Aguilar Tanchez v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ANDERSON DONALD AGUILAR
TANCHEZ,
Petitioner, 	MEMORANDUM DECISION AND
ORDER GRANTING PETITION FOR
WRIT OF HABEAS CORPUS
v.
Case No. 2:25-cv-1150
KRISTI NOEM, in her official capacity as
Secretary of the Department of Homeland
Security; TODD LYONS, in his official
capacity as Acting Director of U.S.
Immigration and Customs Enforcement;
MICHAEL BERNACKE, in his official
capacity as Field Office Director of U.S.
Immigration and Customs Enforcement;
PAMELA BONDI, in her official capacity as
the United States Attorney General;
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; and UNITED
STATES IMMIGRATION AND CUSTOMS
ENFORCEMENT,
Respondents.
Judge Tena Campbell
Before the court is a petition for a writ of habeas corpus filed by Petitioner Anderson
Donald Aguilar Tanchez under 28 U.S.C. § 2241. (ECF No. 1.) 	Mr. Aguilar Tanchez alleges
that he is being unlawfully confined in violation of the Constitution and laws of the United
States. Specifically, he challenges a revised interpretation of the Immigration and Nationality
Act recently issued by the Department of Homeland Security that would require immigration
officials to place millions of people in mandatory detention pending the outcome of removal
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proceedings, regardless of how long those individuals have lived in the country, regardless of
whether those individuals have a criminal record, and regardless of whether those individuals
have been found to be a flight risk or a danger to the community. The court agrees with Mr.
Aguilar Tanchez that DHS’s interpretation of the statute is unlawful and therefore grants his
petition.
BACKGROUND
I. 	The Petitioner
Mr. Aguilar Tanchez1 is a native and citizen of Guatemala who entered the United States
at age 17 with his family sometime around November 2023. (Decl. Matthew Randall, ECF No.
5-1 at ¶¶ 4–5.) On November 12, 2023, agents from U.S. Customs and Border Protection (CBP)
arrested and detained him without a warrant near the town of Eagle Pass, Texas. (Id. ¶ 5.)
CBP issued Mr. Aguilar Tanchez a Notice to Appear (NTA), thereby initiating a removal
proceeding against him under 8 U.S.C. § 1229a. (Id. ¶ 6; NTA, ECF No. 1-2 at 38–40.) The
NTA charged him with being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i), which states: “An
alien present in the United States without being admitted or paroled, or who arrives in the United
States at any time or place other than as designated by the Attorney General, is inadmissible.”
(ECF No. 1-2 at 38.) Specifically, the NTA alleged as follows: “You arrived in the United States
at or near EAGLE PASS, TX, on or about November 12, 2023[.] You were not then admitted or
paroled after inspection by an Immigration Officer.” (Id.) The NTA ordered Mr. Aguilar
Tanchez to appear before an Immigration Judge in West Valley City, Utah, on October 24, 2025.
(Id.)
1 In a previous order, the court mistakenly referred to the Petitioner as Mr. Aquilar Tanchez.
(See Order to Show Cause, Dec. 22, 2025, ECF No. 3.) Both ICE records and the docket reflect
that the Petitioner’s correct name is Anderson Donald Aguilar Tanchez.
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CBP then released Mr. Aguilar Tanchez on his own recognizance due to a lack of
detention space. (Randall Decl. ¶ 5; Order of Release on Recognizance, ECF No. 1-2 at 31–34.)
CBP issued him a Notice of Custody Determination that stated: “Pursuant to the authority
contained in section 236 of the Immigration and Nationality Act2 and part 236 of title 8, Code of
Federal Regulations, I have determined that, pending a final administrative determination in your
case, you will be [released on your own recognizance].” (Not. Custody Determination, ECF
No. 1-2 at 37.)
On February 23, 2024, Merly Tanchez-Gallardo Aguilar, Mr. Aguilar Tanchez’s mother,
filed an Application for Asylum and for Withholding of Removal with the Executive Office of
Immigration Review (EOIR), in which she named Mr. Aguilar Tanchez as a derivative
beneficiary. (Form I-589, ECF No. 1-2 at 1–12.) The government asserts that Mr. Aguilar
Tanchez filed written pleadings with EOIR on August 8, 2025, in which he admitted the
allegations and conceded the removal charge in the NTA. (Randall Decl. ¶ 9.) EOIR
subsequently cancelled the hearing date on which Mr. Aguilar Tanchez was scheduled to appear
before the immigration court.3 (Id. ¶ 7.)
On December 20, 2025, Mr. Aguilar Tanchez was arrested in the State of Utah on
charges of Reckless Endangerment, in violation of Utah Code Ann. § 76-5-112, and Reckless
Driving, in violation of Utah Code Ann. § 41-6a-526. (Id. ¶ 10.) At a hearing on Mr. Aguilar
Tanchez’s petition, the parties were unable to provide the court with further details or the status
of these charges. But the parties do not dispute that Mr. Aguilar Tanchez was released from state
custody on December 22, 2025, when he was then arrested by officers from U.S. Customs and
2 INA § 236 is codified at 8 U.S.C. § 1126.
3 The parties have not explained why this hearing date was cancelled. The court assumes that the
cancellation was related to the pending asylum application.
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Immigration Enforcement (ICE). (Randall Decl. ¶ 11.)
Because ICE does not have detention facilities or contracts with independent detention
facilities in Utah that can accommodate detainees for longer than 72 hours, ICE transferred Mr.
Aguilar Tanchez to the Uinta County Detention Center in Wyoming. (Id. ¶¶ 13–14.) Mr.
Aguilar Tanchez is scheduled for a hearing in his removal proceeding before the Las Vegas
Immigration Court on January 26, 2026. (Id. ¶ 15.)
II. 	Unauthorized Immigration in the United States
To understand the issues raised by Mr. Aguilar Tanchez’s petition, it is helpful to
consider a snapshot of the size and composition of the unauthorized population in the United
States.
The government has suggested there are at least 15 million unauthorized immigrants
currently living in the United States. See Noem v. Vasquez Perdomo, 222 L. Ed. 2d, 2025 WL
2585637, at *1 (Sept. 8, 2025) (Kavanaugh, J., concurring in the grant of the application for
stay). The Congressional Research Service has found that the majority of this population is
made up of noncitizens who entered the United States without inspection, although a substantial
proportion of these individuals entered lawfully and overstayed the period of lawful admission or
violated the terms of their admission, such as the terms of a visa. Congressional Research
Service, Unauthorized Immigrants: Frequently Asked Questions, at 4, CRS Report R47218
(Office of Congressional Info. & Publishing, Aug. 10, 2022). Unauthorized immigrants are
ineligible for most federal benefits but may be required to pay federal taxes. Id. at 6, 11. As
of 2019, an estimated 58 to 62 percent of unauthorized immigrants had been living in the United
States for at least a decade. Id. at 5. Noncitizens, whether unauthorized or with lawful
immigration status, can be placed in removal proceedings based on inadmissibility or
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deportability. Id. at 15; see also 8 U.S.C. § 1229a. As of the third quarter of the 2025 fiscal
year, there were 3,797,662 pending removal proceedings. See Executive Office for Immigration
Review (EOIR), Adjudication Statistics: Pending Cases (Jul. 2025).
