Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JEAN CARLOS REQUEJO ROMAN,
Petitioner,
v. 	2:25-cv-01076-DHU-JHR
DORA CASTRO, MARY DE ANDA-
YBARRA, TODD LYONS, KRISTI
NOEM, and PAMELA BONDI,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Petitioner Jean Carlos Requejo Roman’s Petition
for Writ of Habeas Corpus (“Petition”). Doc. 1. Petitioner alleges that he has been unlawfully
detained without the opportunity for a bond hearing, id. at ¶¶ 5, 21, in violation of the Immigration
and Nationality Act (“INA”), his due process rights, and the Administrative Procedure Act, id. at
¶¶ 51-72. The Petition asks the Court to declare Petitioner’s detention unlawful and to grant a writ
of habeas corpus ordering Respondents to immediately release Petitioner, or, in the alternative, to
order that he receive a prompt and individualized bond hearing before an Immigration Judge (“IJ”)
pursuant to 8 U.S.C. § 1226(a).
The Court held a hearing on the Petition on January 7, 2025, at which counsel for all parties
was present. Having considered the parties’ briefs, oral arguments, and the relevant and applicable
law, the Court concluded at the hearing that Petitioner’s detention without a bond hearing is
unlawful and ordered that the Petition for Writ of Habeas Corpus shall be GRANTED, in part,
and DENIED, in part. The Court indicated at the hearing that it would issue an opinion outlining
its reasoning in greater detail. This opinion follows.
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I.
FACTUAL FINDINGS
Petitioner Jean Carlos Requejo Roman is a native and citizen of Peru who first entered the
United States in 2022. Doc. 1 at ¶ 18. On April 5, 2022, Petitioner was arrested by the Department
of Homeland Security (“DHS”) on an immigration warrant, which stated that he was taken into
custody under section 236 of the INA.1 Doc. 1-1 (Petitioner’s Exhibit A); Doc. 13 at 2. Mr. Requejo
Roman was charged with being present in the United States without being admitted or paroled and
placed in removal proceedings. Doc. 1-2 (Petitioner’s Exhibit B). Though DHS initially
determined, after a custody determination pursuant to 8 U.S.C. § 1226, that Petitioner would
remain detained, Doc. 1-3 (Petitioner’s Exhibit C), he was ultimately released on a bond of $2,000
on June 15 or 16, 2022, after an IJ determined he was neither a flight risk nor a danger to the
community, Doc. 1-4 (Petitioner’s Exhibit D); Doc. 13 at 2. On May 11, 2023, Petitioner’s removal
proceedings were dismissed without prejudice. Doc. 1-5 (Petitioner’s Exhibit E); Doc. 13 at 2.
On October 14, 2025, Mr. Requejo Roman was re-arrested in Virginia during a traffic stop
of a vehicle in which he was the passenger. Doc. 1 at ¶ 20; Doc. 13 at 2. The next day, DHS issued
a new Notice to Appear (“NTA”), commencing removal proceedings once again. Id. Petitioner has
remained detained since his arrest pursuant to 8 U.S.C. § 1225(b) and is currently detained at the
Otero County Processing Center in Chaparral, New Mexico. Doc. 1-6 (Petitioner’s Exhibit F);
Doc. 13 at 2.
1 Section 236 of the INA corresponds to Section 1226 in the U.S. Code (8 U.S.C. § 1226).
Likewise, Section 235 of the INA corresponds to Section 1225 in the U.S. Code (8 U.S.C. § 1225).
The parties sometimes cite directly to the INA in their briefing and exhibits. Throughout this
opinion, the Court will cite to the U.S. Code.
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II.
PROCEDURAL BACKGROUND
On October 30, 2025, Petitioner filed a Petition for Writ of Habeas Corpus. In the Petition,
Mr. Requejo Roman contends that the Board of Immigration Appeals’ (“BIA”) recent decision in
Matter of Yajure Hurtado, 29 I&N Dec. 216, 220 (BIA 2025), prevents him from seeking bond by
altering the Government’s longstanding interpretation of key provisions of the INA. See Doc. 1 at
¶¶ 37-41. Namely, based on Matter of Hurtado, Petitioner was classified as an “applicant for
admission” subject to mandatory detention under 8 U.S.C. § 1225 and is thus ineligible for a bond
hearing. Doc. 1 at ¶ 5. Petitioner argues that the Government’s—and the BIA’s—new interpretation
of the INA defies the statute’s plain text, and that 8 U.S.C. § 1226, rather than § 1225, applies to
Petitioner and entitles him to a bond hearing. Id. at ¶¶ 42-43. Petitioner alleges that his continued
detention without such a hearing violates his procedural and substantive due process rights under
the Fifth Amendment, as well as the APA. Id. at ¶¶ 51-72. The Petition asks that this Court to:
(1) Assume jurisdiction over this matter;
(2) Enjoin Respondents from transferring Petitioner outside the jurisdiction of the El Paso
Field Office and the District of New Mexico pending resolution of the Petition;
(3) Order Respondents to show cause why the writ should not be granted within three days,
and set a hearing on this Petition within five days of the return;
(4) Declare that Petitioner’s detention violates the Due Process Clause of the Fifth
Amendment;
(5) Declare that Petitioner’s detention violates the Administrative Procedure Act;
(6) Grant a writ of habeas corpus ordering Respondents to immediately release Petitioner
from custody on his own recognizance or under parole, bond, or reasonable conditions
of supervision, or, in the alternative, order Respondents to provide a prompt and
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individualized bond hearing before a neutral IJ applying the standards under 8 U.S.C.
