Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
SAIT LLESHI,
Petitioner,
v. 	Case No. 1:26-cv-00032-KWR-SCY
KRISTI NOEM, in her capacity as
Secretary for the United States Department of Homeland Security,
MARY DE ANDA-YBARRA, Field Office Director of
El Paso, Immigration and Customs Enforcement, in her official capacity,
PAMELA BONDI, in her official capacity as
the Attorney General of the United States,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1) and Motion for Temporary Restraining Order and Preliminary Injunction (Doc.
5). Having reviewed the parties’ pleadings, briefing, and the relevant law, the Court finds that the
Petition is well-taken and therefore is GRANTED in part. Petitioner’s Motion is DENIED as
moot. The Court orders Respondents to hold an individualized bond hearing for Petitioner between
two (2) and five (5) days of the entry of this order.
BACKGROUND
Petitioner Sait Lleshi is a 26-year-old man from North Macedonia. Doc. 1 ¶ 5. In October
2024, Petitioner crossed into the United States from Mexico. Id. ¶ 29. On October 3, 2024, United
States Department of Homeland Security (“DHS”) issued a notice to appear and released him from
custody pursuant to section 236 of the Immigration and Nationality Act (“INA”) and 8 U.S.C. §
1226. Id.; see also Doc. 1-3 at 10–13 (Order of Release and Notice to Appear).
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 1 of 17

2
On December 3, 2025, Petitioner was detained by Immigration and Customs Enforcement
(“ICE”) officers when he appeared for a scheduled check in. Doc. 1 ¶¶ 3, 26. Shortly after, an
immigration judge denied Petitioner’s request for a bond hearing because Petitioner was subject
to mandatory detention. Id. ¶¶ 3, 27. Following a September 2025 Board of Immigration Appeals
decision, any noncitizen charged with being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) is an
“applicant for admission” under 8 U.S.C. § 1225(b)(2)(A) and ineligible for a bond hearing. Matter
of Yajure Hurtado, 29 I & N Dec. 216, 228 (BIA Sep. 5, 2025). Thus, the immigration judge lacked
the authority to hear bond requests. Id. at 225. As of the date of the Petition, Petitioner is detained
at the Cibola County Correctional Center in New Mexico. Doc. 1 ¶ 26.
Petitioner requests habeas relief in the form of release or a bond hearing, attorney’s fees
and costs, as well as declaratory relief. Id. at 35. Additionally, Petitioner has filed a motion for
temporary restraining order and preliminary injunction. Doc. 5.
LEGAL STANDARD
The Constitution guarantees that the writ of habeas corpus is “available to every individual
detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S.
Const., art I, § 9, cl. 2). A federal court may grant a writ of habeas corpus to a petitioner who
demonstrates that he is in custody in violation of the Constitution or federal law. 28 U.S.C. §
2241(c)(3). “Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S.
678, 687-88 (2001)).
DISCUSSION
Petitioner asserts he is “in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). He argues that he is improperly detained pursuant to 8
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 2 of 17

3
U.S.C. § 1225(b)(2)(A), and that he is instead entitled to release or a bond hearing under 8 U.S.C.
§ 1226(a). As explained below, Petitioner, who has been residing in the United States, is subject
to the discretionary detention provisions of § 1226(a) and is therefore entitled to a bond hearing
before an immigration judge.
I. 	The Court has jurisdiction over Petitioner’s challenge to the legality of his detention.
It is undisputed that the Court has jurisdiction over the narrow detention issues in the
Petition. “[W]here Congress intends to preclude judicial review of constitutional claims its intent
to do so must be clear.” Demore v. Kim, 538 U.S. 510, 517 (2003). 	And Congress must be
“particularly clear” that it intends for a provision to preclude habeas review. 	Id. 	As here,
“[c]hallenges to immigration detention are properly brought directly through habeas.” Soberanes
v. Comfort, 388 F.3d at 1310 (citing Zadvydas, 533 U.S. at 687–88). Accordingly, the Court has
jurisdiction over the narrow detention issue in the Petition, i.e., determining whether mandatory
detention under § 1225(b)(2)(A) applies or 	discretionary detention under § 1226(a) applies
pending a decision on Petitioner's removal.
II. 	Whether mandatory detention under § 1225(b)(2)(A) or discretionary detention
under § 1226(a) applies.
At issue is whether § 1225(b)(2)(A) or § 1226(a) governs Petitioner’s detention while a
decision on his removal is pending. Mandatory detention under § 1225(b)(2)(A) applies to
noncitizens “seeking admission” into the United States. Petitioner asserts that he is entitled to a
bond hearing or immediate release pursuant to § 1226(a), as he has been residing in the United
States and is not “seeking admission” into the United States. Despite this statutory language,
Respondents argue that the mandatory detention provision under § 1225(b)(2)(A) applies, as that
provision covers not only those who present themselves at the border, but any noncitizen who is
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 3 of 17

