Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTONIO ADRIAN CASTILLO and
JUAN JOSE LEON LOZA, on behalf of
themselves as individuals and on behalf
of other similarly situated,
Plaintiffs/Petitioners,
v. Civ. No. 25-1074 JB/JFR
MARY DE ANDRA-YBARRA, Director of El
Paso Field Office, DORA A. CASTRO, Warden
of Otero Processing Center, KRISTI NOEM,
Secretary of U.S. Department of Homeland
Security, PAMELA JO BONDI, U.S. Attorney
General, SIRCE OWEN, Acting Director of
EOIR, OTERO IMMIGRATION COURT, and
EXECUTIVE OFFICE FOR IMMIGRATION
REVIEW,
Defendants/Respondents.
MAGISTRATE JUDGE’S SECOND PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Petitioners’ ‘Class Action Complaint and
Petition for Writ of Habeas Corpus’ (“Petition”), filed October 29, 2025, Doc. 1, and
Respondents’ Motion to Dismiss Class Action Complaint and Petition for Writ of Habeas Corpus
(“Motion to Dismiss”), filed December 23, 2025, Doc. 21. Petitioners responded to the Motion
to Dismiss (Doc. 21) on January 2, 2026, Doc. 22, and separately filed ‘Supplemental Evidence’
on January 14, 2026, Doc. 23. Respondents did not reply to either (Docs. 22-23), but filed a
‘Notice of Supplemental Authority,’ on January 21, 2026. Doc. 24. Petitioners did not respond.
1 By an ‘Order of Reference Relating to Prisoner Cases’ filed October 31, 2025, the presiding judge, United States
District Judge James O. Browning, referred this matter to the undersigned to conduct hearings as warranted and to
perform any legal analysis required to recommend an ultimate disposition of the case. Doc. 2; accord 28 U.S.C. §§
636(b)(1)(B), (b)(3); Va. Beach Fed. Sav. & Loan Ass’n v. Wood, 901 F.2d 849 (10th Cir. 1990).
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The Court, having reviewed the record and the relevant law, recommends that both the
Petition (Doc. 1) and Motion to Dismiss (Doc. 21) be GRANTED IN PART and DENIED IN
PART, as set forth herein.
TABLE OF CONTENTS
I. RELEVANT PROCEDURAL BACKGROUND ...................................................................... 3
II. FACTUAL BACKGROUND .................................................................................................... 7
A. Petitioner Loza ............................................................................................................... 8
B. Petitioner Castillo ........................................................................................................... 9
III. LEGAL STANDARDS ........................................................................................................ 13
A. Motion to Dismiss ........................................................................................................ 13
1. Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction 13
2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Relief
Can Be Granted……………………………………………………………….15
B. Writ Authority .............................................................................................................. 17
1. Writ of Habeas Corpus………………………………………………………..17
2. Writ of Mandamus…………………………………………………………… 18
IV. ANALYSIS ........................................................................................................................... 19
A. Writ of Habeas Corpus: Bond Hearing Claims ............................................................ 22
1. Legal Background……………………………………………………………. 22
2. Jurisdiction…………………………………………………………………… 25
i. 8 U.S.C. 1226(e) ................................................................................... 27
ii. 8 U.S.C. § 1252(b)(9) ........................................................................... 27
iii. 8 U.S.C. § 1252(g)................................................................................ 28
3. Count I: Immigration and Nationality Act…………………………………… 29
i. Petitioners are “Applicants for Admission” as Defined by 8 U.S.C. §
1225(a)(1). ............................................................................................ 30
ii. Congress Intended to Distinguish “Seeking Admission” from
“Applicants for Admission” in 8 U.S.C. § 1225(b)(2)(A). .................. 31
iii. Noncitizens Meeting the Requirements of 8 U.S.C. § 1226(a) are
Entitled to a Bond Hearing. .................................................................. 37
a. Relief for Petitioner Castillo..................................................... 41
b. Relief for Petitioner Loza ......................................................... 42
4. Count II: Administrative Procedures Act, 5 U.S.C. § 551 et seq...................... 44
B. Writ of Mandamus: Bond Appeal Claims .................................................................... 46
1. Legal Background……………………………………………………………. 47
2. Count III: Fifth Amendment Due Process Clause…………………………… 48
3. Count IV: Administrative Procedures Act, 5 U.S.C. § 551 et seq…………….. 49
4. Relief is Moot………………………………………………………………... 50
V. RECOMMENDATIONS ......................................................................................................... 51
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I. RELEVANT PROCEDURAL BACKGROUND
Petitioners Antonio Adrian2 Castillo (“Castillo”) and Juan Jose Leon Loza (“Loza”) filed
the present Petition on October 29, 2025. See generally Doc. 1. Both Petitioners are
noncitizens3 detained at the Otero County Processing Center in Chaparral, New Mexico. See id.
at 1 ¶ 1. In total, Petitioners assert four counts/causes of action and seek to represent two classes
of noncitizens. Petitioners challenge two distinct detention practices effectuated by Respondents
(i.e., denying bond hearings and automatically staying any favorable bond determinations), each
being the basis for two claims and one proposed class. See generally id.
Counts I and II allege that Respondents are misapplying the mandatory detention
provisions of 8 U.S.C. § 1225(b)(2)(A) to entirely deny bond hearings to detainees apprehended
in the interior, who would otherwise be entitled to a bond hearing under 8 U.S.C. § 1226(a). See
generally Doc. 1 at 9-12 ¶¶ 28-35 (Legal Background). Accordingly, Counts I and II
respectively assert violations of the Immigration and Nationality Act (“INA”), id. at 19-20 ¶¶ 65-
68 (Count I), and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., Doc. 1 at
2 Petitioners’ counsel has referred to Petitioner Castillo as both “Antonio Adrian Castillo” and “Antonio Angel
Castillo.” Compare Doc. 3 at 1 (listing “Antonio Adrian CASTILLO” in caption (emphasis added, stylistic
capitalization in original)), Doc. 5 at 1 (same), and Doc. 22 at 1 (same), with Doc. 3 at 16 (listing “Antonio Angel
CASTILLO” in caption of proposed order (emphasis added, stylistic capitalization in original)), Doc. 5 at 16 (same),
Doc. 19 at 1 (same caption, but not on a proposed order). On October 31, 2025, Petitioner Castillo signed a declaration
under the penalty of perjury, Doc. 5 at 10, which listed his name as “Antonio Adrian Castillo,” id. at 9; see also id. at
6-7 (English translation). The Court thus presumes that Petitioner Castillo’s legal name is “Antonio Adrian Castillo,”
and uses that name in lieu of “Antonio Angel Castillo.”
If Petitioners do not object or state otherwise, the undersigned recommends directing the Clerk of the Court to correct
the case caption and docket to accurately reflect Petitioner Castillo’s full legal name (i.e., Antonio Adrian Castillo).
3 In line with Supreme Court practice, see, e.g., Barton v. Barr, 590 U.S. 222, 226 n.2 (2020) (Kavanaugh, J.,
concurring), and recent preferred nomenclature, see Avilez v. Garland, 69 F.4th 525, 527 n.1 (9th Cir. 2023) (collecting
cases), the Court uses the term “noncitizen(s)” in lieu of the term “alien” to refer to “any person who is not a citizen
or national of the United States,” Pereira v. Sessions, 585 U.S. 198, 201 n.1 (2018), except in quoted language.
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20 ¶¶ 69-72 (Count II). Based on these allegations, both named Petitioners seek to represent a
proposed “Bond Denial Class,” consisting of:
All noncitizens apprehended in the interior of the United States and detained at the
Otero Conty [sic] Processing Detention Center, Chaparral New Mexico, or any
other ICE-contracted or local facility within the District of New Mexico, who (1)
have entered or will enter the United States without inspection; (2) are not
apprehended upon arrival at a port of entry or its functional equivalent, and (3) are
not or will not be subject to detention under 8 U.S.C. § 1226(c), § 1225(b)(1), or §
1231 at the time the noncitizen is scheduled for or requests a bond hearing in the
Otero Immigration Court.
Doc. 1 at 17 ¶ 56; see also id. at 4-5 ¶ 11 (description of “Bond Denial Class,” put differently).
Counts III and IV allege that Respondents, through the Office of the Principal Legal
Advisor (“OPLA”), have effectively rendered the 8 U.S.C. § 1226(a) bond hearing process
illusory by systematically filing Form EOIR-43 (‘Notice of Intent to Appeal Custody
Redetermination’) to invoke the automatic stay provisions of 8 C.F.R. § 1003.19(i)(2) whenever
a noncitizen receives a favorable bond decision. See generally Doc. 1 at 12-14 ¶¶ 36-39 (Legal
Background). Accordingly, Counts III and IV respectively assert violations of the Fifth
Amendment’s Due Process Clause, U.S. CONST. amend. V, Doc. 1 at 20-21 ¶¶ 73-76 (Count III),
and the APA, 5 U.S.C. §§ 551 et seq., Doc. 1 at 21-22 ¶¶ 77-81 (Count IV). Based on these
allegations, both named Petitioners seek to represent a “Bond Appeal Class,” consisting of:
All detained noncitizens [initially apprehended and processed within the District
of New Mexico] who has [sic] a pending bond appeal, or will file an appeal,
[(regardless of the facility in which they are detained at the time of the appeal)] of
an Immigration Judge’s bond hearing ruling to the Board of Immigration Appeals,
including, without limitation, where the appeal was initiated by OPLA’s filing of
a Form EOIR-43, which under 8 C.F.R. § 1003.19(i)(2) stays the grant of bond
during the pendency of the appeal.
Doc. 1 at 18 ¶ 61; see also id. at 5 ¶ 12 (providing details added above in brackets).
Petitioners assert these four counts against: (1) Mary De Andra-Ybarra, the Field Office
Director of the El Paso Field Office of the United States (“U.S.”) Immigration and Customs
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Enforcement’s (“ICE”) Enforcement and Removal Operations Division, Doc. 1 at 7 ¶ 20; (2)
Dora A. Castro, the Warden of the Otero Processing Center in Chaparral, New Mexico, id. at 8 ¶
21; (3) the U.S. Department of Homeland Security (“DHS”), id. at ¶ 23; (4) Kristi Noem, the
Secretary of DHS, id. at ¶ 22; (5) Pamela Jo Bondi, the U.S. Attorney General, id. at ¶ 24; (6) the
Executive Office for Immigration Review (“EOIR”), id. at 8-9 ¶ 25; (7) Sirce Owen, the Acting
Director of EOIR, id. at 9 ¶ 26; and (8) the Otero Immigration Court, id. at ¶ 27. All individually
named Respondents (i.e., Respondents Andra-Ybarra, Castro, Noem, Bondi, and Owen) are sued
in their official capacities. See id. at 7-9 ¶¶ 20-22, 24, 26.
On November 3, 2025, Petitioners filed a Motion for Temporary Restraining Order, Doc.
3, contemporaneously with a ‘Brief in Support,’ Doc. 4. On November 6, 2025, Petitioners filed
an Amended Motion for Temporary Restraining Order. Doc. 5. The Court held a motion
hearing on Petitioners’ Amended Motion for Temporary Restraining Order (Doc. 5) on
November 19, 2025. See Docs. 6-7. Although Respondents had yet to enter appearances at that
time, Mr. Ryan Posey, an Assistant U.S. Attorney for the District of New Mexico, attended on
behalf of Respondents (with exception of Respondent Castro,4 who is not employed by the
federal government, but rather an independent contractor, see Doc. 10 at 1 n.1). See Doc. 7.
The undersigned then issued a ‘Proposed Findings and Recommended Disposition’
(“TRO PFRD”) on November 21, 2025, recommending that Petitioners’ Amended Motion for
Temporary Restraining Order (Doc. 5) be granted in part and that Petitioners’ original Motion
for Temporary Restraining Order (Doc. 3) be denied as moot. Doc. 8. Mr. Posey then entered
his appearance on behalf of the Respondents and filed objections to the TRO PFRD (Doc. 8) on
4 Nevertheless, as Mr. Posey points out “all arguments made on behalf of the remaining respondents apply equally to
[Respondent Castro].” Doc. 10 at 1 n.1. The Court agrees and generally refers to Respondents collectively herein.
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December 5, 2025. Doc. 11. Petitioners did not respond to Respondents’ objections (Doc. 11).
On February 10, 2026, the Honorable Judge James O. Browning adopted the TRO PFRD in part
and overruled it in part. Doc. 25.
On December 2, 2025, the undersigned issued an ‘Order to Show Cause,’ requiring, in
relevant part, Respondents to show cause “within fourteen (14) days of service of this Order and
the Petition why the Petition should not be granted.” Doc. 9 at 1. On December 18, 2025,
Respondents filed an Unopposed Motion for Extension of Time to Respond to Class Action
Complaint and Petition for Writ of Habeas Corpus, requesting an extension to December 23,
2025, Doc. 17, which the Court granted the following day, Doc. 18.
In lieu of an answer, Respondents filed the present Motion to Dismiss on December 23,
2025. Doc. 21; accord FED. R. CIV. P. 12(a)(4), (b). Petitioners responded on January 2, 2026.
Doc. 22. Petitioners additionally filed ‘Supplemental Evidence’ on January 14, 2026.5 Doc. 23.
