Case Name in Immigration Case - Unavailable

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 26-cv-676 (MJD/SGE)
Marcos L.,
Petitioner,
v.
Kristi Noem, et al.,
Respondents.
REPORT AND RECOMMENDATION
This matter is before the Court on Petitioner Marcos L.’s1 Petition for Habeas
Corpus (“Petition”, Dkt. 1) and Emergency Motion for Temporary Restraining Order (Dkt.
5). Marcos maintains that he was granted deferred action after U.S. Citizenship and
Immigration Services (“USCIS”) issued a Bona Fide Determination on his Form I-918,
Petition for U Nonimmigrant Status (“U-visa”), and he argues that his detention violates
his rights under the Immigration and Nationality Act, the Trafficking Victims Protection
Reauthorization Act, and the Fifth Amendment to the United States Constitution.
Respondents filed a response to the Petition and Emergency Motion. (Dkt. 10.) The matter
has been referred to the undersigned by United States District Judge Michael J. Davis for
report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1. For the
reasons set forth below, this Court recommends that the Petition be GRANTED.
1 Pursuant to this District’s policy in immigration cases, the Court identifies Petitioner only
by his first name and last initial.
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 1 of 8

2
BACKGROUND
Marcos is a citizen of Mexico who has resided in the United States since February
15, 2008. (Pet. ¶ 24.) He has been in the United States for approximately 18 years. He
received a Notice to Appear for removal proceedings on March 1, 2012. (Dkt. 4-1.) Marcos
was released on a $20,000.00 bond the same day. (Dkt. 4-2.) Marcos submitted a Form I-
918, U-1 Recipient, Petitioner for Nonimmigrant Status on October 26, 2022. (Id. ¶ 48.)
USCIS determined his status is bona fide and he warrants a favorable exercise of discretion
to receive employment authorization and on January 28, 2025, granted Marcos deferred
action. (Id.) USCIS issued Marcos employment authorization and deferred action that is
valid through January 30, 2029. (Id.; see also Dkt. 9.) On January 26, 2026, DHS arrested
Marcos without a warrant. (Pet. ¶ 49.) Nothing in the record demonstrates that USCIS has
revoked Marcos’s deferred-action status or his employment authorization. He is currently
being held at Fort Snelling near St. Paul, Minnesota. (Id. ¶ 1.)
The Court, United States District Judge Michael J. Davis, issued an Order to Show
Cause on January 27, 2026, requiring Respondents to file an answer to the issues raised in
the Petition and enjoining Respondents from removing Marcos from the District of
Minnesota until a final decision is made in his Petition. (Dkt. 8.) Judge Davis specifically
ordered:
Respondents are directed to file an answer to the petition for a writ of
habeas corpus of petitioner Marcos L. by no later than January 29,
2026, certifying the true cause and proper duration of Petitioner’s
confinement and showing cause why the writ should not be granted in
this case.
(Id. ¶ 1.) Judge Davis further ordered:
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 2 of 8

3
Respondents’ answer should include:
a. Such affidavits and exhibits as are needed to establish the lawfulness
and correct duration of Petitioner’s detention in light of the issues
raised in the habeas petition;
b. A reasoned memorandum of law and fact explaining respondents’
legal position on Petitioner’s claims;
c. Respondents’ recommendation on whether an evidentiary hearing
should be conducted; and
d. Whether Petitioner’s current detention differs materially from cases
such as Jose J.O.E. v. Bondi, No. 25-CV-3501 (ECT/DJF), 2025 WL
2466670 (D. Minn. Aug. 27, 2025), in which petitioners have been
found entitled to a bond hearing pursuant to 8 U.S.C. § 1226(a).
(Id. ¶ 2.)
On January 28, 2026, Respondents filed a one-page Response to the Petition. (Dkt.
10.) Respondents stated that the Petition “raises legal and factual issues similar to those in
prior habeas petitions this Court has decided” and incorporated the arguments currently on
expedited review in Avila v. Bondi, No. 25-3248 (8th Cir. docketed Nov. 10, 2025). Despite
Judge Davis’s order, Respondents failed to attach to their response any affidavits or
exhibits to justify the lawfulness of Marcos’s detention or any warrant justifying his arrest.
(See Dkt. 10.) Marcos filed a reply on January 30, 2026, noting Respondents’ failure to
address the factual differences between this case and Avila, specifically including the fact
that Marcos was under deferred action when he was taken into custody. (Dkt. 11 at 2-3.)
Marcos also argued that courts in this District and across the country have ordered the
prompt release of habeas petitioners who have been arrested despite having been deferred-
action status. (Id. at 3-4.)
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 3 of 8

