Ferrera Bejarano v. Bondi et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Wuilmer F.,1
Petitioner,
v.
Pamela Bondi, Kristi Noem, Department
of Homeland Security, Todd M. Lyons,
Immigration and Customs Enforcement,
Sirce Owen, Executive Office for
Immigration Review, Sam Olson, and
Eric Tollefson,
Respondents.
Case No. 25-CV-3236 (NEB/JFD)
REPORT AND
RECOMMENDATION
This matter is before the Court on Wuilmer F.’s Amended Petition for Writ of
Habeas Corpus (Dkt. No. 24), filed pursuant to 28 U.S.C. § 2241. The petition has been
referred to the undersigned for the issuance of a report and recommendation. Petitioner was
in United States Immigration and Customs Enforcement detention when he filed the
petition, and one of the key issues raised was whether his detention was governed by 8
U.S.C. § 1225(b)(2) or 8 U.S.C. § 1226(a). Petitioner has since been released from
detention under an order for a preliminary injunction issued in this case, and Respondents
contend the issue of which section governs his detention is now moot. The Court concludes
that the capable-of-repetition-yet-evading-review exception to the mootness doctrine
1 This District has adopted a policy of using only the first name and last initial of any
nongovernmental parties in immigration cases.
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applies and that Petitioner’s detention fell under 8 U.S.C. § 1226(a), not § 1225(b)(2). The
Court therefore recommends that the petition be granted to that extent.
I. 	Background
Petitioner Wuilmer F. commenced this action by filing a Petition for Writ of Habeas
Corpus on August 12, 2025. (Pet., Dkt. No. 1.) Petitioner is a citizen of Honduras who has
lived in the United States since 2018. (Pet. ¶¶ 52–53.)
A. 	Pre-Petition Events
In early July 2025, United States Immigration and Customs Enforcement (“ICE”)
determined that Petitioner was unlawfully present in the United States and took him into
custody. (Pet. ¶¶ 56, 58.) Petitioner was served with a Notice to Appear, a Form I-200
Warrant of Arrest, and a Form I-286 Notice of Custody Determination. (Pet. ¶¶ 59–60.)
The 	Form 	I-286 	Notice 	of 	Custody 	Determination 	referred 	to 	section 	236 	of 	the
Immigration and Nationality Act, indicating that Respondents were acting pursuant to 8
U.S.C. § 1226 rather than 8 U.S.C. § 1225. (Pet. ¶ 61.)
The 	Executive 	Office 	for 	Immigration 	Review 	(“EOIR”) 	held 	a 	custody
redetermination hearing on August 7, 2025, at which an immigration judge (“IJ”) found
that Petitioner was not subject to mandatory custody under 8 U.S.C. § 1225(b)(2)2 and that
2 Section 1225(b)(2) governs the inspection of applicants for admission and provides in
relevant part, “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).
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8 U.S.C. § 1226(a)3 governed his detention. (Pet. ¶¶ 72–75.) The IJ set bond in the amount
of $20,000. (Pet. ¶ 75.) Petitioner was prepared to pay the bond amount, but Respondents
did not allow it. (Pet. ¶ 76.)
Petitioner was not released after the IJ’s order. Instead, the Department of Homeland
Security (“DHS”) indicated its intent to appeal the custody redetermination and invoked
an automatic stay of the IJ’s release order, pursuant to 8 C.F.R. § 1003.19(i)(2).4 (Pet. ¶ 77.)
The automatic stay was the basis for Petitioner’s detention when he filed his original
Petition on August 12, 2025. (See Pet. ¶ 77.)
The day after Petitioner filed the Petition, he filed an Emergency Motion for
Temporary Restraining Order. (Dkt. No. 5.) Respondents filed a written response in
opposition to the motion. (Dkt. No. 14.) The Honorable Nancy E. Brasel, United States
3 Section 1226(a) governs the arrest, detention, and release of a noncitizen pending a
decision on whether the noncitizen should be removed from the United States. 8 U.S.C.
§ 1226(a). Detention is discretionary, and the noncitizen is entitled to a bond hearing. See
id. 1226(a), (a)(2).
4 Section1003.19(i)(2) provides for an automatic stay in certain cases:
In any case in which DHS has determined that an alien should not be released
or has set a bond of $10,000 or more, any order of the immigration judge
authorizing release (on bond or otherwise) shall be stayed upon DHS's filing
of a notice of intent to appeal the custody redetermination (Form EOIR–43)
with the immigration court within one business day of the order, and, except
as otherwise provided in 8 CFR 1003.6(c), shall remain in abeyance pending
decision of the appeal by the Board. The decision whether or not to file Form
EOIR–43 is subject to the discretion of the Secretary.