Respondents neither replied to the Motion to Dismiss (Doc. 21), nor responded to Petitioners’
‘Supplemental Evidence’ (Doc. 23). See D.N.M.LR-Civ. 7.8(c) (“Any response must be filed
within seven (7) days of the filing of the Notice . . . . No reply to the response will be
permitted.”). However, Respondents filed a ‘Notice of Supplemental Authority’ on January 21,
2026. Doc. 24. Petitioners did not respond. See D.N.M.LR-Civ. 7.8(c).
5 However, Petitioners failed to comply with Local Rule 7.8(c), which requires the filing party to “state the reasons
for the supplemental citations, referring either to the page of the brief or to a point argued orally.” D.N.M.LR-Civ.
7.8(c). Nevertheless, given the attachments, the Court construes the ‘Supplemental Evidence’ as putting the Court on
notice of two recent developments regarding Petitioner Castillo’s detention and proceedings in Immigration Court.
See generally Doc. 23. First, on January 5, 2026, Petitioner Castillo filed a ‘Bond Memorandum.’ Doc. 23 at 8-73
(“Tab B”). Second, on January 12, 2026, Immigration Judge Jacinto Palomino denied Petitioner Castillo’s request for
a change in custody status “because Matter of Hurtado[.]” Id. at 5-7 (“Tab A” (‘Order of the Immigration Judge’)).
The Court considers such filings as necessary to resolve Respondents’ factual attacks on jurisdiction. See infra Section
III.A.1; accord Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (“A court has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1).” (emphasis added)).
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II. FACTUAL BACKGROUND
Petitioners are noncitizens who entered the U.S. unlawfully and without inspection,6 and
are currently detained at the Otero County Processing Center in Chaparral, New Mexico,
pending removal proceedings before the U.S. Immigration Court. Doc. 1 at 1 ¶ 1; see also Doc.
21 at 1. Petitioners’ claims arise from DHS’ ‘Interim Guidance Regarding Detention Authority
for Applicants for Admission’ (“Interim Guidance”) issued on July 8, 2025. See Doc. 1 at 1-2 ¶
2, 2-3 ¶ 5, 11 ¶ 33, 19 ¶ 67. This guidance declared that all noncitizens who entered the U.S.
without inspection and would otherwise be subject to discretionary detention under 8 U.S.C. §
1226(a), are “applicants for admission” subject to mandatory detention under 8 U.S.C. §
1225(b)(2)(A). Doc. 1 at 1-2 ¶ 2, 11 ¶ 33.
On September 5, 2025, the Board of Immigration Appeals (“BIA”) decided Matter of
Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) [hereinafter Hurtado]. Doc. 1 at 2 ¶ 3. Therein,
the BIA held that noncitizens who entered the U.S. without inspection, irrespective of their
length of time spent in the U.S. or the distance from the border at the time of apprehension, are
“applicants for admission” who are “seeking admission,” and therefore subject to mandatory
detention under 8 U.S.C. § 1225(b)(2)(A). Doc. 1 at 2 ¶ 3. Likewise, the BIA further held that
6 Although the Petition does not expressly state that either Petitioner entered the U.S. without inspection, it was clearly
implied when Petitioners pled:
[T]he statute describes custody and detention in the context of inspection, a process that occurs at
or near the border. That context is significant because it demonstrates that the actions governed by
§ 1225 concern border enforcement. Accordingly, the mandatory detention provisions of §
1225(b)(2) do not apply to individuals, such as Plaintiffs’ and similarly situated class members, who
had already entered and were residing in the interior of the United States when apprehended.
Doc. 1 at 12 ¶ 35 (emphasis added). Additionally, the fact that Petitioners entered the U.S. without inspection is
inherent to the claims presented. Petitioners challenge Respondents’ application of 8 U.S.C. § 1225(b)(2) to
noncitizens who entered without inspection and who would otherwise be eligible for bond under 8 U.S.C. § 1226(a).
See Doc. 1 at 12 ¶ 35. Had Petitioners entered with inspection, neither the challenged detention authority nor the
asserted deprivation of bond eligibility would be implicated.
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Immigration Judges (“IJs”) lack jurisdiction to consider bond requests or grant bond to
noncitizens present in the U.S. without admission. Id.; see also id. at 12 ¶ 34.
A. Petitioner Loza
Petitioner Loza is forty-nine years old and a citizen and national of Mexico. Doc. 1 at 16
¶ 52. He first arrived in the U.S. around August 1999, without inspection. See id; see also id. at
7 ¶ 19. Petitioner Loza resides in New Mexico, where he owns two restaurants—one in Artesia,
New Mexico, which has been in business for “almost ten years,” and the other in Ruidoso, New
Mexico, which has been in business for “about four years.” Id. at 7 ¶ 19. Additionally,
Petitioner Loza has children who are U.S. citizens. Id.
On August 16, 2025, Petitioner Loza “was detained at a check point located in the
interior of the United States,” id. at 16 ¶ 52, near Alamogordo, New Mexico, Doc. 21 at 3, and
has since been held at the Otero County Processing Center, Doc. 1 at 16 ¶ 52. Despite being
detained in the interior of the U.S., and the above-mentioned facts about Petitioner Loza’s pre-
detention residence and involvement in the U.S., he was deemed an “applicant for admission”
detained under 8 U.S.C. § 1225(b)(2)(A) and thus ineligible for a bond hearing under 8 U.S.C. §
1226(a).7 See Doc. 1 at 17 ¶ 54; see also Doc. 21 at 3 (explaining that “[f]ollowing an interview
and record check, Respondents determined Petitioner Loza did not have lawful status in the
[U.S.],” charged him “with removability pursuant INA § 212(a)(6)(A)(i),” and “detained [him]
pursuant to INA § 235(b) pending his removal proceedings.” (citing 8 U.S.C. § 1225(b)(2)(A))).8
7 In further support that Petitioner Loza was misclassified as an “applicant for admission” subject to mandatory
detention under 8 U.S.C. § 1225(b)(2)(A), the Petition also notes that Petitioner Loza was previously detained but
granted bond by an IJ around February 2020. Doc. 1 at 17 ¶ 54. Meaning, Petitioner Loza was previously detained
under 28 U.S.C. § 1226(a). See Doc. 1 at 17 ¶ 54.
8 It is not atypical for courts and parties to cite various sections of the INA. But not all INA section numbers are
comparable to their codified counterparts in Title 8 of the U.S. Code. The U.S. Citizenship and Immigration Services’
website provides a helpful chart listing INA sections and their corresponding U.S. Code section. See generally
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On October 14, 2025, Petitioner Loza filed a request for custody redetermination. Doc.
21 at 3. On October 20, 2025, an IJ held a bond hearing and denied bond on jurisdictional
grounds. Id.
Pursuant to Respondents’ information and belief, Petitioner Loza is scheduled for a
“merits hearing” before the U.S. Immigration Court on January 27, 2026. Id.
B. Petitioner Castillo9
Petitioner Castillo is thirty-three years old and a citizen and national of Mexico. Doc. 1
at 14 ¶ 40. He first arrived in the U.S. as a minor in 2001, without inspection, and was raised in
El Paso, Texas, until he was eighteen years old. Id. At an unspecified date, Petitioner Castillo’s
abusive stepfather “escorted Mr. Castillo to the international bridge between the United States
and Mexico and kicked Mr. Castillo out of the country.” Id.
Petitioner Castillo reentered the U.S. on July 1, 2023, without inspection. Id. at ¶ 41.
However, Petitioner Castillo was arrested on December 29, 2024, for pending burglary charges,
“from 15 years ago. . . . when Mr. Castillo was still residing in the United States during his
Immigration and Nationality Act, U.S. CITIZENSHIP & IMMIGR. SERVS., https://www.uscis.gov/laws-and-
policy/legislation/immigration-and-nationality-act (last visited Feb. 5, 2026).
9 The Court’s review is more limited in analyzing a motion to dismiss than in reviewing a motion for summary
judgment. See generally infra Section III.A. However, the parties have included many attachments from Immigration
Court proceedings, which the Court considers in its factual background. See infra Section III.A.1; accord Holt, 46
F.3d at 1003 (“A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule 12(b)(1).” (emphasis added)).
However, the attachments in this case only pertain to Petitioner Castillo. None of the relevant filings from Petitioner
Loza’s immigration proceedings have been submitted to the Court. Thus, in setting forth the relevant facts for
Petitioner Castillo, the Court not only considers the Petition (Doc. 1) and the present briefing (Docs. 21-22), but also:
(1) the ‘Order of the Immigration Judge,’ granting bond, issued August 28, 2025 (Doc. 4 at 44-45); (2) the Form
EOIR-43 (‘Notice of Intent to Appeal Custody Redetermination’) filed August 29, 2025 (Doc. 4 at 17); (3) the Form
EOIR-26 (‘Notice of Appeal from a Decision of an Immigration Judge’), filed September 10, 2025 (Doc. 4 at 18-20);
(4) DHS’ supplemental ‘Memorandum of Law’ attached to Form EOIR-26, filed September 10, 2026 (Doc. 4 at 21-
42); (5) Petitioner Castillo’s ‘Appeal Brief,’ filed October 16, 2025 (Doc. 12 at 9-19); (6) the BIA’s decision sustaining
DHS’ appeal, issued December 5, 2025 (Doc. 12 at 6-7; Doc. 21-1 at 3-4); (7) Petitioner Castillo’s ‘Bond
Memorandum,’ submitted on January 5, 2026, for the IJ’s consideration of Petitioner Castillo’s custody
redetermination request (Doc. 23 at 9-73); and (8) the ‘Order of the Immigration Judge’ denying custody
redetermination, issued January 12, 2026 (Doc. 23 at 6-7).
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formative years.” Id. After being arrested, Petitioner was detained at the El Paso County
Detention Facility, where he was then encountered by ICE. Doc. 21 at 3. On either January 2 or
6, 2025, compare Doc. 4 at 23 (DHS’ supplemental ‘Memorandum of Law’ attached to Form
EOIR-26 (‘Notice of Appeal from a Decision of an Immigration Judge’), listing January 2,
2025), with Doc. 23 at 10 ¶ 1 (Petitioner Castillo’s ‘Bond Memorandum,’ listing January 6,
2025), “[f]ollowing an interview and record check,” DHS issued Petitioner Castillo Form I-862
(‘Notice to Appear’), charging him “with removability pursuant INA § 212(a)(6)(A)(i),” Doc. 21
at 3. Additionally, at unspecified date, ICE issued Form I-200 (‘Warrant of Arrest’). See Doc. 1
at 6 ¶ 18. Pursuant to that warrant, Doc. 12 at 14 (Petitioner Castillo’s ‘Appeal Brief’),
DHS/ICE took custody of Petitioner Castillo, “without setting a bond,” Doc. 1 at 6 ¶ 18, and
“then transferred [him] to a processing center at 8915 Montana Ave, El Paso, Texas, for
immigration proceedings,” Doc. 12 at 14.
Petitioner Castillo’s burglary charges were dismissed in March 2025. Doc. 1 at 14 ¶ 41.
On April 19, 2025, Petitioner Castillo filed a motion for custody redetermination. Doc. 21 at 4.
An IJ held a custody redetermination review on April 28, 2025. Doc. 1 at 6 ¶ 18, 14 ¶ 42. The IJ
denied Petitioner Castillo bond based on the (ultimately incorrect) claim that Petitioner had been
arrested for domestic violence charges. Id. at 6 ¶ 18, 14-15 ¶¶ 42-43.
Petitioner Castillo appealed this determination to the BIA on April 29, 2025. Id. at 6 ¶
18, 15 ¶¶ 44. In both the aforementioned hearing and appellate briefing, DHS alleged that
Petitioner Castillo had past criminal activity warranting the denial of bond, but at no point did
DHS raise arguments opposing jurisdiction. Id. at 14-15 ¶¶ 42-44. On August 20, 2025, the BIA
held that the IJ’s denial was clearly erroneous (because Petitioner Castillo had never been
arrested for domestic violence) and remanded the bond matter to the IJ to continue exercising
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jurisdiction and issue a new order. Id. at 6 ¶ 18, 15 ¶ 46. In doing so, the BIA made no mention
of jurisdictional issues. Id. at 15 ¶ 46.
Pursuant to the BIA’s order, Petitioner Castillo had another bond hearing on August 28,
2025. Id. at 6-7 ¶ 18, 15 ¶ 47; see also Doc. 4 at 44-45 (‘Order of the Immigration Judge’).
During this hearing, DHS argued for the first time “that the court did not have jurisdiction
because he was deemed an ‘applicant for admission’ and was not eligible for bond.” Doc. 1 at
15 ¶ 47. Nevertheless, “[t]he [IJ] found jurisdiction under [8 U.S.C.] § 1226(a) . . . .” Id.; see
also id. at 6 ¶ 18. The IJ further found that Petitioner Castillo proved, by clear and convincing
evidence, that he was neither a danger to society nor a flight risk. Id. at 7 ¶ 18, 15 ¶ 47.
Accordingly, the IJ ordered that Petitioner Castillo be released, conditioned upon a $20,000 bond
and “ATD at DHS discretion.”10 Id. at 7 ¶ 18; see also Doc. 4 at 44 (‘Order of the Immigration
Judge’).
The following day (August 29, 2025), DHS filed Form EOIR-43 (‘Notice of Intent to
Appeal Custody Redetermination’), Doc. 4 at 17, which invoked the automatic-stay provisions of
8 C.F.R. § 1003.19(i)(2). Doc. 1 at 15 ¶ 48. On September 10, 2025, DHS filed Form EOIR-26
(‘Notice of Appeal from a Decision of an Immigration Judge’), Doc. 4 at 18-20. Doc. 1 at 16 ¶
49. Attached to Form EOIR-26 was DHS’ supplemental ‘Memorandum of Law,’ Doc. 4 at 21-
42, which “argued that the IJ lacked jurisdiction to hear bond requests or to grant bond to any
noncitizen present in the United States without admission,” Doc. 1 at 16 ¶ 49. Petitioner Castillo
filed his responding ‘Appeal Brief’ on October 16, 2025. Doc. 12 at 9-19.