III. 	Overview of Immigration Law in the United States
The relevant statute governing this matter is the Immigration and Nationality Act (INA),
8 U.S.C. §§ 1101 et seq., which was first passed in 1952 and consolidated several immigration
laws into one statute. The INA has been amended many times. Most relevant to Mr. Aguilar
Tanchez’s petition are the amendments added by the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), which was passed in 1996. Pub. L. No. 104-208, 110 Stat. 3009–
546. IIRIRA added new grounds of inadmissibility and deportability, replaced deportation and
exclusion proceedings with a framework for removal proceedings, created expedited removal
procedures, and reduced the scope of judicial review over immigration decisions.
Under the Homeland Security Act of 2002, most of the functions previously performed
by the Immigration and Naturalization Service (INS) were transferred to the new Department of
Homeland Security (DHS). Pub. L. 107–296, 116 Stat. 2135. The Department of Justice (DOJ)
retained the Executive Office for Immigration Review (EOIR), which oversees the Immigration
Courts and the Board of Immigration Appeal (BIA). The BIA is an appellate body within the
EOIR that is “charged with the review of those administrative adjudications under the [INA] that
the Attorney General may by regulation assign to it.” 8 C.F.R. § 1003.1(d)(1). The BIA reviews
custody determinations made by Immigration Judges. Id. § 1003.1(d)(14). A majority of BIA
members or the Attorney General may designate a BIA decision as precedent. Id.
§ 1003.1(g)(2).
There are three principal agencies within DHS that enforce the INA: CBP, which
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operates at the border; ICE, which operates in the interior of the country; and U.S. Citizenship
and Immigration Service (USCIS), which processes applications for citizenship, lawful
permanent residents, work permits, and asylum.
IV. 	The Revised Position Adopted by the Department of Homeland Security
As demonstrated by the facts in this case and discussed in more detail in the court’s
opinion below, DHS has generally followed the provisions of § 1226(a) to arrest and detain
noncitizens present in the United States. Those provisions allow a noncitizen to challenge their
custody determination during a bond hearing in front of an Immigration Judge.
That practice changed on July 8, 2025, when DHS released a statement addressed to all
ICE employees titled Interim Guidance Regarding Detention Authority for Applicants for
Admission (Interim Guidance).4 In that guidance, DHS stated that it had “revisited its legal
position on detention and release authorities” and determined that “section 235 of the
Immigration and Nationality Act (INA), rather than section 236, is the applicable immigration
detention authority for all applicants for admission.” The Interim Guidance continued:
An “applicant for admission” is an alien 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. INA § 235(a)(1). Effective immediately, it is the position of
DHS that such aliens are subject to detention under INA § 235(b) and may
not be released from ICE custody except by INA § 212(d)(5) parole. These
aliens are also ineligible for a custody redetermination hearing (“bond hearing”)
before an immigration judge and may not be released for the duration of their
removal proceedings absent a parole by DHS. For custody purposes, these aliens
are now treated in the same manner that “arriving aliens” have historically been
treated. The only aliens eligible for a custody determination and release on
recognizance, bond, or other conditions under INA § 236(a) during removal
proceedings are aliens admitted to the United States and chargeable with
4 Interim Guidance, AILA Doc. No. 25071607 (July 8, 2025), available at:
https://perma.cc/5GKM-JYGX.
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deportability under INA § 237, with the exception of those subject to
mandatory detention under INA § 236(c).5
That guidance did not immediately translate into changed practices at the BIA. Nearly a
month after the DHS issued the Interim Guidance, the Attorney General designated the BIA’s
decision in Matter of Akhmedov “as precedent in all proceedings involving the same issue or
issues.” 29 I. & N. Dec. 166, 166 n.1 (BIA 2025). That was true even though the case involved a
noncitizen who had entered the United States unlawfully but was nevertheless subject to the
detention provisions of § 1226. Id. at 166–67. But on September 5, 2025, the BIA determined
that the provisions of § 1225(b)(2) apply in these circumstances and that therefore Immigration
Judges lack authority to hold bond hearings or grant bond to noncitizens who are present in the
United States without admission. Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
As a result of the DHS’s Interim Guidance and the BIA’s decision in Matter of Yajure
Hurtado, the government now asserts that Mr. Aguilar Tanchez is subject to the mandatory
detention provisions of § 1225(b)(2) and therefore ineligible for a bond hearing in front of an
Immigration Judge.
LEGAL STANDARD
A district court may grant a writ of habeas corpus to any person who “is in custody in
violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).
The individual in custody bears the burden of establishing that his detention is unlawful. Walker
v. Johnston, 312 U.S. 275, 286 (1941).
5 INA § 235 is codified at 8 U.S.C. § 1225; INA § 236 is codified at 8 U.S.C. § 1226; INA § 237
is codified at 8 U.S.C. § 1227; INA § 212(d)(5) is codified at 8 U.S.C. § 1182(d)(5). This
opinion generally refers to the United States Code provisions except in quoted materials.
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ANALYSIS
I. 	Jurisdiction
As a preliminary matter, the government contends that the court lacks jurisdiction to
consider Mr. Aguilar Tanchez’s petition due to the jurisdiction-stripping provisions found in the
INA. Specifically, the government cites 8 U.S.C. § 1252(b)(9), which states: “Judicial review of
all questions of law and fact … 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 ….”
Both the Supreme Court and the Tenth Circuit have characterized the scope of this
provision as “narrow.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 19
(2020); Mukantagara v. U.S. Dep’t of Homeland Sec., 67 F.4th 1113, 1116 (10th Cir. 2023).
Indeed, the Supreme Court has stated that “§ 1252(b)(9) ‘does not present a jurisdictional bar’
where those bringing suit ‘are not asking for review of an order of removal[,]’ ‘the decision to
detain them in the first place or to seek removal[,]’ or ‘the process by which their removability
will be determined.’” Regents, 591 U.S. at 19 (quoting Jennings v. Rodriguez, 583 U.S. 281,
294 (2018) (plurality opinion)). Here, Mr. Aguilar Tanchez challenges the determination by
DHS to detain him without bail. That legal issue is separate from the consideration of the merits
of his removal proceeding. See 8 C.F.R. § 1003.19(d) (noting that an Immigration Judge’s
consideration of requests for “custody or bond … shall be separate and apart from, and shall
form no part of, any deportation or removal hearing or proceeding”). And Mr. Aguilar Tanchez
does not challenge DHS’s discretion to detain him in the first place; he instead alleges that DHS
has interpreted the INA unlawfully by denying him a bond hearing.
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The court finds that Mr. Aguilar Tanchez’s petition is similar to the challenge considered
by the Supreme Court in Jennings v. Rodriguez. In that case, noncitizens brought a class action
contesting the legality of indefinite detention without a bond hearing under the mandatory
detention provisions in §§ 1225 and 1226. Writing for a plurality, Justice Samuel Alito noted
that an expansive interpretation of the “arising from” language would prevent review of any
claims arising from a noncitizen’s detention pending removal proceedings, such as claims based
on inhumane conditions of confinement and claims for assault against a fellow detainee.
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. And of course, it is possible that no such order would ever be
entered in a particular case, depriving that detainee of any meaningful chance for
judicial review.
Id.
