Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
SHIJIE LIU,
Petitioner,
v. Civ. No. 26-143 JB/GJF
PAMELA BONDI, in her official capacity as
U.S. Attorney General;
MARCOS CHARLES, in his official capacity as,
Acting Executive Associate Director,
Enforcement and Removal Operations;
TODD M. LYONS, in his official capacity as
Acting Director, Immigration and Customs
Enforcement;
KRISTI NOEM, in her official capacity as
Secretary of the U.S. Department of
Homeland Security;
PATTI REYNOLDS, in her official capacity as
Director of ICE Albuquerque Field Office; and
GEORGE DEDOS, in his official capacity as
Warden of Cibola County Correctional
Center,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON VERIFIED
PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF (DKT. NO. 2)
THIS MATTER is before the Court on the Verified Petition for Writ of Habeas Corpus and
Complaint for Declaratory and Injunctive Relief (Dkt. No. 2) (“Petition”) filed by Petitioner Shijie
Liu (“Petitioner” or “Mr. Liu”).1 Respondents Pamela Bondi, Marcos Charles, Todd Lyons, Kristi
Noem, and Patti Reynolds (collectively, the “Federal Respondents”) responded to the Petition.
1 The undersigned files this Proposed Findings and Recommended Disposition (“PFRD”) pursuant to the presiding
judge’s Order of Reference (Dkt. No. 4).
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Resp., Dkt. No. 12. Respondent George Dedos, as Warden of the Cibola County Correctional
Center (“Cibola”) where Petitioner is being held, filed a separate response stating he has no
independent authority to release Petitioner and takes no position on the habeas and/or bond relief
sought. Resp., Dkt. No. 9.2 Petitioner thereafter replied. Reply, Dkt. No. 15. The undersigned held
a hearing by Zoom video on the Petition on March 23, 2026. Clerk’s Minutes, Dkt. No. 18. At the
request of counsel for Petitioner at the hearing, the Court permitted the parties to file an optional
supplemental brief, which Petitioner timely filed. Supp. Br., Dkt. No. 19.
Having considered the Petition, the briefing, the law, and the arguments of counsel, the
Court recommends that the Petition be granted as to Counts I, II, III, V, and VI and that the Court
order a prompt individualized bond hearing before an immigration judge to be held within seven
days. The Court, however, advises denying as unripe the request in Count IV for an order to enjoin
removal to a third country.
I. INTRODUCTION
This case is one of hundreds of § 2241 habeas cases brought in this District and one of
thousands brought in districts across the nation stemming from a new interpretation of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1225(b)(2)(A), by the United States
Department of Homeland Security (“DHS”). From 1997 to 2025, through five successive
presidential administrations, when United States Immigration and Customs Enforcement (“ICE”)
detained noncitizens3 within the interior of the United States who did not have a pending order of
removal, it did so under 8 U.S.C. § 1226. Buenrostro-Mendez v. Bondi, 166 F.4th 494, 500 (5th
2 Given this representation that the arguments of respondents align, the Court will refer to them collectively as
“Respondents” throughout this PFRD.
3 The INA defines an “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). The
Court uses “alien” and “noncitizen” interchangeably in this PFRD.
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Cir. 2026). On July 8, 2025, however, DHS issued new interim guidance that all noncitizens who
enter the country without being admitted or who arrive without proper documentation are subject
to mandatory detention, regardless of their length of residency in the country, unless they are
paroled under INA § 212(d)(5). See id.
The Board of Immigration Appeals (“BIA”) considered this new policy interpretation in
Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA Sept. 5, 2025). The BIA held that the plain
language of 8 U.S.C. § 1225(b)(2)(A) deprived immigration judges of authority to hear bond
requests or to grant bonds to aliens who are present in the United States without admission. Id. at
225. Yajure Hurtado had crossed into the United States without inspection in 2022, lived in the
United States for years, was granted temporary protected status in 2024 by the United States
Citizenship and Immigration Services (“USCIS”), but was arrested after that status expired. Id. at
216-17. The BIA concluded, “Aliens, like respondent, who surreptitiously cross into the United
States remain applicants for admission until and unless they are lawfully inspected and admitted
by an immigration officer.” Id. at 228. “Remaining in the United States for a lengthy period of time
following entry without inspection, by itself, does not constitute an ‘admission.’” Id.
The BIA considered significant the history and passage of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), which substituted the term “admission” for
“entry” and replaced deportation and exclusion proceedings with removal proceedings. Id. at 222-
23. As the BIA explained, Congress enacted the IIRIRA to remedy the unintended consequence of
having created a statutory scheme where aliens who enter without inspection could take advantage
of greater procedural and substantive rights afforded in deportation proceedings, while aliens who
presented themselves at the border were limited to more summary exclusion proceedings. Id. at
223 (quoting Martinez v. Attorney General of U.S., 693 F.3d 408, 413 n.5 (3d Cir. 2012)).
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Consequently, according to the BIA, aliens who enter without inspection or admission remain
“applicants for admission,” id. at 224, regardless how long they have lived here, until an
immigration officer determines that they are “clearly and beyond a doubt entitled to be admitted,”
id. at 228 (quoting 8 U.S.C. § 1225(b)(2)(A)). In the wake of Yajure Hurtado, immigration judges
have uniformly concluded that they lack jurisdiction to hold bond hearings for detainees held under
§ 1225(b)(2)(A).4
Here, Respondents contend that Petitioner is properly detained under § 1225(b)(2)(A)
because he was present in the United States without being admitted or paroled. But Petitioner urges
the Court to follow the vast majority of district courts and find that he may only be detained under
§ 1226, which entitles him to a bond hearing. For the following reasons, the Court recommends
concluding that § 1225(b)(2)(A) does not apply to Petitioner, and that Respondents violated the
INA and the Due Process Clause when subjecting him to mandatory detention for months without
a bond hearing.
II. FACTUAL BACKGROUND5
Petitioner Shijie Liu is a Chinese national and Christian who fled religious persecution and
entered the United States on April 28, 2023. Petition ¶¶ 1, 13, Dkt. No. 2. DHS held Mr. Liu in
custody for approximately two days. Id. ¶ 15. On or around May 1, 2023, DHS released him from
4 Yajure Hurtado is called a “precedential” opinion, which in this context means a decision identified by the BIA as
binding authority on U.S. immigration courts. The Supreme Court recently directed district courts to “exercise
independent judgment in determining the meaning of statutory provisions.” Loper Bright Enterprises v. Raimondo,
603 U.S. 369, 394 (2024). Courts “may not defer to an agency interpretation of the law simply because a statute is
ambiguous.” Id. at 413. Consequently, while binding on immigration courts, Yajure Hurtado is not binding on this
Court.
5 No evidence was attached by either party to the Petition or to the Response. The written response does not contest
any of the facts alleged in the Petition, only the legal arguments. At the hearing, counsel for Respondents
acknowledged that the Court may consider as true each fact in the petition. See Mar. 23, 2026 Hr’g, Liberty Recording,
ABQ-Gila_20260323_132113 at 3:06:09-3:06:45. Accordingly, the Court recommends finding the facts set forth in
the Petition to be admitted by Respondents.
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detention under INA § 236(a) on an Order of Supervision. Id. This release recognized that he did
not pose a flight risk or a danger to the community. Id.
After his release, Petitioner timely filed his I-589 application for political asylum within
the one-year deadline required by law. Id. ¶¶ 13, 16. He was scheduled for a Master Hearing with
an immigration judge on January 9, 2026. Id. ¶ 14.
