Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
NAZIR BORISOV,
Petitioner,
v. No. 2:25-cv-01315 JB-GJF
DORA CASTRO, Warden, Otero Processing
Center, et al.,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON PETITION FOR A
WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 (DKT. NO. 1)
THIS MATTER is before the Court on the Petition for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (Dkt. No. 1) (“Petition”) and Notice of Motion and Ex Parte Motion for
Temporary Restraining Order and Preliminary Injunction; Memorandum of Points and Authorities
(Dkt. No. 3) (“Preliminary Injunction Motion”), filed by Petitioner Nazir Borisov (“Petitioner” or
“Mr. Borisov”) on December 30, 2025.1 Respondents Mary De Anda-Ybarra, Todd M. Lyons,
Kristi Noem, and Pamela Jo Bondi (collectively, the “Federal Respondents”) filed a Motion to
Dismiss Petition for a Writ of Habeas Corpus (Dkt. No. 11) (“Motion to Dismiss”). Respondent
Dora Castro, Warden of the Otero County Processing Center where Petitioner is being held, is
separately represented and notified the Court that “she takes no positions separate from the USA
Respondents related to the Petition” and the Preliminary Injunction Motion and that she joins the
positions of the Federal Respondents in this matter. Notice, Dkt. No. 14. Petitioner filed a response
in opposition to the Federal Respondents’ motion to dismiss. Resp., Dkt. No. 15.
1 The undersigned files this Proposed Findings and Recommended Disposition (“PFRD”) pursuant to the presiding
judge’s Order of Reference (Dkt. No. 5).
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In accordance with Federal Rule of Civil Procedure 65(a)(2), the undersigned held an
evidentiary hearing by Zoom on the Preliminary Injunction Motion and the Motion to Dismiss and
considered the merits of the Petition on March 9, 2026. See Clerk’s Minutes, Dkt. No. 22. Neither
party objected to consolidation under Rule 65(a)(2). At the hearing, Petitioner requested an
opportunity to submit a supplemental brief, a request this Court granted to both parties. Only
Petitioner submitted a timely supplemental brief (Dkt. No. 24). This matter is ready for decision.
Having reviewed the Petition, the Preliminary Injunction Motion, the Motion to Dismiss,
the briefs, the evidence, the law, and the arguments of counsel, the Court recommends that the
Petition be granted as to Counts One and Two for violation of the Immigration and Nationality Act
(“INA”) and procedural due process and denied as to Counts Three and Four. The Court also
advises ordering an individualized bond hearing to be held within seven days. Consequently, and
for the same reasons, the Court recommends denying the Motion to Dismiss as to Counts One and
Two and granting it as to Counts Three and Four, but on different grounds than those argued by
Respondents. Given this recommendation regarding the merits of the Petition, the Court advises
that the Preliminary Injunction Motion should be denied as moot.
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 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 noncitizens2 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.
2 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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Buenrostro-Mendez v. Bondi, 166 F.4th 494, 500 (5th 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).3
According to the Federal Respondents, Petitioner is properly detained under §
1225(b)(2)(A) because he is an applicant for admission who is seeking admission, and his due
process rights are limited to the statutory rights provided in the INA. On the other hand, Petitioner
argues that Respondents did not properly revoke his parole and that his detention is unlawful. For
the reasons that follow, 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 without a bond hearing, as required by § 1226.
II. FACTUAL BACKGROUND
Nazir Borisov is 29 years old and a citizen of Russia. See Ex. A, Dkt. No. 1-1. He arrived
with his wife in the United States as an “arriving alien” at the San Ysidro, California, port of entry
on February 16, 2023, without valid documentation necessary for admissibility. See Ex. D, Dkt.
No. 1-4.4 The same day, he was issued a Form I-94 and released on his own recognizance. See
Gov.’s Ex. 1 at 3, Dkt. No. 11-1; Ex. B, Dkt. No. 1-2; Supp. Br, Ex. A, Dkt. No. 24-1.
3 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.
4 The parties dispute whether Petitioner arrived at the port of entry or crossed the border at a time and place other than
as designated by the Secretary. Compare Ex. D, Dkt. No. 1-4, with Gov.’s Ex. 1 at 2, Dkt. No. 11-1. The Notice to
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The Form I-94 is a U.S. Customs and Border Protection (“USCBP”) Arrival/Departure
Record, issued at the border and created electronically upon arrival, used to show a noncitizen’s
legal-visitor status. See Supp. Br., Ex. C, Dkt. No. 24-3; Ex. B, Dkt. No. 1-2. The I-94 printed from
the USCBP website functions as a “record of admission” of lawful admission or parole. See Gov.’s
Ex. 2, Dkt. No. 11-2. See also 8 C.F.R. § 1.4 (“The term Form I–94, as used in this chapter I,
includes the collection of arrival/departure and admission or parole information by DHS, whether
in paper or electronic format, which is made available to the person about whom the information
has been collected, as may be prescribed by DHS.”).
