Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
JOSE SAUL GUTIERREZ GONZALEZ,
Petitioner,
v. 	Case No. 1:26-cv-00059 KWR-LF
KRISTI NOEM, Secretary of the Department
of Homeland Security,
MARISA FLORES, Field Office Director
El Paso Immigration and Customs Enforcement,
GEORGE DEDOS, Warden of Cibola County Correctional Center,
TODD M. LYONS, Acting Director, U.S. Immigration and
Customs Enforcement, and
PAMELA BONDI, Attorney General of the United States,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1). Having reviewed the parties’ pleadings, briefing, and the relevant law, the Court
finds that the Petition is well-taken and therefore is GRANTED in part. The Court orders
Respondents to hold an individualized bond hearing for Petitioner within five (5) days of the entry
of this order.
BACKGROUND
Petitioner is a citizen of Mexico. Pet. ¶ 14, Doc. 1. He entered the United States without
inspection in March 2000. Id. ¶ 40. He was detained by ICE on November 3, 2025. Id. ¶ 14.
Petitioner asserts he is eligible for cancellation of removal as he has three children who are
United States citizens. Id. ¶ 43. He has no criminal record. Id. ¶ 44.
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 1 of 19

2
On September 5, 2025, the Board of Immigration Appeals issued a decision holding that
immigration judges lacked authority or jurisdiction to consider bond requests for any person who
entered the United States without admission. Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA
2025) (“Immigration Judges lack authority to hear bond requests or to grant bond to aliens who
are present in the United States without admission.”). Here, Petitioner asserts that “ICE issued a
custody determination to continue Petitioner’s detention without an opportunity to post bond or be
released on other conditions.” Pet. ¶ 45.
In sum, Petitioner has remained in federal immigration custody without an opportunity to
post bond or request a conditional release because his detention has been classified as mandatory
under 8 U.S.C. § 1225(b)(2)(A). Petitioner requests that the Court issue a writ of habeas corpus
requiring Respondents to (1) release Petitioner or (2) conduct an individualized bond hearing.
LEGAL STANDARD
The Constitution guarantees that the writ of habeas corpus is “available to every individual
detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S.
Const., art I, § 9, cl. 2). A federal court may grant a writ of habeas corpus to a petitioner who
demonstrates that he is in custody in violation of the Constitution or federal law. 28 U.S.C. §
2241(c)(3). “Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S.
678, 687-88 (2001)).
DISCUSSION
Petitioner asserts he is “in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). He argues that he is improperly detained pursuant to 8
U.S.C. § 1225(b)(2)(A), and that he is instead entitled to release or a bond hearing under 8 U.S.C.
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 2 of 19

3
§ 1226(a). As explained below, Petitioner, who has lived in the United States for years, is subject
to the discretionary detention provisions of § 1226(a) and is therefore entitled to an individualized
bond hearing before an immigration judge.
I. 	The Court has jurisdiction over this matter.
Respondents assert that the Court lacks jurisdiction to hear the Petition.1 As explained
herein and in Aguilar v. Bondi, which the Court incorporates herein, the Court has subject matter
jurisdiction over the narrow detention issue in the Petition, i.e., determining whether mandatory
detention under § 1225(b)(2)(A) applies or discretionary detention under § 1226(a) applies
pending a decision on Petitioner’s removal. See Aguilar v. Bondi, No. 1:25-CV-00996-KWR-KK,
2026 WL 84520 (D.N.M. Jan. 12, 2026). “[W]here Congress intends to preclude judicial review
of constitutional claims its intent to do so must be clear.” 	Demore v. Kim, 538 U.S. 510, 517
(2003). And Congress must be “particularly clear” that it intends for a provision to preclude habeas
review. Id. As here, “[c]hallenges to immigration detention are properly brought directly through
habeas.” Soberanes v. Comfort, 388 F.3d at 1310 (citing Zadvydas, 533 U.S. at 687-88).
Respondents cite to various provisions which purport to restrict a district court’s
jurisdiction to hear challenges to removal proceedings. 	Here, Petitioner is challenging his
detention, and is not seeking review of any his removal proceedings or a removal order.
For example, § 1252(b)(9) prohibits “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,”
1 Respondents generally asserted in Aguilar v. Bondi that the Court lacked subject matter
jurisdiction over the habeas petition. They incorporated this argument in their Response in this
case. See Response to Petition, Doc. 12 at 4 (incorporating legal arguments presented in Aguilar
v. Bondi); 	Motion to Dismiss, Aguilar v. Bondi, 1:25-cv-996 KWR/KK, Doc. 11 at 11-12
(D.N.M.) (“No court has jurisdiction to review any other cause or claim arising from or relating to
the implementation or operation of an order of removal pursuant to § 1225(b)(1)”).
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 3 of 19