Mr. Aguilar Tanchez’s claims would also be effectively unreviewable if that review
could only occur after a final order of removal, given that it would be too late for a court to order
relief. And although Justice Alito was writing for a plurality, three other justices writing in
dissent also agreed that the Court had jurisdiction to hear the case: “Jurisdiction … is unaffected
by 8 U.S.C. § 1252(b)(9), which by its terms applies only ‘[w]ith respect to review of an order
under [§ 1252(a)(1)].’” Id. at 355 (Breyer, J., dissenting) (citing § 1252(b)); see also id. at 326
(Thomas, J., concurring in part and concurring in the judgment) (recognizing that “a majority of
the Court has decided to exercise jurisdiction”).
Given the similarities with Jennings v. Rodriguez, the court finds that § 1252(b)(9) does
not present a jurisdictional bar.
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II. 	The Lawfulness of Mr. Aguilar Tanchez’s Detention under the INA
A. The Text of Sections 1225 and 1226
Turning to the merits, the court begins with an analysis of the relevant statutory text. As
the Supreme Court has noted, “[t]o implement its immigration policy, the Government must be
able to decide (1) who may enter the country and (2) who may stay here after entering.”
Jennings, 583 U.S. at 286.
That process begins at the country’s borders and ports of entries, “where the Government
must determine whether an alien seeking to enter the country is admissible.” Id. at 287. The
statutory provisions explaining the requirements under which immigration officers inspect
noncitizens to determine their admissibility are found at 8 U.S.C. § 1225. The statute broadly
defines “applicants for admission” as follows: “An alien 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 …) shall be deemed for purposes of this chapter an applicant for admission.” 8 U.S.C.
§ 1225(a)(1). The statute then requires that “[a]ll 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.” Id. § 1225(a)(3).
Under § 1225(b), titled “Inspection of applicants for admission,” applicants for admission
fall into one of two categories. The first category is found under § 1225(b)(1), titled “Inspection
of aliens arriving in the United States and certain other aliens who have not been admitted or
paroled,” which requires an immigration officer to place an applicant for admission in expedited
removal proceedings if the officer determines that the applicant is inadmissible due to fraud,
misrepresentation, or lack of valid entry documents. Id. § 1225(b)(1)(A)(i) (citing id.
§§ 1182(a)(6)(C), (a)(7)). Upon designation, the Secretary may extend the category of applicants
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for admission who are subject to expedited removal to noncitizens who have not been admitted
or paroled and who have not been physically present in the United States for at least two years.
Id. § 1225(b)(1)(A)(iii). Applicants for admission who are subject to expedited removal
proceedings are removed from the country “without further hearing or review” unless the
applicant indicates either an intention to apply for asylum or a fear of persecution. Id.
§ 1225(b)(1)(A)(i). If an applicant does indicate such an intention or fear, the applicant “shall be
detained pending a final determination of credible fear of persecution and, if found not to have
such a fear, until removed.” Id. § 1225(b)(1)(B)(iii)(IV).
The second category is found under § 1225(b)(2), which is titled “Inspection of other
aliens” and acts as a “catchall provision that applies to all applicants for admission not covered
by § 1225(b)(1) ….” Jennings, 281 U.S. at 287. That provision states: “[I]n 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). The
Supreme Court has clarified that detention under this provision is mandatory (“the alien shall be
detained”) and continues until removal proceedings have concluded. Jennings, 281 U.S. at 297.
Although § 1225(b)(2) mandates detention, an individual detained under this section may
apply for parole under § 1182(d)(5). See also 8 C.F.R. § 212.5 (listing individuals who are
eligible for parole). The Secretary may grant parole “on a case-by-case basis for urgent
humanitarian reasons or significant public benefit ….” 8 U.S.C. § 1182(d)(5)(A). A parolee is
eligible for certain benefits, including ceasing to accrue unlawful presence time, see id.
§ 1182(a)(9)(B)(ii), and the ability to apply for adjustment of status under § 1255(a). See
Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1119 (9th Cir. 2007) (“Congress responded in
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IIRIRA by narrowing the circumstances in which aliens could qualify for ‘parole into the United
States’ under § 1182(d)(5)(A) and thus become eligible for adjustment of status.”).
The government must also decide whether noncitizens who have entered the country are
allowed to stay. Section 1226 “creates a default rule” for “aliens already present in the United
States.” Jennings, 281 U.S. at 303. That section states: “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). Except as provided in § 1226(c),
individuals detained under this provision may be released on bond or conditional parole. Id.
§ 1226(a)(2). And if ICE orders that an individual be detained, that detainee may request a
custody redetermination—i.e., a bond hearing—in front of an Immigration Judge. 8 C.F.R.
§§ 1003.19(a) (“Custody and bond determinations made by [ICE] pursuant to 8 CFR part 1236
may be reviewed by an Immigration Judge pursuant to 8 CFR part 1236.”), 1236.1(d)(1)
(providing that a noncitizen may “request amelioration of the conditions under which he or she
may be released”). During the bond hearing, the noncitizen must “establish to the satisfaction of
the Immigration Judge … that he or she does not present a danger to persons or property, is not a
threat to the national security, and does not pose a risk of flight.” In re Guerra, 24 I. & N. Dec.
37, 38 (BIA 2006). Either the detainee or DHS may appeal the Immigration Judge’s decision to
the BIA. 8 C.F.R. §§ 1003.1(d)(1), 1236.1(d)(3)(i).
Section 1226(c) operates as an exception to this default rule and “carves out a statutory
category” of noncitizens for whom detention is mandatory. Jennings, U.S. 281 at 289. That
category is comprised of individuals who have committed certain “enumerated … criminal
offenses [or] terrorist activities.” Id. Among the individuals subject to this mandatory detention
provision are both noncitizens who are deemed “inadmissible” under § 1182, see 8 U.S.C.
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§§ 1226(c)(1)(A), (D), (E), and noncitizens who are “deportable” under § 1227, see id.
§§ 1226(c)(1)(B), (C), (D). Several of these categories were added a year ago after passage of
the Laken Riley Act. Pub. L. No. 119-1, 139 Stat. 3 (2025); 8 U.S.C. § 1226(c)(1)(E).
Specifically, these amendments to the INA require mandatory detention for an individual who is
inadmissible under either § 1182(a)(6)(A) (for entering without inspection), 1182(a)(6)(C)
(misrepresentation), or 1182(a)(7) (lacking valid documentation) and who has been arrested for,
charged with, or convicted of certain crimes. Id.
To summarize the statutory provisions, the INA proposes two detention schemes that are
relevant here.6 The first, under § 1225, applies “primarily to aliens seeking entry into the United
States” and requires the detention of noncitizens who do not pass muster during the inspection
process. Jennings, 583 U.S. at 297. Noncitizens detained under this framework may only be
released under the parole provisions contained in § 1182(d)(5). The second detention scheme,
under § 1226, is a “default rule” for “aliens already present in the United States” that allows
noncitizens to challenge their detention through a bond hearing in front of an Immigration Judge.
Id. at 303. Noncitizens detained under this framework may be released with a bond or under
conditional parole. 8 U.S.C. § 1226(a)(2).
This generalized reading of the statute distinguishes § 1225 from § 1226 spatially and
temporally: while § 1225 applies to noncitizens at or near the border who are entering or who
have recently entered, § 1226 applies to noncitizens in the interior of the country who have lived
in the country for some time.
6 The INA also authorizes the detention of noncitizens after they have received a final order of
removal. 8 U.S.C. § 1231(a)(2).
