Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
THIERNO SANOUSSY BARRY,
Petitioner,
v. Case No. 1:26-cv-00504-KWR-KRS
TODD LYONS, Acting Director, Immigration and Customs Enforcement,
KRISTI NOEM, Secretary of the Department of Homeland Security,
GEORGE DEDOS, Warden of the Cibola County Correctional Center,
PAMELA BONDI, Attorney General, and
MARY DE ANDA-YBARRA, Field Office Director of Enforcement and Removal Operations,
El Paso Field Office, Immigration and Customs Enforcement,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Petitioner Thierno Sanoussy Barry’s Petition
for Writ of Habeas Corpus (Doc. 2). This Petition turns on whether Petitioner is detained pursuant
to 8 U.S.C. § 1225(b)(2)(A) or 8 U.S.C. § 1226(a). Given Petitioner’s initial release on
recognizance and his extended time in the United States, the Court finds that he is currently
detained pursuant to § 1226(a) and entitled to a bond hearing. Having reviewed the parties’
pleadings, exhibits, and the relevant law, the Court finds that the motion is well-taken, and
therefore, is GRANTED in part.
BACKGROUND
Petitioner, a citizen of Guinea, is currently detained at the Cibola County Correctional
Center in Milan, New Mexico. Doc. 2 ¶ 11 (Petition). Petitioner entered the United States in
September 2023 and was detained for three days before being released on his own recognizance.
Id. ¶ 18. He was issued a Notice to Appear. Id. ¶ 19; Doc. 2-2 at 4 (Notice to Appear). Petitioner
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claims to have filed a timely asylum application. Doc. 2 ¶ 19. Petitioner has committed no crimes
of moral turpitude, felonies, or misdemeanors against a person, but he has committed “petty
misdemeanor driving- and parking- related violations.” Id. ¶ 24. He asserts that he has complied
with all aspects of the asylum process and has not been issued a final order of removal. Id. ¶ 22.
On January 10, 2026, Immigration and Customs Enforcement officers arrested Petitioner
in Maplewood, Minnesota. Id. ¶ 25. Petitioner was arrested during a larger operation known as
“Operation Metro Surge.” Id. ¶ 28. He was transferred between several detention facilities before
stopping in Milan, New Mexico. Id. ¶¶ 3, 31.
On September 5, 2025, the Board of Immigration Appeals (“BIA”) 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, 225 (B.I.A. 2025) (“Immigration Judges lack authority to hear bond requests or to grant
bond to aliens . . . who are present in the United States without admission.”). In light of Hurtado,
Petitioner has remained in custody without an opportunity to post bond or request conditional
release because his detention has been classified as mandatory under § 1225(b)(2)(A). Doc. 2 ¶ 51.
In sum, Petitioner has remained in federal immigration custody without an opportunity to
post bond or request conditional release because his detention has been classified as mandatory
under 8 U.S.C. § 1225(b)(2)(A). Doc. 7 at 1 (Response to Petition). Petitioner requests that the
Court release him or order a bond hearing within seven days. Doc. 2 ¶ 5. Petitioner also requests
a bond hearing with the burden shifted to Respondents. Id. at 21.
On February 23, 2026, the Court ordered Respondents to answer. Doc. 4 (Order to
Answer). Respondents filed an answer in which they incorporate arguments made in Munoz Teran
v. Bondi, No. 2:25-cv-01218-KWR-SCY, 2026 WL 161527 (D.N.M. Jan. 21, 2026). In Munoz
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Teran, the respondents did not raise administrative exhaustion or jurisdiction issues. Respondents
claim that an issue is “whether Petitioner must first exhaust his administrative remedies before
applying to this Court.” Doc. 7 at 1. Beyond this single mention, Respondents do not argue that
Petitioner failed to exhaust his administrative remedies. Neither in this case nor in Munoz Teran
did Respondents claim that Petitioner is detained under 8 U.S.C. § 1225(b)(1). The Court declines
to sua sponte raise administrative exhaustion or detention under § 1225(b)(1). 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.”).
LEGAL STANDARDS
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). A challenge to immigration detention is “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 contends that his arrest and continued detention are unlawful, violate due
process, and run afoul of the Administrative Procedure Act (“APA”). Doc. 2 ¶¶ 53–69.