4
except for judicial review of a final order of removal. 	It further precludes habeas corpus
jurisdiction “to review such an order or such questions of law or fact” unless otherwise provided.
§ 1252(b)(9). Here, Petitioner does not challenge his removal proceedings. The Supreme Court
has rejected a broad interpretation of § 1252(b)(9) that would expand the phrase “arising from any
action taken” to preclude habeas review of detention of noncitizens during removal proceedings.
Jennings, 583 U.S. 281, 293 (2018) (determining that interpreting § 1252(b)(9) to apply to any
injury that would not have occurred but for a noncitizen’s detention status would lead to “absurd”
results); see also Mukantagara v. U.S. Dep’t of Homeland Sec., 67 F.4th 1113, 1116 (10th Cir.
2023) (“A claim only arises from a removal proceeding when the parties in fact are challenging
removal proceedings.”). Petitioner, as in Jennings, is “not asking for review of an order of removal;
they are not challenging the decision to detain them in the first place or to seek removal; and they
are not even challenging any part of the process by which their removability will be determined.”
Jennings, 583 U.S. at 294. Accordingly, the Court finds that § 1252(b)(9) does not strip the Court
of jurisdiction to consider the narrow detention issues in the Petition.
II. 	Respondents do not argue that Petitioner is mandatorily detained under § 1225(b)(1).
Respondents did not expressly argue that Petitioner was subject to expedited removal under
§ 1225(b)(1) and did not provide evidence that he was placed in expedited removal proceedings.
Respondents assert that Petitioner is detained under § 1225(b)(2)(A). Doc. 12 at 2. However, the
Court addresses whether Petitioner is detained under § 1225(b)(1) because Respondents raised it
in Aguilar v. Bondi, which Respondents incorporated in their Response to the Petition. 	See
Response to Petition, Doc. 12 at 4 (incorporating legal arguments presented in Aguilar v. Noem);
Motion to Dismiss, Aguilar v. Bondi, 1:25-cv-996 KWR/KK, Doc. 11 at 11-12 (D.N.M.) (“No
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 4 of 19

5
court has jurisdiction to review any other cause or claim arising from or relating to the
implementation or operation of an order of removal pursuant to § 1225(b)(1)”).
Section 1225(b)(1) provides that “[i]f an immigration officer determines that an alien ...
who is arriving in the United States ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7)
of this title, the officer shall order the alien removed from the United States without further hearing
or review unless the alien indicates either an intention to apply for asylum under section 1158 of
this title or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). This is commonly referred to as
expedited removal. “An applicant is subject to expedited removal if, as relevant here, the applicant
(1) is inadmissible because he or she lacks a valid entry document; (2) has not ‘been physically
present in the United States continuously for the 2-year period immediately prior to the date of the
determination of inadmissibility’; and (3) is among those whom the Secretary of Homeland
Security has designated for expedited removal. §§ 1225(b)(1)(A)(i), (iii)(I)–(II).” Dep't of
Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 109 (2020). Noncitizens subject to § 1225(b)(1)
potentially face mandatory detention. § 1225(b)(1)(B)(ii), (iii)(IV).
Under 8 U.S.C. § 1252(e)(2), a district court is restricted in habeas corpus proceedings
from evaluating any questions related to an order for expedited removal outside of three inquiries
listed as follows: (1) whether the petitioner is an alien; (2) whether a petitioner was ordered
removed under § 1225(b)(1); and (3) whether the petitioner is a lawful permanent resident, refugee,
or asylee. § 1252(e)(2); Vaupel v. Ortiz, 244 F. App'x 892, 895 (10th Cir. 2007).
Here, Respondents have not expressly argued or presented evidence that Petitioner is
currently being processed under the expedited removal provisions. Rather, the only evidence in
the record suggests that he was not placed in expedited removal proceedings. Respondents placed
into the record a Notice to Appear under Section 240 of the Immigration and Nationality Act. See
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 5 of 19