4
present in the United States without admission, pending a decision on removal. See, e.g., Matter
of Yajure Hurtado, 29 I & N Dec. at 225 (“Immigration Judges lack authority to hear bond requests
or to grant bond to aliens who are present in the United States without admission.”). As explained
below, the statutory phrase “seeking admission” cannot be interpreted to apply to Petitioner, who
has been living in the United States since his initial 2024 release pursuant to § 1226. Therefore,
Petitioner is entitled to a bond hearing under § 1226(a).
In construing the statute at issue, the Court begins with its plain text. See Chickasaw Nation
v. United States, 208 F.3d 871, 876 (10th Cir. 2000). “If the terms of the statute are clear and
unambiguous, they are controlling absent rare and exceptional circumstances.” Id. In ascertaining
the meaning of the text, the Court considers the “language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997); see also Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th
Cir. 2009) (“We also take into account the broader context of the statute as a whole when
ascertaining the meaning of a particular provision.”). The Court also considers traditional canons
of statutory interpretation. Conrad, 585 F.3d at 1381; Ramah Navajo Chapter v. Salazar, 644 F.3d
1054, 1062 (10th Cir. 2011). Generally, the Court only considers non-textual evidence bearing on
Congress’s intent or purpose, such as legislative history, if statutory language is ambiguous. See,
e.g., United States v. Husted, 545 F.3d 1240, 1247 (10th Cir. 2008).
The INA generally contemplates two detention regimes for noncitizens pending a decision
on removal. See Jennings v. Rodriguez, 583 U.S. 281, 289 (2018). The first detention regime
provides that when “an applicant for admission” is “seeking admission” and “not clearly and
beyond a doubt entitled to be admitted,” the noncitizen “shall be detained” for removal
proceedings. 8 U.S.C. § 1225(b)(2)(A). This provision mandates detention and does not expressly
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 4 of 17

5
afford a bond hearing. Id. Section 1225 has exceptions to mandatory detention, which are not
relevant here. The second detention regime authorizes the arrest and detention “on a warrant issued
by the Attorney General” of noncitizens “pending a decision on whether [they are] to be removed.”
8 U.S.C. § 1226(a). Section 1226(a) expressly authorizes the Attorney General to detain the
arrested noncitizen, or release them on bond or conditional parole. Id. Section 1226(c) has certain
exceptions which mandate detention. For example, mandatory detention under § 1226(c) applies
to a noncitizen who is (1) “present in the United States without being admitted or paroled, or who
arrives in the United States at any time or place other than as designated by the Attorney General”
and (2) “charged with, is arrested for, is convicted of, [or] admits having committed” certain
criminal acts. § 1226(c)(1)(E).
Put another way, “U.S. immigration law authorizes the Government to detain certain aliens
seeking admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the
Government to detain certain aliens already in the country pending the outcome of removal
proceedings under §§ 1226(a) and (c).” Jennings, 583 U.S. at 289 (emphasis added), quoted in
Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (concluding
that § 1226(a) applied to noncitizens already present in country who were not admitted).
Thus, for § 1225(b)(2)(A)’s mandatory detention proceedings to apply, the Court must find
as follows: (1) the noncitizen is “an applicant for admission,” (2) who is “seeking admission,” and
(3) “not clearly and beyond a doubt entitled to be admitted.”
Respondents argue that Petitioner is an applicant for admission and the § 1225(b)(2)(A)
mandatory detention provisions apply. Petitioner is likely an applicant for admission under the
statute. Here, an “applicant for admission” is defined as “an alien present in the United States who
has not been admitted or who arrives in the United States.” § 1225(a)(1). “The terms ‘admission’
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 5 of 17

