Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
ALFONSO CRUZ PESINA 	)
)
Petitioner, 	)
)
v. 	) 	Case No. 6:26-cv-3124-MDH
)
JIM ARNOTT, et. al., 	)
)
Respondents. 	)
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner has been detained by the Department of Homeland Security (“DHS”) and parole
has been terminated without prior written notice. Pending is his Verified Petition for Writ of Habeas
Corpus in which he argues federal statutes and the Due Process Clause require that he be released
or granted a hearing. The Court agrees with Petitioner’s statutory arguments, and on that basis, it
concludes the Petition for Writ of Habeas Corpus should be GRANTED.
BACKGROUND
Petitioner Alfonso Cruz-Pesina is a native and citizen of Mexico. He was apprehended in
2009 near the southern border of the United States and placed into expedited removal proceedings
pursuant to INA § 235(b)(1), 8 U.S.C. § 1225(b)(1). After establishing a credible fear of
persecution, DHS vacated expedited removal and initiated removal proceedings under INA § 240
by issuing a Notice to Appear. At that point, Petitioner’s detention authority shifted to INA §
236(a), 8 U.S.C. § 1226(a), which governs the arrest and detention of noncitizens pending removal
proceedings and expressly authorizes release on bond.
On April 6, 2009, an Immigration Judge exercised jurisdiction under INA § 236(a) and
ordered Petitioner released on bond in the amount of $6,000. Petitioner posted that bond and was
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released from custody pursuant to that lawful custody determination. That order was never
appealed, revoked, or modified, and Petitioner thereafter remained at liberty pursuant to that valid
and final custody order.
Petitioner’s removal proceedings have remained pending for many years. Petitioner sought
protection from removal, and his case was litigated through the federal courts. The United States
Court of Appeals for the Eighth Circuit granted a motion to remand Petitioner’s case to the Board
of Immigration Appeals for further proceedings, thereby reopening and continuing Petitioner’s
removal proceedings. Following remand, the Board of Immigration Appeals returned jurisdiction
to the Immigration Court for further adjudication, including consideration of Petitioner’s eligibility
for a pending U visa.
Years after his lawful release on bond, Petitioner was erroneously ordered removed in
absentia after a hearing notice was mailed to an attorney who had not represented him for over a
decade. Immigration authorities arrested Petitioner based on that removal order and detained him.
However, the Immigration Court promptly rescinded the in-absentia removal order after
determining that it had been entered in error. Once that removal order was rescinded, any detention
authority arising under INA § 1231 ceased to exist.
Petitioner argues at that point, the only remaining statutory authority governing Petitioner’s
custody was INA § 236(a), the same statutory framework under which he had previously been
granted bond and released. Instead of restoring Petitioner to his prior custody status or providing
a new individualized bond hearing under INA § 236(a), DHS has continued to detain Petitioner
without bond based on its assertion that he is subject to mandatory detention under INA §
235(b)(1), relying on Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019).
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On August 14, 2025, an Immigration Judge ruled that although Petitioner had been lawfully
released on bond in 2009 under INA § 236(a), the Attorney General’s subsequent decision in
Matter of M-S- rendered him ineligible for bond. The Immigration Judge therefore declined to
conduct an individualized custody determination and ordered Petitioner detained without bond.
After that, an Immigration Judge ordered Petitioner removed, stating the court could not
continue proceedings while Petitioner remained detained pending adjudication of his U-visa
application. Petitioner timely appealed that removal order to the Board of Immigration Appeals.
Because that administrative appeal remains pending, the removal order is not administratively final
and Petitioner argues his detention is governed by INA § 236(a), under which bond is available.
He is currently being held in Greene County Jail in Springfield, Missouri.
Petitioner brought this proceeding, seeking a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, against (1) the acting director of ICE, (2) the Secretary of DHS, and (3), the Greene County
Sheriff all in their official capacities.1 He asserts his detention violates the Immigration Nationality
Act (INA), and the Due Process Clause. Respondents argue that Petitioner is not entitled to be
considered for release, and the Court resolves the parties’ arguments below.
DISCUSSION
I. 	Jurisdiction
Respondents argue that three statutory provisions—8 U.S.C. §§ 1252(e)(3), 1252(g) and
(b)(9) deprive this Court of jurisdiction to consider Petitioner’s claims. The Court disagrees.