§ 1226(a).
Id. at 22-23.
The Court issued an Order to Show Cause on December 2, 2025. Doc. 10. On December
9, 2025, the United States submitted its Response to the Petition, arguing that Petitioner is
appropriately classified under § 1225 and that Petitioner’s APA claim is barred as relief is properly
sought via habeas. Doc. 13 at 2. The Government contends that § 1226 governs the detention of
noncitizens who lawfully entered the United States but who are no longer lawfully present, id. at
8, whereas § 1225 applies to all noncitizens who enter the country without being admitted, id. at
9. In the Government’s view, Matter of Hurtado, which affirmed this interpretation, prevents an
“‘incongruous result’ that rewards [noncitizens] who unlawfully enter the United States without
inspection and subsequently evade apprehension for a number of years.” Id. at 10 (citing Matter
of Hurtado, 29 I&N Dec., at 228). Moreover, the Government argues that the plain language of
the INA mandates detention of all noncitizens present in the U.S. without having been lawfully
admitted, id. at 13, and that “past practice does not justify disregard of clear statutory language[,]”
id. at 14. Respondents cite to four district court opinions adopting this interpretation,2 while
“acknowledge[ing] that a number of courts have made contrary findings on this emergent issue.”
Id. at 16 (citing Petitioner’s Petition, which cites over 70 district court cases rejecting the
Government’s position). In the alternative, should the Court find that Petitioner should be classified
under § 1226, Respondents argue that the appropriate relief would be a bond hearing with the
2 Specifically, Respondents cite to Vargas Lopez v. Trump, --F.Supp.3d--, 2025 WL 2780351 (D.
Neb. Sept. 30, 2025); Chavez v. Noem, --F.Supp.3d--, 2025 WL 2730228 (S.D. Cal. Sept. 24,
2025); Mejia Olalde v. Noem, 2025 WL 3131942 (E.D. Mo. Nov. 10, 2025); and Pena v. Hyde,
2025 WL 2108913 (D. Mass July 28, 2025).
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standard procedures, rather than release or a bond hearing with the burden shifted to the
Government to justify detention. Id. at 16-17.
On December 11, 2025, Petitioner submitted a Reply in support of his Petition. Doc. 14.
In it, Petitioner emphasizes that Respondents’ argument “not only upends nearly three decades of
settled agency practice and judicial interpretation on 8 U.S.C. § 1225 and § 1226, but also
contravenes the plain language of the statute.” Id. at 3. The Reply argues that in order to remedy
the due process violation alleged in this case, Mr. Requejo Roman is entitled to a bond hearing at
which the Government bears the burden of proof, or, alternatively, to immediate release. Id. at 7.
Finally, Petitioner reiterates his argument that his classification under § 1225 violates the APA
because it is “arbitrary, capricious, and not in accordance with law.” Id. at 10.
At the hearing in this matter, the parties discussed their respective positions on the merits
of the case and on Petitioner’s request for attorney’s fees. See Doc. 18 at 2. The Court ruled in
favor of Petitioner at the hearing, granting the habeas petition in part and ordering that Respondents
provide Petitioner with a bond hearing within seven days of the hearing, at which the Government
will bear the burden of proving, by clear and convincing evidence, that Petitioner is a flight risk
and/or danger to the community and his continued detention is thus justified. Id. See also Doc. 19
(memorializing in writing the Court’s Order at the hearing). The Court took Petitioner’s request
for fees under advisement, allowing Petitioner to submit an application for fees, with argument,
within 30 days of the hearing, and allowing the Government to respond within 14 days of
Petitioner’s application.
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III.
LEGAL STANDARDS
Habeas relief is available when a person “is in custody in violation of the Constitution or
laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3). Petitioner seeks habeas relief,
arguing he is being unlawfully detained in violation of the INA, his Fifth Amendment due process
rights, and the Administrative Procedure Act.
The Fifth Amendment’s Due Process Clause prohibits the Government from depriving any
person of liberty without due process of law. Courts analyze procedural due process claims in two
steps: the first asks whether there exists a protected liberty interest under the Due Process Clause,
and the second examines the procedures necessary to ensure any deprivations of that protected
liberty interest accords with the Constitution. See Ky. Dep’t of Corrections v. Thompson, 490 U.S.
454, 460, 109 S.Ct. 1904 (1989). “Freedom from imprisonment—from government custody,
detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.”
Zadvydas v. Davis, 533 U.S. 678, 690, 121 S.Ct. 2491 (2001). The Due Process Clause’s
protections extend to all persons in the United States, including noncitizens, “whether their
presence here is lawful, unlawful, temporary, or permanent.” Id. at 693.
The Due Process Clause also has a substantive component that requires the application of
strict scrutiny whenever the Government infringes on a fundamental liberty interest.
“[G]overnment detention violates [the due process clause] unless the detention is ordered in a
criminal proceeding with adequate procedural protections or, in certain special and narrow
nonpunitive circumstances where a special justification . . . outweighs the individual’s
constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690
(cleaned up). See also Hasan v. Crawford, --F.Supp.3d--, 2025 WL 2682255, at *10 (E.D. Va. Sept.
19, 2025) (analyzing substantive due process).
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IV.