6
and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States
after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Because
Petitioner is present in the United States and has not been admitted, he may be deemed by the
statute to be an “applicant for admission,” satisfying the first criteria of § 1225(b)(2)(A).
But the detention provision under § 1225(b)(2)(A) applies only to noncitizens “seeking
admission.” § 1225(b)(2)(A). As explained below, under the plain meaning of the statute,
Petitioner, who has been living in the United States, is not “seeking admission.” Id. “Admission”
is defined as “the lawful entry of the noncitizen into the United States after inspection and
authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). The term “entry” is undefined
in the statute. And Respondents do not argue that “entry” has any technical meaning in the statutory
provisions at issue. 	Assuming it has no technical meaning, it can be given its “ordinary,
contemporary, common meaning.” Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405, 414
(2017) (internal quotation marks omitted); United States v. Santos, 553 U.S. 507, 511 (2008)
(“When a term is undefined, we give it its ordinary meaning.”).
“Entry” most commonly means “[t]he action or an act of entering a place, area, building,
etc.” 	Entry, 	Oxford 	English 	Dictionary 	(2018); 	Merriam-Webster 	Dictionary 	Online,
https://www.merriam-webster.com/dictionary/entry (last visited January 21, 2026) (“the act of
entering”); Entry, Black's Law Dictionary (12th ed. 2024) (“Immigration. Any entrance of an alien
into the United States, whether voluntary or involuntary.”). “Seeking” in this context most
naturally means trying to obtain something or trying to bring about or effect. Seek, Oxford English
Dictionary Online (2018). “Seeking” is also in the present participle form, which expresses present
action. 	Present 	Participle, 	Merriam 	Webster 	Dictionary, 	https://www.merriam-
webster.com/dictionary/present%20participle (last visited January 21, 2026); see also Lopez-
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 6 of 17

7
Campos v. Raycraft, 797 F. Supp. 3d 771, 781 (E.D. Mich. Aug. 29, 2025) (The use of the present
participle in § 1225(b)(2)(A) “implies action – something that is currently occurring, and in this
instance, would most logically occur at the border upon inspection.”). Taken together, the “seeking
admission” phrase in § 1225(b)(2)(A) applies to noncitizens who are trying to lawfully and
physically enter the country. It does not apply to noncitizens who have lived in the United States
for years are not seeking lawful entry into the United States.1
Respondents appear to suggest that all “applicants for admission” are deemed to be
“seeking admission.” Respondents essentially interpret “seeking admission” as coterminous with
“applicants for admission.” Respondents’ construction “would render § 1225(b)(2)(A)’s use of the
phrase 	‘seeking 	admission’ superfluous, 	violating 	one 	of 	the 	cardinal 	rules 	of 	statutory
construction.” Castanon-Nava, 161 F.4th at 1061 (citing United States ex rel. Polansky v. Exec.
Health Res., Inc., 599 U.S. 419, 432 (2023)) (“[E]very clause and word of a statute should have
meaning.”). “If an interpretation of one provision ‘would render another provision superfluous,’
courts presume that interpretation is incorrect.” Castanon-Nava, 161 F.4th at 1061 (quoting in part
Bilski v. Kappos, 561 U.S. 593, 607–08 (2010)). “And this presumption is ‘strongest when an
interpretation would render superfluous another part of the same statutory scheme,’ as would be
the case here.” Castanon-Nava, 161 F.4th at 1061 (quoting in part Marx v. Gen. Rev. Corp., 568
1 The Court’s understanding of the plain, ordinary meaning of the word “entry” in this statute, i.e.,
that entry means the physical entry into the country, accords with how it is understood and used
by the United States Supreme Court in the immigration context. The word “entry” has long been
used to refer to physically going into the country, regardless of whether the entrant is legally in the
United States. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“[O]ur immigration
laws have long made a distinction between those aliens who have come to our shores seeking
admission . . . and those who are within the United States after an entry, irrespective of its
legality.”); Zadvydas, 533 U.S. at 693 (“The distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.”).
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 7 of 17