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As discussed in further detail below, DHS policies and practices have previously
accorded with that generalized understanding. But the government now asserts that there are no
geographic or temporal limitations that restrict the reach of § 1225. The government points to
the broad language defining an “applicant for admission,” noting that the term encompasses not
just arriving noncitizens but any “alien present in the United States who has not been
admitted[.]” 8 U.S.C. § 1225(a)(1). The government then maintains that the catchall provision
of section 1225(b)(2) applies to all individuals who have not been admitted, regardless of
whether those individuals are arriving or recently arrived noncitizens, and regardless of whether
those individuals are at or near the border.
There is some statutory support for the government’s position. The court agrees that Mr.
Aguilar Tanchez is an applicant for admission under the terms of § 1225(a) because he is present
in the United States and has not been admitted. It is therefore possible that § 1225(b)(2) could
apply to him, as that provision uses the term “applicant for admission” rather than the more
restrictive term “arriving alien.” The statute elsewhere demonstrates that Congress knows how
to limit the statute’s reach to arriving noncitizens. For instance, the expedited removal
provisions found in § 1225(b)(1) extend only to arriving noncitizens unless the Secretary
designates—within certain prescribed limits—that those provisions should extend to other
noncitizens who have not been admitted or paroled. Why, then, did Congress not use the term
“arriving aliens” if it intended that § 1225(b)(2) should only apply to individuals at or near the
border?
One potential response is that by using expansive language, the statute provides CBP
with more flexibility at the border. If § 1225(b)(2) were restricted to “arriving aliens” rather than
“applicants for admission,” then CBP might not be able to establish that certain noncitizens, even
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if they were encountered near the border, qualified as “arriving aliens” due to difficulties proving
the date of entry. But this explanation does not fully answer the question presented in this case,
which asks whether the government has correctly interpreted § 1225(b)(2) to apply even more
broadly to all individuals who have entered without inspection, regardless of the time they have
spent in the country.
The court finds that, despite some ambiguity in the specific provision, the government’s
interpretation does not comport with the statutory text and structure when read as a whole.
Moreover, the government’s interpretation is in tension with legislative history and longstanding
agency practice. Finally, the government’s approach raises serious constitutional concerns,
practical challenges, and questions about whether the government may change course during the
middle of an individual’s removal proceeding without upsetting the balance of rights and
restrictions that Congress intended.
First, both the text and structure of the statute suggest that the procedures and
requirements of § 1225 are directed at the border context. Section 1225(b)(2) does not simply
state that an “applicant for admission” shall be detained for failure to prove their admissibility;
rather, the full text of the statute reads: “[I]n 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….” 8 U.S.C.
§ 1225(b)(2). The provision thus restricts its reach to applicants for admission who are
1) seeking admission; and 2) questioned by an examining immigration officer. These active
verbs suggest a moment in time when a noncitizen is crossing or has recently crossed a border,
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not an indefinite status that applies whenever a noncitizen charged with inadmissibility
encounters an immigration official.7
Moreover, this subsection is titled “Inspection of other aliens.” The statute does not
define “inspection,” but that term is primarily used in § 1225. Where the INA uses the term
elsewhere, that use supports a definition of “inspection” as the process by which immigration
officers determine whether a noncitizen is legally allowed to enter the United States. Under
8 U.S.C. § 1255, for instance, a nonimmigrant may apply for an adjustment of status to that of a
person admitted as a permanent resident provided that 1) they were “inspected and admitted or
paroled into the United States” or 2) if they “entered the United States without inspection[,]” that
they meet certain additional requirements. 8 U.S.C. §§ 1255(a), (i)(1)(A)(i). It does not appear
that a noncitizen may qualify for the first prong, rather than the second, simply by arguing that
they were inspected in Salt Lake City or elsewhere in the interior. The adjustment of status
requirements contained in § 1255 therefore suggest that inspection is a process that occurs at the
border. And that meaning should extend to how the court interprets the term “inspection” as it is
used in § 1225 as well. Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007)
(“[I]dentical words and phrases within the same statute should normally be given the same
meaning.”).
7 Some courts have similarly narrowed the category of “applicants for admission” referenced in
§ 1225(b)(2) to those who are “seeking admission” at a certain point in time. See, e.g., Escobar
Salgado v. Mattos, No. 2:25-cv-1872-RFB-EJY, 2025 WL 3205356, at *15. The government
argues that all applicants for admission can be said to be seeking admission, pointing to a
different statutory provision that references noncitizens “who are applicants for admission or
otherwise seeking admission ….” 8 U.S.C. § 1225(a)(3). The court does not fully resolve this
dispute but instead finds that the use of active verbs coupled with the use of the term
“inspection” indicates that § 1225(b)(2) applies to the border context.
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Nevertheless, the court notes that § 1225(b)(1) refers to the “[i]nspection of aliens
arriving in the United States and certain other aliens who have not been admitted or paroled” and
permits the Secretary to extend the procedures and eligibility for expedited removal to some
noncitizens who have not been in the country continuously for two years. As a result, there is at
least some ambiguity about whether the definition of “inspection” can extend past the border
context. But it is notable that, as the District of Columbia Circuit has explained, expedited
removal procedures have until recently been restricted to the border: “For decades, the
government limited its application of Expedited Removal to (1) persons who, within fourteen
days of arriving in the United States, are encountered within 100 air miles of a land border, and
(2) persons arriving by sea.” Make the Road N.Y. v. Noem, No. 25-5320, 2025 WL 3563313, at
*2 (D.C. Cir. Nov. 22, 2025). In that decision, the District of Columbia Circuit denied a request
for an administrative stay after finding that a DHS designation expanding expedited removal
procedures to noncitizens arrested anywhere in the country who could not adequately
demonstrate continuous presence for at least two years was likely unconstitutional. Id. at *3.
The court discusses this decision more fully below, as it finds that many of the constitutional
concerns raised by the District of Columbia Circuit would be implicated by an expansion of the
scope of § 1225(b)(2) to all applicants for admission anywhere in the country. For now, the
court simply notes that there has been a longstanding practice to interpret the term “inspection”
as related both spatially and temporally to the border and to border crossings.
But even if the court has some doubts that the text of § 1225, without more, is sufficient
to resolve all questions about the section’s applicability, the text of § 1226 removes those doubts.
The government has not argued, nor can it, that § 1226 does not apply to Mr. Aguilar Tanchez.
That section allows the Attorney General to arrest, detain, and place in removal proceedings any
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noncitizen in the United States, and it is uncontested that Mr. Aguilar is a noncitizen present in
the United States. Instead, the government asserts that § 1226, which provides detention
authority for noncitizens present in the county, is more general than § 1225, which provides
detention authority for applicants for admission. And if “there is no clear intention otherwise, a
specific statute will not be controlled or nullified by a general one.” Guidry v. Sheet Metal
Workers Nat. Pension Fund, 493 U.S. 365, 375 (1990) (citations omitted).
The court is not persuaded. The government’s reading of the statute renders certain
provisions of § 1226 redundant. Most importantly, the Laken Riley Act added § 1226(c)(1)(E),
which mandates detention for noncitizens who are inadmissible under §§ 1182(a)(6)(A),
(a)(6)(C), or (a)(7) and who have been charged with, arrested for, or convicted of certain crimes.
The clear implication of this rule is that mandatory detention does not apply to someone who is
charged with inadmissibility under the relevant provisions but not with the requisite crimes.