6
Notice to Appear, Doc. 12-2 at 1. This refers to removal proceedings under § 1129, not the
expedited removal proceedings under § 1225(b)(1). Thus, Petitioner was not placed in expedited
removal proceedings. Moreover, in the Notice the box for “arriving alien” was left unchecked, and
instead Respondents checked the box “you are an alien present in the United States who has not
been admitted or paroled.” 	Doc. 12-2 at 1. This also suggests that Petitioner was not placed in
expedited removal proceedings because he was not treated as an arriving alien.
As explained by Judge Yarbrough,
Here, upon initial entry, Mr. Vazquez Paredes may have been a candidate for
expedited removal under Section 1225(b)(1) as he was inadmissible under Section
1182(a)(7) due to a lack of valid entry documents. See Doc. 6-1. However, the
government did not originally place Mr. Vazquez Paredes in expedited removal
proceedings, instead placing him in full Section 240 removal proceedings.
…
Mr. Vazquez Paredes cannot be in both full 240 proceedings and expedited
proceedings at the same time. See Patel v. Tindall, No. 3:25-CV-373-RGJ, 2025
WL 2823607, at *5 (W.D. Ky. Oct. 3, 2025) (collecting cases and noting that
“Respondents in other cases have conceded that an individual cannot be in two
removal proceedings simultaneously”). Thus, “even if § 1225(b)(1) could—as a
general matter—apply to [Mr. Vazquez Paredes], he is not currently subject to
expedited removal proceedings and thus is not subject to § 1225(b)(1)’s detention
provisions. Respondents cannot detain [Mr. Vazquez Paredes] in connection with
expedited removal proceedings that do not exist.” Fadeev v. Lyons, No. SA-25-CA-
01758-XR, 	2026 	WL 	93147, 	at 	*4 	(W.D. 	Tex. 	Jan. 	7, 	2026).
Vazquez Paredes v. Warden, Civ. No. 26-6 MIS/SCY, 2026 WL 222317, at *5 (D.N.M. Jan. 28,
2026).
Thus, Petitioner is not subject to mandatory detention under § 1225(b)(1).
III. 	Whether mandatory detention under § 1225(b)(2)(A) or discretionary detention
under § 1226(a) applies.
At issue is whether § 1225(b)(2)(A) or § 1226(a) governs Petitioner’s detention while a
decision on his removal is pending. Mandatory detention under § 1225(b)(2)(A) applies to
noncitizens “seeking admission” into the United States. Petitioner asserts that he is entitled to a
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 6 of 19

7
bond hearing or immediate release pursuant to § 1226(a), as he has resided in the United States for
years and is not “seeking admission” into the United States. Despite this statutory language,
Respondents argue that the mandatory detention provision under § 1225(b)(2)(A) applies, as that
provision covers not only those who present themselves at the border, but any noncitizen who is
present in the United States without admission, pending a decision on removal. See, e.g., Matter
of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025) (“Immigration Judges lack authority to hear
bond requests or to grant bond to aliens who are present in the United States without admission.”).
As explained below, the statutory phrase “seeking admission” cannot be interpreted to apply to
Petitioner, who has lived in the United States for years. Therefore, Petitioner is entitled to a bond
hearing under § 1226(a).
In construing the statute at issue, the Court begins with its plain text. See Chickasaw Nation
v. United States, 208 F.3d 871, 876 (10th Cir. 2000). “If the terms of the statute are clear and
unambiguous, they are controlling absent rare and exceptional circumstances.” Id. In ascertaining
the meaning of the text, the Court considers the “language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997); see also Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th Cir.
2009) (“We also take into account the broader context of the statute as a whole when ascertaining
the meaning of a particular provision.”). The Court also considers traditional canons of statutory
interpretation. Conrad, 585 F.3d at 1381; Ramah Navajo Chapter v. Salazar, 644 F.3d 1054, 1062
(10th Cir. 2011). Generally, the Court only considers non-textual evidence bearing on Congress’s
intent or purpose, such as legislative history, if statutory language is ambiguous. See, e.g., United
States v. Husted, 545 F.3d 1240, 1247 (10th Cir. 2008).
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 7 of 19