DISCUSSION
A. Meaning of Section 1225 vs. 1226
1. Statutory Framework
The INA contemplates two detention regimes for noncitizens with pending removal
proceedings. The first, 8 U.S.C. § 1225, mandates detention of noncitizens subject to expedited
removal under § 1225(b)(1)3 and certain “applicant[s] for admission” under § 1225(b)(2). “[I]n the
case of [a noncitizen] who is an applicant for admission, if the examining immigration officer
determines that [a noncitizen] seeking admission is not clearly and beyond a doubt entitled to be
admitted, the [noncitizen] shall be detained” for removal proceedings, absent some extraordinary
circumstances not applicable here. § 1225(b)(2)(A) (emphasis added). “Applicant for admission”
is a term of art defined in the statute as someone “present in the United States who has not been
admitted or who arrives in the United States[.]” § 1225(a)(1). Noncitizens detained under § 1225
are not entitled to bond hearings. See Jennings v. Rodriguez, 583 U.S. 281, 297, 138 S. Ct. 830,
842 (2018).
By contrast, 8 U.S.C. § 1226 provides that “[o]n a warrant issued by the Attorney General,
[a noncitizen] may be arrested and detained pending a decision on whether the [noncitizen] is to
be removed from the United States.” § 1226(a) (emphasis added). Subject to some limited
3 This applies to any noncitizen “arriving in the United States” or “who has not been admitted or
paroled into the United States, and who has not affirmatively shown, to the satisfaction of an
immigration officer, that the [noncitizen] has been physically present in the United States
continuously for the 2-year period immediately prior to the date of the determination of
inadmissibility under this subparagraph.” § 1225(b)(1)(A)(i)-(iii). The parties here seem to agree
that Petitioner has been in the U.S. since 2022, Doc. 1 at ¶ 1; Doc. 13 at 2, and this is confirmed
by the NTA issued to Petitioner back in 2022, Doc. 1-3. He is thus is not subject to § 1225(b)(1).
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exceptions for noncitizens with certain criminal charges, arrests, or the like, see § 1226(c),4 this
section further provides that the Attorney General may release a noncitizen on bond or conditional
parole. § 1226(a)(1)-(2). Under federal regulations, noncitizens detained under § 1226(a) are
entitled to individualized bond hearings at the outset of detention. Jennings, 583 U.S. at 306, 138
S. Ct. at 847 (2018) (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)).
2. Government’s New Statutory Interpretation
Respondents acknowledge that for many years, the INA distinguished between noncitizens
entering the United States and those already present within the country. See Doc. 13 at 5. Earlier
this year, however, the Government changed its position, adopting a new interpretation of sections
1225 and 1226 that narrows the group of noncitizens eligible for bond hearings. In a policy memo
issued in July 2025, Immigration and Customs Enforcement (“ICE”) Director Todd Lyons directed
ICE to apply § 1225 to all noncitizens who entered the country without being admitted or paroled,
regardless of when they entered. Internal Memorandum from Todd Lyons to all ICE Employees,
“Interim Guidance Regarding Detention Authority for Applicants for Admission” (July 8, 2025).
Since then, hundreds of noncitizens who previously would have been afforded a bond hearing
pursuant to § 1226 have instead been mandatorily detained under § 1225.
On September 5, 2025, the Board of Immigration Appeals (“BIA”) adopted the position
announced in the Lyons Memo through its decision in Matter of Yajure Hurtado, 29 I&N Dec. 216
(BIA 2025). Bound by this decision, IJs have begun systemically denying bond to “applicants for
admission,” citing a lack of jurisdiction to grant bond based on Matter of Hurtado.
4 The Laken Riley Act, passed in 2025, expanded the criminal convictions that mandate detention
under subsection (c). Pub. L. No. 119-1, § 2, 139 Stat. 3 (2025) (codified as amended at §
1226(c)(1)(E)).
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3. Appropriate Construction of 1225 vs. 1226
In support of their newly adopted interpretation of the INA, Respondents argue that
deference to the Executive Branch is appropriate in the immigration context because of “the
political branches’ broad power over immigration” and the “broad discretion” delegated to
executive officials by Congress under the INA. Doc. 13 at 12. While this observation may be true
with regard to immigration proceedings in general, there is no question that “[i]t is emphatically
the province and duty of the judicial department to say what the law is[,]” leaving to the courts the
task of interpreting both federal statutes and the United States Constitution. Marbury v. Madison,
5 U.S. 137, 177, 2 L.Ed. 60 (1803). While courts may be informed by the Executive Branch’s
interpretation of a given statute, the Supreme Court has recently made clear that an agency’s
interpretation of the law cannot supersede that of the courts. See Loper Bright Enters. v. Raimondo,
602 U.S. 369, 386, 144 S.Ct. 2244 (2024). Accordingly, this Court considers DHS’s history of
interpreting the detention provisions in the INA—including its newly announced position on who
is subject to mandatory detention—but exercises its independent judgment in interpreting the
relevant provisions of the law. Similarly, the Court is informed—but not bound—by the BIA’s
interpretation of the law articulated in Matter of Hurtado.
Upon an independent analysis of the appropriate construction of sections 1225 and 1226,
the Court finds that DHS and the BIA’s novel interpretation of the law is inconsistent with the
statute’s plain text and structure, legislative and regulatory history, and the Supreme Court’s own
understanding of the INA’s detention framework. See Jennings v. Rodriguez, 583 U.S. at 299, 303.
This finding is in accord with the vast majority of federal courts—including one appellate court—
that have confronted challenges to the Government’s new interpretation of the INA’s detention
provisions. See, e.g., Castañon-Nava v. U.S. Dep’t of Homeland Security, --F.4th--, 2025 WL
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3552514 (7th Cir. 2025) (granting in part an emergency motion to stay); Velasquez Salazar v.