Respondents take the position that Petitioner is mandatorily detained pursuant to § 1225(b)(2)(A)
and not entitled to a bond hearing. Doc. 7 at 1. Since Petitioner was originally released pursuant
to § 1226(a) and he cannot be deemed “seeking admission” under § 1225(b)(2)(A), the Court finds
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that he is detained pursuant to § 1226(a) and entitled to an individualized bond hearing before an
immigration judge.
I. Whether mandatory detention under § 1225(b)(2)(A) or discretionary detention
under § 1226(a) applies to Petitioner.
Respondents argue that Petitioner is mandatorily detained pursuant to § 1225(b)(2)(A) and
not entitled to a bond hearing. Doc. 7 at 1. Petitioner contends that he is detained pursuant to
§ 1226(a). Doc. 2 ¶¶ 51–52.
Section 1226(a) allows immigration officers, in their discretion, to detain noncitizens or
release them on conditional parole. § 1226(a). Release on one’s own recognizance is a form of
conditional parole under § 1226(a)(2)(B). See Matter of Cabrera-Fernandez, 28 I. & N. Dec. 747,
747 (B.I.A. 2023) (“[They were] released on their own recognizance pursuant to DHS’ conditional
parole authority under . . . 8 U.S.C. § 1226(a)(2)(B).”); Ortega-Cervantes v. Gonzales, 501 F.3d
1111, 1115 (9th Cir. 2007) (“It is apparent that the . . . phrase ‘release on recognizance’ [is] another
name for ‘conditional parole’ under § 1226(a).”).
On September 21, 2023, Petitioner was released on his own recognizance, a form of
conditional parole, pursuant to § 1226(a). Doc. 2-2 at 3 (Order of Release on Recognizance); see
also Matter of Cabrera-Fernandez, 29 I. & N. Dec. at 747. Release on recognizance is not
categorized as “humanitarian” or “public benefit” parole under 8 U.S.C. § 1182(d)(5)(A). Thus,
Petitioner was initially released pursuant to § 1226(a)(2)(B) which indicates that Petitioner cannot
now be detained under § 1225(b). See Matter of M-S-, 27 I. & N. Dec. 509, 516 (Att’y Gen. 2019)
(“Yet [§ 1225] (under which detention is mandatory) and [§ 1226(a)] (under which detention is
permissive) can be reconciled only if they apply to different classes of aliens.”); see also Lopez
Benitez v. Francis, 795 F. Supp. 3d 475, 485 (S.D.N.Y. 2025) (noting that the respondents did not
“dispute that [§§ 1225 and 1226] . . . are mutually exclusive”). In addition to being initially
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released pursuant to § 1226(a), Petitioner, who has been present in the United States for over two
years, cannot be deemed “seeking admission” under § 1225(b)(2)(A).
When interpreting a statute, courts first “examine the statute’s plain text” and “[a]bsent
ambiguity, [the] analysis ends there.” United States v. Koerber, 10 F.4th 1083, 1112 (10th Cir.
2021). Should the analysis continue, 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.” (citation omitted)). Courts also consider
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 considers non-textual evidence
bearing on Congress’s intent or purpose, such as legislative history, only if the statutory language
is ambiguous. See, e.g., United States v. Husted, 545 F.3d 1240, 1247 (10th Cir. 2008) (“[I]t is a
longstanding principle that absent ambiguity we cannot rely on legislative history to interpret a
statute.”).
Under the Immigrant and Nationality Act (“INA”), two statutes generally govern a
noncitizen’s detention pending a final order of removal: §§ 1225 and 1226. See Jennings v.
Rodriguez, 583 U.S. 281, 289 (2018). Section 1225, which mandates detention and does not afford
a bond hearing, applies when “an applicant for admission” is “seeking admission” and “not clearly
and beyond a doubt entitled to be admitted.” § 1225(b)(2)(A). Section 1226 provides that a
noncitizen “may be arrested and detained” pending a removal decision. § 1226(a). Under
§ 1226(a), the Attorney General may detain arrested noncitizens, release them on bond, or release
them on conditional parole. Section 1226(c) mandates detention for a noncitizen that is (1) present
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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) “is charged with, is arrested
for, is convicted of, admits having committed, or admits” to committing certain criminal acts. 8
U.S.C. § 1226(c)(1)(E).
