Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BACHITAR SINGH,
Petitioner,
v. Civ. No. 25-1110 JB/KK
KRISTI NOEM, et al.,
Respondents.
MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
Before the Court is Petitioner Bachitar Singh’s Verified Petition for Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2241. (Doc. 1). United States District Judge James O.
Browning referred this case to me under 28 U.S.C. § 636(b) and Virginia Beach Federal Savings
& Loan Association v. Wood, 901 F.2d 849 (10th Cir. 1990), “to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case.” (Doc. 3 at 1.) Respondents filed a Response to the
Petition on November 28, 2025 (Doc. 16). Having reviewed the parties’ submissions, the record,
and the relevant law, I RECOMMEND that the Court GRANT the Petition in part and order
Respondents to hold a bond hearing within five (5) days of entry of the Court’s order, and if they
fail to do so, that the Court then Order Respondents to immediately release Petitioner.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
Petitioner is a citizen of India who entered the United States without inspection on or about
September 15, 2023. (Id. at 12 ¶ 38.) Shortly after his arrival, United States immigration officials
arrested and detained him and served him with a Notice to Appear before an Immigration Judge,
1 The following facts are taken from Petitioner’s Verified Petition for Writ of Habeas Corpus (Doc. 1) (“Petition”)
which Respondents have not contested. See Doc. 16.
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charging that he was inadmissible because he was present in the United States without admission
or parole. (Id.) The following day, on September 16, 2023, the United States Department of
Homeland Security (“DHS”) released Petitioner on his own recognizance “[i]n accordance with
section 236 of the Immigration and Nationality Act,” i.e., 8 U.S.C. § 1226. (Id.; Doc. 1-2 at 6.)
Petitioner has resided in the United States since his release. (Doc. 1 at 12 ¶ 39.) He has no criminal
history and has fully complied with all of the conditions of his release. (Id. at 12 ¶ 38.) On March
19, 2024, Petitioner timely filed an application for asylum, withholding of removal, and protection
under the Convention Against Torture. (Id. at 12-13 ¶ 39.) Effective September 17, 2024, the
United States granted Petitioner an Employment Authorization valid until September 16, 2029.
(Doc. 1-2 at 8.) He subsequently obtained a commercial driver’s license and employment as a
commercial truck driver. (Doc. 1 at 12 ¶ 39) His asylum application remains pending (Id. at 13 ¶
39, Doc. 19 at 2.)
On or about September 4, 2025, while he was employed driving a commercial vehicle,
Petitioner traveled through a U.S. Border Patrol checkpoint in New Mexico, within the interior of
the United States. (Id. at 13 ¶ 40.) At the checkpoint, immigration officials re-detained Petitioner
despite the absence of any material change in circumstances that would have rendered him a danger
or flight risk. (Id.) He has been held without bond since that time and is currently detained at the
Otero County Processing Center in Chaparral, New Mexico. (Id. at 13 ¶ 41.)
On November 7, 2025, Petitioner filed a Verified Petition for Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2241, asking the Court to: (1) grant a writ of habeas corpus
and declaratory relief holding that Petitioner’s detention is unlawful and unconstitutional; (2) order
Respondents to release Petitioner immediately or, alternatively, to provide him with a bond hearing
under 8 U.S.C. § 1226(a) within five (5) days of the Court’s order, at which the DHS bears the
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burden to justify Petitioner’s re-detention by showing, by clear and convincing evidence,
materially changed circumstances rendering Petitioner a danger or flight risk; (3) order
Respondents to refrain from transferring Petitioner to any facility outside the District of New
Mexico while the writ is pending; and, (4) award Petitioner his reasonable attorney’s fees,
expenses, and costs. (Doc. 1 at 17-18.)
Contemporaneously with his Petition, Petitioner filed a Motion seeking a temporary
restraining order (“TRO”) and preliminary injunction. (Doc. 2.) I held a hearing on the Motion on
November 20, 2025, at which counsel for Petitioner and for Respondents Noem, Bondi, Lyons,
and De Anda-Ybarra appeared. At the hearing, counsel for the listed Respondents indicated, among
other things, that his clients do not contest the factual allegations raised by Petitioner, and that he
does not represent Respondent Castro but believes the defenses applicable to his clients apply
equally to her. See also Doc. 16, FN 1 (asserting that “all arguments made on behalf of the [federal]
Respondents apply with equal force to Warden Castro, as she is detaining the Petitioner at the
request of the United States). On November 21, 2025, I issued proposed findings and
recommended that the Court issue the requested relief. (Doc. 14 (“PFRD”).) Petitioner’s
TRO/Preliminary Injunction Motion remains pending.
Because the Petition presents a purely legal question, I did not hold a hearing on the
Petition. See 28 U.S.C. § 2243 (“Unless the application for the writ and the return present only
issues of law the person to whom the writ is directed shall be required to produce at the hearing
the body of the person detained.”).