Dedos, --F.Supp.3d--, 2025 WL 2676729 (D.N.M. Sept. 17, 2025); Cortez-Gonzalez v. Noem, --
F.Supp.3d--, 2025 WL 3485771 (D.N.M. Dec. 4, 2025) (issuing a temporary restraining order);
Mendoza Gutierrez v. Baltazar, 2025 WL 2962908 (D. Colo. Oct. 17, 2025) (issuing a temporary
restraining order) (appeal pending); Rodriguez v. Bostock, --F.Supp.3d--, 2025 WL 2782499 (W.D.
Wash. Sept. 30, 2025).
a. Statutory Text and Structure
Statutory construction begins with the text, and where a statute’s language is plain, the
inquiry ends there as well. United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026
(1989). The plain language of § 1225 demonstrates that noncitizens in Petitioner’s position are not
subject to mandatory detention under this section. The relevant subsection provides that in the case
of a noncitizen “who is an applicant for admission, if the examining immigration officer determines
that [a noncitizen] seeking admission is not clearly and beyond a doubt entitled to be admitted, the
[noncitizen] shall be detained” pending removal proceedings. 8 U.S.C. § 1225(b)(2)(A) (emphasis
added). The Government is right that the statute’s definition of “applicant for admission” is broad
enough to encompass those present in the United States without having been lawfully admitted,
no matter how long they have been in the country.5 However, the mandatory detention provision
does not apply to all applicants for admission, but rather only those applicants for admission who
are seeking admission and have not been deemed admissible by an examining immigration officer.
Several courts have read “seeking admission” to refer only to noncitizens who recently arrived and
are actively seeking admission, not those who have been in the country for years. See Martinez v.
5 8 U.S.C. § 1225(a)(1) states that a noncitizen “present in the United States who has not been
admitted or who arrives in the United States . . . shall be deemed for purposes of this chapter an
applicant for admission.”
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Hyde, 792 F.Supp.3d 211, 218 (D. Mass. 2025); Lopez Benitez v. Francis, 795 F.Supp.3d 475, 487-
89 (S.D.N.Y. 2025); Cardona-Lozano v. Noem, 2025 WL 3218244, at *4 (W.D. Tex. Nov. 14,
2025). And despite the Government’s contention that the Illegal Immigration Reform and
Responsibility Act (“IIRIRA”) eliminated any “preferential treatment” given to noncitizens who
entered the country and “managed to evade detection,” see Doc. 13 at 6, noncitizens falling into
this category, plainly speaking, have never encountered an “examining immigration officer,” let
alone had one determine that they are not entitled to be admitted. They are thus not covered by the
plain language of the INA’s mandatory detention provision.
Section 1225’s title—“Inspection by immigration officers; expedited removal of
inadmissible arriving aliens; referral for hearing”—further confirms the meaning of the statute’s
underlying text. The title specifically refers to noncitizens who are “arriving.” To “arrive” means
to reach a destination,6 and use of the present participle form (“arriving”) suggests the provision
applies to those still in the process of reaching their destination—in this case, those noncitizens
who are currently or have just recently arrived in the country. The plain, dictionary definition of
“arriving” does not accurately describe a person who arrived to the country years ago. This
suggests that § 1225’s mandatory detention provisions do not apply to noncitizens already present
in the United States.
The Court’s inquiry could end there. However, other principles of statutory construction
further undermine Respondents’ position. For example, “[t]he rule against surplusage encourages
courts to give meaning to every word used in a statute . . . embody[ing] the belief that Congress
would not have included superfluous language.” Nutraceutical Corp. v. Von Eschenbach, 459 F.3d
6 Arrive, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/arrive (last visited
January 12, 2026).
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1033, 1039 (10th Cir. 2006). The Government’s new interpretation of the INA’s detention
provisions offends this rule by rendering key provisions of § 1226 superfluous. Section
1226(c)(1)(E)(i)-(ii) states that certain inadmissible noncitizens, including those who entered
without inspection, are ineligible for bond if charged with, arrested for, or convicted of certain
crimes. Congress added these provisions to § 1226 just this year through the passage of the Laken
Riley Act. Pub. L. No. 119-1, § 2, 139 Stat. 3 (2025) (codified as amended at § 1226(c)(1)(E)).
Surely, Congress intended the Laken Riley Act to effectuate a meaningful change in the law. But
under the Government’s new interpretation of § 1225, all noncitizens who entered without
inspection—not just those implicated in certain crimes—are ineligible for bond. This would render
the newly codified subsections superfluous and without meaningful effect. The rule against
surplusage counsels against such an interpretation and is particularly persuasive in this case given
Congress’s recent amendments to the law.
b. Legislative and Regulatory History
The legislative history of the INA and longstanding agency practice provides additional
insight into Congress’s intended detention framework. The current language of sections 1225 and
1226 was codified through the Illegal Immigration Reform and Responsibility Act. When the law
was passed, Congress clarified that the new detention provision enacted by IIRIRA, § 1226,
“restates the current provisions in [the predecessor statute] regarding the authority of the Attorney
General to arrest, detain, and release on bond [a noncitizen] who is not lawfully in the United
States.” H.R. Rep. No. 104-469, pt. 1, at 229. An interim rule promulgated shortly after IIRIRA’s
passage confirms this. 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, [noncitizens] who are present without having
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been admitted or paroled (formerly referred to as [noncitizens] who entered without inspection)
will be eligible for bond and bond redetermination.”). Finally, in the decades since IIRIRA was
passed, the Government continued to treat noncitizens arrested while already present in the United
States as subject to § 1226. See Matter of Hurtado, 29 I&N, at 225 n.6. While agency practice is
not binding on this Court, see Loper Bright Enters., 603 U.S. at 387, 399, it is informative of the
executive branch’s understanding of the statute. And until very recently, DHS and ICE seemingly
viewed IIRIRA’s impact on the INA’s detention framework as minimal.