8
U.S. 371, 386 (2013)). Therefore, the Court declines to interpret “seeking admission” in a manner
wholly synonymous with “applicant for admission.”
Rather than the two phrases being synonymous, the statutory language elsewhere in § 1225
appears to distinguish the phrase “applicants for admission” from the phrase “seeking admission,”
suggesting that these phrases have separate meanings. Section § 1225(a)(3) provides that “All
aliens . . . who are applicants for admission or otherwise seeking admission or readmission to or
transit through the United States shall be inspected by immigration officers.” Id. (emphasis added).
The word “or” in its “ordinary use is almost always disjunctive, that is, the words it connects are
to be given separate meanings.” Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting
United States v. Woods, 571 U.S. 31, 45 (2013)). Taken together, “or otherwise” is “used to refer
to something that is different from something already mentioned.” Or otherwise, Merriam Webster
Online, https://www.merriam-webster.com/dictionary/or%20otherwise (last visited January 12,
2026). If “applicant for admission” had the same meaning as “seeking admission”, there would be
no need to repeat the phrase “seeking admission” or use the phrase “or otherwise.” Thus, it is clear
that the phrases “applicants for admission” and “seeking admission” do not have the same
meaning.
Respondents’ interpretation would also render superfluous recent amendments to §
1226(c). Section 1226(c)(1)(E) mandates detention for certain noncitizens who are implicated in
certain crimes. Section 1226(c)(1)(E), which was added to the statute in 2025 by the Laken Riley
Act, mandates detention for any noncitizen (1) who is inadmissible under § 1182(a)(6)(A)(i) as an
“alien present in the United States without being admitted or paroled,” and (2) who “is charged
with, arrested for, convicted of, or admits” to committing certain crimes. 8 U.S.C. § 1226(c)(1)(E).
Under Respondents’ interpretation, all noncitizen who are present in the country without being
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 8 of 17

9
admitted or paroled must already be mandatorily detained under § 1225(b)(2)(A), rendering the
recent amendment superfluous. Generally, courts “do not lightly” find that Congress adopted “two
separate clauses in the same law to perform the same work.” United States v. Taylor, 596 U.S. 845,
857 (2022).
Moreover, the context of the statute surrounding § 1225(b)(2)(A) is clear that it generally
applies to arriving noncitizens, not those already present for years. See King v. Burwell, 576 U.S.
473, 486 (2015) (explaining that courts “must read the words in their context and with a view to
their place in the overall statutory scheme” (citation and internal quotation marks omitted)); see
also Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280,
290, (2010) (“Courts have a ‘duty to construe statutes, not isolated provisions.’” (quoting
Gustafson v. Alloyd Co., 513 U.S. 561, 568, 1 (1995))).
The Court’s interpretation of § 1225(b)(2)(A) is consistent with the decisions of multiple
courts, which have found that a person who has been present in the United States is not “seeking
admission” and therefore not subject to mandatory detention under § 1225(b)(2)(A). See, e.g.,
Castanon-Nava, 161 F.4th at 1061; see also Barco Mercado v. Francis, No. 25-CV-6582 (LAK),
2025 WL 3295903, at *13 (S.D.N.Y. Nov. 26, 2025) (collecting cases in Appendix A); Pu Sacvin
v. 	Ybarra, 	No. 	2:25-CV-1031-KG, 	2025 	WL 	3187432, 	at 	*3 	(D.N.M. 	Nov. 	14, 	2025)
(“Noncitizens seeking admission are those who have not effected an entry into the United States.”)
(quotation marks omitted); Buenrostro-Mendez v. Pamela Bondi, __F.4th _, 2026 WL 323330, at
*10 (5th Cir. 2026) (Douglas, J., dissenting).
The Court’s interpretation is also consistent with the United States Supreme Court’s dicta.
In Jennings, the Supreme Court explained that Section 1225(b) “applies primarily to aliens seeking
entry into the United States (‘applicants for admission’ in the language of the statute).” Jennings,
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 9 of 17