From April 2023 to December 2025, Petitioner complied with all supervision and
immigration court requirements, attending every scheduled hearing and ICE check-in and
notifying authorities of his address. Id. ¶ 17. He did not commit any crimes, became active in a
local church community, maintained stable housing, and sought employment authorization. Id. ¶¶
17-18. Nevertheless, on December 4, 2025, ICE officers detained Petitioner when he appeared for
his regularly scheduled ICE check-in. Id. ¶ 19. ICE transferred him to Cibola County in New
Mexico where he remains detained. Id. ¶ 20.
On January 6, 2026, Petitioner appeared before an immigration judge for a bond hearing.
Id. ¶ 21. At the hearing, Petitioner withdrew his bond request. See Mar. 23, 2026 Hr’g, Liberty
Recording, ABQ-Gila_20260323_132113 at 2:44:46-2:46:11, 3:13:00-3:13:20.6 Petitioner’s
asylum proceedings could take many months or even years to complete. Petition ¶ 22, Dkt. No. 2.
III. PROCEDURAL HISTORY
On January 23, 2026, Petitioner filed a Verified Petition for Writ of Habeas Corpus and
Complaint for Declaratory and Injunctive Relief (Dkt. No. 2) under 28 U.S.C. § 2241 and the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. See Petition ¶¶ 1, 4, Dkt. No. 2.
6 The only fact counsel for Respondents contested at the hearing was regarding what occurred at the bond hearing.
According to Respondents, Petitioner withdrew his request for bond at the end of his immigration bond hearing.
Counsel for Petitioner, after reviewing the immigration record, agreed with that representation. The Court therefore
considers this fact undisputed.
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Petitioner brings the following counts: violation of the INA (Count I); violation of substantive and
procedural due process arising from his prolonged mandatory detention without an individualized
bond hearing (Count II); violation of the Equal Protection Clause (Count III); entitlement to a stay
of removal to any third country (Count IV); entitlement to a stay of out-of-district transfer (Count
V); and petition for § 2241 writ of habeas corpus (Count VI). See id. ¶¶ 26-83. Despite listing six
separate counts, only the first three counts state causes of action brought under § 2241. Counts IV,
V, and VI are requests for specific remedies.7
For remedies, Petitioner seeks several. First, he requests a writ ordering his immediate
release. Petition ¶ 60, ¶ A, Dkt. No. 2. Second, and alternatively, he asks for an individualized
bond hearing before an immigration judge within seven days at which (i) the government bears
the burden of proving by clear and convincing evidence that he poses a danger or flight risk, and
at which (ii) the immigration judge must consider his individual circumstances and (iii) alternatives
to detention. Id. ¶ 61, ¶ B. Third, Petitioner seeks an order staying removal to a third country unless
he receives at least 30 days advance written notice identifying the proposed country of removal, a
reasonable opportunity to gather evidence regarding conditions in that country, and a hearing
before an immigration judge on any withholding or Convention Against Torture (“CAT”) claims
specific to that country. Id. ¶ 72, ¶ C. Fourth, Petitioner requests an order enjoining his transfer
outside this judicial district while the Petition is pending and 72 hours advance notice before any
attempted transfer. Id. ¶ 79, ¶ D. Fifth, he seeks an order to show cause requiring a response within
three days. See id. ¶ E. Finally, he asks for an award of costs and attorney’s fees. Id. ¶ F.
This Court entered an Order to Show Cause directing Respondents to respond to the
Petition within 14 days and show cause why the requested relief should not be granted. Order, Dkt.
7 At the hearing, counsel for Petitioner agreed with the Court that Counts IV-VI are remedies, not freestanding legal
claims. See Mar. 23, 2026 Hr’g, Liberty Recording, ABQ-Gila_20260323_132113 at 2:31:27-21:31:53.
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No. 5. The Court found good cause to allow Respondents more than three days to respond. Id. at
2 n.1. Respondents nonetheless failed to timely respond, prompting Petitioner to file a motion to
compel (Dkt. No. 7). The Court entered another Order to Show Cause, this time directing
Respondents to respond to the Petition within three days. Order 2, Dkt. No. 8. The Court gave
notice that the failure to respond could result in a recommendation that the Petition be granted. Id.
They then responded within the requisite three business days. Resps., Dkt. Nos. 9-10, 12-13. Given
the Court’s orders to show cause and that Respondents have now responded, Petitioner’s request
for an order to show cause requiring a response within three days is moot and should be denied.
The Respondents filed a three-page, admittedly “abbreviated response” to the Petition “in
lieu of a formal responsive memorandum of law to preserve the legal issues, to conserve judicial
and party resources, and to expedite the Court’s consideration of this matter.” Resp. 1, Dkt. No.
12. Respondents “reviewed the Amended Petition and determined that the legal issues presented
concern the statutory authority for ICE’s detention of Petitioner under 8 U.S.C. §§ 1225(b)(2)(A)
or 1226(a), whether Petitioner is entitled to a bond hearing, and whether Petitioner must first
exhaust his administrative remedies before applying to this Court.” Id. Relying on Yajure Hurtado,
the presiding judge’s decision in Singh v. Noem, No. CIV 25-1110 JB/KK, 2026 WL 146005
(D.N.M. Jan. 20, 2026), and the Fifth Circuit’s Buenrostro-Mendez v. Bondi decision, 166 F.4th
494 (5th Cir. 2026), Respondents assert that Petitioner is “seeking admission” and subject to
mandatory detention under § 1225(b)(2) because he was present in the United States without being
admitted or paroled and had filed an asylum application. Id. at 1-2. Respondents incorporate by
reference the legal arguments presented in their response brief in Singh v. Noem but note they “do
not consent to issuance of the writ and reserve all rights, including the right to appeal.” Resp. 2,
Dkt. No. 12. Respondents offered no other legal arguments in their brief.
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In reply, Petitioner asserts that Respondents failed to address, and thereby waived, five
distinct issues raised in the Petition: (1) the constitutional due process claim regarding prolonged
detention; (2) the equal protection claim; (3) the request for a stay of removal to any third country;
(4) the request for a stay of out-of-district transfer; and (5) the judicial estoppel argument. Reply
2, Dkt. No. 15. As for Respondents’ reliance on Singh, Petitioner argues that Singh does not resolve
this case for two reasons: (1) Singh did not adjudicate whether prolonged detention without an
individualized hearing violates due process with respect to Petitioner’s specific circumstances; and
(2) Singh was wrongly decided as a matter of statutory interpretation. Id. Petitioner argues that his
application for asylum is a request for protection from removal granted to aliens already present
in the country; it does not retroactively legalize an unlawful entry or constitute inspection-based
authorization. Supp. Br. 1, Dkt. No. 19. Relying on Sanchez v. Mayorkas, 593 U.S. 409 (2021),
and the BIA’s decision in Matter of V-X, 26 I&N Dec. 147 (BIA 2013), he asserts that a completed
asylum grant is not an admission, and thus applying for asylum is not “seeking admission.” Id.
IV. RIPENESS OF COUNT IV
“The ripeness doctrine involves both constitutional requirements and prudential concerns.”
United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019). Constitutional ripeness arises from
Article III’s requirement that federal courts consider only cases or controversies. Id. Federal courts
do not have the power to render advisory opinions. Id. Prudential ripeness turns on whether the
issue is fit for judicial review and the hardship to the parties from withholding review. Id. A claim
is not ripe for adjudication if it is based on contingent future events that may not occur. Id. (quoting
Texas v. United States, 523 U.S. 296, 300 (1998)).