The Government now contends that the passage of IIRIRA eliminated the distinction
between noncitizens entering the United States and those already present in the country, focusing
on a noncitizen’s lawful admission into the country, rather than mere entry. Doc. 13 at 6. This was
intended to eliminate an anomaly whereby noncitizens “who have entered the United States
without inspection gain equities and privileges in immigration proceedings that are not available
to [noncitizens] who present themselves for inspection at a port of entry.” H.R. Rep. 104-469, pt.
1, at 225 (outlining the “Revision of Procedures for Removal of Aliens”) (emphasis added).
According to the Government, sections 1225 and 1226 were included in this shift, subjecting all
“applicants for admission” to mandatory detention, including those already present in the United
States without having been lawfully admitted. Doc. 13 at 6.
While IIRIRA certainly enacted a shift in this country’s immigration system, the Court
disagrees that it effected such a drastic change in the INA’s pre-removal detention framework. See
Rodriguez v. Bostock, --F.Supp.3d--, 2025 WL 2782499, at *24 (W.D. Wash. Sept. 30, 2025)
(analyzing IIRIRA’s legislative history and likewise concluding that it placed all noncitizens on
equal footing in removal proceedings but did not eliminate preexisting distinctions with respect to
detention). The legislative and regulatory materials described above suggest that even at the time
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of IIRIRA’s passage, Congress and the executive branch understood that noncitizens present in the
country without having been admitted or paroled would still be eligible for bond, despite being
“applicants for admission” under the statute’s updated language. And in the nearly thirty years
since IIRIRA’s passage, noncitizens present in the country without having been lawfully admitted
were afforded bond hearings under § 1226. If this was not what Congress intended to happen when
it passed IIRIRA, it had decades to amend or clarify the statutory language—which it did not do.
The Court also rejects the idea that its holding “rewards [noncitizens] who unlawfully enter
the United States without inspection and subsequently evade apprehension for [a] number of
years.” Doc. 13 at 10 (citing Matter of Hurtado, 29 I&N Dec., at 228). Noncitizens entitled to bond
hearings under § 1226 still face the prospect of removal, which is certainly no reward. Even if a
noncitizen is released on bond under § 1226, his removal proceedings continue. And by
emphasizing the importance of admission rather than entry, IIRIRA places these noncitizens “on
equal footing in removal proceedings under the INA.” Torres v. Barr, 976 F.3d 918, 928 (9th Cir.
2020). Congress’s interest in eliminating any advantage in removal proceedings for this group of
noncitizens does not carry the same weight in the context of pre-removal detention. As another
district court put it, “[t]he mass detention of these individuals—without regard to flight risk or
danger to the public—is far more disruptive to local American economies, families, and
communities than the detention of noncitizens who have just crossed the border.” Rodriguez v.
Bostock, --F.Supp.3d--, 2025 WL 2782499, at *24.
c. The Supreme Court’s Perspective
The Respondents’ interpretation of sections 1225 and 1226 also contravenes the Supreme
Court’s implicit understanding of the detention framework set forth in the INA. The Supreme Court
described its view of the INA’s detention provisions in the post-IIRIRA case of Jennings v.
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Rodriguez, 583 U.S. 281, 138 S.Ct. 830 (2018). The Court recognized, for instance, that § 1225(b)
“applies primarily to [noncitizens] seeking entry into the United States,” id. at 297 (emphasis
added), whereas § 1226 “applies to [noncitizens] already present in the United States[,]” id. at 303
(emphasis added). For the latter category of noncitizens, § 1226(a) permits—but does not
require—the Attorney General to issue warrants for their arrest and detention, while also
permitting their release on bond subject to the exceptions in subsection (c). Id.
This view of the statutory language from the nation’s highest court is instructive. Though
not necessary to its holding and likely not binding on this Court, the Supreme Court’s description
of these provisions demonstrates their likely interpretation of the statute’s intended framework.
Importantly, the Supreme Court assumed, without analyzing, that noncitizens already present in
the United States are subject to the discretionary detention provisions in § 1226, not mandatory
detention under § 1225. This does not square with the Government’s new theory that detention is
mandated for this subset of noncitizens.
d. Significant Persuasive Authority
The vast majority of federal courts who have examined this particular issue in recent
months—including one circuit court—have rejected the Government’s interpretation of sections
1225 and 1226. See, e.g., Castañon-Nava v. Department of Homeland Security, --F.4th--, 2025 WL
3552514 (7th Cir. 2025) (granting in part an emergency motion to stay); Velasquez Salazar v.
Dedos, --F.Supp.3d--, 2025 WL 2676729 (D.N.M. Sept. 17, 2025) (granting habeas petition);
Cortez-Gonzalez v. Noem, --F.Supp.3d--, 2025 WL 3485771 (D.N.M. Dec. 4, 2025) (issuing a
temporary restraining order); Mendoza Gutierrez v. Baltazar, 2025 WL 2962908 (D. Colo. Oct.