In sum, immigration law authorizes the detention of “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).” Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (quoting
Jennings, 583 U.S. at 289). For Petitioner’s detention to be governed by § 1225(b)(2)(A), the Court
must find that Petitioner (1) is an “applicant for admission,” (2) who is “seeking admission,” and
(3) is “not clearly and beyond a doubt entitled to be admitted.” § 1225(b)(2)(A).
Petitioner is likely an “applicant for admission” as defined by statute. “[A]pplicant for
admission” is defined as “an alien present in the United States who has not been admitted or who
arrives in the United States.” 8 U.S.C. § 1225(a)(1). “Admission” and “admitted” mean “the lawful
entry of the alien into the United States after inspection and authorization by an immigration
officer.” Id. § 1101(a)(13)(A). Here, Petitioner is “present in the United States” as he has lived in
the United States for over two years, and he has not been admitted or paroled after inspection by
an immigration officer. Doc. 2 ¶ 50; see also Doc. 2-2 at 4 (Notice to Appear). Thus, per the
statutory definition, Petitioner may be deemed an “applicant for admission” thereby satisfying the
first criteria of § 1225(b)(2)(A).
The crux of the § 1225(b)(2)(A) inquiry is whether Petitioner can be deemed “seeking
admission.” As explained below, after a plain reading of the statute, the Court finds that Petitioner,
who has been living in the United States for over two years, is not “seeking admission.”
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The Court begins with the plain text of the phrase “seeking admission.” See Koerber, 10
F.4th at 1112. Since “seeking” is statutorily undefined, the Court will first consider the word
“admission.” “Admission” is statutorily defined as “the lawful entry of the alien into the United
States after inspection and authorization by an immigration officer.” § 1101(a)(13)(A). “Entry” is
statutorily undefined. Respondents do not assert that the word “entry” has any unusual, technical
meaning, and therefore, the Court will apply its “ordinary, contemporary, common meaning.” Star
Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405, 414 (2017). “Entry” ordinarily means “[t]he
action or an act of entering a place, area, building, etc.” Entry, Oxford English Dictionary,
https://www.oed.com/dictionary/entry_n?tab=meaning_and_use#5515547 (last visited Apr. 6,
2026); see also Entry, Black’s Law Dictionary (12th ed. 2024) (“Immigration. Any entrance of an
alien into the United States, whether voluntary or involuntary.”). Thus, the word “admission,” as
used in § 1225(b)(2)(A), refers to a noncitizen’s lawful act of physically entering the United States
after inspection and authorization by an immigration officer.
Turning to the statutorily undefined word “seeking,” in this context, it ordinarily means
trying to obtain something or trying to bring about or effect. Seek, Oxford English Dictionary,
https://www.oed.com/dictionary/seek_v#23724107 (last visited Apr. 6, 2026). In choosing the
present participle “seeking,” courts should give effect to Congress’s verb choice and find that
“seeking” signals present and continuous action. Carr v. United States, 560 U.S. 438, 448 (2010)
(“Consistent with normal usage, we have frequently looked to Congress’ choice of verb tense to
ascertain a statute’s temporal reach.”); see also Present Participle, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/present%20participle (last visited Apr. 6, 2026).
Therefore, the Court finds that a plain reading of the phrase “seeking admission” demonstrates that
§ 1225(b)(2)(A) applies to noncitizens who are presently trying to lawfully and physically enter
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the United States.1 Section 1225(b)(2)(A) does not apply to noncitizens who, like Petitioner, have
lived in the United States for an extended duration and are not presently seeking lawful entry into
the United States.
8 U.S.C. § 1225(a)(3) indicates that Petitioner is not “seeking admission.” Section
1225(a)(3) provides that “[a]ll aliens . . . who are applicants for admission or otherwise seeking
admission or readmission to or transit through the United States shall be inspected by immigration
officers.” Id. The word “or” is “almost always disjunctive, that is, the words it connects are to ‘be
given separate meanings.’” United States v. Woods, 571 U.S. 31, 45 (2013) (citation omitted).