Petitioner’s Form I-94 lists “DT” as the “Class of Admission.” See Ex. B, Dkt. No. 1-2.
The “DT” code on the Form I-94 signifies that the alien has been paroled at the port of entry, and
the code was created to justify the reason for parole in specific cases. See Supp. Br., Ex. D, Dkt.
No. 24-4. “DT” Port of Entry Parole is the USCBP classification for an alien for whom an emergent
need exists under § 212(d)(5) and who does not present a security risk or a risk of absconding. See
Supp. Br., Ex. A at 1, Dkt. No. 24-1.
The Form I-94 also has an “Admit Until Date,” which is generally the date on (or before)
which the noncitizen must exit the United States. See Supp. Br., Ex. E, Dkt. No. 24-5 at 1; Ex. B,
Dkt. No. 1-2. According to Petitioner’s Form I-94, the “Admit Until Date” was February 15, 2024.
Ex. B, Dkt. No. 1-2.
On February 27, 2023, Petitioner filed an affirmative application of asylum with the U.S.
Citizenship and Immigration Services (“USCIS”) via Form I-589 Application for Asylum and for
Appear states that he was an arriving alien who applied for admission at the San Ysidro, CA port of entry on February
16, 2023. Ex. D at 1, Dkt. No. 1-4. The box “You are an alien present in the United States who has not been admitted
or paroled” was unmarked. Id. Even assuming Petitioner bears the burden to prove this fact, the Court notes that DHS’s
own charging document, which initiates the removal proceedings, asserts he applied for admission as an arriving alien.
For these reasons, the Court recommends finding that Petitioner arrived at the port of entry.
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Withholding of Removal. See Ex. C, Dkt. No. 1-3. The USCIS notified him that it received his
application and that he “may remain in the U.S. until [his] asylum application is decided.” Id.
Since his release, Petitioner has been living and working as a truck driver in the United
States. See Preliminary Injunction Mot. 4, Dkt. No. 3; Ex. B, Dkt. No. 1-2. His son was born in
New York on June 26, 2024. Preliminary Injunction Mot. 4, Dkt. No. 3. Petitioner attended all
check-in appointments with the DHS in New York. Id.
Petitioner received a Notice to Appear on or about December 19, 2024. Gov.’s Ex. 3 at 2,
Dkt. No. 11-3. The Notice ordered Petitioner to appear before an immigration judge on December
4, 2025, to show cause why he should not be removed from the United States as an “arriving alien”
under Section 212(a)(7)(A)(i)(I) of the INA, who at the time of his application for admission at
the port of entry was a non-citizen who did not possess valid entry documents. See id. at 1. On
November 5, 2025, however, the Executive Office for Immigration Review (“EOIR”) issued a
Notice of Cancellation of Immigration Hearing, canceling the December 4, 2025 hearing. See
Gov.’s Ex. 4, Dkt. No. 11-4.
At a DHS check-in on December 4, 2025, immigration officials detained Petitioner
pursuant to a Form I-200 Warrant of Arrest of Alien issued by an authorized immigration officer.
See Gov.’s Ex. 5, Dkt. No. 11-5. According to the Form I-213 prepared by DHS that same day,
Petitioner was “re-detained now that bedspace is available.” Gov.’s Ex. 1 at 3, Dkt. No. 11-1. That
same form stated that he had been “released on his own recognizance due to humanitarian reasons
and a lack of detention space.” Id. Petitioner was transferred to the Otero County Processing Center
in New Mexico. Petition ¶ 6, Dkt. No. 1; Gov.’s Ex. 6, Dkt. No. 11-6.
On January 14, 2026, Petitioner filed a defensive asylum application with the immigration
court, and the next day, an immigration judge sustained the charge of removal. See Respondents’
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Mot. 3, Dkt. No. 11. Petitioner had a master calendar hearing on February 5, 2026. Id. A hearing
on his defensive asylum application was set for March 16, 2026. See Hr’g Recording, ABQ-
GILa_20260309_134521 (Mar. 9, 2026) at 2:21-2:26 p.m. Petitioner’s affirmative asylum
application is still pending in parallel before USCIS. See id.
III. PROCEDURAL HISTORY
Petitioner filed this habeas action on December 30, 2025, principally complaining of his
re-detention after parole without being afforded a bond hearing. Petition, ¶¶ 38-113, Dkt. No. 1.
Petitioner brings four claims for relief: (1) violation of the Due Process Clause; (2) violation of the
INA and applicable regulations based on his detention; (3) violation of the INA and applicable
regulations based on the revocation of his parole; and (4) violation of the Administrative
Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). Id. at ¶¶ 91-113.