8
The Immigration and Nationality Act (“INA”) generally contemplates two detention
regimes for noncitizens pending a decision on removal. See Jennings v. Rodriguez, 583 U.S. 281,
289 (2018). The first detention regime provides that when “an applicant for admission” is “seeking
admission” and “not clearly and beyond a doubt entitled to be admitted,” the noncitizen “shall be
detained” for removal proceedings. 8 U.S.C. § 1225(b)(2)(A). This provision mandates detention
and does not expressly afford a bond hearing. Id. Section 1225 has exceptions to mandatory
detention, which are not relevant here. The second detention regime authorizes the arrest and
detention “on a warrant issued by the Attorney General” of noncitizens “pending a decision on
whether [they are] to be removed.” 8 U.S.C. § 1226(a). Section 1226(a) expressly authorizes the
Attorney General to detain the arrested noncitizen, or release them on bond or conditional parole.
Id. 	Section 1226(c) has certain exceptions which mandate detention. For example, mandatory
detention under § 1226(c) applies to a noncitizen who is (1) “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” and (2) “charged with, is arrested for, is convicted of, [or]
admits having committed” certain criminal acts. § 1226(c)(1)(E).
Put another way, “U.S. immigration law authorizes the Government to detain certain aliens
seeking admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the
Government to detain certain aliens already in the country pending the outcome of removal
proceedings under §§ 1226(a) and (c).” Jennings, 583 U.S. at 289 (emphasis added), quoted in
Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (concluding
that § 1226(a) applied to noncitizens already present in country who were not admitted).
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 8 of 19

9
Thus, for § 1225(b)(2)(A)’s mandatory detention proceedings to apply, the Court must find
as follows: (1) the noncitizen is “an applicant for admission”, (2) who is “seeking admission,” and
(3) “not clearly and beyond a doubt entitled to be admitted.”
Respondents argue that Petitioner is an applicant for admission and the § 1225(b)(2)(A)
mandatory detention provisions apply. Petitioner is likely an applicant for admission under the
statute. Here, an “applicant for admission” is defined as “an alien present in the United States who
has not been admitted or who arrives in the United States.” § 1225(a)(1). “The terms ‘admission’
and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States
after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Because
Petitioner is present in the United States and has not been admitted, he may be deemed by the
statute to be an “applicant for admission,” satisfying the first criteria of § 1225(b)(2)(A).
But the detention provision under § 1225(b)(2)(A) applies only to noncitizens “seeking
admission.” § 1225(b)(2)(A). As explained below, under the plain meaning of the statute,
Petitioner, who has been living in the United States for years, is not “seeking admission.” Id.
“Admission” is defined as “the lawful entry of the noncitizen into the United States after inspection
and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). The term “entry” is
undefined in the statute. And Respondents do not argue that “entry” has any technical meaning in
the statutory provisions at issue. 	Assuming it has no technical meaning, it can be given its
“ordinary, contemporary, common meaning.” Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S.
405, 414 (2017) (internal quotation marks omitted); United States v. Santos, 553 U.S. 507, 511
(2008) (“When a term is undefined, we give it its ordinary meaning.”).
“Entry” most commonly means “[t]he action or an act of entering a place, area, building,
etc.” 	Entry, 	Oxford 	English 	Dictionary 	(2018); 	Merriam-Webster 	Dictionary 	Online,
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 9 of 19