Additionally, the use of the phrase “or otherwise” signals that the term “applicants for admission”
has a different meaning than the term “seeking admission.” Or Otherwise, Oxford English
Dictionary, https://www.oed.com/dictionary/otherwise_n?tab=meaning_and_use#33058328 (last
visited Apr. 6, 2026) (“In another way or ways; in a different manner; by other means; in other
words; differently.”).2 Thus, a plain reading of § 1225(a)(3) demonstrates that Petitioner may be
deemed an “applicant for admission” without necessarily being deemed “seeking admission.”
1 The Court understands the ordinary meaning of the word “entry,” as used in the statute, to mean
the physical act of going into the country. The meaning aligns with how “entry” is understood and
used by the United States Supreme Court in the immigration context. The word “entry” has long
referred 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.”).
2 The grammatical placement of “or otherwise” also indicates that “seeking admission” must mean
something different than “applicants for admission.” Or Otherwise, Oxford English Dictionary,
https://www.oed.com/dictionary/otherwise_n?tab=meaning_and_use#33058910 (last visited Apr.
6, 2026) (“[F]ollowing a noun, adjective, adverb, or verb, to signify a corresponding word, thing,
idea, etc., of opposite or alternative meaning” (citation modified)). Here, the phrase “or otherwise”
follows a noun, “applicants for admission,” signifying that the phrase “seeking admission” is a
“corresponding word, thing, idea, etc., of opposite or alternative meaning.” Id.; see also
§ 1225(a)(3).
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Further, Respondents’ interpretation renders recent amendments to 8 U.S.C. § 1226(c)
superfluous. Section 1226(c)(1)(E) mandates detention for certain noncitizens who are implicated
in certain crimes. It requires detention for a noncitizen who is (1) inadmissible as an alien present
in the United States without being admitted or paroled, and (2) “is charged with, is arrested for, is
convicted of, admits having committed, or admits” to committing certain crimes. Respondents’
interpretation of § 1225(b)(2)(A) would require the detention of every noncitizen who is present
in the country without being admitted or paroled. Such an interpretation would render the recent
§ 1226(c)(1)(E) amendment superfluous in that detention would be required regardless of the
noncitizen’s criminal involvement.
The Supreme Court, in dicta, has recognized that § 1225(b) generally applies “to aliens
seeking entry into the United States” and that § 1226(a) “applies to aliens already present in the
United States.” Jennings, 583 U.S. at 303. The Jennings Court further noted that § 1226(a) creates
a default rule for noncitizens 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 permitting “the Attorney General to release those aliens on bond.” Id. at 303. Thus, the
Supreme Court’s construction of §§ 1225(b) and 1226(a) align with this Court’s reading of the
phrases “applicant for admission” and “seeking admission.”
The Court’s statutory reading 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 for an
extended period of time is not “seeking admission” and therefore not subject to mandatory
detention under § 1225(b)(2)(A). See, e.g., Castañon-Nava, 161 F.4th at 1061; see also Barco
Mercado v. Francis, 811 F. Supp. 3d 487, 494, 506 (S.D.N.Y. 2025) (collecting cases in Appendix
A); Pu Sacvin v. De Anda-Ybarra, No. 2:25-CV-1031-KG, 2025 WL 3187432, at *3 (D.N.M. Nov.
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14, 2025) (“Noncitizens seeking admission are those who have not effected an entry into the United
States.” (citation modified)); Buenrostro-Mendez v. Pamela Bondi, 166 F.4th 494, 510 (5th Cir.
2026) (Douglas, J., dissenting).
Here, Petitioner entered the United States in September 2023 and was briefly detained by
U.S. Customs and Border Patrol before being released on his own recognizance. Doc. 2 ¶ 18. He
has continuously remained in the United States for over two years. Id. ¶ 50. Petitioner was
re-detained in Minnesota during “Operation Metro Surge.” Id. ¶¶ 25–28. Respondents do not
suggest, or point to any facts indicating, that Petitioner was seeking lawful, physical entry into the
United States at the time of his arrest. Rather, he was “walking on the street” in Minnesota when
he was arrested. Id. ¶ 2. Applying this statutory interpretation to the present facts, the Court finds
that Petitioner is not “seeking admission” under § 1225(b)(2)(A). Accordingly, Petitioner’s
detention is governed by § 1226(a).