In Count IV, Petitioner requests an order staying his removal to a third country unless he
receives at least 30 days advance written notice, a reasonable opportunity to gather evidence
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regarding conditions in that country, and a hearing before an immigration judge on any
withholding or CAT claims specific to that country. Petition ¶ 72, ¶ C. It is undisputed that there
is not yet a final order of removal in Petitioner’s immigration case. That Respondents will seek to
remove him to a third country is therefore a contingent future event that may not occur at all.
Although Respondents did not specifically object to this form of relief in their written response, at
the hearing in response to the Court’s question, counsel for Petitioner conceded that this request is
not ripe without a final order of removal. See Mar. 23, 2026 Hr’g, Liberty Recording, ABQ-
Gila_20260323_132113 at 2:40:47-2:41:02. Because no final order of removal is in place, the
Court recommends that Count IV and the requested remedy therein be denied without prejudice.
V. WAIVER OF COUNTS II, III, and V
According to Petitioner, Respondents addressed only the statutory question in Count I, so
they conceded Counts II-V. Noting that Respondents mentioned exhaustion, Petitioner contends
they did not adequately develop the argument. Reply 11, Dkt. No. 15. Indeed, Respondents said
merely that a legal issue raised in the Petition was “whether Petitioner must first exhaust his
administrative remedies before applying to this Court.” Resp. 1, Dkt. No. 12. Respondents said
nothing more about exhaustion, other than incorporating by reference the legal arguments
presented in the response brief in Singh v. Noem, No. CIV 25-1110 JB/KK (“Singh Response”).
On this record, the Court recommends finding that Respondents waived the argument that the
Petition should be denied for failure to exhaust administrative remedies, waived arguments as to
the merits of Counts II and III, and waived arguments against the remedy requested in Count V.
As the presiding judge ruled in Macias v. New Mexico Dept. of Labor, 300 F.R.D. 529
(D.N.M. 2014):
[I]n the context of court filings, rule 10(c) of the Federal Rules of Civil Procedure
outlines the process of “adoption by reference,” which provides that “[a] statement
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in a pleading may be adopted by reference elsewhere in the same pleading or in any
other pleading or motion.” Fed. R. Civ. P. 10(c) (title case omitted). In this context:
(i) the secondary document must be a pleading—a complaint, cross-complaint,
answer, or reply, see Fed. R. Civ. P. 7; (ii) the primary and secondary documents
must be filed in the same case—referencing a pleading from a different case is
impermissible, even if the two cases involve the same parties, see Wright et al.,
supra, § 1326, at 429; and (iii) a party may not incorporate district court pleadings
by reference in an appellate court, see 10th Cir. R. 28.4, 28 U.S.C.; Argota v. Miller,
424 Fed. Appx. 769 (10th Cir. 2011) (unpublished). Additionally,
[a]lthough there is no prescribed procedure for referring to
incorporated matter, the references to prior allegations must be
direct and explicit, in order to enable the responding party to
ascertain the nature and extent of the incorporation….
Wright et al., supra, § 1326, at 431–33 (footnotes omitted).
Macias, 300 F.R.D. at 562-63 (bold added).
The Court finds that Respondents did not properly incorporate arguments from a separate
response brief in a different case involving different parties as to Counts II, III, and V and failure
to exhaust. Notably, Respondents did not attach the Singh Response, which is a pleading that is
under seal and not generally available to the public or to counsel in other cases. See Fed. R. Civ.
P. 5.2(c) (limiting remote electronic access in immigration habeas cases). Even had Petitioner been
able to access the Singh Response, it did not address substantive or procedural due process
arguments based on the prolonged length of detention. Nor did it discuss equal protection.
Petitioner is also correct that the Singh Response did not address a request for a stay of out-of-
district transfer. The Honorable James O. Browning did not analyze exhaustion or equal protection
in his Singh opinion. Accordingly, Respondents’ cursory attempt to incorporate arguments from
the Singh Response was ineffective and constitutes waiver of those arguments. See United States
v. Gordon, 710 F.3d 1124, 1150 (10th Cir. 2013) (concluding that arguments presented in
perfunctory and conclusory fashion were waived); Gagandeep Singh v. Castro, No. 26-cv-00168
JB/JFR, PFRD 5-6 (Dkt. No. 15) (D.N.M. Feb. 19, 2026) (Robbenhaar, J.) (concluding that
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Respondents’ attempt to incorporate arguments from Singh Response in a separate case was too
cursory, and thus, Respondents waived arguments). The Court therefore recommends that the
presiding judge grant the Petition as to Counts II, III, and V based on Respondents’ failure to
respond to the merits of the claims and remedy requested therein.
VI. ANALYSIS OF MERITS OF COUNT I AND PROPER REMEDIES
A. Legal Background
An immigration judge conducts proceedings to decide the inadmissibility or deportability
of an alien. 8 U.S.C. § 1229a(1)(1). Aliens placed in removal proceedings may be charged with an
applicable ground of inadmissibility under § 1182(a) or of deportability under § 1227(a).
Inadmissible aliens are “ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). “[A]ny
immigrant at the time of application for admission” who does not possess “a valid unexpired
immigrant visa, reentry permit, border crossing identification card, or other valid entry document
required by this chapter, and a valid unexpired passport, or other suitable travel document, or
document of identity and nationality if such document is required under the regulations issued by
the Attorney General under section 1181(a) of this title” is “inadmissible.” Id. §
1182(a)(7)(A)(i)(I). Proceedings under § 1229a, unless otherwise specified, “shall be the sole and
exclusive procedure for determining whether an alien may be admitted to the United States or, if
the alien has been so admitted, removed from the United States.” Id. § 1229a(a)(3).
The statutory provisions at issue in this case are those governing mandatory detention in 8
U.S.C. § 1225, and the “Apprehension and detention of aliens” in 8 U.S.C. § 1226. After discussing
these INA provisions and implementing regulations in more detail, the Court will turn to an
overview of due process law in the immigration context before analyzing how the law applies to
Petitioner’s detention.
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1. Overview of Sections 1225 and 1226
“Congress has authorized immigration officials to detain some classes of aliens during the
course of certain immigration proceedings” to give “immigration officials time to determine an
alien's status without running the risk of the alien's either absconding or engaging in criminal
activity before a final decision can be made.” Jennings v. Rodriguez, 583 U.S. 281, 286 (2018).
Sections 1225 and 1226 govern the detention of noncitizens prior to a final order of removal. See
id. at 287-89. “In sum, U.S. immigration law authorizes the Government to detain certain aliens
seeking admission into the country under §§ 1225(b)(1) and (b)(2)” and “to detain certain aliens
already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c).” Id.
at 289.
Generally, a non-citizen “present in the United States who has not been admitted or who
arrives in the United States (whether or not at a designated port of arrival and including an alien
who is brought to the United States after having been interdicted in international or United States
waters) shall be deemed for purposes of this chapter an applicant for admission.” 8 U.S.C. §
1225(a)(1). The implementing regulations define an “arriving alien” as “an applicant for admission
coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit
through the United States at a port-of-entry , or an alien interdicted in international or United States
waters and brought into the United States by any means, whether or not to a designated port-of-
entry, and regardless of the means of transport.” 8 C.F.R. § 1001.1(q). “An arriving alien remains
an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such
parole is terminated or revoked.” Id.8 An alien who is caught trying to enter at a place other than a
8 The Secretary of Homeland Security may “in his discretion parole into the United States temporarily under such
conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public
benefit any alien applying for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A). Granting such parole,
however, “shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion
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port of entry is treated as an arriving alien. Department of Homeland Security v. Thuraissigiam,
591 U.S. 103, 108 (2020) (citing 8 U.S.C. §§ 1225(a)(1), (3)). 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.” 8 U.S.C. § 1225(a)(3) (emphasis added). “Admission”
or “admitted” means “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).