17, 2025) (issuing a temporary restraining order) (appeal pending); Cardona-Lozano v. Noem,
2025 WL 3218244 (W.D. Tex. Nov. 14, 2025) (granting habeas petition); Aguilar v. Bondi, --
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F.Supp.3d--, 2025 WL 3471417 (W.D. Tex. Nov. 26, 2025) (granting habeas petition); Rodriguez
v. Bostock, --F.Supp.3d--, 2025 WL 2782499 (W.D. Wash. Sept. 30, 2025) (granting plaintiffs’
motion for partial summary judgment and denying Government’s motion to dismiss); Martinez-
Elvir v. Olson, --F.Supp.3d--, 2025 WL 3006772 (W.D. Ky. Oct. 27, 2025) (granting habeas
petition); Belsai v. Bondi, --F.Supp.3d--, 2025 WL 2802947, at *5 (D. Minn. Oct. 1, 2025) (granting
habeas petition and collecting cases). See also Doc. 1 at ¶ 46 (citing 71 district court cases rejecting
DHS’s and BIA’s new position regarding § 1225).
At least four courts have found otherwise, as cited by Respondents. See Vargas Lopez v.
Trump, --F.Supp.3d--, 2025 WL 2780351 (D. Neb. Sept. 30, 2025); Chavez v. Noem, --F.Supp.3d-
-, 2025 WL 2730228 (S.D. Cal. Sept. 24, 2025); Mejia Olalde v. Noem, 2025 WL 3131942 (E.D.
Mo. Nov. 10, 2025); and Pena v. Hyde, 2025 WL 2108913 (D. Mass July 28, 2025). The Court has
reviewed the opinions in these cases and finds them unpersuasive. In finding their respective
petitioners—all noncitizens already present in the United States—subject to mandatory detention
under § 1225, each of these courts focused on the petitioners’ status as “applicants for admission.”
In doing so, all but one court completely ignored the language in § 1225(b)(2)(A) mandating
detention of applicants for admission only “if the examining immigration officer determines that
[a noncitizen] seeking admission is not clearly and beyond a doubt entitled to be admitted.” See
Mejia Olalde, 2025 WL 3131942, at *3 (addressing and rejecting Petitioner’s argument regarding
only the “seeking admission” language). And even in Mejia Olalde, the court conflated the
definition of “seeking admission” with “applicant for admission,” seemingly taking the position
that all applicants for admission are, by definition, “seeking admission.” See Mejia Olalde, 2025
WL 3131942, at *3. This ignores the ordinary meaning of “seeking” and would create an
unnecessary redundancy in the statute—two results that flout basic rules of statutory construction.
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See Hernandez v. Baltazar, 2025 WL 2996643, at *5 (D. Colo. Oct. 24, 2025) (“For a noncitizen
to be deemed ‘seeking admission,’ they must be currently taking active steps or some kind of
present-tense action to seek lawful entry into the U.S.”) (citing Martinez v. Hyde, 792 F.Supp.3d
at 218); Garcia v. Holt, 2025 WL 3516071, at *3 (W.D. Okla. Dec. 8, 2025) (“[I]f all applicants
for admission are also ‘seeking admission,’ then § 1225(b)(2)(A)’s inclusion of the phrase ‘seeking
admission’ would be redundant and courts should avoid statutory interpretations that ‘make any
part [of the statute] superfluous.’”) (citing Fuller v. Norton, 86 F.3d 1016, 1024 (10th Cir. 1996)).
While the Court is not bound to follow any of the above-cited decisions, after independent
consideration of the statutory language and in light of DHS’s longstanding practice, this Court
joins the 70+ courts who have found that, under the INA, noncitizens already present in the United
States are subject to discretionary detention and entitled to a bond hearing.
B. Petitioner’s Classification
Applying this understanding of the INA’s detention provisions to the facts of this case is
relatively straightforward. The parties do not dispute the underlying facts alleged in the Petition.
See Doc. 18 at 2. Petitioner entered the United States without inspection in 2022. Doc. 1 at ¶ 18;
Doc. 13 at 2. The arrest and detention that forms the basis of this Petition occurred after a traffic
stop in Virginia on October 14, 2025, Doc. 1 at ¶ 20; Doc. 13 at 2, nowhere near the border or
another port of entry. At the time of his arrest, Petitioner had been present in the United States for
over three years. Petitioner was certainly an “applicant for admission,” as someone who was
“present in the United States who has not been admitted . . .” § 1225(a)(1). However, he was not
actively “seeking admission” into the country, and the information before this Court does not show
that an “examining immigration officer [determined] that [Petitioner] is not clearly and beyond a
doubt entitled to be admitted.” § 1225(b)(2)(A). There is no indication in the record that Petitioner
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encountered an immigration officer before or during his arrest. Accordingly, Petitioner is not
subject to mandatory detention under § 1225 and instead is entitled to a bond hearing pursuant to
§ 1226.
C. Procedural Due Process
Because Petitioner is subject to § 1226’s discretionary detention provision rather than
mandatory detention under § 1225, he is entitled to a bond hearing. See Jennings v. Rodriguez, 583
U.S. at 306 (“Federal regulations provide that [noncitizens] detained under § 1226(a) receive bond
hearings at the outset of detention.”) (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)). See also Doc.
13 at 2 (acknowledging that, should the Court find § 1226 applies to Petitioner, he would be entitled
to a bond review). Classifying Petitioner under § 1225 has thus deprived him of due process by
denying him the opportunity to be heard at such a hearing. See Salazar, --F.Supp.3d--, 2025 WL
2676729, at *5; Barreno v. Baltasar, 2025 WL 3190936, at *1-*2; Lopez-Campos v. Raycraft, 979
F.Supp.3d 771, 785 (E.D. Mich. 2025).