II. The Court finds that a bond hearing is an appropriate remedy.
Petitioner requests immediate release or, alternatively, a bond hearing. Doc. 2 ¶ 5.
Elsewhere in the Petition, he requests that the Government bear the burden at his bond hearing.
See id. at 21. However, Petitioner does not carry his burden of demonstrating that immediate
release or shifting the burden at his bond hearing is warranted. In accordance with the burden of
proof in habeas matters and the principles of party presentation, the Court declines to immediately
release Petitioner or shift the burden to Respondents at his hearing. In the Court’s discretion, the
Court orders an individualized bond hearing pursuant to § 1226(a).
Petitioner bears the burden of proof to demonstrate that he is entitled to relief or a remedy,
including whether the burden should be placed on Respondents to justify his detention at a bond
hearing. See 28 U.S.C. § 2241; Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (“[I]t
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was error for the District Court to effectively impose on the Government the burden of proving
that [a petitioner] was not ‘in custody in violation of the Constitution or laws or treaties of the
United States.’” (citing § 2241(c)(3)); Odell v. Hudspeth, 189 F.2d 300, 302 (10th Cir. 1951)
(finding that, in a § 2241 proceeding, “[t]he burden of proof was upon the petitioner to sustain
these allegations”). Petitioner also bears the burden to demonstrate a “deprivation of rights leading
to unlawful detention” under § 2241. Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009); 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) gives Respondents discretion to detain, release on bond, or parole a
noncitizen. Notably, this section does not expressly provide a statutory right to immediate release.
The release or bond decision by an immigration judge usually involves the weighing of evidence
and is discretionary. § 1226(a); Jennings, 583 U.S. at 295. Such discretionary decisions are
generally not reviewable. 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.”); see also Mwangi v. Terry, 465 F. App’x 784, 787
(10th Cir. 2012) (“[T]o the extent [the petitioner] challenges the agency’s discretionary bond
decision, the magistrate judge was correct that the court lacked jurisdiction.”).
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). In issuing a writ of habeas corpus,
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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”).
Petitioner does not meet his burden of demonstrating that any statutory or constitutional
violation requires his release or a hearing at which Respondents bear the burden as opposed to a
bond hearing pursuant to § 1226(a). Petitioner applies the test from Mathews v. Eldridge, 424 U.S.
319, 335 (1976), but he does not demonstrate how Mathews would require release as opposed to a
bond hearing. See Doc. 2 ¶¶ 55–60. In fact, Petitioner considers the risk of an erroneous deprivation
as it relates to detention without a bond hearing. See id. ¶ 58. He also argues that the Government
has no legitimate interest in refusing to follow its own rules and that release, “or at a minimum
holding a bond hearing,” would save resources. Id. ¶ 59. Petitioner’s Mathews analysis does not
demonstrate why release or shifting the burden would be required as opposed to a bond hearing
pursuant to § 1226(a).
Petitioner also briefly argues that Respondents did not lawfully arrest him pursuant to
§ 1226(a). Id. ¶ 76. He contends that the following three due process protections were not met: (1)
as required by § 1226(a), Petitioner has not been provided a bond hearing “at the outset of his
detention”; (2) there is no evidence that a warrant for Petitioner’s arrest was issued; and (3)
Petitioner has not been “provided with notice, individualized reasoning, or an opportunity to be
heard regarding his detention.” Id. Petitioner claims that “release is an appropriate remedy,” Id.
¶ 79, and alternatively asks for a bond hearing, see id. ¶ 5; see also id. at 20. Elsewhere in the
Petition, without explaining a legal basis for the request, he requests that Respondents bear the
burden at his bond hearing. See id. at 21. Petitioner does not analyze whether any of these
arguments require release or shifting the burden at his bond hearing. The Court declines to conduct
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this analysis sua sponte as this issue was not properly presented to the Court. See Davis, 622 F.
App’x at 759 (“[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). 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 properly placed before the Court the issues of whether he must be immediately
released or the burden must be shifted at his bond hearing.