Section 1225(a) also provides for the “Withdrawal of application for admission”: “An alien
applying for admission may, in the discretion of the Attorney General and at any time, be permitted
to withdraw the application for admission and depart immediately from the United States.” 8
U.S.C. § 1225(a)(4). “An applicant for admission may be required to state under oath any
information sought by an immigration officer regarding the purposes and intentions of the
applicant in seeking admission to the United States, including the applicant's intended length of
stay and whether the applicant intends to remain permanently or become a United States citizen,
and whether the applicant is inadmissible.” Id. § 1225(a)(5) (emphasis added).
Section 1225(b)(1) sets forth the procedures for the “Inspection of aliens arriving in the
United States and certain other aliens who have not been admitted or paroled.” 8 U.S.C. §
1225(b)(1). An immigration officer may order expedited removal of an arriving alien without
further hearing or review if the officer determines that the alien is inadmissible under §
1182(a)(6)(C) or 1182(a)(7), provisions governing inadmissibility due to fraud, misrepresentation,
or lack of valid documentation. 8 U.S.C. § 1225(b)(1)(A)(i); Jennings, 583 U.S. at 287 (citing 8
of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody
from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any
other applicant for admission to the United States.” Id. The record before the Court shows that Petitioner was not
granted humanitarian parole under § 1182(d)(5)(A).
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U.S.C. § 1225(b)(1)(A)(i) (in turn citing §§ 1182(a)(6)(C), (a)(7))). Aliens also subject to expedited
removal are those designated by the Attorney General in her discretion. Id. (citing 8 U.S.C. §
1225(b)(1)(A)(iii)).
“Applicants can avoid expedited removal by claiming asylum.” Thuraissigiam, 591 U.S.
at 109. “If an applicant ‘indicates either an intention to apply for asylum’ or ‘a fear of persecution,’
the immigration officer ‘shall refer the alien for an interview by an asylum officer.’” Id. (quoting
§§ 1225(b)(1)(A)(i)-(ii)). “If the asylum officer finds an applicant's asserted fear to be credible,
the applicant will receive ‘full consideration’ of his asylum claim in a standard removal hearing.”
Id. at 110 (citing 8 C.F.R. § 208.30(f)) (internal footnote omitted). Applicants who raise an asylum
claim are nevertheless “detained pending a final determination of credible fear of persecution and,
if found not to have such a fear, until removed.” Id. at 111 (quoting § 1225(b)(1)(B)(iii)(IV)). If an
alien is found to have a credible fear, he may be detained pending further consideration of the
asylum application. Id. See also 8 U.S.C. § 1225(b)(1)(B)(ii) (“If the [asylum] officer determines
at the time of the interview that an alien has a credible fear of persecution …, the alien shall be
detained for further consideration of the application for asylum.”).
Section 1225(b)(2) governs “Inspection of other aliens.” 8 U.S.C. § 1225(b)(2). “Section
1225(b)(2) is broader” than § 1225(b)(1) and “serves as a catchall provision that applies to all
applicants for admission not covered by § 1225(b)(1) (with specific exceptions not relevant here).”
Jennings, 583 U.S. at 287. Under § 1225(b)(2), “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 [removal]
proceeding….” 8 U.S.C. § 1225(b)(2)(A) (bold added); Jennings, 583 U.S. at 288. Detention under
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§ 1225(b) is mandatory until immigration officers decide either the application for asylum or until
removal proceedings conclude. Jennings, 583 U.S. at 299-300.
Except for temporary parole under 8 U.S.C. § 1182(d)(5)(A) for urgent humanitarian
reasons or significant public benefit, “there are no other circumstances under which aliens detained
under § 1225(b) may be released.” Id. at 300. Under § 1182(d)(5)(A), arriving “aliens who claim
asylum and establish a credible fear with an asylum pre-screening officer can be paroled at the
point of entry while they pursue their asylum application.” Succar v. Ashcroft, 394 F.3d 8, 15 (1st
Cir. 2005).
Section 1226(a) establishes the process of arresting and detaining noncitizens “already
present in the United States.” Jennings, 583 U.S. at 303. As the Supreme Court explained, “Section
1226(a) creates a default rule for those aliens by permitting—but not requiring—the Attorney
General to issue warrants for their arrest and detention pending removal proceedings.” Id. Section
1226(a) provides: “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.” 8
U.S.C. § 1226(a). As a matter of federal regulation, noncitizens detained under § 1226(a) generally
“receive bond hearings at the outset of detention.” Jennings, 583 U.S. at 306 (citing 8 C.F.R. §§
236.1(d)(1), 1236.1(d)(1)).
According to the federal regulations pertaining to “Apprehension, custody, and detention,”
at the time of issuance of the notice to appear, or anytime afterwards and until removal proceedings
are concluded, the noncitizen “may be arrested and taken into custody under the authority of Form
I–200, Warrant of Arrest.” 8 C.F.R. § 236.1(b)(1). The regulations designate which immigration
officers may issue an arrest warrant and which may serve it. Id.
Section 236.1(d)(1) provides:
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After an initial custody determination by the district director, including the setting
of a bond, the respondent may, at any time before an order under 8 CFR part 1240
becomes final, request amelioration of the conditions under which he or she may
be released. Prior to such final order, … the immigration judge is authorized to
exercise the authority in section 236 of the Act … to detain the alien in custody,
release the alien, and determine the amount of bond, if any, under which the
respondent may be released….
8 C.F.R. § 236.1(d)(1).
The Attorney General “may release the alien” on bond or conditional parole, unless the
alien has committed certain criminal offenses or terrorist activities listed in § 1226(c), in which
case detention is mandatory. See 8 U.S.C. § 1226(a)(2)(A)–(B), (c); Jennings, 583 U.S. at 288-89,
303. “The Attorney General at any time may revoke a bond or parole authorized under subsection
(a), rearrest the alien under the original warrant, and detain the alien.” 8 U.S.C. § 1226(b). In 2025,
Congress passed the Laken Riley Act, which added additional criminal conduct triggering §
1226(c)’s custodial provisions. See Pub. L. No. 119-1, § 2, 139 Stat. 3 (2025) (codified as amended
at § 1226(c)(1)(E)).9 The Amendment mandated custody for aliens inadmissible under paragraph
(6)(A), (6)(C), or (7) of section 1182(a) who are charged, arrested, or convicted of burglary, theft,
larceny, shoplifting, assault of a law enforcement officer, or any crime resulting in death or serious
bodily injury to another person. 8 U.S.C. § 1226(E)(i)-(ii).
2. Overview of Due Process in Immigration Context
The Fifth Amendment's Due Process Clause prohibits the federal government from
depriving any person of “life, liberty, or property, without due process of law.” U.S. Const. amend.
V. The core concept of due process is protection of the individual against arbitrary government
action. County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998). Due process comes in two
varieties. Substantive due process prevents the government from engaging in conduct that shocks
9 Section 1226(c) does not apply here because it is undisputed Petitioner has no criminal history.
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the conscience or interferes with rights implicit in the idea of ordered liberty. Id. at 847. Procedural
due process, by contrast, requires notice and an opportunity to be heard appropriate to the nature
of the case before depriving an individual of a life, liberty, or property interest. Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
“Freedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas
v. Davis, 533 U.S. 678, 690 (2001). Immigration proceedings are civil in nature, and as such, the
Government’s interests are non-punitive, such as ensuring the appearance of an alien at future
immigration proceedings and protecting the community from danger. Id.