10 Given the context, the Court understands “ATD” to mean “Alternatives to Detention.” See Doc. 1 at 7 ¶ 18 (citation
omitted). But this minute detail is not at issue and does not require further attention.
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On December 5, 2025, the BIA sustained DHS’ appeal. Doc. 21-1 at 3-4 (BIA Order).
Having found that the IJ lacked jurisdiction pursuant to Hurtado, 29 I&N Dec. at 229, the BIA
vacated the IJ’s bond order. Doc. 21-1 at 3-4 (BIA Order). Petitioners note that, in its order, the
BIA did not address Petitioner Castillo’s arguments against the reinterpretation set forth in
Hurtado. Doc. 12 at 1; compare Doc. 21-1 at 3-4 (BIA Order), with Doc. 12 at 9-19 (‘Appeal
Brief’). Nevertheless, as a result of the BIA’s ruling, Petitioner Castillo is no longer detained
under the automatic stay provision of 8 C.F.R. § 1003.19(i)(2); Petitioner Castillo is presently
detained pursuant to INA § 235(b) (i.e., 8 U.S.C. § 1225(b)), again. Doc. 21 at 4.
On January 5, 2026,11 Petitioner Castillo submitted a ‘Bond Memorandum,’ requesting a
custody redetermination. Doc. 23 at 9-73 (‘Bond Memorandum’). Therein, Petitioner Castillo
relied on the nationwide certification of a “Bond Eligible Class” in Bautista v. Santacruz, No.
25-cv-01873, 2025 WL 3713987 (C.D. Cal. Dec. 18, 2025), judgment entered sub nom.
Maldonado Bautista v. Noem, 2025 WL 3678485 (C.D. Cal. Dec. 18, 2025), as basis for his
continued argument against the purported lack of jurisdiction set forth in Hurtado. See Doc. 23
at 11-12. But an IJ nevertheless denied Petitioner Castillo’s custody redetermination request on
January 12, 2026, “because Matter of Hurtado,” with no further explanation. Doc. 23 at 6-7
(‘Order of the Immigration Judge’).
Pursuant to Respondents’ information and belief, Petitioner Castillo is scheduled for a
“master calendar hearing” before the U.S. Immigration Court on January 15, 2026. Doc. 21 at 4.
11 The ‘Certificate of Service’ included at the bottom of the ‘Bond Memorandum’ is dated as “this 5th day of January
2025,” Doc. 23 at 12, which the Court construes to be a typographical error due to the timestamp at the top of each
page listing “01/05/2026,” id. at 9-73, as well as chronology and multiple references to developments and cases
occurring after January 5, 2025, see, e.g., id. at 10 (listing Immigration Court developments in January, August, and
September 2025). Therefore, the Court construes the ‘Bond Memorandum’ to have been filed on January 5, 2026.
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III. LEGAL STANDARDS
A. Motion to Dismiss
Rule 12(b) of the Federal Rules of Civil Procedure enumerates seven defenses that a
party may assert by motion. See generally FED. R. CIV. P. 12(b)(1)-(7). The present Motion to
Dismiss does not explicitly cite the subsections upon which it is based. See generally Doc. 21.
Nevertheless, the Court construes the Motion to Dismiss to assert Rule 12(b)(1) to Counts II, III,
and IV. See Doc. 21 at 24 (stating Petitioners lack standing to bring Count II); id. at 18-19
(stating “the Court does not have subject matter jurisdiction to review” Counts III and IV). The
Court further construes the Motion to Dismiss to assert Rule 12(b)(6) to Count I, see Doc. 21 at
14 (“Count I does not find support under current law and should be dismissed.”), and as an
alternative basis for dismissal for Counts III and IV, see id. at 19 (stating, immediately after
arguing that Counts III and IV are moot, that: “[f]urther, Petitioners fail to state a claim upon
which any additional relief can be granted.” (emphasis added)).
“When a defendant seeks to dismiss a claim under both Rules 12(b)(1) and 12(b)(6),” as
is the case here, “the Court must decide the Rule 12(b)(1) motion first.” Rancho Lobo, Ltd. v.
Devargas, No. 00-925, 2004 WL 7337798, at *1 (D.N.M. Aug. 18, 2004) (citing Mounkes v.
Conklin, 922 F.Supp. 1501, 1506 (D. Kan. 1996)). “If the Court lacks subject matter
jurisdiction, a Rule 12(b)(6) challenge becomes moot.” Id. (citing Mounkes, 922 F.Supp. at
1506).
1. Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction
Federal courts only have jurisdiction where Congress has provided, the limits of which
are “not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. of Am., 511 U.S.
375, 377 (1994). In other words, federal courts are tribunals of limited jurisdiction and require a
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statutory basis to exercise jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002);
Castaneda v. Immigr. & Naturalization Serv., 23 F.3d 1576, 1580 (10th Cir. 1994) (“Federal
courts operate only in the presence rather than the absence of statutory authority.” (quotation
marks and citations omitted)).
“The party invoking federal jurisdiction has the burden to establish that it is proper, and
‘there is a presumption against its existence.’” Salzer v. SSM Health Care of Okla. Inc., 762
F.3d 1130, 1134 (10th Cir. 2014) (quoting Basso v. Utah Power & Light Co., 495 F.2d 906, 909
(10th Cir. 1974)). Accordingly, Federal Rule of Civil Procedure 12(b)(1) authorizes courts to
dismiss a complaint for “lack of subject-matter jurisdiction.” FED. R. CIV. P. 12(b)(1); see also
Kenney v. Helix TCS, Inc., 939 F.3d 1106, 1108 (10th Cir. 2019) (“A Rule 12(b)(1) motion to
dismiss only requires the court to determine whether it has authority to adjudicate the matter.”).
Inversely, “[t]o survive a 12(b)(1) motion to dismiss, a plaintiff must demonstrate that the court
has subject-matter jurisdiction.” Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th 1093,
1108 (10th Cir. 2023).
“Rule 12(b)(1) challenges may take two different forms.” Graff v. Aberdeen Enters., II,
Inc., 65 F.4th 500, 507 (10th Cir. 2023); see also Holt v. United States, 46 F.3d 1000, 1002 (10th
Cir. 1995) (distinguishing “facial” attacks and “factual” attacks). The party moving under Rule
12(b)(1) may either: (1) attack the complaint’s facial allegations concerning the existence of
subject matter jurisdiction; or (2) go beyond allegations contained in the complaint and challenge
the facts upon which subject matter jurisdiction is based. Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004).
In reviewing the former—a facial attack—the district court limits its review to the
sufficiency of the complaint, and it accepts the allegations in the complaint as true. Graff, 65
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F.4th at 507 (citing Holt, 46 F.3d at 1002). On the other hand, in reviewing the latter—a factual
attack—“a court ‘may not presume the truthfulness of the factual allegations in the complaint,
but may consider evidence to resolve disputed jurisdictional facts.’” Id. (quoting SK Fin. SA v.
La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1275 (10th Cir. 1997)); see also Sanchez v.
Ward, No. 13-00246, 2013 WL 12328914, at *2 (D.N.M. Oct. 29, 2013) (assuming defendant
intends facial attack where they included no affidavits or documentation for the court to
consider). In a factual attack, courts have wide discretion to review “affidavits, other documents,
and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Holt, 46 F.3d at 1002;
see also Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Cont’l Carbon Co., 428
F.3d 1285, 1292 (10th Cir. 2005) (recognizing discretion to allow documentary and testimonial
evidence under Rule 12(b)(1)). Thus, in resolving a factual jurisdictional question, “[r]eference
to evidence outside the pleadings does not convert the motion to dismiss into a motion for
summary judgment . . . .” SK Fin. SA, 126 F.3d at 1275.
2. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Relief Can
Be Granted
Federal Rule of Civil Procedure 12(b)(6) enables a party to assert, by motion, the defense
of “failure to state a claim upon which relief can be granted[.]” FED. R. CIV. P. 12(b)(6). In
deciding a motion to dismiss premised on Rule 12(b)(6), the Court accepts the factual allegations
in the complaint as true and views them in the light most favorable to the plaintiff. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). To survive a motion to dismiss premised upon
Rule 12(b)(6), a plaintiff’s complaint must contain sufficient facts that, when assumed to be true,
state a claim to relief that is plausible on its face. Id. at 570; see also FED. R. CIV. P. (8)(a), (d)
(listing requisites for pleadings to state claim for relief).
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“A claim has facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). While the facts in the complaint need not be detailed or
establish a prima facie case, “[a] pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.” Id. (quotation marks omitted)
(quoting Twombly, 550 U.S. at 555). But “the elements of each alleged cause of action help to
determine whether Plaintiff has set forth a plausible claim,” Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012), because “the mere metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded claims is insufficient; the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims,” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007) (emphasis in original). Similarly, “[c]onclusory allegations are not entitled to the
assumption of truth.” Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021);
accord Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders naked assertion[s]
devoid of further factual enhancement.” (alteration in original) (quotation marks and citation
omitted)).
In deciding a motion to dismiss challenging the legal sufficiency of a complaint, the
Court generally must exclude extraneous material or convert the motion to one for summary
judgment. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir.
2017). “A district court may, however, consider documents attached to or referenced in the
complaint if they are central to the plaintiff’s claim and the parties do not dispute the documents’
authenticity.” Id. (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)).
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B. Writ Authority
The All Writs Act, as the name implies, provides federal courts with general authority to
“issue all writs necessary or appropriate in aid of their respective jurisdictions . . . .” 28 U.S.C. §
1651(a) (emphasis added). Available writs include, inter alia, mandamus, habeas corpus,
certiorari, quo warranto, and prohibition—antiquatedly termed “prerogative writs.” See
generally Withrow v. Williams, 507 U.S. 680, 716 (1993) (Scalia & Thomas, JJ., concurring in
part) (“In English law, habeas corpus was one of the so-called ‘prerogative’ writs, which
included the writs of mandamus, certiorari, and prohibition.” (citations omitted)).
Additionally, and of relevance here,12 the All Writs Act allows “a court which has
jurisdiction” to issue “[a]n alternative writ or rule nisi . . . .” 28 U.S.C. § 1651(b). As discussed
next, in addition to the All Writs Act, the forms of writ relevant here each have independent,
writ-specific statutory authority. See 28 U.S.C. §§ 1361 (authorizing “action in the nature of
mandamus”), 2241(a) (authorizing writs of habeas corpus).
1. Writ of Habeas Corpus
28 U.S.C. § 2241(a) provides federal courts the jurisdiction to grant a writ of habeas
corpus to “release from unlawful physical confinement,” Preiser v. Rodriguez, 411 U.S. 475, 485
(1973), a petitioner demonstrating “by a preponderance of the evidence,” Beeler v. Crouse, 332
F.2d 783, 783 (10th Cir. 1964) (per curiam), the existence of one of the five circumstances
enumerated in 28 U.S.C. § 2241(c). Relevant here, a petition for a writ of habeas corpus raised
pursuant to 28 U.S.C. § 2241(c)(3) seeks release from federal custody that is “in violation of the
Constitution or laws or treaties of the United States . . . .”
12 As Respondents correctly point out, “Counts III and IV should be construed as a mandamus, rather than a habeas
claim.” Doc. 21 at 3 n.1.
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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). This includes immigration-related detention. Zadvydas v.
Davis, 533 U.S. 678, 687 (2001); Rasul v. Bush, 542 U.S. 466, 483-84 (2004) (“[Noncitizen]
Petitioners contend that they are being held in federal custody in violation of the laws of the
United States. . . . Section 2241, by its terms, requires nothing more.”), judgment entered, No.
04A41, 2004 WL 7372970 (U.S. July 16, 2004).
2. Writ of Mandamus
Although the writ of mandamus has been abolished, see FED. R. CIV. P. 81(b), the
Mandamus Act grants district courts “original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff,” 28 U.S.C. § 1361. See also 33 CHARLES A. WRIGHT,
CHARLES H. KOCH, & RICHARD MURPHY, FEDERAL PRACTICE AND PROCEDURE § 8305 (2nd ed.
2018) (noting that 28 U.S.C. § 1361 “uses the indirect phrasing, ‘in the nature of mandamus,’” in
light of Rule 81(b)). The Tenth Circuit “thus refer[s] to relief sought under § 1361 simply as
‘mandamus.’” Hernandez-Avalos v. Immigr. & Naturalization Serv., 50 F.3d 842, 845 n.5 (10th
Cir. 1995).