10
https://www.merriam-webster.com/dictionary/entry (last visited January 21, 2026) (“the act of
entering”); Entry, Black's Law Dictionary (12th ed. 2024) (“Immigration. Any entrance of an alien
into the United States, whether voluntary or involuntary.”). “Seeking” in this context most
naturally means trying to obtain something or trying to bring about or effect. Seek, Oxford English
Dictionary Online (2018). “Seeking” is also in the present participle form, which expresses present
action. 	Present 	Participle, 	Merriam 	Webster 	Dictionary, 	https://www.merriam-
webster.com/dictionary/present%20participle (last visited January 21, 2026); see also Lopez-
Campos v. Raycraft, 797 F. Supp. 3d 771, 781 (E.D. Mich. Aug. 29, 2025) (The use of the present
participle in § 1225(b)(2)(A) “implies action – something that is currently occurring, and in this
instance, would most logically occur at the border upon inspection.”). Taken together, the “seeking
admission” phrase in § 1225(b)(2)(A) applies to noncitizens who are trying to lawfully and
physically enter the country. It does not apply to noncitizens who have lived in the United States
for years and are not seeking lawful entry into the United States.2
Respondents appear to suggest that all “applicants for admission” are deemed to be
“seeking admission.” Respondents essentially interpret “seeking admission” as coterminous with
“applicants for admission.” Respondents’ construction “would render § 1225(b)(2)(A)'s use of the
phrase 	‘seeking 	admission’ superfluous, 	violating 	one 	of 	the 	cardinal 	rules 	of 	statutory
2 The Court’s understanding of the plain, ordinary meaning of the word “entry” in this statute, i.e.,
that entry means the physical act of going into the country, accords with how it is understood and
used by the United States Supreme Court in the immigration context. The word “entry” has long
been used to refer to physically going into the country, regardless of whether the entrant is legally
in the United States. 	See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“[O]ur
immigration laws have long made a distinction between those aliens who have come to our shores
seeking admission ... and those who are within the United States after an entry, irrespective of its
legality.”); Zadvydas, 533 U.S. at 693 (“The distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.”).
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 10 of 19

11
construction.” Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir.
2025) (citing United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023)
(“[E]very clause and word of a statute should have meaning.”)). “If an interpretation of one
provision ‘would render another provision superfluous,’ courts presume that interpretation is
incorrect.” Castanon-Nava, 161 F.4 th at 1061 (quoting in part Bilski v. Kappos, 561 U.S. 593, 607–
08 (2010)). “And this presumption is ‘strongest when an interpretation would render superfluous
another part of the same statutory scheme,’ as would be the case here.” Castanon-Nava, 161 F.4th
at 1061 (quoting in part Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013)). Therefore, the Court
declines to interpret “seeking admission” in a manner wholly synonymous with “applicant for
admission.”
Rather than the two phrases being synonymous, the statutory language elsewhere in § 1225
appears to distinguish the phrase “applicants for admission” from the phrase “seeking admission,”
suggesting that these phrases have separate meanings. Section § 1225(a)(3) provides that “All
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. (emphasis added).
The word “or” in its “ordinary use is almost always disjunctive, that is, the words it connects are
to be given separate meanings.” Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting
United States v. Woods, 571 U.S. 31, 45 (2013)). Taken together, “or otherwise” is “used to refer
to something that is different from something already mentioned.” Or otherwise, Merriam Webster
Online, https://www.merriam-webster.com/dictionary/or%20otherwise (last visited January 12,
2026). If “applicant for admission” had the same meaning as “seeking admission”, there would be
no need to repeat the phrase “seeking admission” or use the phrase “or otherwise.” Thus, it is clear
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 11 of 19

12
that the phrases “applicants for admission” and “seeking admission” do not have the same
meaning.
Respondents’ interpretation would also render superfluous recent amendments to §
1226(c). Section 1226(c)(1)(E) mandates detention for certain noncitizens who are implicated in
certain crimes. Section 1226(c)(1)(E), which was added to the statute in 2025 by the Laken Riley
Act, mandates detention for any noncitizen (1) who is inadmissible under § 1182(a)(6)(A)(i) as an
“alien present in the United States without being admitted or paroled,” and (2) who “is charged
with, arrested for, convicted of, or admits” to committing certain crimes. 8 U.S.C. § 1226(c)(1)(E).
Under Respondents’ interpretation, all noncitizen who are present in the country without being
admitted or paroled must already be mandatorily detained under § 1225(b)(2)(A), rendering the
recent amendment superfluous. Generally, courts “do not lightly” find that Congress adopted “two
separate clauses in the same law to perform the same work.” United States v. Taylor, 596 U.S. 845,
857 (2022).
The Court’s interpretation of § 1225(b)(2)(A) is consistent with the decisions of multiple
courts, which have found that a person who has been present in the United States is not “seeking
admission” and therefore not subject to mandatory detention under § 1225(b)(2)(A). See, e.g.,
Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025); see also
Barco Mercado v. Francis, No. 25-CV-6582 (LAK), 2025 WL 3295903, at *13 (S.D.N.Y. Nov. 26,
2025) (collecting cases in Appendix A); Pu Sacvin v. Ybarra, No. 2:25-CV-1031-KG, 2025 WL
3187432, at *3 (D. N.M. Nov. 14, 2025) (“Noncitizens seeking admission are those who have not
effected an entry into the United States.”) (quotation marks omitted); Buenrostro-Mendez v.
Pamela Bondi, _F.4th _, 2026 WL 323330, at *10 (5th Cir. 2026) (Douglas, J. dissenting).
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 12 of 19