The Constitution gives the political branches “plenary authority to decide which aliens to
admit” and the “power to set the procedures to be followed in determining whether an alien should
be admitted.” Thuraissigiam, 591 U.S. at 139. An alien seeking initial entry to the United States is
only entitled to the process authorized by Congress. Id. at 138-39. “While aliens who have
established connections in this country have due process rights in deportation proceedings, the
Court long ago held that Congress is entitled to set the conditions for an alien's lawful entry into
this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater
rights under the Due Process Clause.” Id. at 107 (holding that alien detained near border shortly
after unlawful entry did not “effect an entry” and only has those rights regarding admission that
Congress provided by statute). “But once an alien enters the country, the legal circumstance
changes, for the Due Process Clause applies to all ‘persons’ within the United States, including
aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533
U.S. at 693.
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B. The Court should not deny Petition for failure to exhaust administrative
remedies.
Even if Respondents’ attempted incorporation of the exhaustion argument were proper, the
Court disagrees with Respondents that exhaustion was necessary here. The INA mandates
exhaustion as to final orders of removal, but it contains no exhaustion provision regarding
challenges to preliminary custody or bond determinations. Gonzalez v. O’Connell, 355 F.3d 1010,
1016 (7th Cir. 2004). Although § 2241 does not expressly require a petitioner to exhaust direct
appeals before filing a petition for habeas corpus, as a prudential matter, habeas petitioners must
exhaust available administrative remedies before seeking habeas relief under § 2241. Garza v.
Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th
Cir. 2001), overruled on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006).
Where exhaustion is not statutorily required, “sound judicial discretion governs.” Gonzalez, 355
F.3d at 1016 (quoting McCarthy v. Madigan, 503 U.S. 140, 144 (1992)). “A narrow exception to
the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile.” Garza,
596 F.3d at 1203.
Petitioner withdrew his request for a bond redetermination at the January 6, 2026 hearing
before the immigration judge. The BIA’s Yajure Hurtado decision, however, is binding on
immigration courts and appears to categorically deny relief to noncitizens like Petitioner who DHS
now considers to be subject to mandatory detention under § 1225(b). If Petitioner had insisted on
his right to a bond hearing in his immigration case, the immigration judge, being bound by Yajure
Hurtado, would have denied his request for lack of jurisdiction to grant bond. Consequently, the
Court recommends finding that the futility exception to exhaustion applies and this Court may
consider the habeas petition. Cf. Pu Sacvin v. De Anda-Ybarra, No. 2:25-cv-010131-KG-JFR,
2025 WL 3187432, at *4 (D.N.M. Nov. 14, 2025) (“Under Hurtado, Immigration Judges (“IJs”)
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lack jurisdiction to provide § 1226(a) bond hearings to individuals in Mr. Pu Sacvin’s position,
rendering any attempt to seek relief directly from the agency futile.”); Mateo Francisco v. Dedos,
No. 1:25-cv-1229 MIS-GJF, 2026 WL 145456, at *8 (D.N.M. Jan. 20, 2026) (explaining that,
where petitioner has shown that, had he asserted right to bond hearing, immigration judge, being
bound by Yajure Hurtado, would deny his request for release for lack of jurisdiction to grant bond,
futility exception to exhaustion applies and court may consider habeas petition), PFRD adopted
by 2026 WL 300319 (D.N.M. Feb. 4, 2026).
C. Petitioner’s detention for months without bond hearing violates INA.
Petitioner argues that § 1226 governs the detention of aliens already present in the interior
of the United States, while § 1225 applies at the borders and ports of entry. He urges the Court to
follow the reasoning of the many courts that have concluded that “seeking admission” means the
present-tense action of seeking entry at an inspection at the border, and that § 1225(b)(2)(A) does
not apply to aliens who entered the country years prior. According to Petitioner, the Government’s
position is inconsistent with the structure of the INA, its implementing regulations, the Laken Riley
Act, decades of practice and understanding, and Jennings. Finally, he contends that the
constitutional avoidance doctrine counsels fidelity to the past interpretation of the INA and
applying § 1226.10 For their part, Respondents assert that Petitioner is subject to mandatory
10 Petitioner also argues that the Government should be estopped from its current position based on an exchange that
occurred during oral argument in Jennings between counsel for the government and Justice Sonia Sotomayor in which
counsel said long-term resident aliens would be held under § 1226(a), not 1225. See Petition ¶ 34, Dkt. No. 2 (citing
Transcript of Oral Argument at 49-50, Jennings v. Rodriguez, 583 U.S. 281 (2018) (No. 15-1204), available at
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1204_k536.pdf)). At the March 23,
2026 hearing, the Court asked whether a statement made by the interim solicitor general representing a prior
administration can bind subsequent administrations. See Mar. 23, 2026 Hr’g, Liberty Recording, ABQ-
Gila_20260323_132113 at 2:18:38-2:19:42. Counsel for Petitioner conceded that this administration may not be
bound by the statements of another administration’s interim solicitor at prior oral arguments, and he did not expect
the Court to ground relief purely on that argument. See id. at 2:19:42-2:20:07. Notably, the Tenth Circuit applies the
judicial estoppel doctrine “both narrowly and cautiously.” United States v. Supreme Court of New Mexico, 839 F.3d
888, 910 (10th Cir. 2016) (quoting BancInsure, Inc. v. FDIC, 796 F.3d 1226, 1240 (10th Cir. 2015)). Additionally,
the position to be estopped “must generally be one of fact rather than of law or legal theory.” Id. at 912. The Court
declines to rely on judicial estoppel to resolve Count I.
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detention under § 1225, adopting the reasoning of the BIA’s Yajure Hurtado decision, the Fifth
Circuit panel majority decision in Buenrostro-Mendez, and the presiding judge’s decision in Singh.
See Resp. 1-2 & n.2, Dkt. No. 12.
This Court parts ways with Respondents’ analysis and instead concludes from the text and
structure of § 1225 that “seeking admission” has a meaning independent of “applicant for
admission.” The text of § 1225(b)(2)(A) makes clear that it applies to (1) “an applicant for
admission”, (2) who is “seeking admission,” and (3) “is not clearly and beyond a doubt entitled to
be admitted.” 8 U.S.C. § 1225(b)(2)(A). The provision therefore limits mandatory detention only
to those applicants for admission who are also seeking admission. See Castanon-Nava v. U.S. Dept.
of Homeland Security, 161 F.4th 1048, 1061 (7th Cir. 2025) (“And while a noncitizen arrested in
the Midwest might qualify as ‘an alien present in the United States who had not been admitted,’ §
1225(a)(1), the mandatory detention provision upon which Defendants rely[] limits its scope to an
‘applicant for admission’ who is ‘seeking admission,’ § 1225(b)(2)(A).”); Singh, 2026 WL 146005,
at *20-21 (explaining that “seeking admission” has separate meaning and narrows broader
universe of “applicants for admission”). To construe “applicant for admission” to be the same as
an alien “seeking admission” would render the latter phrase surplusage. See Castanon-Nava, 161
F.4th at 1061. Had Congress intended all applicants for admission to be detained, it could have
drafted § 1225(b)(2)(A) far more simply: “Subject to subparagraphs (B) and (C), if the examining
immigration officer determines that an applicant for admission is not clearly and beyond a doubt
entitled to be admitted, the alien shall be detained….” Instead, Congress limited detention to those
applicants for admission who are not clearly and beyond a doubt entitled to be admitted and who
are “seeking admission.” 8 U.S.C. § 1225(b)(2)(A).