4
ANALYSIS
Two statutes govern the detention of noncitizens pending removal proceedings—8
U.S.C. §§ 1225 and 1226. In recent months, Respondents, have taken the position that the
mandatory detention provision in 8 U.S.C. § 1225(b)(2) applies to noncitizens, already in
the United States, that entered without inspection. By incorporating the arguments put
forward in Avila, Respondents argue that in these circumstances, noncitizens are not
entitled to a bond hearing under 8 U.S.C. § 1226(a) as a matter of statutory interpretation.
Marcos raises two distinct arguments: First, that his warrantless arrest despite having been
granted deferred action status by USCIS pursuant to a Bona Fide Determination violates
his rights to due process under the Fifth Amendment to the United States Constitution.
Second, Marcos argues that if he is subject to detention under the INA, he is not subject to
mandatory detention under § 1225(b)(2) and is instead subject to the discretionary
framework of § 1226(a), which requires that he receive a bond hearing.
Marcos’s first argument that he should never have been detained because he
received a Bona Fide Determination and work authorization for a U-visa application is
enough to require this Court to recommend his release. Judge Laura Provinzino carefully
described the U-visa legal framework in M.M. v. Shea. Order Dismissing Habeas Petition,
M.M. v. Shea, No. 25-cv-2830 (LMP/ECW) (D. Minn. Aug. 1, 2025), ECF. No. 24 at 2-5.
That framework is incorporated herein by reference. See id.; see also Nevarez Jurado v.
Freden, --- F. Supp. 3d ---, No. 25-cv-943 (LJV), 2025 WL 3687264, at *3-4 (W.D.N.Y.
Dec. 19, 2025) (describing legal framework). “Deferred action” is “an exercise of
prosecutorial discretion that defers the removal of the [noncitizen] based on the
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 4 of 8

5
[noncitizen’s] case being made a power priority for removal” but “does not confer any
immigration status upon a[] [noncitizen].” See Order Dismissing Habeas Petition, M.M. v.
Shea, No. 25-cv-2830 (LMP/ECW) (D. Minn. Aug. 1, 2025), ECF 24 at 5 n.3 (alterations
in original) (quoting New Classification for Victims of Criminal Activity; Eligibility for
“U” Nonimmigrant Status, 72 Fed. Reg. 53014, 53015 n.2 (Sep. 17, 2007) (codified at 8
C.F.R. § 214.14) (“U-visa Interim Rule”)). When deferred action status is approved, that
means “no action will thereafter be taken to proceed against an apparently deportable alien,
even on grounds normally regarded as aggravated.” Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 484 (1999) (Scalia, J.) (quoting 6 C. Gordon, S. Mailman, & S.
Yale-Loehr, Immigration Law & Procedure § 72.03[2][h] (1998)); accord Nevarez
Jurado, 2025 WL 3687264, at *4. “[A]n ever-growing number of district courts across the
country have concluded[] that an unrevoked grant of deferred action prevents removal.”
Nevarez Jurado, 2025 WL 3687264, at *8 (citing cases).
This Court takes guidance from Nevarez Jurado. Nevarez Jurado, like Marcos, had
received a Bona Fide Determination on a U-visa application and was granted employment
authorization and deferred-action status. Id. at *2. A few years later, Nevarez Jurado was
detained by ICE, and a prior order of removal was reinstated. Id. “[N]othing in the record
indicate[d] that USCIS ha[d] revoked Nevarez Jurado’s grant of deferred action.” Id.; see
also id. at *9 n.10 (“USCIS apparently has done nothing to terminate Nevarez Jurado’s
deferred action.”). The court concluded that because Nevarez Jurado’s deferred action
remained valid when he was detained, and that deferred action had not been revoked, he
was “protected from removal.” Id. at *10. Because Nevarez Jurado’s “unrevoked grant of
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 5 of 8