Consistent with the limitations that traditionally governed the common-law writ of
mandamus, an action under 28 U.S.C. § 1361 is “intended to provide a remedy for a plaintiff
only if he has exhausted all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984) (emphasis added); see also
Est. of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984) (“[T]he general rule [is] that
mandamus is appropriate where the person seeking the relief ‘can show a duty owed to him by
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the government official to whom the writ is directed that is ministerial, clearly defined and
peremptory.’” (quoting Carpet, Linoleum & Resilient Tile Layers, Loc. Union No. 419 v. Brown,
656 F.2d 564, 556 (10th Cir. 1981))).
Once it has been shown that an agency has failed to perform a ministerial duty, courts
have some discretion in fashioning mandamus relief. See Marathon Oil Co. v. Lujan, 937 F.2d
498, 500 (10th Cir. 1991) (“Although the party seeking issuance of a writ of mandamus has a
heavy burden of showing that the conditions are clearly met, the issuance of the writ is a matter
of the issuing court’s discretion.” (citations omitted)). But “while the district court can compel
the defendants to exercise their discretion, it cannot dictate how that discretion is to be
exercised.” Id. at 501 (affirming district court’s order to complete administrative review of
application within certain time but reversing the order to approve said application). However,
“even in an area generally left to agency discretion, there may well exist statutory or regulatory
standards delimiting the scope or manner in which such discretion can be exercised. In these
situations, mandamus will lie when the standards have been ignored or violated.” Carpet,
Linoleum & Resilient Tile Layers, 656 F.2d at 566 (quotation marks and citation omitted); see,
e.g., Est. of Smith, 747 F.2d at 591 (holding that mandamus is appropriate where Secretary has “a
duty to promulgate regulations,” even though the relevant “statute vests broad discretion in the
Secretary as to how that duty is best accomplished,” and the court “cannot control the specifics
of how the Secretary satisfies the duty.”).
IV. ANALYSIS
This case challenges two distinct detention practices effectuated by Respondents, each of
which underpins two counts. See supra Section I.
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First, as addressed in Section IV.A, Counts I and II challenge Respondents’ allegedly
incorrect classification of noncitizens detained during interior-enforcement as “applicants for
admission” subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A), which denies
Petitioners bond hearings, which they would have otherwise received historically under 8 U.S.C.
§ 1226(a). See Doc. 1 at 19-20 ¶¶ 65-68 (Count I); id. at 20 ¶¶ 69-72 (Count II). These claims
are properly analyzed under the writ of habeas corpus framework, as they challenge the
lawfulness of Petitioners’ ongoing detention. See 28 U.S.C. §§ 2241(a), (c)(3).
Second, as addressed in Section IV.B, Counts III and IV challenge Respondents’
allegedly systematic filing of Form EOIR-43 (‘Notice of Intent to Appeal Custody
Redetermination’) to trigger the automatic stay provisions of 8 C.F.R. § 1003.19(i)(2) whenever
a noncitizen receives a favorable bond ruling to contest an IJ’s jurisdiction to issue bonds under 8
U.S.C. § 1226(a). See Doc. 1 at 20-21 ¶¶ 73-76 (Count III); id. at 21-22 ¶¶ 77-81 (Count IV).
Petitioners allege that this automatic-stay provision renders bond hearings illusory. Id. at 3 ¶ 7,
13 ¶ 38. These claims are properly analyzed under the writ of mandamus framework because
Petitioners seek to compel timely administrative action unlawfully withheld or unreasonably
delayed. See 28 U.S.C. § 1361.
Each set of claims underpins one proposed class. See Doc. 1 at 19 & 20 (stating, under
both headings for Counts I and II, “On Behalf of Plaintiff and the Bond Denial Class”); id. at 20
& 21 (stating, under both headings for Counts III and IV, “On Behalf of Plaintiff and the Bond
Appeal Class”). Although Respondents request that the Court dismiss Petitioners’ class-action
allegations, see Doc. 21 at 2-3, 13-14, 19-24, the Court finds it inappropriate to analyze the
merits of the proposed classes at this stage—that is, upon a motion to dismiss under FED. R. CIV.
P. 12.
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Respondents have cited no binding authority that would require the Court to apply
Ashcroft v. Iqbal or Bell Atl. Corp. v. Twombly to Petitioners’ class-action allegations. Compare
Doc. 21, with supra Section III.A. Although Respondents cite the Supreme Court’s decision in
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), for the proposition that the Petitioners’
class-action allegations cannot survive a motion to dismiss, Doc. 21 at 13, 19, 22, that case is
procedurally dissimilar. In Wal-Mart, the issue before the Supreme Court was whether the lower
courts had properly granted a motion for class certification pursuant to FED. R. CIV. P. 23. See
564 U.S. at 345-46; see also Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982)
(“In determining the propriety of a class action, the question is not whether the plaintiff or
plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the
requirements of Rule 23 are met.” (quotation marks omitted) (quoting Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 177 (1974))). The matter presently before the Court, on the other hand,
is a motion to dismiss under FED. R. CIV. P. 12(b). See Doc. 21; supra Section III.A.
A Rule 23 analysis requires the Court to undergo a “rigorous analysis,” that will
“[f]requently . . . entail some overlap with the merits of the plaintiff’s underlying claim.”13 Wal-
Mart, 564 U.S. at 351. Given the different legal standard applied, “class-action allegations
enable [Petitioners] to take advantage of a procedural device, not a new cause of action.”
Anderson Living Tr. v. ConocoPhillips Co., 952 F. Supp. 2d 979, 1057 (D.N.M. 2013); see also
Vallario v. Vandehey, 554 F.3d 1259, 1267 (10th Cir. 2009) (“We, of course, adhere to the
principle that class certification does not depend on the merits of a suit.”). Moreover, “[t]he
13 In the Tenth Circuit, the specific burden of proof that plaintiffs must satisfy in demonstrating class certifiability is
not specifically defined. See generally White v. Gen. Motors LLC, No. 21-cv-00410, 2023 WL 3278460, at *3 (D.
Colo. May 5, 2023) (discussing lack of binding precedent, analyzing persuasive authority setting forth a preponderance
of evidence standard, and concluding that the Tenth Circuit will foreseeably require plaintiffs to fulfill their burden
by a preponderance of evidence).
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class action allegations are rather pro forma at this point; the heavy lifting is done at the class
certification hearing, rather than on a motion to dismiss.” Anderson Living Tr., 952 F. Supp. 2d
at 1058 (first citing Eisen, 417 U.S. at 178; and then citing Anderson, 690 F.2d at 799).
A. Writ of Habeas Corpus: Bond Hearing Claims
Counts I and II raise issues appropriately suited for analysis under the writ of habeas
corpus standard, since both counts allege unlawful detention resulting from the denial of a bond
hearing, in alleged violation of the INA. See Doc. 1 at 19-20 ¶¶ 65-68 (Count I); id. at 20 ¶¶ 69-
72 (Count II); accord 28 U.S.C. § 2241.
Both counts turn on the claim that “8 U.S.C. § 1225(b)(2) does not apply to noncitizens
residing in the United States who are charged as inadmissible because they have previously
entered the country without being admitted.” Doc. 1 at 19 ¶ 66, 20 ¶ 70 (quoted language
repeated under Counts I and II). Instead, Petitioners claim that “[s]uch noncitizens who are
detained as part of interior enforcement, far from any port of entry, are detained under § 1226(a),
unless subject to another provision such as § 1225(b)(1), § 1226(c), or § 1231.” Id. (same).
Based on Petitioners’ interpretation of the statutes at issue, Count I alleges that “[t]he application
of § 1225(b)(2) . . . violate[s] the Immigration and Nationality Act,” id. at 20 ¶ 68, and Count II
alleges that this “application of § 1225(b)(2) . . . is arbitrary, capricious, and not in accordance
with law, [which] . . . violates the APA,” id. at ¶ 72 (citing 5 U.S.C. § 706(2)).
1. Legal Background
The INA, as codified in various sections of Title 8 of the U.S. Code and supplemented by
various subsections of Title 8 of the Code of Federal Regulations (“C.F.R.”), authorizes three
basic forms of detention for noncitizens in removal proceedings. “The[se] applicable ‘statutes
apply at different stages of an alien’s detention.’” Cruz-Zavala v. Barr, 445 F. Supp. 3d 571,
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575 (N.D. Cal. 2020) (quoting Diouf v. Mukasey, 542 F.3d 1222, 1228 (9th Cir. 2008)).
“Moreover, ‘[w]here an alien falls within this statutory scheme can affect whether his detention
is mandatory or discretionary, as well as the kind of review process available to him if he wishes
to contest the necessity of his detention.’” Id. (quoting Prieto-Romero v. Clark, 534 F.3d 1053,
1057 (9th Cir. 2008)) (alteration in original).
First, 8 U.S.C. § 1225 (INA § 235) requires mandatory detention of noncitizens subject to
expedited removal under subsection (b)(1) and other, specified “applicants for admission” under
subsection (b)(2). Second, 8 U.S.C. § 1226 (INA § 236) allows, under subsection (a), the
discretionary release of noncitizens arrested and detained pursuant to a warrant issued by the
Attorney General, except for noncitizens deemed inadmissible or deportable for specific criminal
activity and/or offenses listed under subsection (c). Third, and lastly, 8 U.S.C. § 1231 (INA §
241) mandates the detention of noncitizens with a final order of removal under subsection (a)(2),
but subsection (a)(3) requires the supervised release of noncitizens (except noncitizens deemed
inadmissible or deportable for specific criminal activity and/or offenses listed in (a)(2)(A)) who
do not leave or are removed within the removal period as measured under subsection (a)(1).
These detention provisions were enacted as part of the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”) of 1996. Pub. L. No. 104-208, 110 Stat. 3009. By
way of comparison, before Congress enacted IIRIRA, the INA “provided for two types of
removal proceedings: deportation hearing[s] and exclusion hearings.” Doc. 21 at 7 (quoting
Hose v. Immigr. & Naturalization Serv., 180 F.3d 992, 994 (9th Cir. 1999)) (quotation marks
omitted) (alteration reflecting original quotation). “Noncitizens who arrived at a port of entry
would be placed in ‘exclusion proceedings and subject to mandatory detention, with potential
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release solely by means of a grant of parole[ . . . ].’” Id. (first quoting Hurtado, 29 I&N Dec. at
223; and then citing 8 U.S.C. §§ 1225(a)-(b), 1226(a)).
When Congress enacted IIRIRA, EOIR clarified in its implementing regulations that, as a
general matter, individuals who entered the U.S. without inspection were not considered detained
under 8 U.S.C. § 1225. Doc. 1 at 10 ¶ 30. Instead, such noncitizens were treated as detained
under 8 U.S.C. § 1226(a). Doc. 1 at 10 ¶ 30 (citing Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997) [hereinafter IIRIRA Implementation]
(“Despite being applicants for admission, aliens who are present without having been admitted or
paroled (formerly referred to as aliens who entered without inspection) will be eligible for bond
and bond redetermination.”)). Likewise, “the Otero Immigration Court, as did other immigration
courts across the country, regularly exercised jurisdiction under [8 U.S.C.] § 1226(a) over
noncitizens who were apprehended and processed in the District of New Mexico, granting bond
in appropriate cases.” Doc. 1 at 2 ¶ 4.
On July 8, 2025, DHS, “in coordination with EOIR/DOJ,” issued Interim Guidance
declaring that all noncitizens who entered the U.S. without inspection are to be deemed
“applicants for admission” qualifying for mandatory detention under 8 U.S.C. § 1225(b)(2)(A).
Doc. 1 at 1-2 ¶ 2. Nevertheless, “most Otero Immigration Judges . . . continued to find
jurisdiction under § [8 U.S.C.] 1225(a) [sic] to decide custody matters and have granted bond in
meritorious cases.” Doc. 1 at 2 ¶ 5.
But on September 5, 2025, the BIA adopted DHS’ Interim Guidance in Hurtado, 29 I&N
Dec. at 229. Doc. 1 at 2 ¶ 3. The BIA held that all noncitizens who entered without inspection,
irrespective of their length of time spent in the U.S. or the distance from the border at the time of
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apprehension, are “applicants for admission” who are “seeking admission,” and therefore subject
to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). Doc. 1 at 2 ¶ 3. As such, the BIA
further concluded that IJs lack authority to consider bond requests or grant bond to noncitizens
present in the U.S. without admission. Id. The conclusions set forth in Hurtado render any
attempt to seek relief directly from the agency futile. Mosqueda v. Noem, No. 25-cv-02304,
2025 WL 2591530, at *7 (C.D. Cal. Sep. 8, 2025) (Until the “BIA no longer applies a policy that
likely violates federal law, the circumstances do not present a need for requiring prudential
exhaustion.”); see also Romero v. Hyde, 795 F. Supp. 3d. 271, 277-281 (D. Mass. 2025)
(reaching same conclusion).
2. Jurisdiction
Before turning to the merits of Counts I and II, the Court must first ascertain whether it
has jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“This
question [of jurisdiction] the court is bound to ask and answer for itself, even when not otherwise
suggested, and without respect to the relation of the parties to it.”).
Federal courts have jurisdiction to grant a writ of habeas corpus to a petitioner who
demonstrates that he is in federal custody “in violation of the Constitution or laws . . . of the
United States.” 28 U.S.C. § 2241(c)(3). However, when the petitioner is a noncitizen detained
by immigration authorities, Congress has placed various limits on the exercise of this
jurisdiction. See, e.g., 8 U.S.C. §§ 1226(e), 1252(b)(9), 1252(g). Accordingly, the Tenth Circuit
has repeatedly stated that district courts lack jurisdiction to review removal orders, to hear
challenges to removal orders, or to stay removal orders. See Torres de la Cruz v. Maurer, 483
F.3d 1013, 1017 (10th Cir. 2007) (“Congress has provided an avenue for direct review of final
orders of removal through petitions for review in courts of appeals. Indeed, ‘petitions for review
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filed with the court of appeals are the sole and exclusive means of review of most administrative
orders of removal.’” (quoting Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006)));
Valdovinos-Blanco v. Holder, 557 F. App’x 793, 794 (10th Cir. 2014) (unpublished) (court
“unaware of any statutory or common-law authority permitting a federal court to intervene in an
alien’s ongoing deportation proceedings to order withholding of removal or to otherwise stay an
alien’s removal while his appeal is still pending before the BIA until a separate lawsuit he filed
is resolved.” (emphasis added) (internal quotation marks, citation, and brackets omitted)).