Alternatively, Petitioner has not met his burden of demonstrating that this case requires
either of those forms of relief as opposed to a bond hearing. Petitioner does not adequately
demonstrate how any of these purported violations require release or shifting the burden. None of
the arguments—in Petitioner’s case—demonstrate a violation of due process that requires more
than a bond hearing pursuant to § 1226(a).
Having found that Petitioner has not properly put the remedies of immediate release or
shifting the burden at the bond hearing before the Court, or in the alternative, he did not meet his
burden demonstrating the necessity of these remedies, the Court finds that a bond hearing pursuant
to § 1226(a) provides Petitioner with the process he is due. See § 1226(a) (providing that the
Attorney General may continue to detain a noncitizen pending a decision on removal or may
release the noncitizen on bond or parole); see also Martinez Escobar v. Baltazar, No. 26-cv-00296-
NYW, 2026 WL 503313, at *4 (D. Colo. Feb. 24, 2026) (ordering a bond hearing rather than
immediate release where due process rights were violated by respondents’ failure to apply
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§ 1226(a) discretionary detention provisions). Courts have found that a bond hearing, even after
different lengths of delay, sufficiently provides the petitioner with the process he is due. See, e.g.,
Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1246 (D.N.M. Sep. 17, 2025) (ordering a bond
hearing after nearly three months of detention without a hearing); Kostak v. Trump, No. 3:25-1093,
2025 WL 2472136, at *4 (W.D. La. Aug. 27, 2025) (denying release and ordering a bond hearing
after two months of detention); Gutierrez v. Garcia, No. 2:25-cv-001145-WJ-KRS, 2026 WL
310064, at *5–7 (D.N.M. Feb. 5, 2026) (denying release and ordering a bond hearing after nearly
six months of detention).
III. This opinion and the judgment should not be construed as addressing detention under
8 U.S.C. § 1231, if that provision becomes applicable.
The narrow issue of whether § 1225(b)(2)(A) or § 1226(a) governs Petitioner’s detention
pending a decision on his removal controls the outcome of this Petition. No party has asserted that
§ 1231 applies.
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). The order of removal becomes final upon either the
affirmation by the BIA or the expiration of the review period—whichever event comes earlier.
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 for review of the order.” (citing
§ 1101(a)(47)(B))). During the removal period, detention is mandatory. § 1231(a)(2).
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No party has argued that § 1231 applies. Thus, as of the entry of this order, it appears that
the Court retains the ability to order the requested relief and determine that § 1226(a) governs
Petitioner’s detention. 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 asserts due process and APA claims. See Doc. 2 ¶¶ 53–60, 63–69. 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).
V. Costs and fees under the EAJA.
Petitioner requests an “award of reasonable attorney’s fees and costs under the Equal
Access to Justice Act (EAJA), as amended, 28 U.S.C. § 2412, Local Rule 54.3(a), and on any other
basis justified under law.” Doc. 2 at 21. In light of recent Tenth Circuit precedent, the Court finds
that it may consider Petitioner’s request for 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
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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 or other expenses” and allege 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 pursue costs and fees, he
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. 2) is granted in part. However, Petitioner did not adequately
present the argument, or meet his burden demonstrating, that he is entitled to anything more than
a bond hearing pursuant to § 1226(a). Respondents are directed to arrange an individualized bond
hearing pursuant to § 1226(a) for Petitioner before an immigration judge within seven (7) 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
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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 ten (10) days of the entry of this order. The
Court will enter a separate judgment.3
IT IS THEREFORE ORDERED that Petitioner’s Petitioner (Doc. 2) is hereby
GRANTED in part for 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), not § 1225(b), within
seven (7) days of the entry of this order, provided that the Court makes no determination whether
or when in the future § 1231 provisions may apply. Petitioner should be provided with notice of
the bond hearing and an opportunity to prepare and present evidence, in accordance with due
process. If Petitioner has counsel for his immigration case, counsel shall be provided notice of any
bond hearing, an opportunity to prepare for the hearing, and an opportunity to appear for the bond
hearing.
IT IS FINALLY ORDERED that the parties are directed to file a joint status report within
ten (10) days of the entry of this order.
_____/S/_____________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
3 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, 975 F.2d at
693 (explaining that district court has authority to enforce its habeas judgment).
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