The Court now must consider Petitioner’s argument that due process requires the
Government to bear the burden of proof at said bond hearing. See Doc. 14 at 8-9. The statute is
silent as to who bears the burden of proving a noncitizen’s eligibility for bond under § 1226(a),
but federal regulations and a BIA decision suggests that, under normal circumstances, the burden
is on the noncitizen to demonstrate that their “release would not pose a danger to property or
persons, and that the [noncitizen] is likely to appear for any future proceeding.” 8 C.F.R. §
236.1(c)(8). See also In Re Adeniji, 22 I&N Dec. 1102, 1116 (BIA 1999). But these are not normal
circumstances. The Court must assess what due process requires at this point, after Petitioner has
been unlawfully detained without due process, in violation of his constitutional rights, for nearly
three months.
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In determining what procedures sufficiently protect due process in the immigration context,
courts have applied the framework established in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893
(1976).7 See, e.g., Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321 (1982); Rodriguez Diaz v.
Garland, 53 F.4th 1189, 1206-07 (9th Cir. 2022) (assuming without deciding that Mathew applies);
Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020); Hernandez v. Cremer, 913 F.2d 230,
238 (5th Cir. 1990). Several district courts within the Tenth Circuit, too, have applied Mathews
when addressing the exact issue before the Court in this case—the classification of a noncitizen
under § 1225 and resultant denial of a bond hearing. See, e.g., Hernandez-Parrilla v. de Anda-
Ybarra, 2025 WL 3632769, at *5 (D.N.M. Dec. 15, 2025); Barreno v. Baltasar, 2025 WL 3190936,
at *3 (D. Colo. Nov. 14, 2025); Garcia Cortes v. Noem, 2025 WL 2652880, at *4 (D. Colo. Sept.
16, 2025). In determining the process due an individual, Mathews requires the Court to balance (1)
the private interest affected by the official action, (2) the risk of erroneous deprivation of such
interest through the procedures used and the probable value of additional or different procedural
safeguards, and (3) the Government’s interest, including the fiscal and administrative burdens that
the additional or substitute procedures would entail. 424 U.S. at 335.
All three Mathews factors weigh in favor of affording Petitioner a bond hearing at which
the Government bears the burden of proof. First, the private interest at stake for Petitioner is his
liberty. As Petitioner points out, an individual’s interest in being free from detention is “the most
7 In Salazar v. Dedos, in addition to applying Mathews, this Court considered the framework
applicable to involuntary civil detention. See –F.Supp.3d--, 2025 WL 2676729, at *8 (citing Diaz-
Ceja v. McAleenan, 2019 WL 2774211, at *9 (D. Colo. 2019)). However, upon further review and
after more federal courts have weighed in on the issue, the Court finds that the Mathews factors
are “most appropriate when determining what process is constitutionally due” in the context of a
procedural due process claim. L.G. v. Choate, 744 F.Supp.3d 1172, 1181 (D. Colo. 2024). The
framework used in Diaz-Ceja, by contrast, best addresses issues of substantive due process.
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elemental of liberty interests.” Doc. 1 at ¶ 55 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124
S.Ct. 2633 (2004)). Accordingly, the first Mathews factor weighs in Petitioner’s favor.
The second Mathews factor also weighs in favor of shifting the burden at a future bond
hearing. Given that Petitioner is appropriately classified under § 1226 and subject to discretionary
detention, the risk of erroneously depriving him of his freedom is high if no IJ has assessed his
risk of flight or dangerousness. See Lopez-Campos, 797 F.Supp.3d at 785. This risk is even more
pronounced in this case, as the evidence shows that Mr. Requejo Roman was released on bond in
2022 after an IJ determined he was neither a flight risk nor a danger to the community. Doc. 1 at ¶
18 (citing Ex. D). See also id. at ¶ 56. Requiring the Government to justify detention reduces the
risk of an ongoing and erroneous deprivation of Petitioner’s liberty. See L.G. v. Choate, 744
F.Supp.3d at 1183-84 (offering additional reasons why, when there are due process concerns,
Mathews’ second factor supports shifting the burden to the Government in a bond hearing).
Finally, on the third Mathews factor, the Government’s interest in protecting the community
and ensuring Petitioner’s appearance at his removal proceedings is certainly weighty. See id. at
1185 (citing Zadvydas v. Davis, 533 U.S. at 690). But this interest dissolves if Petitioner is not a
flight risk or a danger to his community. As Petitioner points out, an IJ already determined in 2022
that Mr. Requejo Roman was neither a flight risk nor a danger when he was released on bond the
first time, and the Government has not demonstrated any change in circumstances since then. Doc.
1 at ¶ 57. In this case, where Petitioner has previously proven he is not a flight risk or a danger,
the Court finds the Government has no interest in detaining Petitioner absent a showing by them
that the circumstances have changed such that Petitioner’s continued detention is justified on flight
risk and/or dangerousness grounds. This finding supports shifting the burden to the Government
during his forthcoming bond hearing.
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Nor does shifting the burden of proof impose an unreasonable administrative or fiscal
burden on the Government—a key consideration within Mathews’ third factor. The United States
has vast resources at its disposal to gather information about Petitioner’s eligibility for bond. And
requiring the Government to justify detention may actually promote their separate interest in
conserving resources and managing overcrowding at ICE detention facilities. See Velasco Lopez v.
Decker, 978 F.3d 842, 854 (2d. Cir. 2020). This, too, weighs in favor of shifting the burden to the
Government.