Nevertheless, federal courts retain jurisdiction under 28 U.S.C. § 2241 to review habeas claims
by noncitizen detainees who either challenge their detention as unconstitutional or raise
questions of law regarding the extent of the government’s statutory authority to detain them.
Ferry, 457 F.3d at 1131 (“[T]he Real ID Act eliminates a district court’s jurisdiction over habeas
petitions challenging final orders of removal. However, the Real ID Act did not eliminate a
district court’s jurisdiction to review habeas petitions challenging an alien’s detention.”)
It appears that Respondents attack Count I under FED. R. CIV. P. 12(b)(6) and do not
attack the Court’s general jurisdiction over the habeas corpus issues. See Doc. 21 at 14 (“Count I
does not find support under current law and should be dismissed.”). As a matter of
completeness, to the extent that Respondents’ Motion to Dismiss (Doc. 21) could be construed
otherwise, the Court briefly addresses the relevant jurisdiction-depriving statutes and concludes
that jurisdiction exists. Accord Rancho Lobo, 2004 WL 7337798, at *1 (“When a defendant
seeks to dismiss a claim under both Rules 12(b)(1) and 12(b)(6),” as is the case here, “the Court
must decide the Rule 12(b)(1) motion first.” (citing Mounkes, 922 F.Supp. at 1506)).
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i. 8 U.S.C. 1226(e)
First, 8 U.S.C. § 1226(e) prohibits judicial review of the “Attorney General’s
discretionary judgment regarding the application of” Section 1226. Thus, “[n]o 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.” 8 U.S.C. § 1226(e).
Section 1226(e) does not prevent the Court’s review here because “this limitation applies
only to ‘discretionary’ decisions about the ‘application’ of § 1226 to particular cases. It does not
block lawsuits over ‘the extent of the Government’s detention authority under the “statutory
framework” as a whole.’” Nielsen v. Preap, 586 U.S. 392, 401 (2019) (quoting Jennings v.
Rodriguez, 583 U.S. 281, 295-96 (2018)); see also Demore v. Kim, 538 U.S. 510, 517 (2003)
(“Section 1226(e) contains no explicit provision barring habeas review, and . . . that its clear text
does not bar respondent’s constitutional challenge to the legislation authorizing his detention
without bail.”). Here, Petitioners dispute the extent of the statutory authority that Respondents
claim. See generally Doc. 1; cf. Nielsen, 586 U.S. at 401. More specifically, at issue is the
general extent of the Government’s authority under § 1225(b)(2) and § 1226(a). See Doc. 1 at 10
¶ 30. Because this claim of authority does not constitute a mere “discretionary” application of
the relevant statutes, judicial review is not barred by § 1226(e).
ii. 8 U.S.C. § 1252(b)(9)
Second, the Court is neither stripped of jurisdiction by 8 U.S.C. § 1252(b)(9), which
states that:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas
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corpus provision, by section 1361 or 1651 of such title, or by any other provision
of law (statutory or nonstatutory), to review such an order or such questions of law
or fact.
As in Jennings, Petitioners “are 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.” 583
U.S. at 294; cf. Nielsen, 586 U.S. at 402; Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
591 U.S. 1, 19 (2020) (explaining that § 1252(b)(9) “is certainly not a bar where, as here, the
parties are not challenging any removal proceedings.”). Moreover, to the extent that Petitioners’
claims “aris[e] from” the removal proceedings brought against Petitioners, the Court points to
Jennings’ conclusion that “arising from” should not be interpreted so extremely as to preclude
claims arising from conditions of confinement, including prolonged detention. 583 U.S. at 293.
iii. 8 U.S.C. § 1252(g)
Lastly, the Court is not stripped of jurisdiction by 8 U.S.C. § 1252(g), since that
subsection only prohibits judicial review “arising from the decision or action by the Attorney
General to commence proceedings, adjudicate cases, or execute removal orders against any alien
under this chapter.” See, e.g., Regents, 591 U.S. at 19 (concluding that § 1252(g) “limits review
of cases ‘arising from’ decisions ‘to commence proceedings, adjudicate cases, or execute
removal orders,’” but does not “cover ‘all claims arising from deportation proceedings’ or
imposes ‘a general jurisdictional limitation.’” (first quoting 8 U.S.C. § 1252(g); and then quoting
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999))). Here, while removal
proceedings are inherently part of the factual background, the Court’s review pertains to
Petitioners’ detention pending removal proceedings. Cf. Ozturk v. Hyde, 136 F.4th 382, 397 (2nd
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Cir. 2025) (concluding that § 1252(g) did not bar habeas review of petitioner’s “challenges [to]
her unlawful detention, pending [removal] proceedings . . . .” (emphasis in original)).
To conclude, to the extent Petitioners’ claims challenge their detention as
unconstitutional and challenge the extent of DHS’s statutory authority to deny IJs’ jurisdiction to
issue bonds, the Court finds that it has subject-matter jurisdiction. Cf. id. Therefore, dismissal
under FED. R. CIV. P. 12(b)(1) is not appropriate, and the Court now reviews whether Counts I
and II sufficiently state a claim for which relief can be granted under FED. R. CIV. P. 12(b)(6).
3. Count I: Immigration and Nationality Act
Petitioners first argue that Respondents (by virtue of following DHS’ Interim Guidance
as adopted by the BIA in Hurtado, 29 I&N Dec. at 229) are violating the INA by misapplying
the mandatory detention provisions of 8 U.S.C. § 1225(b)(2) to deny bond hearings to
noncitizens who were apprehended and processed in the interior of the U.S., who, historically,
would have otherwise been detained and granted bond hearings under 8 U.S.C. § 1226(a). Doc.
1 at 19-20 ¶¶ 65-68 (Count I).
In short, the Court must analyze the proper application of 8 U.S.C. § 1225, and its
neighboring provision, 8 U.S.C. § 1226. To summarize the analysis below, the undersigned
finds that: (1) Petitioners are “applicants for admission” as defined by 8 U.S.C. § 1225(a)(1); (2)
Congress intended to distinguish an “applicant for admission” from those “seeking admission” in
8 U.S.C. § 1225(b)(2)(A); (3) 8 U.S.C. § 1225(b)(2) does not apply to all “applicants for
admission” not otherwise detained pursuant to 8 U.S.C. § 1225(b)(1), because such an
application would render certain subsections of 8 U.S.C. § 1226(c) superfluous; and (4) the
implementing regulations underpinning 8 U.S.C. § 1226 require a bond hearing.
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i. Petitioners are “Applicants for Admission” as Defined by 8 U.S.C. §
1225(a)(1).
The Court begins with a plain text review. BedRoc Ltd. v. United States, 541 U.S. 176,
183 (2004) (“The preeminent canon of statutory interpretation requires us to ‘presume that [the]
legislature says in a statute what it means and means in a statute what it says there.’ Thus, our
inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”
(alteration in original) (citations omitted)). Section 1225(a)(1) defines an “applicant for
admission” to include two categories of noncitizens: (1) “[a]n alien present in the United States
who has not been admitted;” and (2) “[a]n alien . . . who arrives in the United States (whether or
not at a designated port of arrival and including an alien who is brought to the United States after
having been interdicted in international or United States waters) . . . .” 8 U.S.C. § 1225(a)(1).
Based on that provision alone, Petitioners are applicants for admission as defined under 8
U.S.C. § 1225(a)(1) because they were “alien[s] present in the United States who ha[ve] not been
admitted . . . .” Accord Jennings, 583 U.S. at 287 (“[A]n alien who ‘arrives in the United States,’
or ‘is present’ in this country but ‘has not been admitted,’ is treated as ‘an applicant for
admission.’ Applicants for admission must ‘be inspected by immigration officers’ to ensure that
they may be admitted into the country consistent with U.S. immigration law.”); IIRIRA
Implementation, 62 Fed. Reg. at 10323 (explaining that “aliens who are present without having
been admitted or paroled (formerly referred to as aliens who entered without inspection)” are
considered applicants for admission but nevertheless “eligible for bond and bond
redetermination.”); see also Doc. 25 at 27 (“Reading § 1225 to encompass a subset of aliens
present in the United States accords not only with the statute’s text, but also with Supreme Court
guidance.”).
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ii. Congress Intended to Distinguish “Seeking Admission” from
“Applicants for Admission” in 8 U.S.C. § 1225(b)(2)(A).
After § 1225 defines an “applicant for admission,” in subsection (a), subsection (b) then
discusses, pursuant to its title, the “[i]nspection of applicants for admission.” 8 U.S.C. §
1225(b). Subsection (b) largely divides the inspection and detention of certain “applicants for
admission” into two further subsections. First, subsection (b)(1) pertains to arriving noncitizens
and “certain other aliens who have not been admitted or paroled.” 8 U.S.C. § 1225(b)(1). It also
applies “to certain other aliens designated by the Attorney General in his discretion.” Jennings,
583 U.S. at 287 (citing 8 U.S.C. § 1225(b)(1)(A)(iii)). No party has argued that § 1225(b)(1) is
relevant here.14 Second, subsection (b)(2) regards noncitizens who are “an applicant for
admission . . . seeking admission.” 8 U.S.C. § 1225(b)(2)(A). According to the Supreme Court,
“Section 1225(b)(2) is broader.” Jennings, 583 U.S. at 287. Specifically, “[i]t serves as a
catchall provision that applies to all applicants for admission not covered by § 1225(b)(1) (with
specific exceptions not relevant here).” Id. (citing 8 U.S.C. §§ 1225(b)(2)(A), (B)); see also
Doc. 25 at 26-28, 30, 32-33.
The question, then, is how broad is § 1225(b)(2)’s “catchall” application? That question
is the root of this case, amongst many others across the country. See Romero, 795 F. Supp. 3d at
273 (collecting cases); Chen v. Soto, No. 25-17198, 2025 WL 3527239, at *2 n.4 (D.N.J. Dec. 9,
2025) (same). On the one hand, Respondents contend that “applicants for admission” are
inherently “seeking admission.” See Doc. 21 at 12-15; see also id. at 23; accord Hurtado, 29
I&N Dec. at 229. On the other hand, Petitioners argue that not all “applicants for admission” are
14 Instead, the parties’ arguments focus on the applicability of 1225(b)(2). Nevertheless, it is necessary to understand
the relationship between the two statutes, given the subsection at issue is “broader.” Jennings, 583 U.S. at 287; see
also Doc. 25 at 32-33 (“After § 1225(b)(1) carries all of that water -- dividing applicants for admission into subgroups,
specifying who is subject to expedited removal, and describing how certain aliens can seek asylum -- it is only then
that § 1225(b)(2) comes over the horizon for consideration.”).
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“seeking admission,” and, consequently, § 1225(b)(2) does not inherently apply to all
“applicants for admission.” See Doc. 1 at 11 ¶ 32 (“Class members were well inside the United
States and cannot be said to be seeking admission.”). For the reasons set forth below, the Court
generally agrees with Petitioners that Congress intended to differentiate an “applicant for
admission,” from a noncitizen “seeking admission.” Importantly, however, the Court declines to
adopt the Petitioners’ overly broad interpretation that noncitizens detained in the interior are
never seeking admission by virtue of having effectuated an entry. See id.; see also Doc. 25 at 37
(“Although the phrase ‘seeking admission’ narrows the class of aliens to whom § 1225(b)(2)
applies, it would be mistaken to read the provision as limited exclusively to physical border
encounters.”).
Plain Text: The Court again begins with a plain text review. As it must, the Court
presumes that what Congress “says in a statute what it means and means in a statute what it says
there.” Dodd v. United States, 545 U.S. 353, 357 (2005) (quoting Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253-54 (1992)) (internal quotation marks omitted). Likewise, “‘every clause and
word of a statute’ should have meaning.” U.S. ex rel. Polansky v. Exec. Health Res., Inc., 599
U.S. 419, 432 (2023) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)).
Section 1225(b)(2)(A) reads as follows:
Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant
for admission, if the examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt entitled to be admitted, the
alien shall be detained for a proceeding under section 1229a of this title.
8 U.S.C. § 1225(b)(2)(A) (emphasis added). To break it down, Congress first contextualizes the
application to “applicant[s] for admission,” generally.15 See 8 U.S.C. § 1225(b)(2)(A) (“[I]n the
15 The Court recognizes that multiple courts have cited Jennings for the broad proposition that 1225 applies to arriving
aliens and 1226 applies to aliens already in the country. In Jennings, the Supreme Court did not state that § 1225(b)
applies only to aliens seeking entry into the U.S.; instead, the Jennings Court stated that Ҥ 1225(b) applies primarily
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case of an alien who is an applicant for admission . . . .”). Congress, then uses the conditional
term “if,” to further narrow the application. See id. The condition of the narrowed scope is that
“the examining immigration officer” makes a determination. See id. (“[I]n the case of . . ., if the
examining immigration officer determines that . . . .”). The determination the examining
immigration officer must make is whether “an alien seeking admission is not clearly and beyond
a doubt entitled to be admitted . . . .” See id. This determination is not to be answered to
“alien[s] seeking admission,” generally, but only in the context of “applicants for admission.”