Petitioner requests eight forms of relief: (1) assume jurisdiction over the case; (2) issue an
order to show cause requiring Respondents to respond to the writ within three days and to set a
hearing within five days thereafter; (3) issue a Writ of Habeas Corpus granting his immediate
release, or alternatively, require an immigration judge to hold a bond hearing where the
Government bears the burden to justify his continued detention; (4) declare that his arrest and
detention are unlawful under the Fifth Amendment’s Due Process Clause, the Fourth Amendment,
the APA, and the INA; (5) enjoin Respondents from moving Petitioner from the District or
deporting him during the pendency of the Petition; (6) enjoin Respondents from re-detaining him
unless re-detention is ordered at a hearing before a neutral arbiter in which the government bears
the burden by clear and convincing evidence of showing that he is a flight risk or danger to the
community; (7) set aside Respondents’ unlawful practice under the APA; and (8) award reasonable
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attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 and 28
U.S.C. § 2412. Petition 24-25, ¶¶ 1-8, Dkt. No. 1.
Also on December 30, 2025, Petitioner filed a motion for temporary restraining order and
preliminary injunction (Dkt. No. 3). Petitioner seeks a temporary restraining order (1) requiring
Respondents to release him immediately from custody and not re-detain him unless re-detention
is ordered at a hearing before a neutral arbiter in which the Government proves by clear and
convincing evidence that Petitioner is a flight risk or danger to the community, or (2) requiring
Respondents to release him unless he is afforded a bond hearing before a neutral arbiter under 8
U.S.C. § 1226(a) within seven days of the order. Preliminary Injunction Mot. 3, Dkt. No. 3.
According to Petitioner, he is likely to succeed on the merits of his claims that his detention and
premature revocation of his parole, without an individualized pre-deprivation hearing, violated due
process by depriving him of his constitutional liberty interest that accrued during his 33 months in
the U.S. Id. at 8-12. He contends he and his family will suffer irreparable harm due to the disruption
to their family life, and that the balance of equities and public interest favors release or a bond
hearing because he is neither a danger nor flight risk. See id. at 12-14.
The Federal Respondents subsequently filed a Motion to Dismiss Petition for a Writ of
Habeas Corpus (Dkt. No. 11), seeking dismissal of both the Petition and the Preliminary Injunction
Motion. Respondents raise four primary arguments: (1) the Court lacks subject matter jurisdiction;
(2) there is no due process violation; (3) the Court lacks jurisdiction to review the APA claim; and
(4) Petitioner failed to exhaust his administrative remedies. Id. at 1. Respondent Castro notified
the Court that she joins in the positions of the Federal Respondents. Notice, Dkt. No. 18. Given
this alignment, the Court will refer to the respondents collectively as “Respondents” throughout
this PFRD.
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Petitioner replied, largely reiterating his prior arguments in support of his Petition, as well
as contending the Court has jurisdiction to issue relief and that exhaustion would be futile. See
Resp., Dkt. No. 15. After oral argument, he submitted a supplemental brief with additional exhibits
in support of his Petition. Supp. Br., Dkt. No. 24.
IV. LEGAL OVERVIEW
An immigration judge conducts proceedings to decide the inadmissibility or deportability
of an alien. 8 U.S.C. § 1229a(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). In removal proceedings,
written notice called a “notice to appear” must be given to the alien either personally or served
through the mail. Id. § 1229(a)(1). The notice to appear includes, among other things, the nature
of the proceedings and legal authority for them, the alleged violation of law, and the charges. Id.
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
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these INA provisions and implementing regulations, the Court will summarize due process law in
the immigration context before analyzing how the law applies to Petitioner’s detention.
A. 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. An alien who is caught trying to enter at a place other than a
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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
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 his discretion. Id. (citing 8 U.S.C. §
1225(b)(1)(A)(iii)).
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“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). Asylum applicants 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
§ 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.
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
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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 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. 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
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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). Section 236.1(d)(1) provides:
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 convictions 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)).5 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).
B. Overview of Due Process in the 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
5 Section 1226(c) does not apply here because it is undisputed Petitioner has no criminal history.
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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
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 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). “When an alien arrives at a port of entry—for example, an
international airport—the alien is on U.S. soil, but the alien is not considered to have entered the
country for the purposes of this rule.” Thuraissigiam, 591 U.S. at 139. Aliens detained shortly after
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unlawful entry likewise did not effect an entry and remain “on the threshold.” Id. at 140 (explaining
that alien who succeeded in making it 25 yards into U.S. territory before he was caught did not
effect an entry and had only those rights regarding admission that Congress provided by statute).
Moreover, the “detention of an alien in custody pending determination of his admissibility does
not legally constitute an entry though the alien is physically within the United States.” Leng May
Ma v. Barber, 357 U.S. 185, 188 (1958). “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.
V. ANALYSIS
1. The Court has jurisdiction over the Petition.
A court is authorized to issue a writ of habeas corpus 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).
“Challenges to immigration detention are properly brought directly through habeas.” Soberanes v.
Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687-88
(2001)). Respondents nonetheless assert that three provisions bar district court review of
Petitioner’s claims in this habeas case: 8 U.S.C. § 1252(e)(3), 8 U.S.C. § 1252(g), and 8 U.S.C. §
1252(b)(9). Petitioner disagrees, as does this Court.