10
583 U.S. at 297. In contrast, the Court explained that Section 1226 “applies to aliens already
present in the United States.” Id. at 303. The Court further noted that “Section 1226(a) creates a
default rule for those aliens [present in the United States] by permitting—but not requiring—the
Attorney General to issue warrants for their arrest and detention pending removal proceedings,”
and also “permits the Attorney General to release those aliens on bond.” Id. The Jennings Court’s
description of the relationship between §§ 1225 and 1226 is consistent with the Court’s conclusion.
Respondents argue that the Court’s interpretation would treat noncitizens unlawfully
present in the United States preferentially to noncitizens who arrive at the border. They imply this
would be unfair or would reward noncitizens who pass the border without inspection. Because the
statutory language is unambiguous, the Court’s task is to ascertain its plain meaning, and it
generally should not address this extra-textual policy consideration. See McGraw v. Barnhart, 450
F.3d 493, 499 (10th Cir. 2006). Alternatively, this seemingly different treatment of those who are
already present in the United States is well-supported in case law. “The distinction between an
alien who has effected an entry into the United States and one who has never entered runs
throughout immigration law.” Zadvydas, 533 U.S. at 693; Leng May Ma v. Barber, 357 U.S. 185,
187 (1958) (“[O]ur immigration laws have long made a distinction between those aliens who have
come to our shores seeking admission ... and those who are within the United States after an entry,
irrespective of its legality.”).
Respondents cite to a decision by the BIA holding that § 1225(b)(2)(A) applies to
noncitizens present in the country who were not inspected at the border. See Matter of Yajure
Hurtado, 29 I & N Dec. 216 (BIA 2025). Hurtado is not binding on this court, and the agency’s
interpretation carries only the “power to persuade.” Loper Bright Enters. v. Raimondo, 603 U.S.
369, 402 (2024). As explained above, the Court does not find Hurtado persuasive.
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 10 of 17

11
Here, applying the above statutory interpretation to the facts of this case, it is clear that
Petitioner is not “seeking admission” under § 1225(b)(2)(A). He has been residing in the United
States since DHS released him from custody pursuant to § 1226. And neither the Petition nor the
Answer by Respondents identified any facts to suggest Petitioner was “seeking admission,”, i.e.,
lawful physical entry into the country, at the time of his arrest. Therefore, it is clear that the
detention provision under § 1225(b)(2)(A) does not apply to Petitioner.
Instead, § 1226(a), the default, more general detention provision pending a decision on
removal, governs Petitioner’s detention. “Section 1226 generally governs the process of arresting
and detaining that group of aliens pending their removal.” Jennings, 583 U.S. at 288. Beyond the
reasons discussed above, Respondents do not provide any support to justify why Petitioner’s
detention is no longer governed by § 1226. Thus, the Court grants in part the Petition.
III. 	The Court finds that a bond hearing, rather than immediate release, is the
appropriate remedy.
Petitioner requests immediate release or a bond hearing, with 48-hours advance notice
before any removal attempt is made, before the immigration court. Doc. 1 at 29.
The Court concludes that in this case it should order a bond hearing rather than immediate
release, as ordering immediate release would result in the Court taking away Respondents’
discretionary decision. Section 1226(a) gives the Respondents discretion to either detain a
noncitizen, release the noncitizen on bond, or place them on parole. Generally, a release or bond
decision is discretionary. 8 U.S.C. § 1226(e) (“The Attorney General's discretionary judgment
regarding the application of this section shall not be subject to review. No court may set aside any
action or decision by the Attorney General under this section regarding the detention of any alien
or the revocation or denial of bond or parole.”).
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 11 of 17

12
To be sure, federal district courts have broad equitable powers in ordering habeas relief.
Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992). A federal court is vested with “the largest
power to control and direct the form of judgment to be entered in cases brought up before it on
habeas corpus.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (citation omitted). In issuing a writ
of habeas corpus, a federal court has the power and authority to dispose of habeas corpus matters
“as law and justice require.” 28 U.S.C. § 2243. Although Section 1226(e) may restrict some court
review, it does not expressly prohibit habeas review of detention decisions. Assuming the Court
has authority to order Petitioner’s immediate release, the Court in its discretion would order a bond
hearing, as a bond hearing would provide Petitioner with the process he is due under the statute.
See § 1226(a) (providing that the Attorney General may continue to detain a noncitizens pending
a decision on removal or may release the noncitizen on bond or parole). Therefore, the Court will
order that Respondents hold a bond hearing between two (2) and five (5) days of the entry of this
order.
IV. 	This opinion and the judgment should not be construed as addressing detention under
§ 1231, if that provision becomes applicable.
The Petition presented the Court with a narrow issue, whether Petitioner’s detention
pending a decision on removal is governed by § 1225 or § 1226. Once an order of removal has
become final, the authority governing a noncitizen’s detention shifts to another statutory provision,
8 U.S.C. § 1231(a)(2). See Johnson v. Arteaga-Martinez, 596 U.S. 573, 574 (2022) (“After the
entry of a final order of removal against a noncitizen, the Government generally must secure the
noncitizen’s removal during a 90-day removal period, during which the Government “shall” detain
the noncitizen.”) (citing 8 U.S.C. §§ 1231(a)(1), (2)).
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 12 of 17