Respondents do not address Mathews but assert that “should the Court find § 1226 applies
to Petitioner, the appropriate relief would be such classification and entitlement to a bond review,
with all standard procedures and applicable burdens of proof.” Doc. 13 at 2. The Government
argues that even in cases where additional due process and individualized procedures are
applicable, it remains the petitioner’s burden to show eligibility for release or bond. Id. at 11 (citing
Demore v. Kim, 538 U.S. 510, 532, 123 S.Ct. 1708 (2003) (Kennedy, J., concurring)). However,
the concurring opinion cited by the Government pertains to a noncitizen mandatorily detained
under § 1226(c). The situation is different here where Petitioner is subject to § 1226(a) and has
previously proven he is not a flight risk or a danger.
Throughout its Response, the Government also repeatedly cites U.S. Dep’t of Homeland
Security v. Thuraissigiam, 591 U.S. 103, 109-13, 140 S.Ct. 1959 (2020), for the proposition that
“applicants for admission” are entitled to no more due process than that afforded by statute. Even
if this applied in the detention context, which some courts have questioned, see Santiago v. Noem,
2025 WL 2792588, at *7-*10 (W.D. Tex. Oct. 2, 2025), this Court has determined that Petitioner
is appropriately classified under § 1226. He is thus entitled to a bond hearing under the INA and
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its implementing regulations. Thuraissigiam therefore does not defeat Petitioner’s due process
claim.
In sum, the Government’s misclassification of Petitioner under § 1225 deprived him of a
bond hearing in violation of his due process rights. To address this violation, due process requires
that he be provided a bond hearing at which the Government bear the burden of proving that
Petitioner is not a flight risk or a danger to the community. Following L.G. v. Choate, the standard
of proof the Government must meet is one of “clear and convincing evidence.” 744 F.Supp.3d at
1186.
D. Petitioner’s Additional Claims
Petitioner also alleges that his ongoing detention violates his substantive due process
rights and the Administrative Procedure Act. Doc. 1 at ¶¶ 59-72. Respondents do not address
Petitioner’s substantive due process argument, but they do argue that the APA claim should be
dismissed under 5 U.S.C. § 704, which subjects to judicial review only those agency actions “made
reviewable by statute” or “final agency action for which there is no adequate remedy in a court.”
Doc. 13 at 17-18. According to the Government, habeas is an “adequate remedy” for Petitioner to
challenge his detention and thus relief under the APA is not available. Id. at 18. In his Reply,
Petitioner points out that habeas is the vehicle through which he seeks relief, and the APA forms
the basis of one of his claims for relief. Doc. 14 at 10.
Analyzing Petitioner’s substantive due process claim requires the Court to weigh his
constitutionally protected interest in avoiding detention against the Government’s special
justification for detaining Petitioner without a bond hearing. Zadvydas, 533 U.S. at 690 (cleaned
up). Here, the Government has offered no special justification for this, beyond their interpretation
of § 1225 which this Court finds unpersuasive.
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Most courts addressing this issue have rested their decision on statutory and procedural due
process grounds, though some district courts analyzing this issue have also found a substantive
due process violation under similar facts. See Hasan v. Crawford, --F.Supp.3d--, 2025 WL
2682255, at *10-*11 (E.D. Va. Sept. 19, 2025) (finding a violation of procedural and substantive
due process); Escobar Salgado v. Mattos, --F.Supp.3d--, 2025 WL 3205356, at *25 (D. Nev. Nov.
17, 2025) (same). Neither issue was briefed in detail in this case, nor were they addressed at the
hearing in this matter. Because the Court has already found that procedural due process entitles
Petitioner to a bond hearing at which the Government bears the burden of justifying ongoing
detention, resolution of Petitioner’s APA and substantive due process claims is not necessary to
the outcome of this case. The Court therefore declines to rule on Petitioner’s additional claims.
E. Attorneys’ Fees
In his Petition, Petitioner requests that this Court award reasonable attorney’s fees and costs
pursuant to the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504, 28 U.S.C. § 2412. Doc. 1
at 23. The EAJA does provide for an award of attorney’s fees to a prevailing party in any civil
action brought against the United States, unless the Court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. §
2412(d)(1)(A). The Tenth Circuit recently held that the EAJA authorizes fees in habeas actions
challenging immigration detention. Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir. 2025).
However, neither party addressed in their briefing whether fees are warranted under the
EAJA—namely, whether the United States’s position in this case was substantially justified. After
discussing the issue briefly at the hearing in this matter, the Court ordered that Petitioner may
submit an application for fees, with argument as to why they are warranted under the EAJA, and
the Government may respond. The Court will therefore address Petitioner’s request for fees by
separate order after the parties have had an opportunity to brief the issue.
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V.
CONCLUSION
For the reasons stated above, and as ordered at the hearing in this matter, Petitioner’s
Petition for Writ of Habeas Corpus is DENIED as to immediate release but GRANTED as to a
bond hearing under § 1226. Petitioner may submit an application attorney’s fees within 30 days of
the hearing pursuant to 28 U.S.C. § 2412. Respondents may respond to Petitioner’s application for
fees no later than 14 days after Petitioner’s application is filed with this Court.
IT IS THEREFORE ORDERED that Respondents provide Petitioner an individualized
bond hearing before a neutral Immigration Judge within 7 days of the hearing in this matter, or
else release him from custody. At the bond hearing, the Government shall bear the burden of
proving, by clear and convincing evidence, that Petitioner is a flight risk and/or a danger to the
community in order to justify continued detention. The assigned IJ is hereby ordered not to deny
bond based solely on a lack of jurisdiction under Matter of Hurtado.
IT IS SO ORDERED.
HONORABLE DAVID HERRERA URIAS
UNITED STATES DISTRICT JUDGE
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