6
deferred action” had not expired, he had shown that “there [was] no significant likelihood
of his removal in the reasonably foreseeable future.” Id. at *10 (quotation omitted). The
court further determined that Nevarez Jurado’s continued detention violated his due
process rights under the Fifth Amendment. Id. at *10-12.
Respondents fail to make any arguments justifying Marcos’s detention despite his
employment authorization and deferred-action status. Judge Davis’s January 27, 2026
Order to Show Cause directed Respondents’ answer to the Petition to include any
“affidavits and exhibits” that would “establish the lawfulness and correct duration of
Petitioner’s detention,” but Respondents did not file any documentary support. The record
before the Court fails to demonstrate that Marcos’s employment authorization was
revoked, that his deferred action status was terminated, or that a determination was made
that the employment authorization or deferred action were “no longer warranted or were
granted in error.” (See Dkt. 4-4 (notifying Marcos that USCIS “reserve[d] the right to
revoke [his] employment authorization and terminate the grant of deferred action at any
time if it determines they are no longer warranted or were granted in error.”). Nothing in
the record supports any argument that Respondents revoked Marcos’s employment
authorization or terminated his deferred-action status, and as such, there is no basis for his
detention. See Nevarez Jurado, 2025 WL 3687264, at *10 (determining that because the
petitioner’s “unrevoked grant of deferred action” had not expired, he had shown that “there
[was] no significant likelihood of his removal in the reasonably foreseeable future”).
“In the context of deferred action recipients, district courts have found both
immediate release and a bond hearing to be appropriate remedies.” Santiago v. Noem, No.
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 6 of 8

7
EP-25-CV-361, 2025 WL 2792588, at *13 (W.D. Tex. Oct. 2, 2025); accord Nevarez
Jurado, 2025 WL 3687264, at *12. USCIS has already determined that Marcos does not
pose a “risk to national security or public safety” by virtue of its Bona Fide Determination
and grant of employment authorization and deferred action. See B.D.A.A. v. Bostock, Civ
No. 6:25-cv-02062, 2025 WL 3484912, at *5 (D. Or. Dec. 4, 2025) (quoting Kothari v.
Dir. of USCIS, No. 3:24 C 50101, 2025 WL 732075, at *3 (N.D. Ill. Jan. 24, 2025)); see
also Nevarez Jurado, 2025 WL 3687264, at *12 (noting that USCIS “determines whether
the petitioner poses a risk to national security or public safety” and conducts “background
and security checks” (quoting USCIS Policy Manual, Vol. 3, Part C, Ch. 5,
https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5 (last visited Feb. 2,
2026))). Accordingly, this Court will recommend Marcos’s immediate release.
RECOMMENDATION
Based on all the files, records, and proceedings herein, this Court hereby
RECOMMENDS that:
1. the Petition (Dkt. 1) be GRANTED, and that Marcos L. be immediately released
from detention into Minnesota, and that Respondents be ordered to return to
Marcos L. his work permit, driver’s license, and any other seized documents,
property, or effects seized during his arrest; and
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 7 of 8

8
2. in light of the Petition being granted, Petitioner’s Emergency Motion for
Temporary Restraining Order (Dkt. 5) be denied as moot.
Dated: February 3, 2026
s/Shannon G. Elkins
SHANNON G. ELKINS
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under the circumstances of this case and Local Rule 72.2(b)(1), the parties may file and
serve specific written objections to a magistrate judge’s proposed findings and
recommendations within 2 days of the filing of the Report and Recommendation without
regard to weekends or holidays. A party may respond to those objections within 2 days
after being served a copy of the objections without regard to weekends or holidays. See
Local Rule 72.2(b)(2). All objections and responses must comply with the word or line
limits set forth in Local Rule 72.2(c).
CASE 0:26-cv-00676-MJD-SGE Doc. 12 Filed 02/03/26 Page 8 of 8