13
The Court’s interpretation is also consistent with the United States Supreme Court’s dicta.
In Jennings, the Supreme Court explained that Section 1225(b) “applies primarily to aliens seeking
entry into the United States (‘applicants for admission’ in the language of the statute).” Jennings,
583 U.S. at 297. In contrast, the Court explained that Section 1226 “applies to aliens already
present in the United States.” Id. at 303. The Court further noted that “Section 1226(a) creates a
default rule for those aliens [present in the United States] by permitting—but not requiring—the
Attorney General to issue warrants for their arrest and detention pending removal proceedings,”
and also “permits the Attorney General to release those aliens on bond.” Id. The Jennings Court’s
description of the relationship between §§ 1225 and 1226 is consistent with this court’s conclusion.
Respondents argue that the Court’s interpretation would treat noncitizens unlawfully
present in the United States preferentially to noncitizens who arrive at the border. They imply this
would be unfair or would reward noncitizens who pass the border without inspection. Because the
statutory language is unambiguous, the Court’s task is to ascertain its plain meaning, and the Court
generally should not address this extra-textual policy consideration. See McGraw v. Barnhart, 450
F.3d 493, 499 (10th Cir. 2006). Alternatively, this seemingly different treatment of those who are
already present in the United States is well-supported in case law. “The distinction between an
alien who has effected an entry into the United States and one who has never entered runs
throughout immigration law.” Zadvydas, 533 U.S. at 693; Leng May Ma v. Barber, 357 U.S. 185,
187 (1958) (“[O]ur immigration laws have long made a distinction between those aliens who have
come to our shores seeking admission ... and those who are within the United States after an entry,
irrespective of its legality.”).
Respondents cite to a decision by the BIA holding that § 1225(b)(2)(A) applies to
noncitizens present in the country who were not inspected at the border. See Matter of Yajure
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 13 of 19

14
Hurtado, 29 I & N Dec. 216 (BIA 2025). Hurtado is not binding on this court, and the agency’s
interpretation carries only the “power to persuade.” Loper Bright Enters. v. Raimondo, 603 U.S.
369, 402 (2024). As explained above, the Court does not find Hurtado persuasive.
Here, applying the above statutory interpretation to the facts of this case, it is clear that
Petitioner is not “seeking admission” under § 1225(b)(2)(A). He has lived in the United States for
years. And neither the Petition nor the Respondents’ Response identified any facts to suggest
Petitioner was “seeking admission”, i.e., lawful physical entry into the country, at the time of his
arrest. Therefore, it is clear that the detention provision under § 1225(b)(2)(A) does not apply to
Petitioner.
Instead, Section 1226(a), the default, more general detention provision pending a decision
on removal, governs Petitioner’s detention. “Section 1226 generally governs the process of
arresting and detaining that group of aliens pending their removal.” Jennings, 583 U.S. at 288.
Thus, the Court grants in part the Petition.
IV. 	The Court finds that a bond hearing, rather than immediate release, is the
appropriate remedy for violation of the INA.
Petitioner requests immediate release or a bond hearing before the immigration court. Pet.,
Doc. 1 at 13.
The Court concludes that in this case it should order a bond hearing rather than immediate
release, as ordering immediate release would result in the Court taking away Respondents’
discretionary decision. Section 1226(a) gives the Respondents discretion to either detain a
noncitizen, release the noncitizen on bond, or place them on parole. Generally, a release or bond
decision is discretionary. 8 U.S.C. § 1226(e) (“The Attorney General's discretionary judgment
regarding the application of this section shall not be subject to review. No court may set aside any
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 14 of 19