8 C.F.R. § 1003.19(i)(2).
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District Judge, held a preliminary injunction hearing on August 18, 2025. (See Min. Entry,
Dkt. No. 17.)
B. 	The Preliminary Injunction Hearing
At the beginning of the hearing, Judge Brasel informed the parties that the motion
would be treated as one for a preliminary injunction under Rule 65 because Respondents
had notice and had filed a written response. (Mot. Hr’g Tr. (“Tr.”) at 2, Dkt. No. 23.)5 After
hearing oral argument from the parties, Judge Brasel determined that 8 U.S.C. § 1252 did
not deprive the Court of jurisdiction over Petitioner’s habeas claims. (Tr. at 26–29.) Judge
Brasel then turned to the Petitioner’s request for injunctive relief and assessed whether the
four Dataphase factors6 favored granting a preliminary injunction. (Tr. at 29, 34–35.)
In considering whether Petitioner was likely to succeed on his claim that the
automatic stay provision violated his procedural due process rights, Judge Brasel applied
the Mathews v. Eldridge three-part test.7 (Tr. at 30.) For the first factor, Judge Brasel found
5 The transcript is currently sealed, but no statement of redaction has been filed.
6 The four Dataphase factors inform whether a court should issue a preliminary injunction:
“(1) the threat of irreparable harm to the movant; (2) the state of the balance between this
harm and the injury that granting the injunction will inflict on other parties litigant; (3) the
probability that movant will succeed on the merits; and (4) the public interest.” Dataphase
Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981).
7 In Mathews v. Eldridge, the Supreme Court considered (1) “the private interest that will
be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards”; and (3) “the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” 424 U.S. 319, 335 (1976).
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that Petitioner’s interest in freedom from physical detention was an elemental liberty
interest and that the conditions of Petitioner’s detention were the same as criminal
incarceration. (Tr. at 30.) Turning to the second Mathews factor, Judge Brasel rejected
Respondents’ position that Petitioner was an applicant for admission and thus fell within
the mandatory detention provisions of § 1225(b). (Tr. at 30–31.) Rather, Judge Brasel
concluded that Petitioner was a noncitizen who was already present in the United States.
(Tr. at 31.) Thus, Petitioner’s detention fell under § 1226(a), not § 1225(b)(2). (Tr. at 32.)
Judge Brasel explained, “The critical distinction between these two statutes is that
noncitizens detained under [§] 1225(b)(2) must remain in custody for the duration of their
removal, while those under [§] 1226(a) are entitled to a bond hearing before an IJ at any
time.” (Tr. at 31.) Judge Brasel next found that the automatic stay provided in 8 C.F.R.
§ 1003.19(i)(2) created a substantial risk of an erroneous deprivation of Petitioner’s interest
in being free from arbitrary confinement. (Tr. at 32–33.) The third Mathews factor also
favored Petitioner: Respondents’ interest in persisting with an automatic stay did not
outweigh Petitioner’s interests and the risk of an erroneous deprivation of those interests.
(Tr. at 33–34.) Therefore, Judge Brasel concluded, “all three Mathews factors support the
petitioner’s claim that the automatic stay violates his procedural due process rights under
the Fifth Amendment.” (Tr. at 34.)
Proceeding to the other Dataphase factors, Judge Brasel noted that the loss of liberty
was the strongest example of irreparable harm, although if Petitioner were transferred, that
would constitute additional harm. (Tr. at 34.) Considering the balance-of-harms and public-
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interest factors together, Judge Brasel determined that the balance of harms favored
Petitioner. (Tr. 34–35.)
Judge Brasel granted Petitioner’s motion for a preliminary injunction, thus enjoining
Respondent Sam Olson “from enforcing the automatic stay provision as to this petitioner
during the pendency of the court’s consideration of the petition for writ of habeas corpus.”
(Tr. at 36.) Petitioner was ordered to be released and to post bond in accordance with the
IJ’s ruling. (Tr. at 36.)
C. 	Post-Hearing Proceedings
Petitioner filed an Amended Petition on September 22, 2025. According to that
filing, Petitioner posted bond and was released from custody on August 19, 2025. (Am.
