Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANIS PRISNEL,
Petitioner,
v. 	Civ. No. 26-761 JB/GBW
WARDEN, Otero County
Processing Center, et al.,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before me on Petitioner Anis Prisnel’s Petition for a Writ
of Habeas Corpus Under 28 U.S.C. § 2241 (Petition) (docs. 1, 6) and pursuant to the
Order of Reference (doc. 5). I RECOMMEND denying the Petition for the reasons
explained below.
I. 	Background
Petitioner is a native and citizen of Haiti. Doc. 11-1. On July 31, 2024, he applied
for admission at the San Ysidro Port of Entry, coming from Mexico. Id. An immigration
officer determined that Petitioner was not a citizen or national of the United States and
did not have admissible documents to enter the United States. Id. at 2. Petitioner was
served with a Notice to Appear (NTA), Form I-862, charging him as inadmissible under
Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA). Doc. 11-2; see 8
U.S.C. § 1182 (a)(7)(A)(i)(I). The NTA provided notice of the time, date, and location of
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his hearing, which was set for October 17, 2024. Id. at 1. Pending removal proceedings,
Petitioner was paroled into the United States. Doc. 11-1 at 2. At some time thereafter,
Petitioner applied for asylum with U.S. Citizenship and Immigration Services (USCIS).
Doc. 6 at 4.
On October 17, 2024, Petitioner failed to appear for his removal hearing and was
ordered removed from the United States in absentia. Doc. 11-3; see 8 U.S.C. §
1229a(b)(5)(A). On December 2, 2024, the immigration court granted Petitioner’s
motion to reopen the proceedings. Doc. 11-4.
On September 8, 2025, the immigration court granted the Department of
Homeland Security’s (DHS) motion to dismiss Petitioner’s removal proceedings under 8
C.F.R. §§ 1239.2(c) and 239.2(a)(7).1 Doc. 11-5. Petitioner was detained on the same day.
Doc. 11 at 2; doc. 12 at 1. An appeal was filed on October 2, 2025, 2 and remains pending
before the Board of Immigration Appeals (BIA). Doc. 11 at 2–3; doc. 1 at 6. Petitioner
remains in DHS custody.
1 The cited regulations authorize DHS to move for dismissal on the basis that “[c]ircumstances of
the case have changed after the notice to appear was issued to such an extent that continuation is no
longer in the best interest of the government.” 8 C.F.R. § 239.2(a)(7); see also 8 C.F.R. § 1239.2(c) (“After
commencement of proceedings . . . government counsel or an officer enumerated in 8 C.F.R. § 239.1(a)
may move for dismissal of the matter on the grounds set out under 8 C.F.R. § 239.2(a).”). Respondents
represent that the purpose of the request for dismissal was to return Petitioner to expedited removal
processing. Doc. 11 at 2 & n.1.
2 Respondents represent that Petitioner filed the appeal to the BIA, doc. 11 at 2–3, although they
attach no documents establishing the date or pendency of the appeal. Petitioner represents that DHS, not
he, appealed the dismissal of the proceedings to the BIA. Doc. 1 at 6; doc. 12 at 1. On the record before the
Court, it is implausible that Respondents appealed the dismissal, as they were the ones who requested it.
But in any event, all parties agree that the appeal before the BIA remains pending. Ultimately, whether
Petitioner or Respondents filed the appeal is immaterial to the undersigned’s recommendation.
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II. 	Standard of Review
Section 2241 extends the writ of habeas corpus to individuals “in custody under
or by color of the authority of the United States.” 28 U.S.C. § 2241(c)(1). “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)). While the statute does not expressly require exhaustion, courts have held
that “[t]he exhaustion of available administrative remedies is a prerequisite for § 2241
habeas relief.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). “A narrow exception
to the exhaustion requirement exists if a petitioner can demonstrate that exhaustion is
futile.” Id. (citing Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 235–36 (6th Cir. 2006)).