Instead, the default rule set by § 1226(a) allows for discretionary detention of these noncitizens.
Mr. Aguilar Tanchez, for instance, is charged with inadmissibility under § 1182(a)(6)(A)(i), but
the government has not alleged that he has been charged with any of the crimes listed under the
Laken Riley Act. The mandatory detention exception under § 1226(c) therefore does not apply
to him, and he should be processed according to the discretionary default detention provisions of
§ 1226(a).
The redundancies created by the government’s reading of the statute extend beyond the
Laken Riley Act. Under IIRIRA, the § 1226(c) mandatory detention requirement applies both to
certain deportable noncitizens (see 8 U.S.C. §§ 1226(c)(1)(B), (C), (D)) and to certain
inadmissible noncitizens (see id. §§ 1226(c)(1)(A), (D)). If Congress had intended § 1225(b)(2)
to apply to all noncitizens who had not been admitted, regardless of whether they were detained
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at the border, then there would have been no need to again specify mandatory detention for
certain categories of inadmissible noncitizens (but not others) under § 1226(c).
The government asserts that redundancies “are common in statutory drafting—sometimes
in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or
lack of foresight, or sometimes simply because of the shortcomings of human communication.”
Barton v. Barr, 590 U.S. 222, 239 (2020). But the redundancies created by the government’s
interpretation of the statute are not simply repetitive—they create unnecessary tension between
the statutory provisions. After all, § 1225(b)(2) and § 1225(c) mandate different categories of
detention with different requirements. An applicant detained under § 1225(b)(2) may only be
released under the parole provisions of § 1182(d)(5) for “urgent humanitarian reasons or
significant public benefit ….” In contrast, a noncitizen detained under § 1226(c) may only be
released to provide protection to witnesses and other people cooperating with an investigation,
provided that the Secretary determines that the noncitizen is not a flight risk or a danger to the
community. 8 U.S.C. § 1226(c)(4). Under the government’s interpretation, a noncitizen living
in the country who has not been admitted must be detained under § 1225(b)(2), which is more
specific than § 1226(a). But if that noncitizen is inadmissible for the reasons listed in § 1226(c),
then arguably the more restrictive detention conditions specified by that subsection should trump
the detention scheme required under § 1225(b)(2). The court does not believe that the statute
requires such a bewildering hopscotch of application.
Consider also the differing detention requirements between § 1225(b)(2) and § 1226(a).
As noted above, an applicant detained under § 1225(b)(2) may only be released under the parole
provisions of § 1182(d)(5), which apply in a limited set of circumstances. But noncitizens
released under those provisions are also granted more rights, including the ability to apply for
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work authorization and adjustment of status. In contrast, § 1226(a) specifically forbids the
Secretary from providing a noncitizen released on conditional parole (other than legal permanent
residents) with a work authorization. Id. § 1226(a)(3). And noncitizens released on conditional
parole under § 1226(a) are not eligible for adjustment of status. Accordingly, the various grants
of authority under which the Secretary may detain a noncitizen under the INA are not simply
redundant—they impose entirely different detention schemes.
For all these reasons, the court finds that § 1225 primarily applies to inspections at the
border, whereas § 1226 applies to noncitizens living in the country. While the provisions of
§ 1226(a) clearly apply to Mr. Aguilar Tanchez, there is substantial doubt about whether the
provisions of § 1225(b)(2) also apply. The government has therefore failed to show that the
mandatory detention requirement of § 1225(b)(2) must supersede the discretionary detention
requirement of § 1226(a)—and, as a result, the court finds that the government’s refusal to
permit Mr. Aguilar Tanchez an opportunity to challenge his custody determination in front of an
Immigration Judge is unlawful.
B. Legislative History
Recognizing that the provisions of the INA have been compared to a “Gordian knot,”
Aguilar v. U.S. Immig. & Customs Enf’t, 510 F.3d 1, 6 (1st Cir. 2007), the court also considers
its analysis of the statute in the context of legislative history and longstanding agency practice.
Prior to the enactment of IIRIRA, there were two distinct types of proceedings in which
noncitizens could be denied entry or removed from the United States: deportation hearings and
exclusion hearings. Landon v. Plasencia, 459 U.S. 21, 25 (1982). Deportation hearings were the
“usual means of proceedings against an alien already physically in the United States,” whereas
exclusion hearings were the “usual means of proceeding against an alien outside the United
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States seeking admission.” Id. The distinction between the two proceedings was important
because “non-citizens who had entered without inspection could take advantage of the greater
procedural and substantive rights afforded in deportation proceedings, while non-citizens who
presented themselves at a port of entry for inspection were subjected to more summary exclusion
proceedings.” Hing Sum v. Holder, 602 F.3d 1092, 1100 (9th Cir. 2010). For a noncitizen
subject to a deportation proceeding, these procedural and substantive rights included, in most
cases: 1) seven days’ notice of the charges; 2) the opportunity for an appeal to the Court of
Appeals; 3) the right to designate the country of deportation; 4) the right to depart voluntarily;
and 5) the right to seek suspension of deportation. Landon, 459 U.S. at 26–27. Because access
to these substantive rights hinged on the physical presence of a noncitizen within the United
States, the pre-IIRIRA framework “created an anomaly whereby immigrants who were
attempting to lawfully enter the United States were in a worse position than persons who had
crossed the border unlawfully.” Torres v. Barr, 976 F.3d 918, 928 (9th Cir. 2020) (citations
omitted).
The enactment of IIRIRA and the addition of § 1225(a)(1), which defines “applicants for
admission” to include noncitizens who have not been lawfully admitted (even if they are
physically present within the United States), “ensure[d] that all immigrants who have not been
lawfully admitted, regardless of their physical presence in the country, are placed on equal
footing in removal proceedings under the INA ….” Torres, 976 F.3d at 928; see also H.R. Rep.
104-469, pt. 1, at 225 (1996) (explaining that § 1225(a)(1) “[wa]s intended to replace certain
aspects of the current ‘entry doctrine,’ under which illegal aliens who have entered the United
States without inspection gain equities and privileges in immigration proceedings that are not
available to aliens who present themselves for inspection at a port of entry”).
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The government maintains that an interpretation of the INA subjecting Mr. Aguilar
Tanchez to the discretionary detention framework of § 1226(a) would undo the fix created by
Congress by granting Mr. Aguilar Tanchez a privilege not available to him if he had presented
himself at a port of entry. This argument misunderstands both the nature of the distinction
between §§ 1225 and 1226, as well as the extent of the fix that IIRIRA provided. First, the
government assumes that it is always better to be subject to the discretionary detention
provisions of § 1226 rather than the mandatory detention provisions of § 1225. But as the court
has discussed, a noncitizen detained under § 1225 may apply for humanitarian or significant
public benefit parole under § 1182(d)(5). Although that application will be considered by
USCIS rather than by an Immigration Judge, and while it is likely less common for detainees to
be granted parole under those provisions, a grant of parole under § 1182(d)(5) provides a parolee
with greater rights to work or apply for adjustment of status.
Moreover, IIRIRA did place noncitizens charged with inadmissibility, whether at a port
of entry or within the country, on equal footing concerning the procedures and the burden of
proof in removal proceedings. See 8 C.F.R. § 1003.19(d) (noting that an Immigration Judge’s
consideration of requests for “custody or bond … shall be separate and apart from, and shall
form no part of, any deportation or removal hearing or proceeding”). “Now, in removal
proceedings, the relevant distinction for procedural purposes is whether the immigrant has been
lawfully admitted, regardless of actual physical presence.” Torres, 976 F.3d at 928.