“[W]here Congress intends to preclude judicial review of constitutional claims its intent to
do so must be clear.” Demore v. Kim, 538 U.S. 510, 517 (2003) (quoting Webster v. Doe, 486 U.S.
592, 603 (1988)). And Congress must be “particularly clear” that it intends for a provision to bar
habeas review. Id.
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According to Respondents, § 1252(e)(3) restricts judicial review of determinations under
§ 1225(b) to the District Court for the District of Columbia:
Judicial review of determinations under section 1225(b) of this title and its
implementation is available in an action instituted in the United States District
Court for the District of Columbia, but shall be limited to determinations of—
(i) whether such section, or any regulation issued to implement such
section, is constitutional; or
(ii) whether such a regulation, or a written policy directive, written
policy guideline, or written procedure issued by or under the
authority of the Attorney General to implement such section, is not
consistent with applicable provisions of this subchapter or is
otherwise in violation of law.
8 U.S.C. § 1252(e)(3)(A).
Respondents argue that the judicial limitation applies in this case because Petitioner is in
essence challenging DHS’s determination that aliens who enter without inspection are subject to
mandatory detention under § 1225(b)(2), and thus, is seeking judicial review of a written policy or
guideline implementing § 1225(b). Petitioner counters that § 1252(e)(3) only governs systemic
challenges to the legality or constitutionality of § 1225, not to an as-applied challenge to his
misclassification as being subject to § 1225(b) rather than § 1226.
Here, Petitioner is not challenging whether § 1225(b)(2)(A) is constitutional or whether a
particular regulation or policy is lawful. Section 1252(e)(3) is subtitled “Challenges on validity of
the system.” 8 U.S.C. § 1252(e)(3). Section 1252(e)(3) does not strip Petitioner’s right to challenge
his detention under the specific facts of his case. See, e.g., Castro v. Noem, Case No. 1:25-cv-
01129-KWR-LF, 2026 WL 280470, at *2 (D.N.M. Feb. 3, 2026) (Riggs, J.) (“Respondents cite to
§ 1252(e)(3). But Petitioner does not challenge the legality or constitutionality of any regulation
implementing removal procedures.”); Rodriguez-Novoa v. Lyons, No. 1:25-cv-01073-SMD-GBW,
Temporary Restraining Order 3-4 (D.N.M. Dec. 23, 2025) (Davenport, J.) (rejecting argument that
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§ 1252(e)(3) strips jurisdiction to consider habeas challenge to government’s authority to detain
him under § 1225(b), as it is not challenge to validity of statutory scheme itself).
Next, Respondents argue that Section 1252(g) bars jurisdiction to review Petitioner’s
claims altogether. Section 1252(g) provides:
[N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien under
this chapter.
8 U.S.C. § 1252(g) (italics added). Respondents assert that, because detention arises from the
decision to commence removal proceedings against an alien, § 1252(g) bars judicial review of
Petitioner’s claims. Petitioner replies that § 1252(g) is much narrower than Respondents assert,
and that challenging detention is an action separate from commencing proceedings, adjudicating
cases, or executing removal orders.
Indeed, the Supreme Court has instructed that § 1252(g) applies only to three specific
actions – the decision or action to commence proceedings, adjudicate cases, or execute removal
orders. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999). As
Petitioner points out, he is not asking the Court to second-guess Respondents’ discretionary
decision to commence removal proceedings against him. Rather, he is challenging a separate
matter – whether he is subject to mandatory detention under § 1225 or discretionary detention
under § 1226. Notably, the facts in this case demonstrate that the decision to detain Petitioner,
which occurred on or around December 4, 2025, did not occur at the same time Respondents
initiated removal proceedings against him. The Notice to Appear was signed nearly a year prior,
on December 18, 2024. See Gov.’s Ex. 3 at 1, Dkt. No. 11-3. Detention was thus a separate action
from the commencement of removal proceedings. Consequently, § 1252(g) does not strip the Court
of jurisdiction to consider the claims in the Petition. See Jennings, 583 U.S. at 294 (construing §
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1252(g) as limited to just the three actions themselves – commencing proceedings, adjudicating
cases, or executing removal actions – and not sweeping in any claim that could technically arise
from the listed actions); Labrada-Hechavarria v. U.S. Attorney General, No. 23-13664, No. 24-
10645, 2026 WL 496486, at *2 (11th Cir. Feb. 23, 2026) (“Although 8 U.S.C. § 1252(g) is a
jurisdiction-stripping provision, we continue to have jurisdiction to address the main legal question
presented here—whether the petitioners were detained pursuant to § 1225(a) or § 1226(a).”);
Aguilar v. Bondi, Case No. 1:25-cv-00996-KWR-KK, 2026 WL 84520, at *3 n.2 (D.N.M. Jan. 12,
2026) (Riggs, J.) (explaining that § 1252(g) does not bar habeas action in which petitioner asks
legal question separate from decision to commence removal proceedings against him, to wit,
whether he is subject to mandatory detention under § 1225(b)(2)(A) or discretionary detention
under § 1226(a)).