Under the INA, an undocumented noncitizen who arrives at the border is
deemed an “applicant for admission.” 8 U.S.C. § 1225(a)(1). Applicants for admission
“fall into one of two categories, those covered by § 1225(b)(1) and those covered by §
1225(b)(2).” Jennings v. Rodriguez, 583 U.S. 281, 287 (2018). The first category, §
1225(b)(1), applies to “aliens arriving in the United States” and to “certain other aliens
who have not been admitted or paroled.” 8 U.S.C. § 1225(b)(1). The term “arriving
alien” means, inter alia, “an applicant for admission coming or attempting to come into
the United States at a port-of-entry.” 8 C.F.R. § 1.2. Arriving aliens determined to be
inadmissible under §§ 1182(a)(6)(C) or 1182(a)(7) are subject to expedited removal
without further hearing or review unless they indicate an intent to apply for asylum, in
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which case they are referred for an interview by an asylum officer. 8 U.S.C. §
1225(b)(1)(A)(i)–(ii). The second category, § 1225(b)(2), is “a catchall provision that
applies to all applicants for admission not covered by § 1225(b)(1).” Jennings, 583 U.S. at
287. Applicants in this category are not subject to expedited removal but instead
advance to removal proceedings before an immigration judge. 8 U.S.C. § 1225(b)(2)(A);
see id. § 1229a. Critically, under both § 1225(b)(1) and § 1225(b)(2), the applicant is
subject to mandatory detention pending expedited removal, final determination of an
asylum application, or removal proceedings under § 1229a, as applicable. Id. §§
1225(b)(1)(B)(iii)(IV), 1225(b)(2)(A).
III. 	Analysis
Petitioner raises two claims for relief under § 2241: (1) violation of the Fifth
Amendment right to substantive and procedural due process, and (2) violation of the
INA and the Administrative Procedure Act (APA).3 Doc. 6 at 6–8. Both claims are
based on his detention since September 8, 2025, without an individualized bond
hearing. See id.; doc. 1 at 6–7. Petitioner asserts he is detained pursuant to § 1226(a),4
doc. 6 at 5, and is therefore statutorily entitled to a bond hearing. He requests an order
3 Petitioner lists a request for attorney fees and costs under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412, as a third claim for relief. Doc. 6 at 8. This is not properly considered as a
freestanding claim and may only be awarded if Petitioner prevails on his claims. The undersigned notes
that “attorney fees are not available for pro se litigants under the EAJA.” Demarest v. Manspeaker, 948 F.2d
655, 655 (10th Cir. 1991).
4 Petitioner actually alleges he “was placed in proceedings under 8 U.S.C. § 1226a,” doc. 6 at 5,
which mandates detention of “suspected terrorists” and is not applicable to Petitioner’s case. The
undersigned therefore assumes that he intended to reference § 1226(a).
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for immediate release or, in the alternative, for a prompt bond hearing before an
immigration judge. Doc. 1 at 7; doc. 6 at 9; doc. 12 at 1. Respondents argue that
Petitioner is detained under § 1225 and is neither statutorily nor constitutionally
entitled to a bond hearing or release from detention. 5 Doc. 11.
A. 	Petitioner is subject to mandatory detention under § 1225.
Petitioner arrived at the Port of Entry on July 31, 2024, with no valid entry
documents. Doc. 11-1. Therefore, at the time of his application for admission, Petitioner
was an arriving alien subject to mandatory detention under § 1225(b)(1). He was
subsequently paroled into the United States pending removal proceedings. Id. at 2.
Under the INA, “[t]he Secretary of Homeland Security may . . . in his discretion parole
into the United States temporarily under such conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons or significant public benefit any
alien applying for admission to the United States[.]” 8 U.S.C. § 1182(d)(5)(A). The law
clearly states that this discretionary parole “shall not be regarded as an admission of the
alien.” Id. Furthermore,
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.
5 Respondents do not argue that Petitioner has failed to exhaust his administrative remedies. See
generally doc. 11. Because the denial of Petitioner’s claims is recommended on other grounds, the
undersigned does not reach the question of administrative exhaustion.
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Id.
Because Petitioner was subject to detention under § 1225 at the time of his
discretionary parole on July 31, 2024, he remained subject to detention under § 1225
when he returned to DHS custody on September 8, 2025. 6 See, e.g., Valeria-Marin v.
Lyons, Civ. No. 25-914 KG/GBW, 2025 U.S. Dist. LEXIS 263111, at *6 (D.N.M. Dec. 19,
2025) (“[Petitioner] was paroled under § 1182, but that discretionary parole was
revoked, thus returning him to his previous status under § 1225 pending expedited
removal.”). An applicant for admission who, like Petitioner, returns to custody after a
period of discretionary parole “shall continue to be dealt with in the same manner as
that of any other applicant for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A).
Therefore, Petitioner was returned to his status under § 1225(b) when he was taken into
custody.
This distinction is critical because § 1225, unlike § 1226, imposes mandatory
detention with no requirement or provision for a bond hearing. Id. §§
1225(b)(1)(B)(iii)(IV), 1225(b)(2)(A); Jennings, 583 U.S. at 297 (“[N]either § 1225(b)(1) nor
§ 1225(b)(2) says anything whatsoever about bond hearings.”). Additionally, the
statutory text of § 1225 “imposes [no] limit on the length of detention.” Jennings, 583
U.S. at 297. The undersigned therefore concludes Petitioner is not entitled to either a
6 Petitioner does not argue that the termination of his parole was deficient in any way. See
generally docs. 1, 6, 12.