Pet. ¶ 76, Dkt. No. 24.) He remains out of custody. Petitioner persists in seeking habeas
relief because, he explains, when the preliminary injunction ends, Respondents could
return him to custody. (Am. Pet. ¶ 78.) He therefore contends that his petition is not moot
and asks the Court to find that 8 U.S.C. § 1226(a)—not § 1225(b)—governed his detention.
(See Pet. ¶¶ 189–90.)
Respondents urge the Court to deny the Amended Petition as moot because
Petitioner is no longer in custody. (Resp’ts’ Resp. at 1, Dkt. No. 25.) After Respondents
filed their response, the DHS withdrew its appeal of the IJ’s bond decision. (Anderson 3d
Decl. ¶ 4, Dkt. No. 34.) After that development, Petitioner notified the Court that “[i]t is
no longer necessary for the Court to address the automatic stay portion of Petitioner’s
claim,” and “[t]he Court need only focus on the issue of whether 8 U.S.C. § 1225 or § 1226
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governs Petitioner’s detention.” (Anderson 3d Decl. ¶¶ 5–6.) The Court will limit its
discussion accordingly.
II. 	Discussion
A. 	Mootness
When a noncitizen obtains a release on bond as the result of a preliminary
injunction, “[u]nless that preliminary injunction was made permanent and was not
disturbed on appeal, the[] individual[] face[s] the threat of re-arrest and mandatory
detention.” Nielsen v. Preap, 586 U.S. 392, 403 (2019) (plurality opinion). Habeas petitions
“do not become moot simply because a person is released from immigration detention
pursuant to bond based on a court order providing temporary relief.” Carlos v. Noem, No.
2:25-CV-01900-RFB-EJY, 2025 WL 2998184, at *4 (D. Nev. Oct. 24, 2025) (citing
Nielsen). As long as Respondents have not disavowed their use of the automatic stay or
their position on detention under § 1225(b)(2), Petitioner remains vulnerable to re-
detention, and his “claim is not moot even after his release.” See id.
The Honorable Jeffrey M. Bryan, United States District Judge, recognized this
exception to mootness in Francisco T. v. Bondi, No. 25-CV-3219 (JMB/DTS), 2025 WL
3236513 (D. Minn. Nov. 19, 2025). There, the respondents—who are mostly the same
federal officials named in this matter—conceded that if the preliminary injunction were
not reduced to a final order, the government could re-detain the petitioner under
§ 1225(b)(2). Francisco T., 2025 WL 3236513, at *3. “A habeas petition should not be
dismissed as moot if ‘the issue is deemed a wrong capable of repetition yet evading
review.’” Id. This exception to mootness “applies where the challenged action is too short
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in its duration to be fully litigated before it ends or expires, and there is a reasonable
expectation that the same complaining party will be subject to the same action again.” Id.
(cleaned up). The court found that the petitioner in Francisco T. had a reasonable
expectation of being returned to custody and thus granted the petition to the extent it
requested that the petitioner be provided with a bond hearing pursuant to 8 U.S.C.
§ 1226(a) if he were re-detained. Id.
The Court finds here that Petitioner has a reasonable expectation he would be re-
detained under § 1225(b)(2) when the preliminary injunction ends. The preliminary
injunction is not permanent. When ruling from the bench, Judge Brasel said that ICE “is
enjoined from enforcing the automatic stay provision as to this petitioner during the
pendency of the court’s consideration of the petition for writ of habeas corpus.” (Tr. at 36)
(emphasis added). In other words, the preliminary injunction will expire when the petition
is ruled on, and Respondents could attempt to re-detain Petitioner under § 1225(b)(2).
Respondents have not disavowed an intent to do so. With respect to the durational
requirement, it is very much possible that Respondents could re-detain Petitioner without
bond, and then release him before he could obtain judicial relief via a newly filed habeas
petition. See Del Cid v. Bondi, No. 3:25-CV-00304, 2025 WL 2985150, at *11 (W.D. Pa.
Oct. 23, 2025). This pattern could continue repeatedly, unless and until a final order finding
that Petitioner is not subject to 8 U.S.C. § 1225(b)(2) is issued. Therefore, the capable-of-
repetition-yet-evading-review exception to mootness applies.
Respondents’ authority on mootness is distinguishable. In Ali v. Cangemi, 419 F.3d
722 (8th Cir. 2005), the court did not consider whether an exception to the mootness
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doctrine applied. And, in Kargbo v. Brott, No. 15-CV-2713 (PJS/LIB), 2016 WL 3676162
(D. Minn. July 6, 2016), the court found there was no chance that the government would
take the petitioner back into custody under the same circumstances, unlike here, where
Respondents could attempt to re-detain Petitioner under § 1225(b)(2) and have not
disclaimed an intent to do so.
