et al., No. 1:25-cv-1471-AJT-LRV, 2025 WL2783799
(E.D. Va. Sept. 29, 2025); Belsai D.S. v. Bondi, et al., No. 25-cv-3682, 2025 WL 2802947 (D.
Minn. Oct. 1, 2025); Echevarria v. Bondi, et al., No. cv-25-03252-PHX-DWL, 2025 WL 2821282
(D. Ariz. Oct. 3, 2025); Guerrero Orellana v. Moniz, ---F. Supp. 3d ----, No. 25-cv-12664-PBS,
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Court 	finds 	that 	Santos 	Franco 	is 	not 	subject 	to 	the 	provisions 	of 	Section
1225(b)(2)(A). Rather, he clearly falls under the provision of Section 1226(a) and
is subject to the discretionary bond determination outline therein.
C. 	DUE PROCESS
Finally, Santos Franco argues that his continued detention is a violation of due
process – and the Court agrees.
The Fifth Amendment guarantees the right to be free from deprivation of life,
liberty or property without due process of law. U.S. CONST. amend. V. Liberty is
one of the most basic and fundamental rights afforded and “[f]reedom from
imprisonment—from government custody, detention, or other forms of physical
restraint—lies at the heart of the very liberty that [the Due Process Clause] protects.”
Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The Due Process Clause extends to
all “persons” regardless of status, including noncitizens (whether here lawfully,
unlawfully, temporarily, or permanently). 	Id. at 693; see also Reno v. Flores, 507
U.S. 292, 306 (1993); Chavez-Acosta v. Garland, No. 22-3045, 2023 WL 246837,
at *4 (6th Cir. Jan. 18, 2023).
Respondent does not dispute that Santos Franco is entitled due process, rather
the Government argues that it afforded the process due under Section 1225(b)(2)(A)
2025 WL 2809996 (D. Mass. Oct. 3, 2025); Hyppolite v. Noem, et al., No. 25-cv-4304, 2025 WL
2829511 (E.D.N.Y. Oct. 6, 2025).
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when Santos Franco “was given notice of the charges against him, he has access to
counsel, he has attended a hearing with an immigration judge, he has requested bond,
he has the right to appeal the denial of his request for bond, he has been detained by
ICE for eight weeks, and he is scheduled for another hearing in immigration court
in less than three months.” See ECF No. 7, PageID.57. The Supreme Court has held
that “[due process] under the constitution is coextensive with the removal procedures
provided by Congress[.]” 	Id. at PageID.56 (citing Dep’t of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 138–140 (2020)). However, having found that Section
1226(a) governs Santos Franco’s detention, the Government’s assessment fails and
the process due to a non-citizen that is apprehended and detained is that which is
afforded under Section 1226(a) – a bond hearing. 	Here, the IJ did not conduct a
bond hearing.
In evaluating due process in the context of civil confinement, the Court looks
to (1) the private interest that will be affected by official action; (2) the risk of
erroneous deprivation of that interest; and (3) the government’s interest, including
the fiscal and administrative burdens that the additional or substitute procedures
entail. Mathews v. Eldrige, 424 U.S. 319 (1976); see also United States v. Silvestre-
Gregorio, 983 F.3d 848, 852 (6th Cir. 2020). 	All three factors weigh in favor of
affording Santos Franco a detention hearing. First, his liberty is at stake. Second,
the risk of erroneously depriving him of his freedom is high if the IJ fails to assess
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his risk of flight and dangerousness. And third, on the record currently before the
Court, given the history and characteristics of this Petitioner, the Government has
not and likely cannot show that it has a significant interest in Santos Franco’s
continued detention.
Accordingly, the Court agrees that detention of Santos Franco under the
mandatory detention framework is a violation of his due process rights.
IV.
As this Court has previously stated:
Section 1226(a) of the INA recognizes that the core and “most
elemental of liberty interests” is to be free from restraint and physical
detention. 	Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004). 	For
centuries, 	the 	Government 	has 	acted 	in 	accordance 	with 	these
principles. The recent shift to use the mandatory detention framework
under Section 1225(b)(2)(A) is not only wrong but also fundamentally
unfair. 	In a nation of laws vetted and implemented by Congress, we
don’t get to arbitrarily choose which laws we feel like following when
they best suit our interests.
Lopez-Campos, 2025 WL 2496379 at *10. 	The plain language of both Sections
1226(a) and 1225(b)(2)(A) mandate a finding that Santos Franco is entitled to a
detention hearing pending his removal proceedings. Because the Immigration Court
is 	in 	the 	best 	position 	to 	evaluate 	Petitioner’s 	risk 	of 	non-appearance 	and
dangerousness, this Court leaves to its sound discretion a determination on that issue.
Accordingly, the Court DISMISSES the Petition against Respondents Kristi
Noem, Pamela Bondi, DHS, and EOIR. Santos Franco’s Petition for Writ of Habeas
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Corpus (ECF No. 1) is GRANTED. 	Respondent is HEREBY ORDERED to
immediately release Santos Franco, or in the alternative, provide him with a bond
hearing under 8 U.S.C. § 1226(a) within seven (7) days of the date of this Order.
IT 	IS 	FURTHER 	ORDERED 	that 	Respondent 	is 	ENJOINED 	from
pursuing detention on the basis of 8 U.S.C. § 1225(b)(2)(A).
IT IS FURTHER ORDERED that Respondent shall file a Status Report with
this Court on or before October 28, 2025, to certify compliance with this Order. The
Status Report shall include if and when the bond hearing occurred, if bond was
granted or denied, and if denied, the reasons for that denial.
IT IS SO ORDERED.
Dated: October 21, 2025 	s/Brandy R. McMillion
Detroit, Michigan 	H ON. BRANDY R. MCMILLION
United States District Judge
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