Finally, Respondents argue that § 1252(b)(9) divests this Court of jurisdiction to review
the Petition. Section 1252(b)(9) states:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas
corpus provision … to review such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9). Section 1252(a)(5) provides that a petition for review filed with the court
of appeals is the “sole and exclusive means for judicial review of an order of removal…” 8 U.S.C.
§ 1252(a)(5).
According to Respondents, § 1252(a)(5) and § 1252(b)(9), when read together, channel
review of all claims related to a removal proceeding, including challenges to the decision to detain
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an alien, to the appropriate court of appeals. As Petitioner again argues, he is not challenging a
legal issue arising from the initiation of removal proceedings or of a final order of removal.
The Court agrees that § 1252(b)(9) does not strip this Court of jurisdiction to consider the
Petition. The Petition challenges only whether Petitioner is entitled to a bond hearing under § 1226
or is instead subject to mandatory detention under § 1225(b)(2)(A). That legal question does not
arise from the action taken or proceeding brought to remove him, and thus, § 1252(b)(9) does not
bar this Court’s consideration of the Petition. Cf. Jennings, 583 U.S. at 293-95 (concluding that §
1252(b)(9) does not present jurisdictional bar to Court’s consideration of whether certain statutory
provisions require detention without bond hearing); Mukantagara v. U.S. Dep’t of Homeland
Security, 67 F.4th 1113, 1116 (10th Cir. 2023) (holding that § 1252(b)(9) did not bar judicial
review of USCIS decision to terminate plaintiffs’ refugee status because it is not a decision to
commence proceedings, much less adjudicate a case or execute a removal order); Ochieng v.
Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008) (explaining that alien may challenge detention
under § 1226(c) through a § 2241 habeas corpus proceeding and that 8 U.S.C. §§ 1252(a)(5) and
1252(b)(9) do not apply where alien is not seeking review of an order of removal, but review of
his detention). To hold otherwise, and to expansively interpret “arising from,” would effectively
deprive the detainee of any meaningful chance for judicial review if he had to wait for the final
order of removal. Cf. Jennings, 583 U.S. at 293 (“Interpreting ‘arising from’ in this extreme way
would also make claims of prolonged detention effectively unreviewable. By the time a final order
of removal was eventually entered, the allegedly excessive detention would have already taken
place.”).6
6 Respondents argue that Jennings specifically noted that the parties “are not challenging the decision to detain them
in the first place or to seek removal.” Jennings, 583 U.S. at 294. While Jennings did not conclusively decide the issue
here, its reasoning applies equally to the legal question of whether Petitioner is entitled to a bond hearing.
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For the foregoing reasons, the Court recommends assuming jurisdiction to consider the
merits of the instant Petition.
2. The Court should not deny the Petition for failure to exhaust
administrative remedies.
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.
It is undisputed that Petitioner did not ask for a bond hearing since his detention. Petitioner
nevertheless argues that administrative exhaustion is not required in this case based on futility,
whereas Respondents contend that he is not excused from doing so.
The BIA’s Yajure Hurtado decision 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). Petitioner thus has shown that, if he asserted his right to a
bond hearing in his immigration case, the immigration judge, being bound by Yajure Hurtado,
would deny his request for release for lack of jurisdiction to grant bond. Consequently, the Court
recommends finding that the futility exception to exhaustion applies and this Court may consider
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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”) 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).
3. Petitioner’s detention for months without bond hearing violates INA and
procedural due process.
Petitioner asserts that he is not “seeking admission,” where he was already paroled into the
country and has been living in the United States for more than two years. For their part,
Respondents assert that the Court should dismiss the Petition because Petitioner’s detention is
lawful under § 1225(b)(2)(A), as he has not been admitted and remains an applicant for admission
subject to mandatory detention. According to Respondents, § 1225 applies in the interior of the
country and is not limited to aliens detained at the border.
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” and that § 1225 detention is limited to detentions at the border. 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
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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 v. Noem, No. CIV 25-1110
JB/KK, 2026 WL 146005, at *20-21 (D.N.M. Jan. 20, 2026) (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).
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.
The Eighth Circuit recently agreed with the Fifth Circuit’s reasoning in Buenrostro-Mendez that
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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
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
“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)). The Supreme Court has confirmed that seeking admission is an
affirmative act limited geographically to acts taken to enter the United States during the inspection
process at the border. 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).
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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
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
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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
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).
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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.
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 147435, 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).
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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
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).
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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
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
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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)]
(“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
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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 on February 16, 2023. He was processed at a port of
entry at which time he was considered an “arriving alien” but he was released on his own
recognizance. Petitioner then lived in the United States for well over two years. DHS detained him
with a Form I-200 warrant on December 4, 2025, in the interior of the country.
