Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
TEODULO TIRO OLIVERA,
Petitioner,
v. Case No. 1:26-cv-00367 KWR-JHR
GEORGE DEDOS, Warden of the Torrance County Detention Center,
JOEL GARCIA, Field Office Director of the El Paso Field Office,
and KRISTI NOEM, Secretary of the U.S. Department
of Homeland Security,
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 and is detained by Respondents at the Torrance County
Detention Facility in New Mexico. Pet. ¶¶ 1, 2, Doc. 1. Petitioner last entered the United States
in 2002 without inspection and has remained in the United States ever since. Id. ¶ 20. Petitioner
was detained by Respondents on November 3, 2025. Id. ¶ 6. Petitioner has one misdemeanor DUI
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from 2025 but no other criminal history. Id. ¶ 3. Petitioner is married and has two children who
are United States citizens. Id. ¶ 4.
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.”). On February 10, 2026, an immigration judge
nominally held a bond hearing, but determined that he did not have jurisdiction. Pet. at ¶ 24.
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). Petitioner requests that the Court issue a writ of habeas corpus directing
his immediate release, or alternatively, directing Respondents to conduct a full and fair bond
hearing. Pet. at ¶ 8; see also Id. at 19 (requesting that the Court order “immediate release of
Petitioner or order Respondents to schedule a bond hearing for Petitioner’s removal proceedings
within 5 days of the order and accept jurisdiction to issue a bond order, placing the burden on the
government to show why the Petitioner is not eligible for bond.”).
Respondents filed a response to the Petition in which they incorporated the arguments they
raised in a prior case before the Court, Munoz Teran. See Resp., Doc. 6 at 2-3 (citing Munoz Teran
v. Bondi, 2:25-cv-1218 KWR/SCY, 2026 WL 161527 (D.N.M. January 21, 2026). The
Respondents’ response in Munoz Teran did not raise administrative exhaustion. Therefore, the
Court declines to sua sponte raise administrative exhaustion. Similarly, Respondents do not argue
that Petitioner is detained under the expedited removal provisions of § 1225(b)(1), and the Court
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declines to sua sponte raise whether he is detained under § 1225(b)(1). Rather, the sole issue is
whether §§ 1225(b)(2)(A) or 1226(a) applies to Petitioner.
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). Respondents assert that Petitioner is mandatorily detained
pursuant to § 1225(b)(2)(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 discretionary detention provisions under § 1226(a) apply to Petitioner, rather
than the mandatory detention provisions under § 1225(b)(2)(A). 1
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
1 Section I is taken from several other opinions issued by the undersigned. See, e.g., Camac-
Huanca v. Noem, No. 2:25-CV-01253 KWR-JFR, 2026 WL 357651, at *2-6 (D.N.M. Feb. 9,
2026).
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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).
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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).
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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,
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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.”).
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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.4th 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
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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).
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The Court’s interpretation is also consistent with the Supreme Court of the United States’
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.”).
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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
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.
II. The Court finds that a bond hearing is an appropriate remedy for violation of the
INA.
Petitioner appears to request either immediate release or a bond hearing. Pet., Doc. 1 at 19
To the extent Petitioner requests either release or a bond hearing, Petitioner did not argue or carry
his burden that he should be immediately released or that the Court is required to release him rather
than order a bond hearing. Moreover, he did not argue or carry his burden that the Court should
shift the burden at any bond hearing to the Government. As explained below, relying in part on
the burden of proof and principles of party presentation, the Court declines to immediately release
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Petitioner. Therefore, exercising its discretion under § 2241, the Court will order an individualized
bond hearing.
Petitioner bears the burden of proof of showing that he is entitled to relief or a remedy. See
28 U.S.C. § 2241; see also Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009) (“The burden of
proof of showing deprivation of rights leading to unlawful detention [under § 2241] is on the
petitioner.”); Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (“[I]t was error for the
District Court to effectively impose on the Government the burden of proving that [petitioner] was
not ‘in custody in violation of the Constitution or laws or treaties of the United States’ ” under §
2241); see also Smith v. Workman, 550 F.3d 1258, 1273 (10th Cir. 2008) (noting that, in the context
a Brady violation, the petitioner “bears the burden of showing that the prosecution suppressed
material evidence favorable” to the petitioner).