Specifically, the framework enacted by IIRIRA requires that an applicant for admission,
regardless of physical presence, must prove either “clearly and beyond doubt” that they are
entitled to be admitted or, “by clear and convincing evidence,” that they are lawfully present in
the United States due to a prior admission. 8 U.S.C. § 1229a(c)(2). In contrast, in the case of a
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noncitizen who has been lawfully admitted but is charged with deportability, it is the DHS who
has the burden of establishing “by clear and convincing evidence” that the noncitizen is
deportable. Id. § 1229a(c)(3).
The court finds no reason to assume that Congress’s stated concern about procedural and
substantive discrepancies in removal proceedings would also extend to detention determinations.
After all, there are good reasons why Congress would provide for mandatory detention at the
border but discretionary detention within the country. As another district court has explained:
[N]oncitizens who have lived for years in this country are more likely to be
working in critical industries, parenting U.S. citizen children, or otherwise serving
their communities. The mass detention of these individuals—without regard to
flight risk or danger to the public—is far more disruptive to local American
economies, families, and communities than the detention of noncitizens who have
just crossed the border.
Rodriguez v. Bostock, No. 3:25-cv-5240-TMC, 2025 WL 2782499, at *24 (W.D. Wash.
Sept. 30, 2025) (cleaned up).
In any event, there is other evidence in the Congressional record that favors Mr. Aguilar
Tanchez’s position. Most importantly, noncitizens present in the United States, like Mr. Aguilar
Tanchez, would have been subject to deportation proceedings before the enactment of IIRIRA.
See Hose v. I.N.S., 180 F.3d 992, 994 (9th Cir. 1999) (“A deportation hearing was the usual
means of proceeding against an alien already physically in the United States[.]” (cleaned up)).
And the predecessor statute to § 1226(a) also provided for discretionary release on bond for these
individuals. See 8 U.S.C. § 1252(a)(1) (1994) (“[A]ny such alien taken into custody may, in the
discretion of the Attorney General … be continued in custody … [or] be released under
bond[.]”). When passing IIRIRA, Congress declared: “Section [1226(a)] restates the current
provisions in section [1252(a)] 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. No. 104-469,
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pt. 1, at 229. Notably, Congress also referred to § 1225(b)(2) as a provision that applied to the
“[i]nspection of other arriving aliens.” Id.
The court therefore finds that legislative history, on balance, supports the court’s
interpretation of the statute. That was true when Congress passed IIRIRA, and it remained true
when Congress amended the INA by passing the Laken Riley Act. As the court has discussed,
the Laken Riley Act added provisions to § 1226, not to § 1225. And by specifying that some
noncitizens charged with inadmissibility should be subject to mandatory detention, these
amendments reflect a Congressional understanding that other noncitizens charged with
inadmissibility remain subject to the discretionary detention provisions of § 1226(a).
C. Agency Practice
At the hearing on the petition, counsel for the government candidly admitted that the
recent Interim Guidance issued by DHS, as well as the BIA decision in Matter of Yajure
Hurtado, represent a break from DHS’s previous practice. Indeed, the Interim Guidance states
that DHS “has revisited its legal position on detention and release authorities” and specifically
notes that any noncitizens present in the United States who have not been admitted will now be
“treated in the same manner that ‘arriving aliens’ have historically been treated.”8
The agency’s previous position is reflected in an interim rule issued six months after the
passage of IIRIRA by the agencies then charged with enforcing immigration laws, in which the
agencies explained:
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…. The effect of
this change is that inadmissible aliens, except for arriving aliens, have available to
them bond redetermination hearings before an immigration judge, while arriving
aliens do not. This procedure maintains the status quo ….
8 See Interim Guidance, supra note 4.
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62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). And regulations still in effect suggest that
Immigration Judges may hold bond hearings for noncitizens charged with inadmissibility in
removal proceedings. See 8 C.F.R. § 1003.19(h)(2) (prohibiting Immigration Judges from
holding bond hearings for arriving noncitizens in removal proceedings and noncitizens subject to
mandatory detention under § 1226(c) but containing no similar prohibition for noncitizens
charged with inadmissibility who are not arriving and who are not subject to § 1226(c)).
As the Supreme Court has recently clarified, the court need not defer to either the DHS’s
most recent interpretation or its longstanding practice. Loper Bright Enters. v. Raimondo, 603
U.S. 369, 412 (2024). While “the judgment of the Executive Branch may help inform” the
court’s inquiry, it does so only to the extent of its “power to persuade.” Id. at 413, 402 (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Nevertheless, “the longstanding practice
of the government—like any other interpretive aid—can inform [a court’s] determination of what
the law is.” Id. at 386 (cleaned up).
The court finds that DHS’s longstanding practice is more persuasive than its recent
Interim Guidance. For the reasons stated above, the court disagrees with the analysis provided
by the BIA in Matter of Yajure Hurtado as a matter of law. The court also notes that the decision
is inconsistent with previous BIA decisions, including a decision that was designated as
precedent only a month earlier. See Matter of Akhmedov, 29 I. & N. Dec. at 166 n.1 (designated
as precedent on Aug. 4, 2025). In that case, the BIA stated that a noncitizen who had entered the
United States unlawfully three years earlier was subject to the discretionary detention provisions
in § 1226(a). Id.; see also Matter of Yajure Hurtado, 29 I. & N. Dec. at 226 (agreeing that, in
Matter of Akhmedov, the respondent’s custody was governed by § 1226(a) even though the
respondent was present in the United States without inspection). Explaining the inconsistency,
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the BIA noted that the question about mandatory detention under § 1225(b)(2) had not been
presented to the BIA in Matter of Akhmedov. Matter of Yajure Hurtado, 29 I. & N. Dec. at 226.
But the lack of discussion is telling: the BIA simply assumed, as did DHS for decades, that
detention under § 1226(a) was permissible. Until the recent Interim Guidance issued by DHS, it
appears that such a position was unremarkable.
Finally, the court notes that if DHS is correct that § 1226(a) cannot apply to noncitizens
living in the country who have not been admitted, then it would appear that DHS has acted
unlawfully in millions of cases over the past several decades by allowing the conditional release
of detainees such as Mr. Aguilar Tanchez without following the humanitarian or substantial
public benefit parole requirements of § 1182(d)(5). As the Interim Guidance notes, the new
DHS position is that noncitizens present in the United States who have not been admitted are
subject to detention under § 1225(b) and “may not be released from ICE custody except by INA
§ 212(d)(5) parole.” Under what authority, then, were individuals like Mr. Aguilar Tanchez
previously released pending a determination in their removal proceeding? And what is the legal
status of those individuals now? Given the magnitude of the legal questions raised, the court
finds unpersuasive any guidance that does not attempt to answer these uncertainties. The court
therefore disregards the DHS’s revised legal position and finds that DHS’s previous
interpretation of the statute serves as a better guidepost.