15
action or decision by the Attorney General under this section regarding the detention of any alien
or the revocation or denial of bond or parole.”).
To be sure, federal district courts have broad equitable powers in ordering habeas relief.
Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992). A federal court is vested with “the largest
power to control and direct the form of judgment to be entered in cases brought up before it on
habeas corpus.” Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724
(1987) (citation omitted). In issuing a writ of habeas corpus, a federal court has the power and
authority to dispose of habeas corpus matters “as law and justice require.” 28 U.S.C. § 2243.
Although Section 1226(e) may restrict some court review, it does not expressly prohibit habeas
review of detention decisions. Assuming the Court has authority to order Petitioner’s immediate
release, the Court in its discretion would order a bond hearing, as an individualized bond hearing
would provide Petitioner with the process he is due under the statute. See § 1226(a) (providing that
the Attorney General may continue to detain a noncitizens pending a decision on removal or may
release the noncitizen on bond or parole). Therefore, the Court will order that Respondents hold a
bond hearing within five (5) days of the entry of this order.
Petitioner also does not argue or demonstrate in his Petition that any due process or
constitutional violation requires his release or that a bond hearing would be inadequate. He does
not cite to any standard the Court should apply in deciding whether a due process violation requires
his release, or cite to law suggesting that the Court must release him for a due process violation.
The Court therefore declines to sua sponte analyze whether his constitutional claim requires his
release over a bond hearing.
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 15 of 19

16
Petitioner also does not argue that the Court should shift the burden to Respondents on the
issues of flight and dangerousness at the bond hearing, and the Court declines to sua sponte raise
this issue. 3
V. 	This opinion and the judgment should not be construed as addressing detention under
§ 1231, if that provision becomes applicable.
The Petition presented the Court with a narrow issue, whether Petitioner’s detention
pending a decision on removal is governed by § 1225 or § 1226. Once an order of removal has
become final, the authority governing a noncitizen’s detention shifts to another statutory provision,
8 U.S.C. § 1231(a)(2). See Johnson v. Arteaga-Martinez, 596 U.S. 573, 574 (2022) (“After the
entry of a final order of removal against a noncitizen, the Government generally must secure the
noncitizen’s removal during a 90-day removal period, during which the Government “shall” detain
the noncitizen.”) (citing 8 U.S.C. §§ 1231(a)(1), (2)).
Section 1231 governs the detention of noncitizens “during” and “beyond” the “removal
period.” 8 U.S.C. § 1231(a)(2)–(6). In general, when a noncitizen is ordered removed, the Attorney
General shall remove them within 90 days, known as the “removal period.” § 1231(a)(1)(A). The
“removal period” begins once a noncitizen’s removal order “becomes administratively final,” §
1231(a)(1)(B), meaning the order has been affirmed by the BIA or the time for seeking review has
expired, 8 U.S.C. § 1101(a)(47)(B). Riley v. Bondi, 606 U.S. 259, 267 (2025) (“An order of
removal becomes final at the earlier of two points: (1) ‘a determination by the [BIA] affirming
such order,’ or (2) ‘the expiration of the period in which the alien is permitted to” petition the BIA
3 Petitioner may not raise new arguments in any reply, as it deprives the opposing party an
opportunity to respond. Geringer v. Strong, 766 F. App'x 620, 625 (10th Cir. 2019); Reedy v.
Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (the general rule in this circuit “is that a party
waives issues and arguments raised for the first time in a reply brief.”).
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 16 of 19