See id.; see also Doc. 25 at 37 (“The phrase [‘seeking admission’] therefore narrows the broader
universe of ‘applicants for admission,’ which encompasses everyone present in the United States,
who has not been admitted, and arriving aliens.”). Without becoming distracted by what it
means to “seek[ ] admission,” the language demonstrates that Congress intended some form of a
distinction. See 8 U.S.C. § 1225(b)(2)(A); see also Doc. 25 at 36-38 (“Section 1225(b)(2)(A)
distinguishes between the legal status of being an applicant for admission and the act of seeking
admission.”). Just as courts “have no right” to presume distinctions exist when a statute is silent,
see Northwestern Nat. Life Ins. v. Riggs, 203 U.S. 243, 252 (1906) (“The statute draws no
distinction between innocent and fraudulent misrepresentations, and the courts have no right to
draw any such distinction.”), it follows, then, that courts have no right to presume a distinction
does not exist where Congress includes language indicating a designation. Cf. Pillsbury v.
United Eng’g Co., 342 U.S. 197, 199 (1952) (“We are not free, under the guise of construction,
to amend the statute by inserting therein before the word ‘injury’ the word ‘compensable’ so as
to aliens seeking entry . . . .” 583 U.S. at 297 (emphasis added); see also Vargas Lopez, 2025 WL 2780351, at *9 n.5
(D. Neb. Sep. 30, 2025). Thus, the Jennings Court did not restrict the application of § 1225(b) only to aliens who are
seeking entry into the United States or aliens who are near the border. Under the plain statutory language of §
1225(a)(1) that defines “applicants for admission,” § 1225(b) may also apply to those who are “present in the United
States who ha[ve] not been admitted.” 8 U.S.C. § 1225(a)(1).
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to make ‘injury’ read as if it were ‘disability.’ Congress knew the difference between ‘disability’
and ‘injury’ and used the words advisedly.”).
While Congress could have drawn (and defined) such a distinction with greater clarity,
courts are charged with interpreting statutes, not (re)writing them. See id. In pursuit of its
proper role, the Court must follow the interpretive principle that “every clause and word of a
statute” has meaning. Polansky, 599 U.S. at 432 (quoting Montclair, 107 U.S. at 152) (quotation
marks omitted); see also Doc. 25 at 26 (“The Court sees no reason to treat the insertion [of the
phrase ‘seeking admission’ in § 1225(b)(2)(A)] as accidental or redundant.”). If Congress
intended for § 1225(b)(2) to apply to all other “applicants for admission” not otherwise detained
pursuant to § 1225(b)(1), it could have done so. Cf. Buenrostro-Mendez v. Bondi, No. 25-20496,
2026 WL 323330, at *6 (5th Cir. Feb. 6, 2026) (“[I]f Congress had intended an alien ‘seeking
admission’ to effectively mean ‘arriving alien,’ it would simply have said ‘arriving alien.’
Congress did not hesitate to use the ‘arriving alien’ language elsewhere in § 1225.” (citing 8
U.S.C. §§ 1225(a)(2), (c)(1), (d)(2))). But that is not the present case. Instead, Congress chose a
lengthier statute, and each word “should have meaning.” Polansky, 599 U.S. at 432. Thus,
Respondents’ construction creates impermissible surplusage by overlooking any potential
meaning behind the additional language to presume that the statutory designation of being an
“applicant for admission” automatically equates “seeking admission.”
Avoiding Superfluity: In further support, concluding otherwise would impermissibly
render multiple subsections of 8 U.S.C. § 1226(c) superfluous. See Bilski v. Kappos, 130 S. Ct.
3218, 3222 (2010) (“A contrary conclusion would violate the canon against interpreting any
statutory provision in a manner that would render another provision superfluous.”); Marx v. Gen.
Rev. Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against surplusage is strongest when an
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interpretation would render superfluous another part of the same statutory scheme.”); see also
Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (reaching
the same conclusion regarding the at-issue statutes). In brief, 8 U.S.C. § 1226(c) sets forth
certain inadmissible or deportable noncitizens who are ineligible to be released on bond under §
1226(a), due to certain criminal offenses, and thus subject to mandatory custody. See 8 U.S.C. §
1226(c)(1)(A)-(E). Of these subsections, only §§ 1226(c)(1)(A), (D), and (E) discuss the
mandatory detention of noncitizens deemed inadmissible under various subsections of 8 U.S.C. §
1182(a).16 Although the named Petitioners are not subject to mandatory detention under §
1226(c), this subsection’s multiple references to noncitizens who must remain detained due to
certain causes for inadmissibility makes evident that 1226(a) may apply, inter alia, to
noncitizens apprehended in the interior who were never inspected upon their entry. See, e.g., 8
U.S.C. 1226(c)(1)(a), (d), (e)(i).
Moreover, 1226(a) cannot be read as an “exception” to 1225(b)(2).17 Although §
1225(b)(2) does not define the length of such detention, the Supreme Court held in Jennings that
16 First, 8 U.S.C. § 1226(c)(1)(A) mandates detention of any noncitizen who “is inadmissible by reason of having
committed any offense covered in section 1182(a)(2) of this title, is inadmissible by reason of having committed any
offense covered in section 1182(a)(2) of this title,” which generally discusses conviction for crimes of moral turpitude
or regarding controlled substances. See generally 8 U.S.C. § 1182(a)(2). Second, 8 U.S.C. § 1226(c)(1)(D) mandates
detention of any noncitizen who “is inadmissible under section 1182(a)(3)(B) of this title,” which discusses terrorist
activities. See generally 8 U.S.C. § 1182(a)(3)(B). Lastly, 8 U.S.C. § 1226(c)(1)(E) mandates the detention of any
noncitizen who: “(i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 1182(a) of this title;” (which
respectively discuss noncitizens present without admission or parole, noncitizens who willfully misrepresent a
material fact to seek or obtain immigration benefits (e.g., paperwork, admission) under Chapter 12, see generally 8
U.S.C. §§ 1182(a)(6)(A), (a)(6)(C), (a)(7)) and “(ii) is charged with, is arrested for, is convicted of, admits having
committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny,
shoplifting, or assault of a law enforcement officer offense, or any crime that results in death or serious bodily injury
to another person,” 8 U.S.C. § 1226(c)(1)(E)(i)-(ii), as defined “in the jurisdiction in which the acts occurred,” 8
U.S.C. § 1226(c)(2).
17 Sections 1225(b)(2) and 1226 have different, but overlapping, scopes. Section 1226 is a general provision that
covers “alien[s].” 8 U.S.C. § 1226(a). This includes both noncitizens who have been lawfully admitted (such as those
with visas or lawful permanent residence) and noncitizens in the country illegally. Section 1225(b)(2), by contrast, is
a specific provision that covers the subset of noncitizens deemed “applicant[s] for admission.” 8 U.S.C. § 1225(a).
As described above, these are noncitizens “present in the United States who ha[ve] not been admitted or who arrive
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§ 1225(b)(2) reads “most naturally” as mandating detention through the conclusion of removal
proceedings. See 583 U.S. at 297 (“Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate
detention of applicants for admission until certain proceedings have concluded.”). Although the
Supreme Court recognized that § 1225(b) also fails to “say[] anything about bond hearings,” the
Supreme Court nevertheless held that outside of the one “express exception” codified in 8 U.S.C.
§ 1182(d)(5)(A) (allowing temporary parole “on a case-by-case basis for urgent humanitarian
reasons or significant public benefit”), “there are no other circumstances under which aliens
detained under § 1225(b) may be released.” Jennings, 583 U.S. at 300 (emphasis added). The
conclusion that bond (as opposed to parole) is entirely precluded under 8 U.S.C. § 1225(b)(2) is
further supported by the precedential18 immigration court findings that a noncitizen cannot
switch detention from § 1225(b) to § 1226 by the post hoc issuance of a warrant. See Matter of
Li, 29 I&N Dec. 66, 71 n.4 (BIA 2025) (“Once an alien is detained under section [1225](b), DHS
cannot convert the statutory authority governing her detention from section [1225](b) to section
[1226](a) through the post-hoc issuance of a warrant.”).
Regulatory History: Lastly, the Court recognizes that in Leng May Ma v. Barber, the
Supreme Court found it “important to note” that:
our immigration laws have long made a distinction between those aliens who have
come to our shores seeking admission, such as petitioner, and those who are
within the United States after an entry, irrespective of its legality. In the latter
instance the Court has recognized additional rights and privileges not extended to
those in the former category who are merely ‘on the threshold of initial entry.’
in the United States.” Id. Because all “applicant[s] for admission,” see 8 U.S.C. § 1225(a), are “alien[s],” see 8 U.S.C.
§ 1226, the statutes necessarily overlap. See also Doc. 25 at 28.
18 “‘Precedential’ is a specific term in immigration law, which identifies decisions from the BIA which are binding
authorities on the U.S. Immigration Court. The use of this term is not intended to imply that it is binding authority
over this Court.” Doc. 21 at 11 n.3.
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357 U.S. 185, 187 (1958) (quoting Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 212 (1953)).
Such a distinction was continued as a matter of administrative interpretation, as evidenced in the
1997 implementing regulation, which stated that “[d]espite being applicants for admission, aliens
who are present without having been admitted or paroled (formerly referred to as aliens who
entered without inspection) will be eligible for bond and bond redetermination.” IIRIRA
Implementation, 62 Fed. Reg. at 10323.
To conclude, the plain text of § 1225(b)(2) does not inherently indicate that it applies to
all “applicants for admission” as defined by 1225(a). See 8 U.S.C. § 1225(b)(2)(A). Rather, the
plain text indicates that 8 U.S.C. § 1225(b)(2)(A) mandates detention for “applicants for
admission” (as defined in § 1225(a)), who are not otherwise detained under 1225(b)(1), and are
“seeking admission.” See 8 U.S.C. 1225(b)(2)(A).
Having found that § 1225(b)(2)(A) applies to “applicants for admission,” who are also
“seeking admission,” the next question, naturally, is: what does “seeking admission” mean? This
question goes to the heart of Respondents’ argument that “applicants for admission” are
inherently “seeking admission.” However, the Court need not resolve that question at this
juncture. Because statutes do not operate in a vacuum, WesternGeco LLC v. ION Geophysical
Corp., 585 U.S. 407, 414 (2018) (“When determining the focus of a statute, we do not analyze
the provision at issue in a vacuum.”), and because the Court understands the statutory schema to
prohibit the simultaneous application of § 1225(b)(2) and § 1226(a), see Jennings, 583 U.S. at
300, the Court now turns to the plain text of 8 U.S.C. § 1226.
iii. Noncitizens Meeting the Requirements of 8 U.S.C. § 1226(a) are
Entitled to a Bond Hearing.
Section 1226(a) creates a discretionary framework regarding noncitizens arrested and
detained upon an arrest “warrant issued by the Attorney General.” 8 U.S.C. § 1226(a). The
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Attorney General, “may continue to detain the arrested alien,” “may release the alien” on bond of
at least $1,500, or “may release the alien” on parole. Id. However, in contrast to many courts’
assumptions, see Hernandez v. Prindle, No. 15-10, 2015 WL 1636138, at *2 n.1 (E.D. Ky. Apr.
13, 2015) (“[C]ourts often assume that § 1226(a) requires a bond hearing . . . .”), nothing in §
1226 explicitly requires a bond hearing. Aleman Gonzalez v. Barr, 955 F.3d 762, 782 (9th Cir.
2020) (“The [Jennings] Court’s rejection of our court’s imposition of a six-month bond hearing
requirement for aliens detained pursuant to § 1226(a) beyond the regulations’ provision of a
single bond hearing at the outset of detention is not the same as rejecting a construction of §
1226(a) to authorize or require bond hearings at all.”); Sulayao v. Shanahan, No. 09Civ.7347,
2009 WL 3003188, at *7 (S.D.N.Y. Sep. 15, 2009) (“Nothing in the plain language of section
1226(a) requires that an alien detained pursuant to that statute be granted a bond hearing.”).
Although the Jennings Court declined to decide whether the express statutory reference
to “bond” in § 1226(a) requires an initial bond hearing, the Supreme Court recognized that
“[f]ederal regulations provide that aliens detained under § 1226(a) receive bond hearings at the
outset of detention.” 583 U.S. at 306 (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)); see also
Doc. 25 at 34 n.16. Such implementing regulations “must be interpreted so as to harmonize with
and further and not to conflict with the objective of the statute [they] implement[ ].” Joy Techs.,
Inc. v. Sec’y of Labor, 99 F.3d 991, 996 (10th Cir. 1996) (quotation marks and citation omitted);
cf. U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954) (establishing the Accardi
doctrine, which sharply limits an agency’s ability to simply ignore their own published rules that
provide certain substantive rights). Below, the Court sets forth the relevant regulations and their
application. In short, because the C.F.R. mandates the substantive right of a detention/bonding
hearing for noncitizens arrested and detained pursuant to a warrant, that mandate remains
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binding on Respondents until and unless the governing statutes and/or regulations are amended
otherwise. Even then, the APA limits how an agency goes about undertaking and implementing
such a major policy change. See generally Masis Lucero v. Field Off. Dir. of Enf’t & Removal
Operations, Detroit Field Off., Immigr. & Customs Enf’t, No. 25-CV-823, 2025 WL 3718730, at
*4-5 (S.D. Ohio Dec. 23, 2025) (analogizing Regents, 591 U.S. 1, which addressed DHS’ abrupt
termination of the Deferred Action for Childhood Arrivals program based on advice based on the
Attorney General’s opinion that the program violated the INA).