The record, however, is inconsistent, contradictory, and ambiguous as to the basis for his
release in February 2023. And the form of parole here matters to the determination of whether his
detention should be governed by § 1226 or § 1225(b)(2)(A). See Singh, 2026 WL 146005, at * 17
(“The distinction between parole and conditional parole carries concrete statutory
consequences.”). This Court has held that detention for noncitizens generally detained in the
interior of the country is pursuant to § 1226, which entitles the detainee to a bond hearing. See,
e.g., Liu v. Bondi, Civ. No. 26-143 JB/GJF, 2026 WL 878280, at *14 (D.N.M. Mar. 31, 2026)
(Fouratt, J.). In those cases, however, there was no evidence that DHS released the noncitizen
under § 1182(d)(5) parole.
By contrast, here, Petitioner asserts he was granted § 1182(d)(5) parole. See Petition ¶ 77,
Dkt. No. 1; Supp. Br. 1, Dkt. No. 24. While the Secretary of Homeland Security has discretion to
grant parole for urgent humanitarian reasons or significant public benefit, granting § 1182(d)(5)(a)
parole “shall not be regarded as an admission of the alien and when the purposes of such parole
shall, in the opinion 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. (emphasis added). “Accordingly, an alien detained under section 235(b)
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who is released from detention pursuant to a grant of parole under section 212(d)(5)(A), and whose
grant of parole is subsequently terminated, is returned to custody under section 235(b) pending the
completion of removal proceedings.” Matter of Q. Li, 29 I&N Dec. 66, 70 (BIA 2025). Once the
grant of parole terminates, the noncitizen is required to return or be returned forthwith to the
custody under § 1225 from which he was paroled. Id. Where Congress has permitted temporary
parole but expressly stated that parole shall not be regarded as an admission of the alien, then a
paroled alien is also regarded as stopped at the border and not having effected an entry. See Leng
May Ma, 357 U.S. at 188-90. As the Supreme Court explained:
The parole of aliens seeking admission is simply a device through which needless
confinement is avoided while administrative proceedings are conducted. It was
never intended to affect an alien's status, and to hold that petitioner's parole placed
her legally ‘within the United States' is inconsistent with the congressional
mandate, the administrative concept of parole, and the decisions of this Court.
Id. at 190. Therefore, if the DHS Secretary granted Petitioner § 1182(d)(5)(A) discretionary parole
and then properly revoked it, then by statute he is returned to the custody from which he was
paroled.
Although Petitioner argues that he was granted humanitarian parole, Petitioner
acknowledged in his brief and at the hearing that the paperwork is contradictory. See Mar. 9, 2026
Hr’g Liberty Recording, ABQ-Gila_20260309_134521, 2:47:58-2:51:48, 2:58:17-2:59:20; Resp.
10 n.1, Dkt. No. 15. While his I-94 lists the DT code for § 1182(d)(5)(A) parole, it did not list the
reason for granting that parole, as is required. See Paroled (DT) – Port of Entry Guidance (updated
Feb. 2020), Dkt. No. 24-4 at 2 (“The ‘DT’ and ‘DE’ codes were created to justify the reason for
parole in specific cases. To ensure that reasons for a port parole are consistent across OFO, users
are now prompted to select a reason from the available dropdown menu and annotate an approving
supervisor.”)). Moreover, the Form I-213 at no point states that he was released based on §
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1182(d)(5)(A) parole or that his parole was revoked. Instead, it says his release on the Order of
Recognizance was cancelled. See Gov.’s Ex. 1 at 2, Dkt. No. 11-1. While the Form I-213 said that
he was previously “released on his own recognizance due to humanitarian reasons and a lack of
detention space,” the Form I-213 does not reference § 1182 parole at all. See id. at 2-3.
At the hearing, when asked whether Petitioner was granted § 1182(d)(5)(A) parole, counsel
for Respondents stated that the agency believes he was not paroled per se, within the meaning of
that term of art in the INA. See Mar. 9, 2026 Hr’g Liberty Recording, ABQ-
Gila_20260309_134521, 3:52:18-3:54:23. Instead, he advised that Respondents’ position is that
Petitioner was granted discretionary parole and released on recognizance. Id. Based on the record,
the Court finds that when DHS processed Petitioner on February 16, 2023, it allowed him to enter
under a grant of conditional parole and did not parole him under § 1182(d)(5)(A). When DHS re-
detained Petitioner on December 4, 2025, therefore, it did not do so after having revoked his parole
under § 1182(d)(5)(A) – it never considered him paroled under § 1182(d)(5)(A) in the first place.
Consequently, at the time DHS detained him on December 4, 2025, Petitioner was not
“seeking admission” into the United States, as he had already entered the United States years prior
under a conditional grant of parole. Nor was he returned to the custody from which he was paroled
under § 1182(d)(5)(A), because he was never properly paroled thereunder and his parole was
therefore never properly revoked under that statute. The Court therefore finds that he is detained
under § 1226 and is entitled to a bond hearing, the denial of which violates the INA. Moreover,
even assuming that Petitioner is only entitled to the process afforded by Congress, Congress
authorized noncitizens in his situation a bond hearing under § 1226. Consequently, Respondents’
detention of Petitioner for more than four months without the requisite bond hearing violates both
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his statutory rights and his procedural due process rights. The Court therefore recommends
granting the Petition on Counts One and Two.