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Furthermore, the statute’s use of the present participle “seeking” demonstrates the need for
the noncitizen to be taking some action at present in attempting to gain admission. This
interpretation also accords with § 1225(a)(3), which suggests the terms are not coterminous: “All
aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission
or readmission to or transit through the United States shall be inspected by immigration officers.”
8 U.S.C. § 1225(a)(3) (emphasis added). If the terms had the same meaning, it would be redundant
to use “seeking admission” in § 1225(a)(3).
The Court is well aware that two circuits, in 2-1 decisions, have concluded the opposite.
After completion of briefing in this case, the Eighth Circuit agreed with the Fifth Circuit’s
reasoning in Buenrostro-Mendez that the phrase “applicant for admission” and “seeking
admission” mean the same. Avila v. Bondi, __ F.4th __, 2026 WL 819258, at *3 (Mar. 25, 2026)
(quoting with approval Buenrostro-Mendez, 166 F.4th at 502). Both circuits held that an alien who
entered the United States many years ago without inspection and lacking legal documents
authorizing his admission may be detained without bond under § 1225(b)(2)(A). Id. at *1, 6;
Buenrostro-Mendez, 166 F.4th at 498-500. Neither Avila nor Buenrostro-Mendez is binding on
this Court, however, and this Court declines to follow their reasoning.
Having determined that “seeking admission” has its own separate meaning, the Court must
next discern what that meaning is. Guided by the statutory definition of “admission,” the Court
concludes that “seeking admission” is seeking “lawful entry of the alien into the United States
after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13). While the
term “lawful” is not separately defined in the INA, see 8 U.S.C. § 1101, the term lawful entry
refers to the process in which an alien is inspected and granted entry into the United States by an
immigration officer. See Hing Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010) (explaining that
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“admission” under § 1101(a)(13)(A) “refers to a procedurally regular admission and not a
substantively lawful admission”); Singh, 2026 WL 146005, at *35 (“Admission requires at
minimum ‘procedural regularity’ with entry procedures.”) (quoting Matter of Quilantan, 25 I. &
N. Dec. 285, 290 (BIA 2010)).
Petitioner urges the Court to find that § 1225(b)(2) applies to people arriving at United
States’ ports of entry or who recently entered the United States, as § 1225’s framework is premised
on inspection at the border of people who are “seeking admission” to the United States. Indeed,
the Supreme Court stated as much. See Jennings, 583 U.S. at 289 (“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).”) (Emphasis
added).
The structure and title of § 1225 also support this interpretation. The title of a statutory
section can be a tool “‘for the resolution of a doubt’ about the meaning of a statute.” Dubin v.
United States, 599 U.S. 110, 121 (2023) (quoting Almendarez-Torres v. United States, 523 U.S.
224, 234 (1998)). Section 1225 is titled, “Inspection by immigration officers; expedited removal
of inadmissible arriving aliens; referral for hearing.” 8 U.S.C. § 1225 (emphasis added). Those
terms suggest that § 1225 applies during inspection at the border. The text of § 1225 reinforces
that its scope is focused on the inspection process. See, e.g., 8 U.S.C. § 1225(a)(3). “By anchoring
§ 1225 in inspection concepts that Congress defines, it signals that an inspection at the threshold
of entry triggers the powers and procedures that follow.” Singh, 2026 WL 146005, at *14. The
implementing regulations likewise tie such inspections to the border. See 8 C.F.R. § 235.1(a)
(“Application to lawfully enter the United States shall be made in person to an immigration officer
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at a U.S. port-of-entry when the port is open for inspection, or as otherwise designated in this
section.”). Consequently, the text and structure of § 1225 suggest that an alien “seeking admission”
is one who does so at the border.
The legislative history accords with this construction. Before passage of the IIRIRA, 8
U.S.C. § 1252(a)(1) provided that noncitizens arrested in the United States pending a
determination of deportability could be released on bond. See 8 U.S.C. § 1252(a)(1) (1996). After
passage of the IIRIRA, § 1226(a) now governs the apprehension and detention of aliens on a
warrant. 8 U.S.C. § 1226(a). When Congress passed the IIRIRA, it noted that the new § 1226(a)
“restates the current provisions in section 242(a)(1) regarding the authority of the Attorney General
to arrest, detain, and release on bond an alien who is not lawfully in the United States.” H.R. Rep.
104-469(I), at 229 (Mar. 4, 1996). The Executive Office for Immigration Review drafted
regulations in 1997 similarly explaining that noncitizens present in the country without having
been admitted or paroled, despite remaining applicants for admission, were nonetheless eligible
for bond and bond redetermination under § 1226. See Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.
Reg. 10312, 10323 (Mar. 6, 1997) (“Despite being applicants for admission, aliens who are present
without having been admitted or paroled (formerly referred to as aliens who entered without
inspection) will be eligible for bond and bond redetermination.”). Given the longstanding practice
of detaining noncitizens living in the United States on an arrest warrant and with the chance for
bond, the legislative history suggests that Congress did not intend to alter this practice with the
IIRIRA. Moreover, the fact that for decades the Executive Branch also did not interpret the IIRIRA
in the manner urged by Respondents here or to use its purported mandatory detention authority
signifies that “seeking admission” meant seeking lawful entry at the border. Cf. Bankamerica
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Corp. v. United States, 462 U.S. 122, 130-32 (1983) (explaining that, although authority granted
by Congress cannot evaporate through lack of administrative exercise, the Government’s failure
for over 60 years to exercise the power it now claims under the statute strongly suggests that the
statute should not be interpreted as granting such power).
Further supporting this interpretation is the following statutory history, as set forth by the
Fifth Circuit in Buenrostro-Mendez:
When Congress passed IIRIRA, it estimated that the detention mandate in § 1226(c)
would require the detention of 45,000 new immigrants. See H.R. Rep. No. 104-469,
pt. 1 at 118, 120, 123 (1996). Supposedly because Congress was worried about
insufficient detention capacity, it included a provision that permitted delaying
implementation of § 1226(c) for two years. IIRIRA § 303(b), 110 Stat. 3009-586 to
3009-587. IIRIRA did not include a similar provision for § 1225(b)(2)(A), even
though, under the government's interpretation, § 1225(b)(2)(A) would require the
detention of far more than 45,000 aliens. See H.R. Rep. No. 104-469, pt. 1, at 111
(estimating that about two million aliens who had entered without inspection were
present in the United States around IIRIRA's enactment in 1996).
166 F.4th at 507. Although the majority in Buenrostro-Mendez declined to speculate on Congress’s
reasons for the deferred implementation of § 1226(c) but not of § 1225(b)(2)(A), that difference is
compelling evidence that Congress did not view the IIRIRA as mandating the detention under §
1225(b)(2)(A) of the estimated two million aliens present in the United States who had not been
admitted. See id. at 516 (J. Douglas, dissenting) (“Congress did not secretly require two million
noncitizens to be detained without bond, when nothing like this had ever been done before, and
the whole history of American immigration law suggested it would not be. We would expect more
than simple statutory silence if, and when, Congress were to intend a major departure.”) (internal
quotations, citation, and footnote omitted). As Judge Douglas noted, construing the statute to
expect the detention of millions of aliens in detention facilities strained by merely 45,000 people
is a proverbially large elephant stuffed in a very small mousehole, and not one Congress envisioned
when it passed the IIRIRA. Id. at 514-17.