17
for review of the order.’) (citation omitted). During the removal period, detention is mandatory. §
1231(a)(2).
Here, no party has asserted that § 1231 applies here. At issue in the Petition is whether §§
1225 or 1226 applied to Petitioner’s detention pending a decision on removal. No party has alleged
that any removal proceedings have become final. Therefore, as of the entry of this order, it appears
that the Court retains the ability to order the relief requested in the Petition, i.e., to determine
whether §§ 1225 or 1226 applies to his detention pending a decision on removal. The Court’s order
and judgment should not be construed to opine on whether or when in the future Petitioner may be
detained under § 1231.
VI. 	The Court need not rule on Petitioner’s remaining claims.
Petitioner also asserted a due process claim. Because the Court grants habeas relief, the
Court need not address his other claims or enter a declaration. See Banks v. Dretke, 540 U.S. 668,
689 n.10 (2004) (finding it unnecessary to address an additional claim in a habeas petition after
granting full relief on one claim because “any relief [petitioner] could obtain on that claim would
be cumulative.”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (stating
that “[a] fundamental and longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding them.”); Scott v. Mullin,
303 F.3d 1222, 1224 (10th Cir. 2002) (declining to address the remaining claims in a habeas
petition after already granting habeas relief on one claim).
VII. 	Attorney’s Costs and Fees under the EAJA.
Finally, Petitioner requests that the Court award attorney’s fees and costs under the Equal
Access to Justice Act (“EAJA”). Considering recent Tenth Circuit precedent and the relevant
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 17 of 19

18
procedure, the Court finds that it may consider Petitioner’s request for attorney’s fees and costs
provided that Petitioner follows proper EAJA procedure.
The EAJA provides for the following procedure:
[A] court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a), incurred
by that party in any civil action . . . brought by or against the United States in any
court having jurisdiction of that action, 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). The Tenth Circuit recently held that the EAJA “unambiguously
authorize[s] fees in habeas actions challenging immigration detention.” Daley v. Ceja, 158 F.4th
1152, 1159, 1166 (10th Cir. 2025).
A fee award is required if (1) the petitioner prevails, (2) the Government’s position was not
“substantially justified,” and (3) there are no special circumstances rendering an award of fees
unjust. 	Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting § 2412(d)(1)(A)).
While fees are authorized, the EAJA requires that Petitioner, “within thirty days of final judgment
in the action, submit to the court an application for fees and other expenses,” and an allegation
demonstrating 	that 	“the 	position 	of 	the 	United 	States 	was 	not 	substantially 	justified.”
§ 2412(d)(1)(A), (B). Upon filing this application, the Government must justify its position in any
underlying proceedings and district court litigation. See Hackett, 475 F.3d at 1170.
Since the Court grants Petitioner habeas relief, should Petitioner continue to pursue costs
and fees, Petitioner is instructed to file an EAJA application following the appropriate procedure.
CONCLUSION
The Court concludes that Petitioner’s detention pending a decision on whether he should
be removed from the United States is governed by § 1226(a) as opposed to § 1225(b)(2)(A).
Accordingly, the Petition (Doc. 1) is granted in part. Respondents are directed to arrange an
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 18 of 19

19
individualized bond hearing pursuant to § 1226(a) for Petitioner before an immigration judge
within five (5) days of the entry of this Order. Respondents shall not deny Petitioner bond or
parole on the basis that § 1225(b) requires mandatory detention. However, the Court makes
no determination whether or when in the future § 1231 applies to his detention, as it was not briefed
or raised in the Petition. The parties are ordered to file a status report within seven days of the
entry of this order. The Court will enter a separate judgment.4
IT 	IS 	THEREFORE 	ORDERED 	that 	Petitioner’s 	Petition 	(Doc. 	1) 	is 	hereby
GRANTED in part for the reasons described in this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Respondents shall provide a bond hearing before an
immigration judge for Petitioner pursuant to § 1226(a), as opposed to § 1225(b), within five (5)
days of the entry of this order, provided that the Court makes no determination whether or when
in the future § 1231 detention provisions may apply.
IT IS FINALLY ORDERED that the parties are directed to file a joint status report within
seven (7) days of the entry of this order.
_____/S/_______________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
4 The Court need not delay entry of judgment to wait for Respondents to comply with the Court’s
order. The Court “always retains jurisdiction to enforce its lawful judgments, including habeas
judgments.” Gall v. Scroggy, 603 F.3d 346, 352 (6th Cir. 2010); Burton v. Johnson, 975 F.2d 690,
693 (10th Cir. 1992) (explaining that district court has authority to enforce its habeas judgment).
Case 1:26-cv-00059-KWR-LF Document 13 Filed 02/12/26 Page 19 of 19