13
Section 1231 governs the detention of noncitizens “during” and “beyond” the “removal
period.” 8 U.S.C. § 1231(a)(2)–(6). In general, when a noncitizen is ordered removed, the Attorney
General shall remove them within 90 days, known as the “removal period.” § 1231(a)(1)(A). The
“removal period” begins once a noncitizen’s removal order “becomes administratively final,” §
1231(a)(1)(B), meaning the order has been affirmed by the BIA or the time for seeking review has
expired, 8 U.S.C. § 1101(a)(47)(B). Riley v. Bondi, 606 U.S. 259, 267 (2025) (“An order of
removal becomes final at the earlier of two points: (1) ‘a determination by the [BIA] affirming
such order,’ or (2) ‘the expiration of the period in which the alien is permitted to” petition the BIA
for review of the order.’) (citation omitted). During the removal period, detention is mandatory. §
1231(a)(2).
Here, no party has asserted that the Petition is moot or that the Court lacks jurisdiction to
rule on the Petition because § 1231 applies. At issue in the Petition was whether §§ 1225 or 1226
applied to Petitioner’s detention pending a decision on removal. No party has alleged that any
removal proceedings have become final. Therefore, as of the entry of this order, it appears that the
Court retains the ability to order the relief requested in the Petition, i.e., to determine whether §§
1225 or 1226 applies to his detention pending a decision on removal. The Court’s order and
judgment should not be construed to opine on whether or when in the future Petitioner may be
detained under § 1231.
V. 	The Court will not rule on Petitioner’s allegations regarding treatment in detention.
In Petitioner’s Motion for Temporary Restraining Order and Preliminary Injunction, he
raises several claims regarding his conditions of confinement. Petitioner claims that the detention
center has not adequately provided him with heating, necessities, needed medical treatment, and
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 13 of 17

14
meals in accordance with his religious beliefs. Doc. 5-1 at 3–4. For the reasons discussed below,
the Court will not address the merits of these claims.
First, the claims appear to be moot since the Court is granting Petitioner habeas relief.
Second, assuming the claims are not moot, the Court finds that Petitioner is unlikely to succeed on
the merits of these conditions-related claims since they were not raised in the underlying Petition.
See, e.g., Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005).
Third, as Respondents assert in their Answer, claims related to conditions of confinement
are properly raised under a civil rights action, not a habeas corpus petition. The basic purpose of
a § 2241 habeas proceeding is to permit a person in custody to attack the legality of custody, and
the “traditional function of the writ is to secure release from illegal custody.” McIntosh v. U.S.
Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475,
484 (1973)). Therefore, a challenge to “the fact or duration of” confinement must be brought
through a habeas corpus petition, while a challenge to the conditions of confinement must be
brought through a civil rights action under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971). Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012); Rael
v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000). 	Petitioner raises these detention-related
concerns primarily as a request to expedite these proceedings. See Doc. 5; Doc. 5-1 at 4 (“First, he
is likely to succeed on the merits of his claims raised in the underlying habeas Petition.”).
Therefore, Petitioner’s allegations regarding inadequate treatment fall outside the scope of the
Court’s habeas review. Should Petitioner wish to pursue these claims, he would need to file a
separate civil rights action.
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 14 of 17