4. Petition should be denied as to Counts Three and Four.
In Count Three, Petitioner asserts that Respondents violated the INA by revoking his parole
without an individualized assessment in his case. Petition ¶ 103, Dkt. No. 1. He further asserts in
Count Four that they violated the APA by deciding to revoke his parole without consideration of
his individual facts and circumstances. See id. ¶¶ 111-13. This Court recommends finding that
Petitioner was never granted § 1182(d)(5)(A) parole and that DHS never treated him as being
paroled under § 1182(d)(5)(A). Counts Three and Four presume revocation of parole under §
1182(d)(5)(A). Because the Court finds that Respondents never granted or revoked parole under §
1182(d)(5)(A), the Petition should be denied as to Counts Three and Four.
5. A prompt bond hearing in accordance with § 1226(a) is the appropriate
remedy for violation of the INA.
Petitioner requests release from ICE custody or a prompt bond hearing at which the
government bears the burden of justifying his continued detention. Petition 24, Dkt. No. 1.
Respondents assert that, should the Court conclude § 1226 applies, it should decline to grant
immediate release, which circumvents § 1226(e)’s limitation on judicial review of a decision to
deny bond. Resp. 22, Dkt. No. 11.7 In reply, Petitioner asserts that “the only available relief from
his illegal and unconstitutional confinement is his immediate release.” Resp. 17, Dkt. No. 15.
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 Anda
Ybarra, No. CIV 25-1074 JB/JFR, 2026 WL 370497, at *36 (D.N.M. Feb. 10, 2026) (Browning,
7 Section 1226(e) provides: “The Attorney General's discretionary judgment regarding the application of this section
shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section
regarding the detention of any alien or the revocation or denial of bond or parole.” 8 U.S.C. § 1226(e).
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J.) (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. If Respondents are unable or decline to follow §
1226’s statutory requirements, the Court recommends they release him immediately. Id.
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, 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, has concluded that a remedy that changes
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 at the bond hearing and instead order that the bond hearing comply with § 1226 and its
implementing regulations. See id.
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6. Request for an order enjoining transfer should be granted but request to
enjoin deportation should be denied.
Petitioner requests an order that he not be transferred outside the District of New Mexico
or deported while his Petition is pending. Petition 24, ¶ 5, Dkt. No. 1. Respondents argue that this
Court lacks jurisdiction to grant his request, and even if it does, it should decline to enjoin transfer.
According to Respondents, this Court retains jurisdiction of the case, regardless of Petitioner’s
location. Resp. 20, Dkt. No. 11.
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).
As discussed supra, this Court has jurisdiction to consider the claims in this habeas case. The Court
is not convinced that it would necessarily lose jurisdiction of the habeas case even if Petitioner
were 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)).
As for specific jurisdiction to enjoin transfer, Respondents cite Edison v. Decker, Civil
Action No. 20-15455 (SRC), 2021 WL 1997386 (D.N.J. May 19, 2021), an out-of-circuit, non-
precedential case that did not ultimately decide the jurisdictional issue, id. at *6. Edison, in turn,
relied in part on Calla-Collado v. Attorney General of U.S., in which the Third Circuit concluded
that a detainee’s right to present evidence at deportation proceedings was not violated by his
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transfer to another state’s detention facility. 663 F.3d 680, 685 (2011). As part of the ruling, the
Third Circuit stated that ICE has the authority to determine the location of detention of an alien in
deportation proceedings and to transfer aliens from one detention center to another. Id. The case,
however, did not address jurisdiction. Respondents have not convinced the Court that it lacks
jurisdiction to enjoin a transfer to an out-of-state detention facility if doing so aids the Court’s
resolution of this habeas Petition.
Consequently, the Court recommends the presiding judge grant the request to enjoin
Petitioner’s transfer outside the District of New Mexico until this habeas petition is decided or
until Petitioner receives a final order of removal, whichever comes first, but deny the request to
enjoin his deportation. As the presiding judge explained when resolving similar requests:
[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 pending. The Court does not prevent, however, the United States from
proceeding with the Petitioners’ removal proceedings under § 1229(a) during the
pendency of these habeas proceedings. The Court will not use the All Writs Act to
prevent the United States from using statutory proceedings to obtain a lawful order
of removal. Once the Petitioners receive a final order of removal, the United States
ceases to detain the Petitioners or put them on bond under § 1226(a), but instead
they transfer to § 1231’s statutory authority. At that time, the Court loses
jurisdiction to hear the habeas petitions for release under § 1226(a), because the
habeas petitions will be moot, and, therefore, at that time the All Writs Act is no
longer necessary to prevent the Court from losing jurisdiction which it no longer
has. The All Writs Act, therefore, is incapable of preventing the United States from
carrying out a lawful order of removal on the basis of protecting the Court's
jurisdiction, because the Court will lose jurisdiction for this habeas proceeding once
the United States obtains a lawful final order of removal.