1 Petitioner’s Petition lists Jim Arnott as a party by virtue of his administration of the Greene County Jail in Springfield,
Mo. The Court construes the proper party holding Petitioner in custody as the Department of Homeland Security
through Immigration and Customs Enforcement. As DHS and ICE are utilizing the Greene County Jail to hold
Petitioner and other detainees, the Court expects its ruling to apply to the Government and those aiding the
Government regarding this specific case.
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Section 1252(e)(3), entitled “Challenges on validity of the system,” limits the scope of
judicial review of “orders under Section 1225(b)(1)” and limits venue to the U.S. District Court
for the District of Columbia. Petitioner is “not challenging the lawfulness of any particular statute,
regulation, or written policy or procedure.” Thus, § 1252(e)(3) does not strip this Court of
jurisdiction. See Munoz Materano v. Arteta, 2025 WL 2630826 (S.D.N.Y. Sept. 12, 2025), at *10.
Further, this statute only bars jurisdiction based on those held under 8 U.S.C. § 1225. However,
the Court adopts its ruling in similar cases2 and finds that Petitioner is being held under 8 U.S.C.
§ 1226. Therefore, 8 U.S.C. § 1252(e)(3) does not deprive the Court of Jurisdiction.
Sections 1252(g) and (b)(9) apply narrowly to systemic challenges to regulations
implementing expedited removal, review of an order of removal, the decision to seek removal, or
the process by which removability will be determined, not to constitutional or statutory claims
which precede and are collateral to that process, including, as relevant here, unlawful arrest or
detention. See Mata Velasquez v. Kurzdorfer, No. 25-CV-493-LJV, 2025 U.S. Dist. LEXIS 135986,
2025 WL 1953796, at *7 (W.D.N.Y. July 16, 2025); see also Hernandez-Cuevas v. Olson, No.
4:25-cv-00830-BP, at 3 (W.D. Mo. Nov. 05, 2025) (citing 8 U.S.C. § 1252(b)(2)); Cifuentes Rivera
v. Arnott, et al, 25-cv-00570-RK1, Doc.19 at 7 (W.D. Mo. Oct. 07, 2025) (“the narrow scope of §
1252(g) does not cover “claims [that] are collateral to the Government’s decision to execute the
final order of removal,” for instance, claims seeking relief based upon the Government’s alleged
failure to comply with its own regulations regarding the required administrative processes after an
2 Andres v. Noem, et al., No. 25-03321-CV-S-MDH, Eshdavlatov v. Olson, et al. No. 25-00844-CV-S-MDH,
Hernandez-Cuevas v. Olson, et al., No. 25-00830-CV-W-BP, Ifante v. Noem, et al., No. 25-03322-CV-S-MDH,
Morales-Rodriguez v. Arnott, et al., No. 25-00836-CV-S-MDH, Pozos-Ramirez v. Noem, et al., No. 25-03316-CV- S-
MDH. As of the date of this Order the Court is not aware of any appellate decisions from this Circuit. The Court is
aware that the Fifth Circuit issued a 2-1 decision from a 3-judge panel agreeing with the Respondents’ position and
rejecting Petitioner’s arguments and hundreds of district courts across the country. See Buenrostro-Mendez v. Bondi,
Case No. 25-20496 (5th Circuit, 02/06/2026). The Fifth Circuit’s decision does not bind this Court.
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alien is detained.”). Petitioner is challenging his unlawful detention, not any removal decisions or
actions, so the above provisions do not deprive the Court of jurisdiction.
For those reasons, this Court concludes it has jurisdiction over Petitioner’s habeas petition.
II. 	The Due Process Clause
"A procedural due process claim has two elements: (1) a deprivation of a
constitutionally protected liberty or property interest, and (2) a denial of adequate procedural
protections." Sanchez v. LaRose, 2025 U.S. Dist. LEXIS 190593, *6-7 (citing Miranda v. City of
Casa Grande, 15 F4th 1219, 1225 (9th Cir. 2021) (internal quotations and citation omitted)).
"Freedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that the [Due Process] Clause protects." Sanchez
v. LaRose at *7 (citing Zadvydas v. Davis, 533 U.S. at 690). Although immigration detention is
administrative, it is still subject to due process clause review. Id. (citing Hernandez v. Sessions,
872 F3d at 981 ("the government's discretion to incarcerate noncitizens is always constrained by
the requirements of due process.")). When the government grants an alien parole into the country,
it creates a liberty interest intimately tied to freedom from imprisonment. Id. (citing Alegria Palma
v. LaRose, 25-cv-1942, ECF No.14 (S.D. Cal. Aug. 11, 2025) (finding that "continued freedom
after release on own recognizance" was a core liberty interest)). Here, Petitioner was granted bond
by an Immigration Judge, posted that bond, and lived at liberty pursuant to that custody
determination. Petitioner was deprived of his liberty interest without proper process when
Respondents placed him in detention without an individualized custody determination.
Respondents also denied petitioner due process in the revocation of his parole. "The
essence of due process is the requirement that 'a person in jeopardy of a serious loss [be given]
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notice of the case against him and the opportunity to meet it." Sanchez at *8 (citing Mathews v.
Eldridge, 424 U.S. 319, 348, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Joint Anti-Fascist
Comm. v. McGrath, 341 U.S. 123, 171-72, 71 S. Ct. 624, 95 L. Ed. 817 (Frankfurter, J.,
concurring)). In the immigration context, "the Constitution requires the government to afford
notice of any action against an alien [and] requires an opportunity for the alien to be heard. [] The
opportunity to be heard must be meaningful, that is, an opportunity granted at a meaningful time
and in a meaningful manner." Id. (citing Ying Fong v. Ashcroft, 317 F.Supp.2d 398, 403 (S.D.N.Y.
2004) (internal quotations and citations omitted)).
An alien's opportunity to be heard regarding the revocation of his parole is only meaningful
if the government comports with its own internal standards regarding parole revocation. DHS has
the authority to revoke an alien's parole "at any time" on a discretionary, but not unlimited, basis.
Id. at *8. (citing 8 U.S.C. § 1226(b); Mohammed H. v. Trump, No. 25-1576 (JWB/DTS), 2025 U.S.
Dist. LEXIS 117197, 2025 WL 1692739, at *5 (D. Minn. June 17, 2025) ("The Government has
wide—but not unlimited—discretion in the immigration realm.")). The Board of Immigration
Appeals ("BIA") has held that DHS may change the conditions of an alien's parole only when there
is a sufficient change of circumstances to justify that change. Id. (citing Matter of Sugay, 17 I. &
N. Dec. 637, 640 (BIA 1981) (as cited in Alegria Palma, No. 25-cv-1942-BJC-MMP, ECF No.14
at 3)). "In practice, the DHS re-arrests individuals only after a 'material' change in circumstances."
Id. at *9. (citing Ortega v. Bonnar, 415 F.Supp.3d 963, 968 (N.D. Cal. 2019)). To satisfy due
process, those changed circumstances must represent individualized legal justification for
detention. Id. at *9 (citing Mohammed H., 2025 U.S. Dist. LEXIS 117197, 2025 WL 1692739 at
*5 (granting a writ of habeas corpus on due process grounds due to a lack of individualized legal
justification for changing the petitioner's status)).
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Here, Respondents revoked Petitioner's parole without a showing of change in
circumstances related to his case. Respondents do not dispute the facts as Petitioner presents them.
They only argue this Court lacks jurisdiction and that their statutory interpretation is the correct
interpretation. In their briefing, Respondents do not state a "sufficient change in circumstances" to
justify revoking Petitioner's parole, or any individualized justification at all. Id. at *9
(citing Matter of Sugay, 17 I. & N. Dec. at 640). Petitioner was previously released on bond and
that bond order became final. The Government never revoked that bond order and no new custody
determination has been issued for Petitioner. Since 2009 Petitioner has attended immigration and
removal proceedings. There was no evidence from his conduct that he was a flight risk. Thus,
Respondents did not satisfy the requirement of due process in revoking Petitioner's parole.