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bond hearing or immediate release under the INA, and his detention complies with the
text of the statute.
B. 	Petitioner’s detention does not support a claim for relief under the APA.
Petitioner claims that the decision to detain him was “arbitrary and capricious”
under the APA. Doc. 6 at 7–8; see 5 U.S.C. § 706(2)(A) (“The reviewing court shall . . .
hold unlawful and set aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”).
As a general matter, courts
will find an agency decision arbitrary or capricious when the agency
“relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.”
Adams v. FAA, 168 F.4th 1271, 1282 (10th Cir. 2026) (quoting Motor Vehicle Mfrs. Ass’n v.
State Farm Auto Ins. Co., 463 U.S. 29, 43 (1983)). Detention without a bond hearing is
mandatory under the applicable statute. See 8 U.S.C. § 1225(b)(1); Jennings, 583 U.S. at
300 (apart from discretionary parole, “there are no other circumstances under which
aliens detained under § 1225(b) may be released” (emphasis in original)). To the extent
that Petitioner challenges the decision to revoke his discretionary parole without “an[]
individualized hearing as to whether the arrest was warranted,” and “even [though]
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nothing has changed in his proceedings since fi[l]ing his asylum and his last check-in,”7
doc. 6 at 6–7, the Court lacks jurisdiction to consider the claim because parole under §
1182 is committed to the Secretary’s discretion. See 8 U.S.C. § 1252(a)(2)(B) (“[N]o court
shall have jurisdiction to review . . . any . . . decision or action of the Attorney General
or the Secretary of Homeland Security the authority for which is specified under this
title to be in the discretion of the Attorney General or the Secretary of Homeland
Security, other than the granting of relief under section 208(a).”). Even assuming,
arguendo, that jurisdiction exists, Petitioner fails to state a claim under the APA for the
same reason. See 5 U.S.C. § 701(a) (“This chapter applies . . . except to the extent that . . .
agency action is committed to agency discretion by law.”). The undersigned therefore
recommends denial of the APA claim.
C. 	Petitioner’s detention does not violate the Fifth Amendment.
Petitioner claims a deprivation of his Fifth Amendment due process rights based
on his prolonged detention without a bond hearing. “It is well established that the Fifth
Amendment entitles aliens to due process of law in deportation proceedings.” Demore
v. Hyung Joon Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292, 306
(1993)). However, it is equally well established that “[i]n the exercise of its broad power
7 Petitioner does not deny that his parole was revoked or challenge the procedural mechanism by
which that revocation was accomplished, except to argue generally that he should have received an
“individualized hearing” and opportunity to contest his arrest and detention, doc. 6 at 7, which the law
does not support. The undersigned therefore does not consider these issues. See United States v. Pinson,
584 F.3d 972, 975 (10th Cir. 2009) (“[L]iberal construction stops . . . at the point at which we begin to serve
as [the pro se litigant’s] advocate.”).
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over naturalization and immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens.” Demore, 538 U.S. at 521 (quoting Mathews v. Diaz,
426 U.S. 67, 79–80 (1976)). In particular, “[d]etention during removal proceedings is a
constitutionally permissible part of that process.” Id. at 531; see also Dep’t of Homeland
Sec. v. Thuraissigiam, 591 U.S. 103, 118 (2020) “[R]espondent . . . does not dispute that
confinement during the pendency of expedited asylum review, and even during the
additional proceedings he seeks, is lawful. Nor could he.”).
Neither the Supreme Court nor the Tenth Circuit Court of Appeals has explicitly
addressed the constitutionally permissible length of detention under § 1225. In
Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court defined a presumptively
reasonable detention period of six months following a final order of removal under §
1231. See 8 U.S.C. § 1231(a)(6) (“An alien ordered removed who is inadmissible under
[§ 1182] . . . may be detained beyond the removal period[.]”). The Court held that §
1231 limits post-removal detention “to a period reasonably necessary to bring about
that alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. Although
Zadvydas was decided on the text of § 1231, not by application of the Fifth Amendment,
the Court noted that “[a] statute permitting indefinite detention of an alien would raise
a serious constitutional problem,” id. at 690, and emphasized that the petitioners’ post-
removal confinement was “not limited, but potentially permanent,” id. at 691.
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In Demore, the Supreme Court considered whether the petitioner’s mandatory
detention under § 1226(c) violated his constitutional rights. 538 U.S. at 514. Section
1226(c) mandates detention without bond during removal proceedings for noncitizens
charged or convicted of certain criminal offenses. See 8 U.S.C. § 1226(c)(1). The Court
distinguished Zadvydas, explaining that “[w]hile the period of detention at issue in
Zadvydas was ‘indefinite’ and ‘potentially permanent,’ the detention here is of a much
shorter duration.” Demore, 538 U.S. at 528 (quoting Zadvydas, 533 U.S. at 690–91).
