Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Marco S.,
Petitioner,
v.
Pamela Bondi, Attorney General; Kristi
Noem, Secretary, U.S. Department of
Homeland Security; Todd M. Lyons, Acting
Director of Immigration and Customs
Enforcement; and David Easterwood, Acting
Director, St. Paul Field Office Immigration
and Customs Enforcement,
Respondents.
File No. 26-cv-930 (ECT/ECW)
OPINION AND ORDER
Lauren M. Rossitto, Erickson Zierke Kuderer & Madsen, P.A., Fairmont, MN; and Thomas
C. Brock, Erickson Zierke Kuderer & Madsen, P.A., Minneapolis, MN, for Petitioner
Marco S.
Ana H. Voss and Trevor Brown, United States Attorney’s Office, Minneapolis, MN, for
Respondents Pamela Bondi, Kristi Noem, Todd M. Lyons, and David Easterwood.
Petitioner Marco S. is an Ecuadorian citizen who “has a pending asylum application
and presented at the border” with his wife, “after which they were released into the [United
States].” Am. Pet. [ECF No. 5] ¶¶ 12–13. The dates on which Marco entered the United
States or applied for asylum have not been provided, either by Marco or Respondents.
Marco “does not have a final order of removal.” 	Id. ¶ 13. 	On January 31, 2026,
Immigration and Customs Enforcement (“ICE”) arrested Marco outside of his home in
Minneapolis, Minnesota, as part of “Operation Metro Surge.” 	Id. ¶¶ 12, 15, 17. 	The
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Petition alleges, “[u]pon information and belief,” that Marco “was not presented with a
warrant.” Id. ¶ 15. Again, “[u]pon information and belief,” that Marco “has been brought
to the Whipple.” Id. ¶ 19. Respondents do not dispute the Petition’s facts. See ECF No.
7.
Marco challenges his detention under 28 U.S.C. § 2241. Pet. ¶ 2. He claims he has
been wrongly classified as a § 1225(b)(2) detainee (whose detention is mandatory) rather
than a § 1226(a) detainee (whose detention is discretionary and who is entitled to a bond
hearing). Pet. ¶¶ 26–30; see Jose J.O.E. v. Bondi, 797 F. Supp. 3d 957, 961–62 (D. Minn.
2025) (explaining legal framework). According to Marco, that misclassification and denial
of a bond hearing violate his right to due process under the Fifth Amendment, the
Immigration and Nationality Act, and the Administrative Procedure Act. See Pet. ¶¶ 31–
47. 	Marco seeks issuance of a writ of habeas corpus requiring his release unless he is
provided a bond hearing under 8 U.S.C. § 1226(a); an order enjoining Respondents from
transferring him outside of this District during the pendency of his Petition, and if he has
been transferred outside of Minnesota, that he be transported back to Minnesota and
released here; issuance of an order of release including conditions to ensure Marco’s safety,
advance notice to counsel, and a return of Marco’s personal effects; issuance of an order
of release that enjoins respondents from implementing any condition of release; reasonable
attorneys’ fees and costs; and “any other and further relief that this Court may deem just
and proper.” Pet. at 16–17.
Acknowledging that the Petition “raises legal and factual issue similar to those in
prior habeas petitions this Court has decided,” Respondents argue that Marco’s Petition
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fails on the merits for the same reasons set forth in the appeal of Avila v. Bondi, No. 25-cv-
3741 (JRT/SGE), 2025 WL 2976539 (D. Minn. Oct. 21, 2025), appeal docketed, No. 25-
3248 (8th Cir. Nov. 10, 2025). 	See ECF No. 7 at 1. 	This raises an issue of statutory
interpretation1 that courts in this District have repeatedly considered and rejected, and it
will be rejected here as well.
Marco has shown he 	has been misclassified under § 1225(b)(2) rather than
§ 1226(a). 	As courts have explained, the former statute applies to applicants “seeking
admission,” and the latter to “aliens already in the country.” 	8 U.S.C. § 1225(b)(2)(A);
Jennings v. Rodriguez, 583 U.S. 281, 289 (2018) (construing 8 U.S.C. § 1226(a) and (c));
see Francisco T. v. Bondi, 797 F. Supp. 3d 970, 974–76 (D. Minn. 2025); Belsai D.S. v.
Bondi, --- F. Supp. 3d ---, No. 25-cv-3682 (KMM/EMB), 2025 WL 2802947, at *6–7 (D.
Minn. Oct. 1, 2025); Eliseo A.A. v. Olson, --- F. Supp. 3d ---, No. 25-cv-3381 (JWB/DJF),
2025 WL 2886729, at *2–4 (D. Minn. Oct. 8, 2025); Avila v. Bondi, No. 25-cv-3741
(JRT/SGE), 2025 WL 2976539, at *5–7 (D. Minn. Oct. 21, 2025), appeal filed, No. 25-
3248 (8th Cir. Nov. 10, 2025); Andres R.E. v. Bondi, No. 25-cv-3946 (NEB/DLM), 2025
WL 3146312, at *2–3 (D. Minn. Nov. 4, 2025); E.M. v. Noem, 25-cv-3975 (SRN/DTS),
2025 WL 3157839, at *4–8 (D. Minn. Nov. 12, 2025); Santos M.C. v. Olson, No. 25-cv-
4264 (PJS/DJF), 2025 WL 3281787, at *2–3 (D. Minn. Nov. 25, 2025). As of this writing,
1 	To the extent Respondents challenge this Court’s subject-matter jurisdiction to
consider Marco’s Petition, consistent with previous rulings on this issue, I find that the
jurisdiction-stripping provisions of § 1252(a)(5), (b)(9), and (g) do not apply to “the narrow
question whether a noncitizen is subject to discretionary detention under 8 U.S.C. § 1226
or mandatory detention under § 1225(b)(2).” 	Fernando F.P.D. v. Brott, No. 25-cv-4455
(ECT/ECW), 2025 WL 3675151, at *2 (D. Minn. Dec. 17, 2025) (citing cases).