D. Supreme Court Interpretations
The Supreme Court has not yet been asked to address the exact boundary between § 1225
and § 1226, although the Court discussed the statutory detention scheme extensively in Jennings
v. Rodriguez when considering the mandatory detention requirements of §§ 1225(b) and 1226(c)
and the permissive detention framework of § 1226(a). 583 U.S. at 287–89. Both parties seize on
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language from the Supreme Court’s opinion in support of their statutory framework. The
government notes that the Court describes § 1225(b)(2) as “broader” than § 1225(b)(1) and as a
“catchall provision that applies to all applicants for admission not covered by § 1225(b)(1) ….”
Id. at 287. Mr. Aguilar Tanchez, in contrast, notes the Court’s statement that “§ 1226 applies to
aliens already present in the United States” and “creates a default rule for those aliens ….” Id.
at 303. This court finds that neither description is dispositive, but that both reflect the broad
language used in §§ 1225 and 1226.
A better indication of how the Supreme Court understands the distinction between the
two sections is found in Department of Homeland Security v. Thuraissigiam, in which the Court
held that § 1252(e)(2), which limits additional administrative review of an asylum seeker’s
credible fear of persecution claim, did not violate either the Suspension Clause or the Due
Process Clause. 591 U.S. 103, 140–41 (2020). The Court noted that the asylum seeker in that
case did not contest his detention during the pendency of his asylum review because it was
undisputed that “he was apprehended in the very act of attempting to enter this county” and that
he was inadmissible because he lacked an entry document. Id. at 118–19. In support of the
asylum seeker’s inadmissibility, the Court cited §§ 1182(a)(7) (the inadmissibility provision for
lack of entry documents) and 1225(b)(1) (the expedited removal provision). Id. But the Court
went on to state that “simply releasing him would not provide the right to stay in the country that
his petition ultimately seeks. Without a change in status, he would remain subject to arrest,
detention, and removal.” Id. at 119. In support of this statement, the Court did not cite
§ 1225(b)(2), even though it was clear that the asylum seeker was inadmissible without a change
in status. Instead, the Court cited § 1226(a). Id. In other words, the Court understood that an
asylum seeker who had not been admitted to the United States and who was subject to the
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detention provisions of § 1225(b) at the border would nevertheless be subject to arrest and
detention under § 1226(a) if he were released into the country with no change in status.
While the Court was not directly presented with the question of whether § 1225(b)(2)
could also apply to an inadmissible asylum seeker living in the country, the Court’s reference to
§ 1226(a) in this context is consistent with the Congressional record, longstanding agency
practice, and this court’s interpretation of the statute.
E. Constitutional Concerns
Although the INA is not a model of clarity, the court finds that the statutory text and
structure, coupled with support from legislative history, longstanding agency practice, and the
Supreme Court’s discussion of the statute, indicate that DHS’s current interpretation of the
statute is unlawful. But even if the court agreed with the government that § 1225(b)(2) could be
read to apply to noncitizens in the interior of the country, the court would still read § 1226(a) to
apply to those noncitizens as well. As a result, the government would have established at most
that the statute was ambiguous. And where a statute is “genuinely susceptible to two
constructions[,]” the court must consider the canon of constitutional avoidance. Doe v. City of
Albuquerque, 667 F.3d 1111, 1120 (10th Cir. 2012) (quoting Conzales v. Carhart, 550 U.S. 124,
154 (2007)).
The canon of constitutional avoidance “provides that when a particular construction
would raise serious constitutional problems, the court will avoid that construction unless doing
so would plainly conflict with Congress’s intent.” Olmos v. Holder, 780 F.3d 1313, 1321 (10th
Cir. 2015) (citing Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988)). Constitutional avoidance “come[s] into play only if the statute is
ambiguous.” Id. at 1322.
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To the extent that the court has noted some ambiguity due to the broad language in
§ 1225(b)(2), the court also finds that the government’s application of that broad language to
reach noncitizens living far from the border raises serious constitutional concerns and must
therefore be rejected in favor of the court’s interpretation of the statute, which is more plausible
and less constitutionally problematic.
The Due Process Clause of the Fifth Amendment prohibits the federal government from
depriving any “person” of “life, liberty, or property, without due process of law[.]” U.S. Const.
amend. V. There is no question that Fifth Amendment protections extend to noncitizens present
in the United States. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Indeed, “‘it is well
established that the Fifth Amendment entitles aliens to due process of law’ in the context of
removal proceedings ….” Trump v. J.G.G., 145 S. Ct. 1003, 1006 (2025) (quoting Reno v.
Flores, 507 U.S. 292, 306 (1993)). As a result, persons “who have once passed through our
gates, even illegally, may be expelled only after proceedings conforming to traditional standards
of fairness encompassed in due process of law.” Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206, 212 (1953).
Due process protections are “vital in determining a person’s eligibility for deportation or
removal from the United States.” Make the Road N.Y., 2025 WL 3563313, at *21. Indeed, the
Supreme Court has recognized that “deportation is a particularly severe ‘penalty’ [even if] it is
not, in a strict sense, a criminal sanction.” Padilla v. Kentucky, 559 U.S. 356, 365 (2010)
(quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)).
As noted above, the District of Columbia Circuit recently considered a new DHS
designation extending the reach of expedited removal procedures to the maximum authorized by
statute—i.e., to include citizens who cannot show that they have been continuously present for
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two years prior to the date of determination of inadmissibility, 8 U.S.C. § 1225(a)(1)(iii)(II).
Make the Road N.Y., 2025 WL 3563313. The Circuit Court denied a motion for an
administrative stay, finding that DHS’s extension of expedited removal procedures—even
though clearly allowed under the statute—was unlikely to pass constitutional muster. Id. at *25.
That was true even though the Circuit Court recognized 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 Clauss.” Id. at
*23 (quoting Thuraissigiam, 591 U.S. at 107).
First, the Circuit Court distinguished parolees under § 1182(d)(5) from “those who are
present without authorization ….” Id. Although the Supreme Court has treated parolees who
arrive at ports of entry, even those paroled for years pending removal, “as if stopped at the
border[,]” Thuraissigiam, 591 U.S. at 139, the Circuit Court explained that those parolees are
granted several due process protections by statute and regulation. Make the Road N.Y., 2025
WL 3563313, at *23 (noting that parolees are ineligible for expedited removal while on parole,
see 8 U.S.C. § 1225(b)(1)(A)(iii)(II), and that parole may only be terminated with prior written
notice or at an authorized time, see 8 C.F.R. § 212.5(e)). Second, the Circuit Court pointed to
procedural due process concerns, noting especially the difficulty of determining whether an
individual has been continuously present for at least two years in the context of a summary
procedure and mandatory detention. Id. at *24–25. Accordingly, even though DHS was
exercising power clearly authorized by statute, the Circuit Court found that extending the reach
of § 1225(b)(1) outside the border context was constitutionally suspect.
As the court has explained, it is far less clear that Congress intended the reach of
§ 1225(b)(2) to extend past the border. But even if the court found that the statute was
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ambiguous and that the exercise of such power was permissible under one possible
interpretation, the use of that power would present similar constitutional concerns as those noted
by the District of Columbia Circuit.