III. Temporary Restraining Order
In the Petition, Petitioner requests this Court grant any further relief this Court deems just
and proper. Under similar circumstances, this Court has granted temporary injunctive relief to
habeas petitioners to enjoin Respondents from relocating petitioners outside the jurisdiction of this
Court prior to compliance with this Order. The Courts finds that such relief is just and proper in
this case.
In analyzing a request for a TRO, the Court weighs: 1) probability movant will succeed on
the merits; 2) threat of irreparable harm to the movant absent injunction; 3) balance between
threatened harm to the movant and harm the injunction would inflict on other interested parties;
and 4) the public interest. Dataphase Sys., Inc. v. C L Syst., Inc., 640 F.2d 109, 114 (8th Cir.1981)
(en banc). “No single factor is dispositive;” rather, the court must consider all factors to determine
whether on balance they weigh towards granting the remedy. Calvin Klein Cosmetics Corp. v.
Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987).
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The Court finds that a TRO in this case is appropriate. As discussed above, the Court has
already found that movant will succeed on his Petition for Habeas Corpus by virtue of his Due
Process argument. Further, the threat of irreparable harm to the movant absent injunction is high
as any move from this district prior to a bond hearing would render this Order and Petitioner right
to a hearing as meaningless. As to the balance between the threatened harm to the movant and the
harm the injunction would inflict on other interested parties, the balance tips in favor of Petitioner.
Respondents and other interested parties would not suffer by allowing Petitioner to have a hearing.
Lastly, there is a public interest in allowing those who are detained in violation of the Due Process
Clause to be released and given hearing as expressed and determined by Congress. For these
reasons, the Court finds a TRO is appropriate.
IV. Attorneys’ Fees
Petitioner requests an award of reasonable attorneys’ fees and costs. Pursuant to the EAJA,
a court shall award to a prevailing party fees and other expenses incurred by that party in any civil
action, brought by or against the United States, unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust. 28 U.S.C §
2412(d)(1)(A). To be eligible for fees under the EAJA, a petitioner must submit an application
within thirty days of final judgment, and the petitioner's net worth must be less than two million
dollars at the time the civil action was filed. See id. §§ (d)(1)(B), (d)(2)(B)(i). The EAJA was
enacted with the purpose of removing the financial disincentive for individuals challenging or
defending against government action and encouraging challenges to improper government action
as a means of helping formulate better public policy. See, e.g., Comm'r, I.N.S. v. Jean, 496 U.S.
154, 163 (1990) (“[T]he specific purpose of the EAJA is to eliminate for the average person the
financial disincentive to challenge unreasonable governmental actions.” (citation omitted));
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Boudin v. Thomas, 732 F.2d 1107, 1114 (2d Cir. 1984) (“The EAJA was passed partly to encourage
challenges to improper actions by government agencies. The drafters perceived legal actions as
helping to formulate public policy.” (citations omitted)).
As explained throughout, the Court finds the position of the United States is not
substantially justified. Respondents do not dispute the facts of Petitioner’s status, arrest, or
detainment. Yet, Respondents revoked Petitioner’s parole without a change in circumstances.
Thus, Petitioner may pursue an award of reasonable attorneys’ fees and costs pursuant to the Equal
Access to Justice Act.
CONCLUSION
The Court concludes Petitioner’s right to procedural due process has been violated, and he
is entitled to immediate release. Accordingly, the Petition for Writ of Habeas Corpus is
GRANTED as follows.
1. Petitioner is not subject to mandatory detention under 8 U.S.C. § 1225(b)(2), and is instead
subject to detention, if at all, pursuant to the discretionary provisions of 8 U.S.C. §
1226(a)(1).
2. Respondents are ORDERED to immediately release Petitioner from custody.
3. Respondents shall make accommodations available for Petitioner until such time as
arrangements can be made for Petitioner to be returned to the location of arrest or other
location agreed by the parties.
4. Petitioner shall promptly report to the Court any failure to comply with this Order by
Respondent.
5. Petitioner may submit an application for fees under the EAJA within thirty days of the
entry of final judgment.
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6. It is FURTHER ORDERED that Respondents are enjoined from relocating Petitioner
outside the jurisdiction of this Court prior to compliance with this Order.
IT IS SO ORDERED.
DATED: March 10, 2026
/s/ Douglas Harpool
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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