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only one federal court of appeals has ruled on the question, and it reached the same
conclusion. See Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, (7th Cir.
2025). Marco’s detention falls under § 1226(a) and not § 1225(b)(2).2
The final issue is the appropriate remedy. 	Section 1226 provides that “[o]n a
warrant issued by the Attorney General, an alien may be arrested and detained.”
8 U.S.C. § 1226(a) (emphasis added). 	“Issuance of a warrant is a necessary condition to
justify 	discretionary 	detention 	under 	section 	1226(a).” 	Chogllo 	Chafla 	v. 	Scott,
--- F. Supp. 3d ---, No. 2:25-cv-00437, 2025 WL 2688541, at *11 (D. Me. Sep. 21, 2025),
appeal filed (Nov. 7, 2025). 	“[I]t follows that absent a warrant a noncitizen may not be
arrested 	and 	detained 	under 	section 	1226(a).” 	Id. 	(emphasis 	in 	original); 	accord
Chiliquinga Yumbillo v. Stamper, No. 2:25-cv-00479, 2025 WL 2783642, at *5 (D. Me.
Sep. 30, 2025); J.A.C.P. v. Wofford, No. 1:25-cv-01354, 2025 WL 3013328, at *8 (E.D.
Cal. Oct. 27, 2025); see also Florida v. United States, 660 F. Supp. 3d 1239, 1276 (N.D.
Fla. 2023) (stating § 1226 “is not even triggered unless an arrest warrant is issued” and that
“[i]f [an] alien has not been arrested on a warrant, then the subsequent provisions giving
the Attorney General discretion to detain or release ‘the arrested alien’ are likewise not
triggered”), appeal dismissed, 2023 WL 5212561 (11th Cir. July 11, 2023). 	Here, the
Petition alleges that Marco was arrested without a warrant. Pet. ¶ 15. Respondents were
ordered to include in their answer “[w]hether the absence of a warrant preceding [Marco’s]
arrest necessitates [Marco’s] immediate release.” See ECF No. 3 at 2. Respondents have
2 	Respondents do not argue that Marco is subject to mandatory detention pursuant to
8 U.S.C. § 1226(c), or that any other statutory scheme other than that raised in the Petition
would apply to Marco’s detention. See ECF No. 7.
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not produced a warrant, nor have they advanced any specific argument that Marco’s release
is an unwarranted remedy. See ECF No. 7.
“[R]elease is an available and appropriate remedy” for “detention that lacks a lawful
predicate.” 	Order on Petition for Writ of Habeas Corpus at 6, Vedat C. v. Bondi, No.
25-cv-4642 (JWB/DTS) (D. Minn. Dec. 19, 2025), ECF No. 9 (citing Munaf v. Geren,
553 U.S. 674, 693 (2008)). 	“Where the record shows Respondents have not identified a
valid statutory basis for detention in the first place, the remedy is not to supply one through
further proceedings.” 	Id.; see Chogllo Chafla, --- F. Supp. 3d ---, 2025 WL 2688541, at
*11 (“Since the Government did not comply with the plain language of section 1226(a),
[petitioners’] immediate release is justified.”); J.A.C.P., 2025 WL 3013328, at *8 (same);
Chiliquinga Yumbillo, 2025 WL 2783642, at *5 (reaching same conclusion); see also
Munaf, 553 U.S. at 693 (“Habeas is at its core a remedy for unlawful executive detention.
The typical remedy for such detention is, of course, release.” (citation modified)).3
ORDER
Therefore, based on the foregoing, and on all the files, records, and proceedings
herein, IT IS ORDERED THAT Petitioner Marco S.’s Amended Verified Petition for
Writ of Habeas Corpus [ECF No. 5] is GRANTED as follows:
1. 	Petitioner is not subject to mandatory detention under 8 U.S.C. § 1225(b)(2).
2. 	Respondents shall release Petitioner from custody as follows:
3 	The resolution of this statutory-interpretation question in Marco’s favor makes it
unnecessary to address the Petition’s remaining grounds.
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a. 	If Petitioner remains detained in Minnesota, Respondents shall release
Petitioner from custody as soon as practicable, but not later than 48 hours after entry of this
Order.
b. 	If Petitioner has been moved outside of Minnesota, as soon as
practicable, but not later than 72 hours after entry of this Order, Respondents shall return
Petitioner to Minnesota and then release Petitioner from custody.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 3, 2026, at 5:35 p.m. 	s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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