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The recent enactment of the Laken Riley Act adds weight to this understanding of
Congressional intent. The Act expressly required detention for noncitizens inadmissible under §
1182(a)(6)(A) – aliens present without being admitted or paroled – if they commit certain listed
crimes. That specification in the Act would not have been necessary if Congress understood §
1225(b)(2) to require mandatory detention of all inadmissible aliens already present in the United
States. See, e.g., Munoz Teran v. Bondi, Case No. 2:25-cv-01218-KWR-SCY, 2026 WL 161527,
at *4 (D.N.M. Jan. 21, 2026) (Riggs, J.) (explaining that respondents’ interpretation would render
superfluous Laken Riley Act); Cortes v. Holt, Case No. CIV-25-1176-SLP, 2025 WL 147432, at
*1, 6 (W.D. Okla. Jan. 20, 2026) (concluding that enactment of Laken Riley Act lends further
support for application of § 1226 to detention of aliens who entered without inspection or
admission and resided in United States for years).
Significantly, immigration officers do not detain aliens under § 1225 pursuant to a warrant,
whereas § 1226 expressly provides for the arrest and detention of an alien on a warrant. 8 U.S.C.
§ 1226(a). The regulations implementing § 1226 confirm that the Form I-200 is used for arrests
pursuant to an immigration officer’s authority under § 1226. See 8 C.F.R. § 236.1(b)(1) (“At the
time of issuance of the notice to appear, or at any time thereafter and up to the time removal
proceedings are completed, the respondent may be arrested and taken into custody under the
authority of Form I–200, Warrant of Arrest.”). Section 1226 also applies to aliens who are charged
as inadmissible, including those who entered without inspection. See 8 U.S.C. § 1226(c)(1)(E)
(explaining that Attorney General shall take into custody any alien who is inadmissible under
paragraph (6)(A), (6)(C), or (7) of section 1182(a) and is charged with certain identified crimes).
The overall structure of §§ 1225 and 1226 demonstrates that detention under § 1225 is done as
part of the inspection process upon arrival at the border before an alien makes entry into the United
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States, and that after entry, § 1226 – with its warrant and bond hearing protections – applies to the
apprehension and detention of inadmissible aliens within the interior of the country. See Reyes-
Martinez v. Woosley, Civil Action No. 4:25-cv-150-RGJ, 2025 WL 3680330, at *7 (W.D. Ky. Dec.
18, 2025) (explaining that § 1225 detainees are detained upon arrival as a statutory function of the
inspection process, not via an arrest pursuant to administrative warrant, which supports conclusion
that § 1225 is for individuals seeking admission at the border who do not need to be arrested).
After all, “government intrusions have always been tolerated at the border that would be intolerable
in the interior, for the obvious reason that citizens and noncitizens alike expect to be able to go
about their business without having to show that they are ‘clearly and beyond doubt entitled to be
admitted’ if taken, or mistaken, for an otherwise inadmissible noncitizen.” Buenrostro-Mendez,
166 F.4th at 519 (Douglas, J., dissenting).
The presiding judge in Singh, however, said that it would be “mistaken to read the provision
as limited exclusively to physical border encounters.” 2026 WL 146005, at *21. Singh held that an
asylum applicant whose application is pending is nonetheless “seeking admission” and can be
detained under § 1225(b)(2)(A). See id. at *35-36. Singh explained: “An alien may seek lawful
entry at a port of entry, but an alien may also seek lawful admission from within the United States
through statutory mechanisms such as an application for adjustment of status on Form I-485 or
other congressionally authorized procedures for obtaining lawful admission.” Id. at *21. Singh
further reasoned that “seeking can also occur in the interior of the United States … when an alien
who has not been admitted, an applicant for admission, makes some attempt to gain lawful
admission, such as filing for an asylum or a visa.” Id. at 35.
The Supreme Court, however, has clarified that lawful status and admission “are distinct
concepts in immigration law.” Sanchez v. Mayorkas, 593 U.S. 409, 415 (2021). An adjustment of
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status under § 1255 of the INA is a way for a nonimmigrant – a noncitizen lawfully present in the
country on a designated, temporary basis – to obtain lawful permanent resident (“LPR”) status
generally so long as the nonimmigrant’s presence is pursuant to a lawful admission. See id. at 411-
12. In Sanchez, the noncitizen entered unlawfully, and after approximately 14 years, applied for
Temporary Protected Status (“TPS”), entitling him to stay and work in the United States for as
long as unsafe living conditions existed in his home country. See id. at 411-13. He applied for an
adjustment to LPR status, which the USCIS denied because he had not been lawfully admitted to
the United States. Id. at 413. The Supreme Court agreed because, although the TPS program gives
foreign nationals nonimmigrant status, it does not admit them. Id. at 414. As relevant here, the
Supreme Court explained:
On the one hand, a foreign national can be admitted but not in lawful status—think
of someone who legally entered the United States on a student visa, but stayed in
the country long past graduation. On the other hand, a foreign national can be in
lawful status but not admitted—think of someone who entered the country
unlawfully, but then received asylum. The latter is the situation Sanchez is in, except
that he received a different kind of lawful status. The TPS statute permits him to
remain in the country; and it deems him in nonimmigrant status for purposes of
applying to become an LPR. But the statute does not constructively “admit” a TPS
recipient—that is, “consider[ ]” him as having entered the country “after inspection
and authorization.” § 1254a(f)(4); § 1101(a)(13)(A). And because a grant of TPS
does not come with a ticket of admission, it does not eliminate the disqualifying
effect of an unlawful entry.
Id. at 415-16 (emphasis added).
Based on Sanchez, the Court concludes that the filing of an application for asylum is not
“seeking admission”; rather, it is seeking a “lawful status.” As the Tenth Circuit elaborated:
“[A]dmitted” and “admission” are defined as “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). This definition “is limited and
does not encompass a post-entry adjustment of status,” because it “refers expressly
to entry into the United States, denoting by its plain terms passage into the country
from abroad at a port of entry.” Negrete–Ramirez [v. Holder], 741 F.3d [1047,] 1051
[(9th Cir. 2014)]; see Papazoglou [v. Holder], 725 F.3d [790,] 793 [(7th Cir. 2013)]
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(“That provision therefore encompasses the action of an entry into the United
States, accompanied by an inspection or authorization.”); Bracamontes [v. Holder],
675 F.3d [380,] 385 [(4th Cir. 2012)] (“Clearly, neither term includes an adjustment
of status; instead, both contemplate a physical crossing of the border following the
sanction and approval of United States authorities.”); Martinez [v. Mukasey], 519
F.3d [532,] 544 [(5th Cir. 2008)] (recognizing that “ ‘admission’ is the lawful entry
of an alien after inspection, something quite different ... from post-entry adjustment
of status”). Under the definition, Mr. Medina–Rosales was not “admitted” when he
became an LPR after post-entry adjustment of status, because he did not enter the
United States when he adjusted to that status.
Medina-Rosales v. Holder, 778 F.3d 1140, 1144-45 (10th Cir. 2015) (italics emphasis in original).
See also Matter of V-X-, Respondent, 26 I. & N. Dec. 147, 147 (“A grant of asylum is not an
‘admission’ to the United States under section 101(a)(13)(A) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(13)(A) (2006).”). Requesting asylum is thus a request for an adjustment
of status, not a request for admission. Because “seeking admission” requires actively requesting
admission, the filing of an application for asylum does not amount to “seeking admission” within
the meaning of § 1225(b)(2)(A).