Specifically, unlike post-removal detention, detention under § 1226(c) has a clear
“termination point”:
Zadvydas distinguished the statutory provision it was there considering
from § 1226 on those very grounds, noting that “a post-removal-period
detention, unlike detention pending a determination of removability . . ., has no
obvious termination point.”
Id. (emphasis in original) (quoting Zadvydas, 533 U.S. at 697). The Court held that the
petitioner’s detention without bond under § 1226(c) “for the limited period of his
removal proceedings” was constitutional. Id. at 531.
In an unpublished decision, the Tenth Circuit applied the same reasoning to the
petitioner’s detention without bond under § 1226(a). Mwangi v. Terry, 465 F. App’x 784,
787 (10th Cir. 2012). Although § 1226(a), unlike § 1226(c), does not mandate detention,
the immigration judge had denied the petitioner bond. Id. at 786. The Tenth Circuit
rejected the petitioner’s argument that his detention without bond violated his due
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process rights under Zadvydas because it was “indefinite.” Id. at 787. The Tenth Circuit
reasoned that, unlike in Zadvydas,
Mr. Mwangi’s removal remains reasonably foreseeable. He is being
detained ‘pending a decision on whether he is to be removed from the
United States.” 8 U.S.C. § 1226(a); see Zadvydas, 533 U.S. at 697 (“post-
removal-period detention, unlike detention pending a determination of
removability[,] . . . has no obvious termination point” (emphasis added)).
Although a precise end-date to his removal cannot be pinpointed, that is
because his removal proceedings continue, not because the government
cannot remove him. Indeed, there is no indication that Mr. Mwangi is
unremovable, whether it be for lack of a repatriation agreement or because
his designated country will not accept him. C.f. Zadvydas, 533 U.S. at 684–
86.
Id. (alterations in original). Because the petitioner’s detention was not “indefinite,” he
was not entitled to relief. Id. at 787–88.
For substantially the same reasons outlined in Demore and Mwangi, the
undersigned finds that Petitioner’s mandatory detention under § 1225(b), pending the
final outcome of his removal proceedings, subsequent expedited removal, and/or a final
determination of his asylum application, 8 does not violate his Fifth Amendment right to
8 The status of Petitioner’s asylum application is not entirely clear. Respondents seem to suggest
that Petitioner applied for asylum for the first time during the removal proceedings. See doc. 11 at 2; 8
C.F.R. § 1208.4(b)(3)(1) (permitting asylum applications to be filed directly with the immigration court
“[d]uring exclusion, deportation, or removal proceedings, with the Immigration Court having jurisdiction
over the underlying proceeding”). If Petitioner’s first and only application for asylum was filed with the
immigration court, it will be effectively denied if the BIA affirms dismissal. See, e.g., Afr. Cmtys. Together
v. Lyons, 799 F. Supp. 3d 362, 376 n.7 (S.D.N.Y. 2025) (“Implicit in the rule is that the dismissal of a
removal proceeding results in the dismissal of a defensive asylum application. Thus, an oral motion to
dismiss a removal proceeding, if granted, results in the dismissal of the accompanying defensive asylum
application.”). On the other hand, Petitioner states that he applied for asylum with USCIS before being
granted work authorization. Doc. 6 at 4–5. If this is accurate, then § 1225(b) mandates detention pending
a final determination of credible fear of persecution. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). Either way,
Petitioner’s detention will have a clear termination point.
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due process. Detention under § 1225, unlike post-removal detention, is not potentially
“indefinite.” C.f. Zadvydas, 533 U.S. at 690. There is no indication that DHS is unable or
unwilling to effect Petitioner’s removal as prescribed by the statute. Therefore, it
appears there is an “obvious termination point” to Petitioner’s present detention. See
Demore, 538 U.S. at 529; Mwangi, 465 F. App’x at 787; Valeria-Marin, 2025 U.S. Dist.
LEXIS 263111, at *7 (holding the petitioner’s mandatory detention under § 1225(b) after
revocation of discretionary parole remained “lawful” because his “removal order is not
final”). The Fifth Amendment does not require Petitioner’s release or an individualized
bond hearing, and the undersigned recommends that the petition be denied.
IV. 	Conclusion
For the foregoing reasons, I find no basis for relief under § 2241 and therefore
RECOMMEND that the Petition be DENIED and this action DISMISSED WITH
PREJUDICE.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
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.
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