In general, when someone is first arrested by ICE, they are taken to a local ICE
processing office where an ICE officer evaluates whether the noncitizen is eligible to be released
from ICE custody and makes a custody determination (i.e., decides whether the person should
remain in custody or should be released). 8 C.F.R. §§ 1236.1(c)(8), (d)(1). The official issues
Form I-286 (‘Notice of Custody Determination’) to memorialize and notify the noncitizen
whether he will be detained in custody or released under an immigration bond. See 8 C.F.R. §
236.1(d)(1). Technically, this is the person’s first custody determination. See id.; Barrera v.
McDonald, No. 18-cv-12437, 2019 WL 4804854, at *1 n.1 (D. Mass. Sep. 30, 2019) (“Since ICE
has the initial discretion of whether to grant bond to a § 1226(a) detainee, the first bond hearing
before an immigration judge is considered a redetermination of the bond question.”); see also
Cardona v. Ladwig, No. 25-cv-01451, 2025 WL 3722009, at *7 n.12 (M.D. Tenn. Dec. 3, 2025)
(“Notably, under INA regulations, a bond hearing occurs only after ICE has made its ‘initial
[discretionary] decision to detain’—the bond hearing is not itself an initial custody determination
but an act of ‘re-determination.’” (emphasis and alteration in original) (citation omitted)). If
bond is granted, the noncitizen may post the bond once served with Form I-862 (‘Notice to
Appear’). See 8 C.F.R. § 236.1(c)(8).
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On the bottom of Form I-286 (‘Notice of Custody Determination’), there is a checkbox to
request a review of the custody determination in front of an IJ, unless federal law prohibits the
noncitizen’s release from custody, see, e.g., 8 U.S.C. §§ 1226(c), 1231, or unless the noncitizen
is in ‘asylum only’ proceedings or expedited removal, 8 U.S.C. § 1225(b)(1). 8 C.F.R. §
236.1(d)(1)-(2); Miranda v. Garland, 34 F.4th 338, 346-47, 364-65 (4th Cir. 2022) (discussing
the ability of a noncitizen detained under § 1226 to seek release before an immigration officer,
an IJ, and the BIA); Rodriguez Vazquez v. Bostock, 779 F. Supp. 3d 1239, 1247 (W.D. Wash.
2025) (“[T]hose detained under Section 1226(a) are entitled to a bond hearing before an IJ at any
time before entry of a final removal order.”). Upon submitting a custody redetermination
request, an IJ schedules a custody/bond hearing, after which the IJ issues a custody/bond order.
See 8 C.F.R. § 236.1(d)(2); accord 8 C.F.R. § 236.1(d)(1).
Although § 1226(a) provides the ICE officer (or other statutorily permissible official
conducting the initial custody determination) discretion to deny issuing a bond, the IJ may grant
bond on the custody redetermination request (or, where bond was initially granted, the IJ may
reduce, maintain, or increase the bond amount). 8 C.F.R. § 236.1(d)(1) (“the immigration judge
is authorized . . . to detain the alien in custody, release the alien, and determine the amount of
bond, if any, under which the respondent may be released.”); S.D.B.B. v. Johnson, No. 25-CV-
882, 2025 WL 2845170, at *7 (M.D.N.C. Oct. 7, 2025) (“Although the statutory language itself
suggests that the decision to grant or withhold bond is a discretionary act by the Attorney
General, courts have generally found that alien detainees under § 1226 are entitled to a bond
hearing.”). After an initial bond redetermination before an IJ, any subsequent custody
redetermination request(s) must be made in writing and show that the noncitizen’s circumstances
have changed materially since the prior bond hearing. 8 C F R § 1003.19(e).
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Respondents’ interpretation that all noncitizens who entered the U.S. without admission
are subject to mandatory detention under § 1225(b)(2) to deny IJs’ jurisdiction is too expansive
because it violates the regulatory schema that ensure noncitizens who are properly detained
under § 1226(a)—like Petitioner Castillo—the substantive right to seek bond.
a. Relief for Petitioner Castillo19
The undersigned finds that Petitioner Castillo was arrested and detained pursuant to a
warrant, as required by 8 U.S.C. § 1226(a), and the governing regulations entitled Petitioner
Castillo to a bond hearing. Under the facts and circumstances, the undersigned further finds that
Respondents’ violation of 8 C.F.R. § 1236.1(c) entitles Petitioner Castillo to injunctive relief in
the form of a writ of habeas corpus.
However, an IJ already found that Petitioner Castillo proved, by clear and convincing
evidence, that he was neither a danger to society nor a flight risk and thus ordered Petitioner
Castillo’s release conditioned on a $20,000 bond and “ATD at DHS discretion,” on August 28,
2025. Doc. 1 at 6 ¶ 18, 15 ¶ 47; Doc. 4 at 44 (‘Order of the Immigration Judge’). Petitioner
Castillo’s bond order was later usurped on purported jurisdictional grounds, but as established
above, the Court finds that basis to be incorrect. Compare Doc. 21-1 at 3-4 (BIA Order), with
supra Section IV.A.3.i-iii. Therefore, the undersigned recommends releasing Petitioner Castillo
pursuant to the terms originally ordered by the IJ.20 See Martinez-Elvir v. Olson, No. 25-cv-589,
19 Petitioner Castillo entered the U.S. on July 1, 2023, Doc. 1 at 14 ¶ 14, and DHS issued Petitioner Castillo a ‘Notice
to Appear’ on January 2, 2025, which “charged him with being inadmissible pursuant to Section 212(a)(6)(A)(i) of
the Immigration and Nationality Act,” Doc. 4 at 23. Although Petitioner Castillo was present in the U.S. for less than
two continuous years before the date of determination of inadmissibility, Petitioner Castillo is not a candidate for
mandatory detention under 8 U.S.C. § 1225(b)(1) (as opposed to subsection (b)(2)), because Petitioner Castillo was
not deemed inadmissible under 8 U.S.C. § 1182(a)(6)(c) or 8 U.S.C. § 1182(a)(7), as § 1225(b)(1)(a)(i) requires. But
cf. Doc. 25 at 28-30, 78.
20 Petitioners do not assert a due process challenge in Count I. Therefore, the Court declines to sua sponte address the
potential due process concerns, such as the Accardi doctrine. But even if Petitioners had raised a due process claim,
the Court’s analysis can still end as is, because the Court grants the relief Petitioner Castillo seeks based on the
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2025 WL 3006772, at *13 (W.D. Ky. Oct. 27, 2025) (affirming release pursuant to requirements
set forth by IJ); Puerto-Hernandez v. Lynch, No. 25-cv-1097, 2025 WL 3012033, at *11 (W.D.
Mich. Oct. 28, 2025) (“Because the IJ is in the better position to evaluate whether Petitioner
poses a flight risk and a danger to the community, the Court defers to the IJ’s sound discretion
and will order Petitioner’s immediate release on the terms set by the IJ, including the bond of
$5,000.”); see also Doc. 25 at 102 n.28.
b. Relief for Petitioner Loza
Because the text of 8 U.S.C. § 1226(a) preconditions the section’s application to
noncitizens arrested and detained pursuant to a warrant issued by the Attorney General, and
because Petitioners fail to state that Petitioner Loza was arrested pursuant to a warrant, see
generally Doc. 1, the Court finds that Petitioner Loza is not eligible for relief under Counts I or
II.
A warrant is required unless an immigration officer apprehends a noncitizen while the
noncitizen is entering, attempting to enter, or is present in the U.S. in violation of the
immigration laws. 8 U.S.C. § 1357(a)(2) (“Any officer . . . shall have power without warrant . . .
to arrest any alien in the Unites States, if he has reason to believe that the alien so arrested is in
the United States in violation of [immigration laws] and is likely to escape before a warrant can
be obtained for his arrest.”). Assuming that is the basis for the arrest, 8 C.F.R. § 287.3 then
regulates how officers proceed after they effect that warrantless arrest. Most relevant to the issue
at hand, § 287.3(d) governs custody procedures and states, “a determination will be made within
48 hours of the arrest [except in cases not relevant here] whether a notice to appear and warrant
applicability of § 1226(a). See Hernandez v. Baltazar, No. 25-cv-03094, 2025 WL 2996643, at *8 (D. Colo. Oct. 24,
2025) (“However, the Court declines to adjudicate Petitioner’s due process claim on the merits at this time because
the Court grants the relief Petitioner seeks based on the applicability of § 1226(a).”).
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of arrest as prescribed in 8 CFR parts 236 and 239 will be issued.” Turning to the referenced §
236, particularly § 236.1(c)(8), “[a]ny officer authorized to issue a warrant of arrest may, in the
officer’s discretion, release an alien not described in [8 U.S.C. § 1226(c)(1)], under the
conditions at [§§ 1226(a)(2) and (3)]; provided that the alien must demonstrate to the satisfaction
of the officer that such release would not pose a danger to property or persons, and that the alien
is likely to appear for any future proceeding.” That regulation also dictates that ICE will utilize
Forms I-200 (‘Warrant of Arrest’) and I-286 (‘Notice of Custody Determination’). 8 C.F.R. §§
236.1(b)(1), (g)(1).
If an arrest is made without a warrant, the government must “without unnecessary delay”
have an officer examine the arrested individual “as to [the individual’s] right to enter or remain
in the United States.” 8 U.S.C. § 1357(a)(2); see also 8 C.F.R. § 287.3(a) (providing that “an
alien arrested without a warrant . . . will be examined by an officer other than the arresting
officer” but “the arresting officer” may conduct the examination “if taking the alien before
another officer would entail unnecessary delay”). Upon finding “prima facie evidence that the
arrested alien was entering, attempting to enter, or is present in the United States in violation of
the immigration laws,” the examining officer must: refer the case to an IJ; order the individual
removed on an expedited basis, pursuant to 8 U.S.C. § 1225(b)(1) and 8 C.F.R. § 235.3(b); or
take other action as authorized by relevant law and regulations. 8 C.F.R. § 287.3(b).
Importantly, within 48 hours of the arrest without a warrant, the officer must determine “whether
the individual will be continued in custody or released” and whether to issue a notice to appear
and an arrest warrant. 8 C.F.R. § 287.3(d).
However, no warrant of any kind for Petitioner Loza’s arrest has been submitted to the
record in this case. In fact, Petitioner Loza entirely fails to allege anywhere in the Petition that
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he was arrested on a warrant. Cf. Vargas Lopez v. Trump, 802 F. Supp. 3d 1132, 1139 (D. Neb.
2025) (“No warrant of any kind for [Petitioner]’s arrest has been submitted to the record in this
case. Indeed, [Petitioner] does not allege anywhere in his Petition that he was arrested on a
warrant.”) In these circumstances, this Court is unable to defer to or even assess the IJ’s findings
on the existence of a warrant or its basis for Petitioner Loza’s arrest. See id.
Previously, the undersigned recommended that Petitioner Loza be granted a bond
hearing. See Doc. 8 at 11, 19-21. That recommendation, however, was issued at the temporary-
restraining-order stage and rested on a likelihood-of-success analysis, not a determination of
statutory entitlement on the merits. The Court finds that the two recommendations are not in
conflict because Petitioners will foreseeably resolve the insufficient pleadings underpinning the
present recommendation. Since amendment is not futile, the undersigned recommends
dismissing Count I, as it applies to Petitioner Loza, individually, without prejudice.
4. Count II: Administrative Procedures Act, 5 U.S.C. § 551 et seq.
Petitioners also assert that their detention under § 1225(b)(2) constitutes a violation of the
APA, 5 U.S.C. § 551 et seq. See Doc. 1 at 20 ¶¶ 69-72 (Count II). Under the APA, a reviewing
court shall “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). However,
Respondents argue that “Petitioners do not have standing to bring claims under the APA.” Doc.
21 at 24. Such a standing challenge is properly analyzed under Rule 12(b)(1). Cf. Birse v.
CenturyLink, Inc., No. 17-cv-02872, 2018 WL 6603961, at *2 (D. Colo. Nov. 19, 2018)
(“Though not raised by Defendants, Rule 12(b)(1), rather than Rule 12(b)(6), of the Federal
Rules of Civil Procedure applies to a standing challenge.”), report and recommendation adopted
in part, rejected in part sub nom., 2019 WL 1292861 (D. Colo. Mar. 20, 2019).
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“[C]laims under the APA are not available when there is another ‘adequate remedy in a
court,’ . . . .” Trump v. J.G.G., 604 U.S. 670, 674 (2025) (Kavanaugh, J., concurring). Here,
habeas corpus is the proper vehicle. See id. (“[H]abeas corpus, not the APA, is the proper
vehicle here.”). Petitioners fail to persuade how the Court’s analysis and recommendation for
declaratory relief with respect to Count I fail to fulfill their express intention of scrutinizing
“Defendants’ policy and practice,” in Count II. Doc. 22 at 7 (claiming, without any citations or
authority, that “the APA and Habeas serve two completely different purposes and are not
adequate substitute for one another. An APA challenge seeks to challenge agency action and
invalidate unlawful interpretations of the law. Habeas is confined and limited to detention
legality. A habeas does not invalidate agency policy or practice, prevent future application or
provide systemic relief.”).
It is unclear whether Petitioners’ argument is based upon the fact that “Rule 23 class
actions are technically inapplicable to habeas corpus proceedings.” Napier v. Gertrude, 542 F.2d
825, 827 n.2 (10th Cir. 1976). The Tenth Circuit has recognized this legal reality and explained
that courts may nevertheless proceed by “apply[ing] an analogous procedure by reference to
Rule 23 in proper circumstances.” Id. In other words, the Court is not precluded from applying
Rule 23 in certifying a class in the habeas context. See id.; Mendoza Gutierrez v. Baltasar, No.