15
VI. 	The Court need not rule on Petitioner’s remaining claims.
In addition to requesting habeas relief, Petitioner also asserts that his detention violates due
process and requested that the Court declare his detention unlawful. Because the Court will grant
habeas relief, the Court need not address his other claims or enter a declaration. 	See Banks v.
Dretke, 540 U.S. 668, 689 n.10 (2004) (finding it unnecessary to address an additional claim in a
habeas petition after granting full relief on one claim because “any relief [petitioner] could obtain
on that claim would be cumulative.”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.
439, 445 (1988) (stating that “[a] fundamental and longstanding principle of judicial restraint
requires that courts avoid reaching constitutional questions in advance of the necessity of deciding
them.”); Scott v. Mullin, 303 F.3d 1222, 1224 (10th Cir. 2002) (declining to address the remaining
claims in a habeas petition after already granting habeas relief on one claim).
Petitioner also asserts an APA claim, but that claim fails because habeas relief is available.
Trump v. J. G. G., 604 U.S. 670, 674 (2025) (Kavanaugh, J. concurring) (claim must be brought
under habeas corpus proceedings and not the Administrative Procedures Act).
VII. 	Attorney’s Costs and Fees under the EAJA.
Finally, Petitioner requests that the Court award attorney’s fees and costs under the Equal
Access to Justice Act (“EAJA”). Considering recent Tenth Circuit precedent and the relevant
procedure, the Court finds that it may consider Petitioner’s request for attorney’s fees and costs
provided that Petitioner follows proper EAJA procedure.
The EAJA provides for the following procedure:
[A] court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a), incurred
by that party in any civil action . . . brought by or against the United States in any
court having jurisdiction of that action, unless the court finds that the position of
the United States was substantially justified or that special circumstances make an
award unjust.
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 15 of 17

16
28 U.S.C. § 2412(d)(1)(A). The Tenth Circuit recently held that the EAJA “unambiguously
authorize[s] fees in habeas actions challenging immigration detention.” Daley v. Ceja, 158 F.4th
1152, 1159, 1166 (10th Cir. 2025).
A fee award is required if (1) the petitioner prevails, (2) the Government’s position was not
“substantially justified,” and (3) there are no special circumstances rendering an award of fees
unjust. 	Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting § 2412(d)(1)(A)).
While fees are authorized, the EAJA requires that Petitioner, “within thirty days of final judgment
in the action, submit to the court an application for fees and other expenses,” and an allegation
demonstrating 	that 	“the 	position 	of 	the 	United 	States 	was 	not 	substantially 	justified.”
§ 2412(d)(1)(A), (B). Upon filing this application, the Government must justify its position in any
underlying proceedings and district court litigation. See Hackett, 475 F.3d at 1170.
Since the Court grants Petitioner habeas relief, should Petitioner continue to pursue costs
and fees, Petitioner is instructed to file an EAJA application following the appropriate procedure.
CONCLUSION
The Court concludes that Petitioner’s detention pending a decision on whether he should
be removed from the United States is governed by § 1226(a) as opposed to § 1225(b)(2)(A).
Accordingly, the Petition (Doc. 1) is granted in part. Respondents are directed to arrange an
individualized bond hearing pursuant to § 1226(a) for Petitioner before an immigration judge
between two (2) and five (5) days of the entry of this Order. Respondents shall not deny
Petitioner bond on the basis that § 1225(b) requires mandatory detention. However, the Court
makes no determination whether or when in the future § 1231 applies to his detention, as it was
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 16 of 17

17
not briefed or raised in the Petition or in the Motion to Dismiss. The parties are ordered to file a
status report within seven days of the entry of this order. The Court will enter a separate judgment.2
IT 	IS 	THEREFORE 	ORDERED 	that 	Petitioner’s 	Petition 	(Doc. 	1) 	is 	hereby
GRANTED in part for the reasons described in this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Petitioner's Motion for Temporary Restraining Order
(Doc. 5) is DENIED as moot, because the Court has granted habeas relief and will enter final
judgment concurrently with this order.
IT IS FURTHER ORDERED that Respondents shall provide a bond hearing before an
immigration judge for Petitioner pursuant to § 1226(a), as opposed to § 1225(b), between two (2)
and five (5) days of the entry of this order, provided that the Court makes no determination
whether or when in the future § 1231 detention provisions may apply.
IT IS FINALLY ORDERED that the parties are directed to file a joint status report within
seven (7) days of the entry of this order.
_____/S/______________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
2 The Court need not delay entry of judgment to wait for Respondents to comply with the Court’s
order. The Court “always retains jurisdiction to enforce its lawful judgments, including habeas
judgments.” Gall v. Scroggy, 603 F.3d 346, 352 (6th Cir. 2010); Burton v. Johnson, 975 F.2d 690,
693 (10th Cir. 1992) (explaining that district court has authority to enforce its habeas judgment).
Case 1:26-cv-00032-KWR-SCY Document 12 Filed 02/11/26 Page 17 of 17