Malacidze v. Noem et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
GIORGI MALACIDZE,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
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Case No. CIV-25-1527-D
ORDER
Petitioner Giorgi Malacidze filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241 [Doc. No. 1]. Petitioner is a citizen of Georgia who entered the United
States in or around February 2023. At that time, Petitioner presented himself for inspection
to seek asylum, and Petitioner was released from custody on his own recognizance pursuant
to 8 U.S.C. § 1226. Petitioner has since filed an asylum application and was approved for
employment authorization valid through October 2028.
Petitioner 	has 	been 	in 	the 	custody 	of 	the 	U.S. 	Immigration 	and 	Customs
Enforcement (ICE) since September 24, 2025, and his removal proceedings are ongoing.
Petitioner is currently detained pursuant to the mandatory detention provision contained in
8 U.S.C. § 1225(b)(2)(A). In his Petition, Petitioner contends that § 1225(b)(2)(A) “does
not apply to people like Petitioner, who have already entered and were residing in the
United States at the time they were apprehended.” [Doc. No. 1, at 13]. Because of his
assertion that § 1225(b)(2)(A) does not apply to him, Petitioner further asserts that his
continued detention without a bond hearing violates his due process rights.
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The matter was referred to United States Magistrate Judge Chris M. Stephens for
initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) [Doc. No. 3].
Respondents filed a Response in Opposition to the Petition for Writ of Habeas Corpus
[Doc. No. 14], and Petitioner filed a reply [Doc. No. 19].
On January 8, 2026, the magistrate judge issued a Report and Recommendation
[Doc. No. 21], recommending that the Court grant in part the Petition and order
Respondents to provide Petitioner a bond hearing pursuant to 8 U.S.C. § 1226(a).
Respondents filed a timely Objection to the Report and Recommendation [Doc. No. 22].
Thus, the Court must “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made” and “may
accept, reject or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” See 28 U.S.C. § 636(b)(1); see also F ED. R. C IV. P. 72(b)(3).
First, Respondents point the Court to their Response [Doc. No. 14] for the argument
that “the jurisdiction channeling provisions of the INA preclude further review and
Petitioner’s path for appeal is through the BIA.” [Doc. No. 22, at 2]. Notwithstanding that
Respondents’ reference to the arguments of their response is likely insufficient to warrant
this Court’s review of the magistrate judge’s conclusion as to jurisdiction, the undersigned
has previously found that 8 U.S.C. § 1252(g) does not jurisdictionally bar the Court’s
consideration of Petitioner’s Petition. See Colin v. Holt, No. CIV-25-1189-D, 2025 WL
3645176, at *2 (W.D. Okla. Dec. 16, 2025) (“[B]ecause Petitioner does not challenge
Respondents’ decision to commence or adjudicate proceedings or execute removal orders,
the Court concludes that 8 U.S.C. § 1252(g) does not jurisdictionally bar consideration of
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the Petition.”); see also Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932,
at *1 (W.D. Okla. Jan. 2, 2026) (same).
Next, Respondents object to the magistrate judge’s conclusion that § 1226(a) applies
to Petitioner’s detention, and not § 1225(b)(2)(A), as suggested by Respondents. Generally,
Ҥ 1225 mandates detention without the opportunity for a bond hearing for the noncitizens
to whom it applies.” Hernandez v. Baltazar, No. 1:25-cv-03094-CNS, 2025 WL 2996643,
at *3 (D. Colo. Oct. 24, 2025) (citation omitted). In comparison, § 1226 provides the
noncitizen with the opportunity for a bond hearing. Id.; see also Aranda v. Olson, No. 4:25-
cv-156-GNS, 2025 WL 3499061, at *4 (W.D. Ky. Dec. 5, 2025) (“Overall, Section 1226(a)
provides for a discretionary authority requiring an individualized bond determination
before a noncitizen may be taken into custody.”) (quotation and citation omitted).
Respondents 	contend 	that 	Petitioner 	is 	properly 	detained 	pursuant 	to
§ 1225(b)(2)(A), which provides:
Subject to subparagraphs (B) and (C), 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 proceeding under section 1229a of
this title.
8 	U.S.C. 	§ 	1225(b)(2)(A). 	Respondents 	assert 	that 	Petitioner 	is 	an 	“applicant 	for
admission” because he is present in the United States and has not been admitted, citing
§ 1225(a)(1). See 8 U.S.C. § 1225(a)(1) (“An alien present in the United States who has
not been admitted … shall be deemed for purposes of this chapter an applicant for
admission.”).