25-CV-2720, 2025 WL 2962908, at *12 (D. Colo. Oct. 17, 2025) (holding, in comparable
immigration case, that “even if Plaintiff is seeking to certify the class in a habeas context, the
Court may apply Rule 23.” (citation omitted)). But the Court is not reviewing the proposed
“Bond Denial Class” at this time. With respect to the named Petitioners, then, the undersigned
recommends dismissing Count II for lack of standing under FED. R. CIV. P. 12(b)(1).
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B. Writ of Mandamus: Bond Appeal Claims21
Counts III and IV raise issues appropriately suited for analysis under the writ of
mandamus standard, since both counts ultimately seek to compel Respondents to perform their
duty of timely resolving Immigration Court appeals. See Doc. 1 at 20-21 ¶¶ 73-76 (Count III);
id. at 21-22 ¶¶ 77-81 (Count IV); accord 28 U.S.C. § 1361.
These counts address the length of appellate review of custody determination, see id. at
20-22 ¶¶ 73-81 (Counts III and IV), by both the BIA, generally, and “OPLA’s automatic-stay
practice,” id. at 4 ¶ 9. Regarding the latter cause of delay, Petitioners claim that OPLA adopted a
new practice to unilaterally override any favorable bond determinations by filing Form EOIR-43
(‘Notice of Intent to Appeal Custody Redetermination’) to contest an IJ’s 8 U.S.C. § 1226(a)
jurisdiction (and thus any favorable bond rulings), which triggers the automatic stay provisions
of 8 C.F.R. § 1003.19(i)(2). Doc. 1 at 2 ¶ 5, 3 ¶ 7. Based on this new practice, Count III claims
that the BIA’s “failure to provide timely appellate review, in cases where liberty has been
curtailed through an EOIR-43 automatic stay, violates the Due Process Clause of the Fifth
Amendment.” Id. at 21 ¶ 76. Because Count III appears to only attack the length of time
resolving an appeal when DHS has filed Form EOIR-43 to invoke the automatic stay of 8 C.F.R.
§ 1003.19(i)(2), Count III does not apply to Petitioner Loza, given that the Petition fails to allege
that such conduct occurred during Petitioner Loza’s Immigration Court proceedings. Further,
Count IV alleges that where physical liberty is at issue, “a reasonable time for appellate review
of a civil-detention is not more than thirty (30) days from filing of the notice of appeal, while the
21 Critically, Counts III only applies to Petitioner Castillo. Contrast Doc. 1 at 6-7 ¶ 18 (stating Petitioner Castillo
successfully appealed but was then impacted by DHS appealing and filing Form EOIR-43 (‘Notice of Intent to Appeal
Custody Redetermination’)), with id. at 7 ¶ 19 (discussing Petitioner Loza, with no mention of any appeal or DHS
filing Form EOIR-43 as it applies to him), and id. at 16-17 ¶¶ 52-54 (same). Therefore, Petitioner Loza is not entitled
to relief under Count III.
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individual remains detained,” id. at ¶ 79, but that such review (which is “often stayed
automatically by OPLA’s EOIR-43 filings,” id. at 22 ¶ 80), “regularly extends well beyond thirty
(30) days,” id. It appears, then, that Count IV attacks the length of time to resolve appeals both
generally and when the automatic stay is invoked.
1. Legal Background
Prior to 2001, noncitizens subject to discretionary detention under 8 U.S.C. § 1226(a)
who were granted bond by an IJ remained detained only if the BIA granted a request to stay the
bond order. See Executive Office for Immigration Review; Review of Custody Determinations,
66 Fed. Reg. 54909, 54910 (Oct. 31, 2001). In 2001, the Immigration and Naturalization Service
(“INS”) (now DHS) implemented an “interim rule” to expand its authority to issue automatic
stays of IJs’ custody/bond decisions pending their appeal. Id. Therein, the INS stated that this
automatic stay was “a limited measure,” to be used only “where the Service determines that it is
necessary to invoke the special stay procedure pending appeal . . . .” Id.
In 2006, EOIR promulgated the final and current rule, which added the requirement that
to preserve the automatic stay, the attorney for DHS must file, with the notice of appeal, a
certification by a senior legal official under 8 C.F.R. § 1003.6(c). Executive Office for
Immigration Review; Review of Custody Determinations, 71. Fed. Reg. 57873, 57884 (Oct. 2,
2006). This certification requirement was added “to allay possible concerns that in some case[s]
the automatic stay might be invoked . . . without an adequate factual or legal basis . . . .” Id. at
57874. The certification must state:
(i) the official has approved the filing of the notice of appeal according to review
procedures established by DHS; and
(ii) the official is satisfied that the contentions justifying the continued detention of
the alien have evidentiary support, and the legal arguments are warranted by
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existing law or by a non-frivolous argument for the extension, modification, or
reversal of existing precedent or the establishment of new precedent.
8 C.F.R. §§ 1003.6(c)(1)(i)-(ii). The automatic stay will lapse after ten days if DHS fails to
timely file the notice of appeal and certification. 8 C.F.R. §§ 1003.6(c)(1).
Assuming certification has been properly tendered, the stay lapses in ninety days absent a
BIA decision, unless the detainee seeks an extension of time to brief the custody appeal, 8 C.F.R.
§ 1003.6(c)(4), or unless DHS seeks, and the BIA grants, a discretionary stay. See, e.g., 8 C.F.R.
§ 1003.19(i)(1). Moreover, seeking this discretionary stay automatically extends the stay for an
additional 30 days while the BIA decides the request for discretionary stay. 8 C.F.R. §
1003.6(c)(5). If the BIA authorizes a noncitizen’s release (on bond or otherwise), denies a
motion for discretionary stay, or fails to act on such a motion before the automatic stay period
expires, the noncitizen’s release shall be automatically stayed for five business days. 8 C.F.R. §
1003.6(d). During that period, DHS can choose to refer the bond decision to the Attorney
General, which extends the automatic stay for another 15 business days. 8 C.F.R. § 1003.6(d).
The Attorney General can then extend the stay for the pendency of the custody proceedings. 8
C.F.R. § 1003.6(d).
While the favorable bond determination is on appeal, detainees remain in custody.
However, such continued confinement may continue for months, and deportation proceedings
may still ensue. But as Respondents’ note, “regulations require DHS to perfect the appeal and
require the BIA to track the progress of the custody appeal ‘to avoid unnecessary delays in
completing the record for decision.’” Doc. 21 at 13 (quoting 8 C.F.R. § 1003.6(c)(3)).
2. Count III: Fifth Amendment Due Process Clause
Petitioner Castillo argues that his continued detention, by virtue of the automatic stay
invoked by Form EOIR-43 (‘Notice of Intent to Appeal Custody Redetermination’), violates his
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procedural and substantive due process rights guaranteed by the Fifth Amendment. Doc. 4 at 5.
The Fifth Amendment’s Due Process Clause prohibits deprivations of life, liberty, and property
without due process of law. See U.S. CONST. amend. V. The Due Process Clause extends to all
persons, including non-citizens, regardless of their immigration status. J.G.G., 604 U.S. at 673
(“‘It is well established that the Fifth Amendment entitles aliens to due process of law’ in the
context of removal proceedings.” (quoting Reno v. Flores, 507 U.S. 292, 306 (1993))).
To determine whether detention violates procedural due process, courts apply the
Mathews v. Eldridge three-part balancing test. See generally 424 U.S. 319 (1976). However, the
Court need not apply the Mathews factors, because as discussed below, the claims regarding the
automatic stay are moot. See infra Section IV.B.4.
3. Count IV: Administrative Procedures Act, 5 U.S.C. § 551 et seq.
Petitioner Castillo also argues that Respondents’ invocation of the automatic stay is
arbitrary and capricious, in violation of the APA. See Doc. 1 at 21-22 ¶¶ 77-81. Under the APA,
a reviewing court shall “hold unlawful and set aside” agency action that is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
However, Respondents argue that “Petitioners do not have standing to bring claims under the
APA.” Doc. 21 at 24. Such a standing challenge is properly analyzed under Rule 12(b)(1). Cf.
CenturyLink, 2018 WL 6603961, at *2 (“Though not raised by Defendants, Rule 12(b)(1), rather
than Rule 12(b)(6), of the Federal Rules of Civil Procedure applies to a standing challenge.”).
However, “claims under the APA are not available when there is another ‘adequate
remedy in a court,’ . . . .” J.G.G., 604 U.S. at 674 (Kavanaugh, J., concurring). Here, looking
past the general mootness of Petitioner Castillo’s claims regarding the automatic stay, see infra
Section IV.B.4, the proper vehicle was a writ of mandamus. Cf. J.G.G., 604 U.S. at 674
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(Kavanaugh, J., concurring). The same is true with respect to Petitioners’ claim of general delay.
See id.; South Carolina v. United States, 907 F.3d 742, 759 (4th Cir. 2018) (“[C]laims of
unreasonable delay can be properly addressed through a mandamus proceeding . . . .”).
4. Relief is Moot22
For a case to be sufficiently justiciable, it requires a live, redressable injury at the time of
the court’s decision. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (holding that
a plaintiff has standing to seek declaratory and injunctive relief if he alleges “a direct and current
injury” and his injury at the time of the complaint is “capable of being redressed through
injunctive relief.”).
Although the capable of repetition yet evading review exception to the mootness doctrine
exists, that exception “applies only in exceptional situations,” City of L.A. v. Lyons, 461 U.S. 95,
109 (1983), “where two elements [are met]: (1) the challenged action was in its duration too
short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable
expectation that the same complaining party would be subjected to the same action again,”
Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149
(1975) (per curiam)). Petitioners have failed to sufficiently demonstrate that there exists a
reasonable expectation that Petitioner Castillo will again be subjected to DHS filing Form EOIR-
43 (‘Notice of Intent to Appeal Custody Redetermination’) to invoke the automatic stay
provisions of 8 C.F.R. § 1003.19(i)(2). First, those provisions only apply in the bond hearing
context. Second, the undersigned recommended releasing Petitioner Castillo and further
recommended declaratory relief that 8 U.S.C. § 1225(b)(2) does not deprive jurisdiction of bond
22 As mentioned, of the two named Petitioners, the issues pertaining to the automatic stay unilaterally imposed by
DHS filing Form EOIR-43 (‘Notice of Intent to Appeal Custody Redetermination’) only impacts Petitioner Castillo.
Infra Section IV.B. Therefore, Petitioner Loza is not entitled to relief on Count III.
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hearings for all “applicants for admission.” Such relief diminishes the likelihood of
reoccurrence.
Therefore, “the entry of a declaratory judgment . . . would amount to nothing more than a
declaration that [Petitioner Castillo] was wronged, and would have no effect on the defendants’
behavior towards him.” Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997). Accordingly,
the Court concludes that Claims III and IV are now moot as they apply to Petitioner Castillo
individually. Cf. Khan v. Barela, No. 15-1151, 2016 WL 9777259, at *5 (D.N.M. Sep. 30, 2016)
(citing Green, 108 F.3d at 1299).
V. RECOMMENDATIONS
For the foregoing reasons, the undersigned recommends that Petitioners’ ‘Class Action
Complaint and Petition for Writ of Habeas Corpus’ (Doc. 1) and Respondents’ Motion to
Dismiss Class Action Complaint and Petition for Writ of Habeas Corpus (Doc. 21) both be
GRANTED IN PART and DENIED IN PART. Specifically, the undersigned recommends
addressing the counts as follows:23
1. Count I, with respect to Petitioner Castillo, individually: GRANT INJUNCTIVE
RELIEF in the form of a writ of habeas corpus, accord 28 U.S.C. § 2241, pursuant to the
IJ’s ‘Bond Order’ issued April 28, 2025 (Doc. 4 at 44-45), which conditioned Petitioner
Castillo’s release upon a $20,000 bond and “ATD at DHS discretion.” Doc. 4 at 44.
2. Count I, with respect to Petitioner Castillo, individually: GRANT DECLARATORY
RELIEF in the form of concluding that Respondents’ application of 8 U.S.C. §
1225(b)(2)(A) to preclude any possibility of bond for noncitizens present in the U.S.
23 To clarify, the undersigned’s recommendations are limited to the Petition’s application to the named Petitioners,
only. The undersigned’s findings did not include a Rule 23 class certification analysis since this PFRD only addresses
Respondents’ Motion to Dismiss (Doc. 21), premised on Rule 12(b). See supra Section IV.
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without admission is overly broad and violates the right to a bond hearing under 8 C.F.R.
§ 1236.1 for noncitizens qualifying for detention under 8 U.S.C. § 1226(a).
3. Count I, with respect to Petitioner Loza, individually: DISMISS WITHOUT
PREJUDICE for insufficient pleadings under FED. R. CIV. P. 12(b)(6), including any
request for injunctive relief requiring a bond hearing or release on bond.
4. Count II, with respect to both named Petitioners, individually: DISMISS WITH
PREJUDICE for lack of standing under FED. R. CIV. P. 12(b)(1).
5. Count III, with respect to Petitioner Castillo, individually: DISMISS AS MOOT under
FED. R. CIV. P. 12(b)(1).
6. Count IV, with respect to both named Petitioners, individually: DISMISS AS MOOT
under FED. R. CIV. P. 12(b)(1).
The undersigned further recommends DIRECTING the Clerk’s Office to amend the case
caption and docket to reflect Petitioner Castillo’s full name as “Antonio Adrian Castillo.”
_____________________________________
JOHN F. ROBBENHAAR
United States Magistrate Judge
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections with
the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party
wants to have appellate review of the proposed findings and recommended disposition. If
no objections are filed, no appellate review will be allowed.
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