B. 	Merits
Turning to whether Petitioner is subject to § 1225(b)(2) or § 1226(a), the Court is
not writing on a blank slate. Along with every other district judge in the District of
Minnesota who has written on the issue, Judge Brasel has concluded that § 1226(a) governs
the detention of noncitizens who are already present or residing in the United States, such
as 	Petitioner—not 	§ 	1225(b), 	which 	governs 	the 	detention 	of 	noncitizens 	seeking
admission into the United States. See Andres R.E. v. Bondi, No. 25-CV-3946 (NEB/DLM),
2025 WL 3146312, at *2 (D. Minn. Nov. 4, 2025); accord Fuentes v. Olson, No. 25-CV-
4456 (LMP/ECW), 2025 WL 3524455, at *4 (D. Minn. Dec. 9, 2025); Santos M.C. v.
Olson, No. 25-CV-4264 (PJS/DJF), 2025 WL 3281787, at *3 (D. Minn. Nov. 25, 2025);
Avila v. Bondi, No. 25-CV-3741 (JRT/SGE), 2025 WL 2976539, at *5–7 (D. Minn. Oct.
21, 2025); Eliseo A.A. v. Olson, No. 25-CV-3381 (JWB/DJF), 2025 WL 2886729, at *3–4
(D. Minn. Oct. 8, 2025); Belsai D.S. v. Bondi, No. 25-CV-3682 (KMM/EMB), 2025 WL
2802947, at *5–7 (D. Minn. Oct. 1, 2025); Francisco T., 2025 WL 3236513, at *2–3; Jose
J.O.E. v. Bondi, No. 25-CV-3051 (ECT/DJF), 2025 WL 2466670, at *8 (D. Minn. Aug.
27, 2025).
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It is not necessary to recount Andres R.E. in detail. A few key points will suffice.
The question in Andres R.E. was whether the petitioner, who had resided in the United
States for years, was “an applicant for admission under Section 1225(b) or an alien residing
in the United States under Section 1226.” Andres R.E., 2025 WL 3146312, at *2. If the
former, the petitioner was subject to mandatory detention and was not entitled to a bond
hearing; if the latter, detention was discretionary, and the petitioner was entitled to a bond
hearing. Id. The respondents took the former position. Judge Brasel found, however, that
the respondents’ interpretation of § 1225(b)(2) and § 1226(a) was contrary to the plain text
of the statutes, would render superfluous a recent amendment to § 1226(c) under the Laken
Riley Act, and was inconsistent with the government’s own actions. Andres R.E., 2025 WL
3146312, at *2–3. Therefore, Judge Brasel concluded, the petitioner was detained pursuant
to § 1226(c), not § 1225(b), and the habeas petition was granted. 8 Andres R.E., 2025 WL
3146312, at *3.
Respondents have not shown how this case is materially distinguishable, either
factually or legally, from Andres R.E. Indeed, it is remarkably the same.9 Thus, it is
unlikely that Judge Brasel would conclude in this case that the Respondents’ interpretation
of § 1225(b)(2) is correct.
8 Judge Brasel also held in Andres R.E. that 8 U.S.C. § 1252(b)(9) and (g) did not strip the
court of jurisdiction to hear the petition. Respondents did not raise § 1252 in their response
to the Amended Petition, but even if they had, Judge Brasel has already determined that
jurisdiction exists in this case. (See Tr. at 27–29.)
9 The Court observes that the petition in Andres R.E. was granted even though the petitioner
had been released from detention by that time. See 2025 WL 3146312, at *3 n.4.
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Accordingly, IT IS HEREBY RECOMMENDED that Petitioner Wuilmer F.’s
Amended Petition for Writ of Habeas Corpus (Dkt. No. 24) be GRANTED to the extent it
asks for a determination that Petitioner was detained under 8 U.S.C. § 1226(a) and not
under 8 U.S.C. § 1225(b)(2).
Dated: December 18, 2025 	s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations within 14 days
after being served a copy” of the Report and Recommendation. A party may respond to
those objections within 14 days after being served a copy of the objections. See D. Minn.
LR 72.2(b)(2). All objections and responses must comply with the word or line limits set
forth in Local Rule 72.2(c).
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