Petitioner entered the United States nearly three years ago, at which time DHS briefly
detained him. After finding that he did not pose a danger to the community or flight risk, DHS
released Petitioner under INA § 236(a) on an Order of Supervision. Although he was not deemed
substantively “admitted” at that time, he was given permission to enter the United States under the
Order of Supervision. Petitioner then lived in the United States for over two years before ICE
detained him in the interior of the country on December 4, 2025. At the time of his detention,
Petitioner was not “seeking admission” as he had already entered the United States years prior
with process. He therefore is detained under § 1226 and is entitled to a bond hearing.11 The failure
11 Given its interpretation of the statute based on text and history, this Court declines to address the additional issue
raised by Petitioner of whether the constitutional avoidance doctrine compels the same result.
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to provide him the requisite prompt bond hearing violates the INA. The Court therefore
recommends granting the Petition on Count I.
D. Prompt bond hearing in accordance with § 1226(a) is appropriate remedy for
violation of INA.
The Court recommends that the appropriate remedy for the § 1226 violation is a prompt
bond hearing before an immigration judge, not immediate release. See, e.g., Castillo v. De Andra
Ybarra, No. CIV 25-1074 JB/JFR, 2026 WL 370497, at *36 (D.N.M. Feb. 10, 2026) (explaining
that, because noncitizen was not seeking admission, United States could not detain him under §
1225(b)(2), so it must detain him under § 1226(a) and afford him procedural protections the statute
provides). As for the timing of the bond hearing, the Court recommends that the bond hearing be
held within seven days.12 If Respondents are unable or decline to follow § 1226’s statutory
requirements, the Court recommends they release him immediately. Id.
Petitioner also requests that the Court order the Government to bear the burden of clear and
convincing evidence at the bond hearing regarding whether he poses a danger to the community
or flight risk, and that the immigration judge must consider his individual circumstances and
alternatives to detention. Petition ¶ 61, ¶ B, Dkt. No. 2. For the initial custody determination by
the arresting immigration officer, governing regulations place the burden on the alien to
“demonstrate to the satisfaction of the officer that such release would not pose a danger to property
or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8).
The BIA applied the same presumption in bond hearings before immigration judges. See Castillo,
12 At the hearing, counsel for Respondents reported that seven days is often too accelerated for counsel for the
noncitizen to receive notice and have adequate time to prepare, which has created some confusion as to whether the
deadline must be met even when counsel for the noncitizen needs additional time to get ready for the bond hearing.
See Mar. 23, 2026 Hr’g, Liberty Recording, ABQ-Gila_20260323_132113 at 3:06:46-3:09:09. The Court thus
recommends clarifying in the order that the bond hearing be held within seven days, unless counsel for the noncitizen
requests a brief continuance with the immigration judge based on a need for additional time to prepare adequately, in
which case the bond hearing may be held at a later date within the timeframe suggested by the noncitizen’s counsel.
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2026 WL 370497, at *42 (quoting In Re Adeniji, 22 I. & N. Dec. 1102, 1113 (BIA 1999)). Some
courts have shifted the burden to the government at the bond hearing to show by clear and
convincing evidence that the petitioner is either a danger to the community or a flight risk. See,
e.g., Pu Sacvin v. De Anda-Ybarra, No. 2:25-cv-1031 KG/JFR, 2025 WL 3187432, at *3 (D.N.M.
Nov. 14, 2025) (citing Salazar v. Dedos, 2025 WL 2676729, at *6 (D.N.M.)). The presiding judge,
however, concluded that a remedy challenging the burden at a bond hearing is outside the scope
of the writ of habeas corpus “unless the bond hearing's existing structure is so weighed against the
alien that the alien has no chance to be released on bond.” Castillo, 2026 WL 370497, at *42.
Because a § 1226(a) bond hearing requires only that the alien prove that he is not a flight risk or
danger to the community, the current structure does not deny an alien a meaningful chance at
success at achieving release. Id. The Court thus recommends that the presiding judge deny
Petitioner’s request that the Respondents carry the burden of clear and convincing evidence at the
bond hearing and instead order that the bond hearing comply with § 1226 and its implementing
regulations. See id.
In Count V, Petitioner seeks an order to enjoin his transfer outside this judicial district and
72 hours advance notice before any attempted transfer. Petition ¶ 79, ¶ D, Dkt. No. 2. Under the
All Writs Act, courts “may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Because
Respondents did not object to this remedy in the response, the Court recommends the presiding
judge grant the request to enjoin Petitioner’s transfer outside the District of New Mexico while
this habeas petition is pending or until Petitioner receives a final order of removal. Cf. Castillo,
2026 WL 370497, at *44 (“[T]he Court exercises its discretion under the All Writs Act only to
enjoin Petitioners’ unlawful removal from New Mexico while their habeas proceedings remain
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pending.”).13 Given that the proposed remedy would prevent transfer, the Court need not also order
72 hours of advance notice of any attempted transfer.
With respect to Petitioner’s request for an award of reasonable attorney’s fees and costs,
the Court finds this request premature unless and until the presiding judge grants relief on the
Petition. Should the Court rule in Petitioner’s favor on any of the substantive causes of action, the
Court recommends Petitioner be afforded 30 days after entry of final judgment to submit a motion
for attorney’s fees and expenses, with an affidavit attached justifying requested fees and costs.
VII. CONCLUSION
For the reasons stated above, the Court RECOMMENDS the Verified Petition for Writ of
Habeas and Complaint for Declaratory and Injunctive Relief (Dkt. No. 2) should be GRANTED
IN PART and DENIED IN PART as follows:
A. The Petition should be GRANTED as to Counts I, II, III, V, and VI.
B. The Petition should be DENIED as to Count IV because the remedy requested
therein is not ripe.
C. The following remedies requested in the Petition should be GRANTED:
i. Issue a writ of habeas corpus ordering an individualized bond hearing before
an immigration judge be held within seven days,
13 The Court is not convinced that it would necessarily lose jurisdiction were Petitioner to be transferred out of New
Mexico. Cf. Ex parte Endo, 323 U.S. 283, 304-06 (1944) (holding that district court acquired jurisdiction of habeas
case filed in district where petitioner was then-located, and that court did not lose jurisdiction when the petitioner was
transferred to another state where a person in whose custody the petitioner is remains within district); Pinson v.
Berkebile, 604 F. App'x 649, 652–53 (10th Cir. Mar. 10, 2015) (holding that “the District of Colorado acquired
jurisdiction when [the petitioner] filed his habeas petition” while he was held in Colorado, and that his transfer to
another state “does not defeat that initial jurisdiction”) (citing Rumsfeld v. Padilla, 542 U.S. 426, 440–41 (2004)). See
also Mar. 23, 2026 Hr’g, Liberty Recording, ABQ-Gila_20260323_132113 at 2:41:06-2:41:48 (counsel for Petitioner
agreed that this District would not lose jurisdiction over the case even if Petitioner were transferred to another district).
The Court need not decide this issue, however, because Respondents did not object to the remedy to enjoin transferring
Petitioner out of the District during the pendency of the case.
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ii. Enter an order enjoining Petitioner’s transfer outside this judicial district
while this habeas action is proceeding.
D. The following remedies requested in the Petition should be DENIED:
i. The request for a writ ordering his immediate release from custody;
ii. The request to order the Government to bear the burden of proof at the bond
hearing by clear and convincing evidence;
iii. The request for an order staying removal to a third country until Petitioner
receives at least 30 days’ advance written notice of the proposed country,
an opportunity to gather evidence regarding that country, and a hearing on
withholding and CAT claims specific to that country should be denied as
unripe;
iv. The request for 72 hours’ advance notice of any attempted transfer should
be denied as moot; and
v. The request for an order to show cause requiring a response within three
days should be denied as moot.
SO RECOMMENDED.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections with
the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that
party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.
`
__________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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