The government asserts that Mr. Aguilar Tanchez’s due process rights are adequately
protected because he will only be detained a “short time” and because his removal proceedings
are “pending and moving toward a definite endpoint.” (Gov’t Resp., ECF No. 5 at 20.) The
government notes that in Demore v. Kim, the Supreme Court held that § 1226(c) did not violate
the Due Process Clause by requiring noncitizens convicted of certain crimes to be detained
throughout their removal proceedings. 538 U.S. 510 (2003). But as another district court has
noted,
[t]his holding was based on the government establishing a particular interest in
detaining that limited class of noncitizens. In Demore, the Court found “[s]uch
detention necessarily serves the purpose of preventing deportable criminal aliens
from fleeing prior to or during their removal proceedings” based on evidence
before Congress when IIRIRA was enacted, demonstrating that noncitizens
convicted of certain crimes were statistically more likely to abscond from removal
proceedings.
Escobar Salgado v. Mattos, No. 2:25-cv-1872-RFB-EJY, 2025 WL 3205356, at *23 (Nov. 17,
2025). Here, there is no evidence that Mr. Aguilar Tanchez is a flight risk. And to the extent
that his recent charges for reckless driving may imply he is dangerous, those are facts that an
Immigration Judge can consider when making an individualized assessment. As the court has
noted, there are 3,797,662 pending removal proceedings. Based on the finding by the
Congressional Research Service that a majority of the unauthorized population (of about 15
million people) are individuals who entered without inspection, it is reasonable to estimate that
around 2 million removal proceedings involve noncitizens who have not been admitted. The
court has serious doubts that the mandatory detention of such a large group, without any
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assessment about whether those individuals are dangerous or unlikely to appear at future
hearings, comports with the due process required by the Fifth Amendment.
It is also unclear where all those individuals would be detained,9 a practical fact that
raises additional constitutional concerns. The Tenth Circuit has held that the “right to retain and
consult with an attorney … implicates … clearly established First Amendment rights of
association and free speech.” DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990). But due
to the lack of space for immigration detainees, the recent experience of this court has been that
arrested individuals are quickly transported out of state and are often moved between a series of
different facilities. Indeed, it has been difficult to locate some detainees, making it nearly
impossible for those detainees to consult with an attorney. It is also far harder to collect the
evidence and testimony that might be necessary to support an asylum claim or otherwise defend
against a charge of removability while detained.
Mr. Aguilar Tanchez has not been charged criminally, but it is useful to compare the
protections that would be available to him if he were. Under 8 U.S.C. § 1325, a noncitizen who
“enters or attempts to enter the United States at any time or place other than as designated by
immigration officers” or “eludes examination or inspection by immigration officers” may be
imprisoned, for the first commission of such an offense, for “not more than 6 months.” If Mr.
Aguilar Tanchez were charged with such a crime, he would be represented by an attorney and
the government would pay for that attorney if Mr. Aguilar Tanchez could not afford
representation. He would appear promptly before a magistrate judge for an initial appearance
and could ask for pretrial release.
9 The total incarcerated population in the United States, including convicted state and federal
prisoners, immigration detainees, and pretrial detainees, is less than 2 million.
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In the civil enforcement context, an individual detained pending a removal proceeding is
responsible for providing their own representation. Moreover, the Supreme Court has held that
§ 1225(b)(2) allows an individual to be detained for longer than six months. Jennings, 583 U.S.
at 301. Given that these potential civil penalties exceed, to some degree, the criminal penalties—
and given the lack of other protections that would apply in the criminal context—, the court finds
it especially important to ensure that detained noncitizens are afforded the due process provided
by Congress, such as the right to a bond hearing under § 1226(a), absent a clear indication that an
individual is ineligible.
The court also notes that potential constitutional problems could arise from the
application of § 1225(b)(2) in the country’s interior. At the border, the Fourth Amendment
balance between the interest of the Government and the privacy right of the individual is …
struck much more favorably to the Government ….” United States v. Montoya de Hernandez,
473 U.S. 531, 539–40 (1985). It is therefore unexceptional that individuals inspected at the
border should expect that they will be deemed noncitizens until they can prove otherwise—
which is what § 1225(b)(2) requires. But it is unclear how DHS proposes to apply § 1225(b)(2)
in the interior. Who are the “examining immigration officer[s]” charged with inspecting
applicants for admission? Would any encounter with an ICE agent count as an inspection? If so,
§ 1225(b)(2) requires that agent to detain an individual who “is not clearly and beyond a doubt
entitled to be admitted ….” That standard is in tension with the application of the Fourth
Amendment within the country’s interior, which “requires that immigration stops must be based
on reasonable suspicion of illegal presence, stops must be brief, arrest must be based on probable
cause, and officers must not employ excessive force.” Trump v. Illinois, 607 U.S. —, n.4 (2025)
(Kavanaugh, J., concurring).
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Given these constitutional concerns, the court holds that, even if the court were to find
that the INA was ambiguous, the government’s reading of the statute must be rejected.
F. 	Other Considerations
Finally, the court notes that it has some doubts that the government’s proposed
interpretation of § 1225(b)(2) would even apply to Mr. Aguilar Tanchez, who was detained and
processed by CBP near the border. Even if the court agreed that § 1225(b)(2) required DHS to
inspect all noncitizens who are inadmissible and who have not already been detained, Mr.
Aguilar Tanchez does not fall into that category. After all, the statute does not suggest that an
applicant for admission must be inspected more than once under § 1225(b)(2). And if Mr.
Aguilar Tanchez’s encounter with CBP did not already qualify as an inspection, then it is
difficult to understand how he remains subject to the requirements of § 1225 now.
When Mr. Aguilar Tanchez first entered the country, CBP released him on his own
recognizance. The order of release clearly stated that this conditional parole occurred under the
authority granted by § 1226(a), not § 1225(b)(2): “Pursuant to the authority contained in section
236 of the Immigration and Nationality Act and part 236 of title 8, Code of Federal Regulation, I
have determined that, pending a final administrative determination in your case, you will be
[released on your own recognizance].” (ECF No. 1-2 at 37.) In any event, § 1225(b)(2) does not
authorize the release of an applicant for admission. Instead, the applicant must apply for parole
under § 1182(d)(5). And there is no suggestion that Mr. Aguilar Tanchez applied for or was
granted parole.
To the extent that DHS now argues that Mr. Aguilar Tanchez should have been detained
under § 1225(b)(2), it is unclear whether he should also be entitled to the benefits of parole under
§ 1182(d)(5), such as the ability to apply for work authorization and to adjust his status. Both
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§§ 1226(a) and 1225(b)(2) provide due process protections to noncitizens, whether through bond
hearings or the ability to apply for parole. Having already processed Mr. Aguilar Tanchez under
one framework, which provided him with certain rights but also carried certain restrictions, it is
not clear whether DHS can switch horses midstream without disturbing the framework of rights
and responsibilities that Congress intended.
ORDER
For the foregoing reasons, the court ORDERS as follows:
1. 	Mr. Aguilar Tanchez’s petition for a writ of habeas corpus (ECF No. 1) is
GRANTED.
2. 	The respondents are ORDERED to provide Mr. Aguilar Tanchez with a bond
hearing under 8 U.S.C. § 1226(a) within 7 days from the date of this order.
3. 	The respondents are ENJOINED from denying bond to Mr. Aguilar Tanchez on
the basis that he is detained under 8 U.S.C. § 1225(b)(2).
4. 	The respondents are further ORDERED to file a status report within 10 days from
the date of this order stating whether Mr. Aguilar Tanchez has been granted bond and, if his
request for bond was denied, the reasons for that denial.
DATED this 16th day of January, 2026.
BY THE COURT:
______________________________
Tena Campbell
United States District Judge
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