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In previously construing § 1225(b)(2)(A), the undersigned concluded in Colin that
the subsection “unambiguously requires that an ‘applicant for admission’ also be ‘seeking
admission’ for the section to control.” See Colin, 2025 WL 3645176, at *4. In their
Objection, Respondents argue that “seeking admission” is merely stating “applicant for
admission” another way. [Doc. No. 22, at 5] (“In other words, every ‘applicant for
admission’ is inherently and necessarily ‘seeking admission,’ at least absent a choice to
withdraw their applications for admission or seek voluntary departure.”). 	Respondents
contend that Petitioner is “seeking admission” because Petitioner has not withdrawn his
asylum application or voluntarily self-deported.
The Court finds helpful the Seventh Circuit’s recent analysis of this issue. In
Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048 (7th Cir. Dec. 11, 2025),
the Seventh Circuit denied the government’s request to stay orders of the district court,
finding that the government’s argument that certain individuals were properly detained
under § 1225(b)(2)(A) was likely to fail on the merits:
[W]hile 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).
Put 	another 	way, 	‘U.S. 	immigration 	law 	authorizes 	the
Government to detain certain aliens seeking admission into the
country under §§1225(b)(1) and (b)(2). It also authorizes the
Government to detain certain aliens already in the country
pending the outcome of removal proceedings under §§ 1226(a)
and (c).
Id. at *9 (quoting Jennings v. Rodriguez, 583 U.S. 281, 289 (2018)).
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In addressing the government’s argument that “applicant for admission” is simply
synonymous with a person “seeking admission,” the Seventh Circuit noted that the
argument has “some superficial appeal,” acknowledging that § 1225(a)(3) “refers to
noncitizens ‘who are applicants for admission or otherwise seeking admission[.]’” Id.
However, the Seventh Circuit continued:
[I]t is Congress’s prerogative to define a term however it
wishes, and it has chosen to limit the definition of an ‘applicant
for admission’ to ‘an alien present in the United States who has
not been admitted or who arrives in the United States.’ 8 U.S.C.
§ 1225(a)(1). It could easily have included noncitizens who are
‘seeking admission’ within the definition but elected not to do
so.
What 	is 	more, 	Defendants’ 	construction 	would 	render
§ 1225(b)(2)(A)’s 	use 	of 	the 	phrase 	‘seeking 	admission’
superfluous, violating one of the cardinal rules of statutory
construction.
Id. (citation omitted).
Upon 	consideration, 	the 	Court 	continues 	to 	conclude 	that 	§ 	1225(b)(2)(A)
unambiguously requires that an “applicant for admission” also be “seeking admission” for
the subsection to control. This Court has previously declined to find that “refusing to self-
deport constitutes ‘seeking admission’ for purposes of this subsection.” Cruz-Hernandez,
2026 WL 18932, at *1. Further, although Petitioner has a pending asylum application, the
Court agrees with the magistrate judge that a pending asylum application does not render
§ 1225(b)(2)(A) applicable to Petitioner. See Li v. Grant, No. CIV-25-1426-HE, 2026 WL
147438, at *1 (W.D. Okla. Jan. 20, 2026) (“The court additionally agrees with Judge
Maxfield that § 1225(b)(2)(A) does not apply even though petitioner filed an application
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for asylum.”); Toledo Santos v. Grant, No. CIV-25-1433-SLP, 2026 WL 184287, at *1-2
(W.D. Okla. Jan. 23, 2026) (ordering the respondents to provide the petitioner a bond
hearing under § 1226(a) where the petitioner had been released on his own recognizance
and later applied for asylum).
In this case, because Petitioner has been residing in the United States for years and
was present in the country when he was detained, Petitioner does not fall into the mandatory
detention provision of § 1225(b)(2)(A). See Colin, 2025 WL 3645176, at *5; Valdez, 2025
WL 3709021, at *3 (“Because Petitioner has been unlawfully living in the United States
for many years without seeking admission, this provision does not apply to him.”);
Martinez Diaz, 2025 WL 3296310, at *3 (“Here, Petitioner has resided in the United States
for approximately twenty years … and, therefore, is not ‘seeking admission’ into the United
States. Accordingly, 	the 	Court 	finds 	§ 	1225(b)(2)(A) 	inapplicable 	to 	Petitioner.”).
Accordingly, § 1226(a) controls Petitioner’s detention.
Having found that § 1226(a) controls Petitioner’s detention, and noting no objection
by Respondents as to their obligation to provide bond hearings for noncitizens under
§ 1226(a), the Court concludes that Petitioner is entitled to a bond hearing. See Hernandez,
2025 WL 2996643, at *3 (citing Jennings, 583 U.S. at 306) (“Federal regulations also
provide that noncitizens detained pursuant to § 1226(a) are entitled to individualized bond
hearings.”).
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 21] is ADOPTED, and the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 [Doc. No. 1] is GRANTED in part. IT IS THEREFORE ORDERED that
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Respondents shall provide Petitioner with a prompt bond hearing under 8 U.S.C. § 1226(a),
or release Petitioner. A separate judgment shall be entered.
IT IS SO ORDERED this 28 th day of January, 2026.
. DeGIUSTI
Chief United States District Judge
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