Castillo, 2026 WL 370497, at *44.
7. Request to enjoin re-detention unless ordered at custody hearing before
neutral arbiter should be denied.
Petitioner seeks an order enjoining his re-detention unless ordered at a custody hearing
before a neutral arbiter in which the government bears the burden of proving by clear and
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convincing evidence that he is a flight risk or danger to the community. Petition 25, ¶ 6, Dkt. No.
1. Respondents counter that the request is without support and overbroad, noting it would require
burden shifting even were Petitioner to commit a serious crime. The Court agrees and recommends
denying the relief requested as overbroad, unripe, and beyond the scope of what is needed to
remedy the specific harm as alleged in the habeas Petition.
8. Request for an award of EAJA fees is premature.
Petitioner seeks an award of reasonable attorney’s fees and costs under EAJA, 5 U.S.C. §
504, and 28 U.S.C. § 2412. Petition 25, ¶ 8, Dkt. No. 1. Respondents assert that the request is not
ripe until Petitioner files an application and shows that Respondents’ position was not substantially
justified. Resp. 20, Dkt. No. 11. “The Equal Access to Justice Act (EAJA) directs a court to award
‘fees and other expenses’ to private parties who prevail in litigation against the United States if,
among other conditions, the position of the United States was not ‘substantially justified.’”
Commissioner, I.N.S. v. Jean, 496 U.S. 154, 155 (1990) (quoting 28 U.S.C. § 2412(d)(1)(A)).
Under the EAJA, “a fee award is required if: (1) plaintiff is a ‘prevailing party’; (2) the position of
the United States was not ‘substantially justified’; and (3) there are no special circumstances that
make an award of fees unjust.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). 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.
9. The Preliminary Injunction Motion should be denied as moot
Petitioner filed a separate motion for a temporary restraining order and preliminary
injunction. See Preliminary Injunction Mot. 1, Dkt. No. 3. He requests an order (1) requiring
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Respondents to release him immediately from custody and not re-detain him unless ordered at a
custody hearing before a neutral arbiter in which the Government proves by clear and convincing
evidence that Petitioner is a flight risk or danger to the community, or (2) requiring Respondents
to release him unless he is afforded a bond hearing before a neutral arbiter under 8 U.S.C. § 1226(a)
within seven days of the order. Id. at 3. The Court consolidated the decision on the motion with
the Petition, so the relief requested in the motion duplicates the relief requested in the Petition.
Given the Court’s recommendations set forth herein on the merits and on the requested remedies
in the Petition, the Court recommends that the Preliminary Injunction Motion be denied as moot.
VI. CONCLUSION
For the reasons stated above, the Court RECOMMENDS that:
1. The Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Dkt. No.
1) should be GRANTED IN PART and DENIED IN PART as follows:
a. The Petition should be GRANTED on Counts One and Two.
b. The Petition should be DENIED as to Counts Three and Four.
c. The following forms of relief requested in the Petition should be
GRANTED:
i. Assume jurisdiction over the matter;
ii. Issue a writ of habeas corpus ordering an individualized bond
hearing before an immigration judge be held within seven days;
iii. Declare that Petitioner’s detention for over four months without a
bond hearing violates the INA and his procedural due process rights
under the Due Process Clause of the Fifth Amendment;
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iv. Enter an order enjoining Petitioner’s transfer outside this judicial
district until this habeas petition is decided or a final order of
removal is filed, whichever comes first.
d. The following forms of relief requested in the Petition should be DENIED:
i. The request to issue a show cause order within three days and a
hearing within five days should be denied as moot;
ii. The request to order his immediate release;
iii. The request to require the Government to bear the burden justifying
his continued detention;
iv. The requests to declare that his arrest violates the Due Process
Clause, the Fourth Amendment, the APA, and the INA and to declare
that his detention violates the Fourth Amendment and the APA are
unnecessary to resolve the Petition and should be denied as moot;
v. The request to enjoin his deportation;
vi. The request to enjoin Respondents from re-detaining Petitioner
unless his re-detention is ordered at a custody hearing before a
neutral arbiter in which the government bears the burden of
providing by clear and convincing evidence that Petitioner is a flight
risk or danger to the community; and
vii. The request to “[s]et aside Respondents’ unlawful practice pursuant
to 5 U.S.C. § 706(2).”
2. Petitioner’s Notice of Motion and Ex Parte Motion for Temporary Restraining
Order and Preliminary Injunction; Memorandum of Points and Authorities (Dkt.
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No. 3) should be DENIED as moot, given the relief recommended on the merits
of the Petition.
3. The Federal Respondents’ Motion to Dismiss Petition for a Writ of Habeas Corpus
(Dkt. No. 11) should be GRANTED IN PART AND DENIED IN PART as
follows:
a. The Federal Respondents’ request to dismiss Counts Three and Four should
be GRANTED.
b. The Federal Respondents’ request to dismiss Counts One and Two should
be DENIED.
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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