Section 1226(a) affords Respondents discretion to detain, release on bond, or parole a
noncitizen. Notably, this section does not expressly provide a statutory right to immediate release.
Generally, the 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 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.”). Discretionary
bond decisions are generally not reviewable. Mwangi v. Terry, 465 F. App'x 784, 786–87 (10th Cir.
2012) (“Therefore, to the extent Mr. Mwangi challenges the agency's discretionary bond decision,
the magistrate judge was correct that the court lacked jurisdiction.”); Jennings v. Rodriguez, 583
U.S. 281, 295 (2018) (explaining that § 1226(e) bars a challenge to a discretionary judgment or
decision by the Attorney General, but does not preclude challenges to the statutory framework).
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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 (1987) (citation omitted). “Federal habeas
corpus practice ... indicates that a court has broad discretion in conditioning a judgment granting
habeas relief.” Id. 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; see also
Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012) (noting that § 2243 gives district courts
“broad discretion to craft appropriate habeas relief.”). Generally, the Court has authority to order
release. Munaf v. Geren, 553 U.S. 674, 693 (2008). “Once a right and a violation have been shown,
the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 (1971). It is the “nature of the violation” that “determines the scope of the remedy.” Id.
at 16.
Here, 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); see Martinez Escobar v. Baltazar, No.
26-CV-00296-NYW, 2026 WL 503313, at *4 (D. Colo. Feb. 24, 2026) (ordering bond hearing
rather than immediate release where due process rights were violated by respondents’ failure to
apply § 1226(a) discretionary detention provisions); Gutierrez v. Garcia, No. 2:25-CV-001145-
WJ-KRS, 2026 WL 310064, at *5 (D.N.M. Feb. 5, 2026) (noting that process due is individualized
bond hearing); Velasquez Salazar v. Dedos, No. 1:25-cv-835, 2025 WL 2676729, at *5 (D.N.M.
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Sep. 17, 2025) (“Because ... § 1226 governs Petitioner's detention, the due process owed to
Petitioner is that provided for in § 1226—namely, an individualized bond hearing before an IJ.”).
Accordingly, the Court finds that the proper remedy is an individualized bond hearing pursuant to
§ 1226(a).
Petitioner also does not argue or demonstrate in his Petition that any due process or
constitutional violation requires his release. He does not cite to any standard or law the Court
should apply in deciding whether a due process violation requires his release. For example, should
the Court apply the Mathews test in determining whether he should be immediately released, and
if so, how does the Mathews test apply to the facts of this case to warrant his immediate release?
The Court therefore declines to sua sponte analyze whether his constitutional claim requires his
release over a bond hearing, as this issue was not properly argued or presented to the Court. See
United States v. Davis, 622 F. App'x 758, 759 (10th Cir. 2015) (“[I]t is not this court's duty, after
all, to make arguments for a litigant that he has not made for himself.”); Phillips v. Hillcrest Med.
Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001) (observing that a court has no obligation to make
arguments or perform research on behalf of litigants) (quoting Pelfresne v. Village of Williams
Bay, 917 F.2d 1017, 1023 (7th Cir.1990) (“A litigant who fails to press a point by supporting it
with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in
the face of contrary authority, forfeits the point. [The court] will not do his research for him.”).
The principle of party presentation is particularly appropriate here, where this district court is
overwhelmed with habeas petitions, and petitioners request that the Court rule immediately. If the
Court were to act as Petitioner’s counsel and make arguments or do research on his behalf, it would
prejudice other petitioners by delaying a ruling on their petitions. Therefore, Petitioner has not
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properly placed before the Court the issue of whether he must be immediately released, or he has
not carried his burden.
Moreover, Petitioner does not argue or explain why 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
III. 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
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.”).
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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
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. 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 her 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.
IV. 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). The Petition focuses on whether §§
1225(b) or 1226(a) applies to Petitioner’s detention. Petitioner’s due process claim was asserted in
a summary manner. As explained above in Section II, Petitioner failed to carry his burden or argue
why immediate release is the only available remedy, and why the Court cannot order a bond
hearing. Therefore, he has received all relief to which he is entitled.
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V. 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
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.
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However, Petitioner will have to explain why the Government’s position is not substantially
justified.
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
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 an individualized 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.
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).
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_________/S/______________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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