ANALYSIS
The Petition presents an issue that has been addressed now in hundreds of cases across the
country as a result of a DHS policy announced on July 8, 2025 and made binding on immigration
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judges in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (B.I.A. 2025). Specifically, in Yajure
Hurtado, the Board of Immigration Appeals (“BIA”) concluded that non-citizens apprehended
after already entering the United States are subject to mandatory detention because they remain
“applicants for admission” within the meaning of Section 1225(b). Id. at 228. The BIA reasoned
that “[r]emaining in the United States for a lengthy period of time following entry without
inspection, by itself, does not constitute an admission,” nor does “being arrested pursuant to a
warrant and placed into removal proceedings.” Id. (quotation marks omitted). According to the
BIA, to hold otherwise would reward non-citizens for evading apprehension and punish non-
citizens who present themselves at ports of entry. Id.
Decisions of the BIA are not binding authority on the Court and the Supreme Court recently
directed district courts to “exercise independent judgment in determining the meaning of statutory
provisions” and “not defer to an agency interpretation of the law simply because a statute is
ambiguous.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394, 413 (2024). For the reasons
discussed below, I recommend that the Court reject Yajure Hurtado, and in line with the majority
of District Courts nationwide, find that Petitioner is not subject to mandatory detention under
Section 1225, but that instead Section 1226 governs his detention.
1. Detention and Bond Hearing
The Supreme Court has held that once a noncitizen is within the United States, “Section
1226 generally governs the process of arresting and detaining that group of aliens pending their
removal.” Jennings v. Rodriguez, 583 U.S. 281, 288 (2018). As the Seventh Circuit has explained:
That's because § 1225(a)(1) defines an “applicant for admission” as “an alien present in
the United States who has not been admitted or who arrives in the United States.”8
U.S.C. § 1225(a)(1). And while a noncitizen arrested in the Midwest might qualify as “an
alien present in the United States who had not been admitted,” § 1225(a)(1), the
mandatory detention provision upon which Defendants rely, limits its scope to an
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“applicant for admission” who is “seeking admission,” § 1225(b)(2)(A). Put another way,
“U.S. immigration law authorizes the Government to detain certain aliens seeking
admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the
Government to detain certain aliens already in the country pending the outcome of
removal proceedings under §§ 1226(a) and (c).” Jennings v. Rodriguez, 583 U.S. 281,
289, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018) (emphasis added).
Castanon-Nava v. U.S. Dep't of Homeland Sec., No. 25-3050, 2025 WL 3552514, at *9 (7th Cir.
Dec. 11, 2025).
8 U.S.C. § 1225(b), provides in pertinent part that, “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.” 8
U.S.C. § 1225(b)(2)(A) (emphases added). Section 1225 defines the term “applicant for
admission” as “[a]n alien present in the United States who has not been admitted or who arrives in
the United States … whether or not at a designated port of arrival,” but does not define the term
“alien seeking admission.” 8 U.S.C. § 1225(a) (parenthesis omitted).
8 U.S.C. § 1226(a), in turn provides that
[o]n a warrant issued by the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States.
Except as provided in subsection (c) and pending such decision, the Attorney
General--(1) may continue to detain the arrested alien; and (2) may release the alien
on … bond … or … conditional parole.
8 U.S.C. § 1226(a). To be released under Section 1226(a), a non-citizen “must demonstrate to the
satisfaction of the [arresting immigration] 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.” 8 C.F.R. §
236.1(c)(8). In addition, the non-citizen must not fall into any of the categories listed in “subsection
(c),” which provides for the mandatory detention of certain “criminal aliens.” 8 U.S.C. § 1226(c).
In January 2025, the Laken Riley Act (“LRA”) amended subsection (c) to add a new category of
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non-citizens ineligible for release under Section 1226(a). LRA, Pub. L. No. 119-1 (Jan. 29, 2025).
This new category includes non-citizens deemed “inadmissible” for being “present in the United
States without being admitted or paroled,” who have been arrested for, charged with, or convicted
of certain crimes.2 8 U.S.C. §§ 1182(a)(6)(A)(i), 1226(c)(1)(E).
In Jennings, the Supreme Court explained that Section 1225(b) “applies primarily to aliens
seeking entry into the United States (‘applicants for admission’ in the language of the statute).” Id.
at 297. In contrast, the Court explained that Section 1226 “applies to aliens already present in the
United States.” Id. at 303. The Court further noted that “Section 1226(a) creates a default rule for
those aliens by permitting—but not requiring—the Attorney General to issue warrants for their
arrest and detention pending removal proceedings,” and also “permits the Attorney General to
release those aliens on bond.” Id.
It is undisputed that when Petitioner was initially detained and released in September 2023,
it was under 8 U.S.C. § 1226(a). Indeed, the Order of Release on Recognizance attached to the
Petition specifically states that Petitioner was being released “[i]n accordance with Section 236 of
the Immigration and Nationality Act”—i.e., 8 U.S.C. § 1226. (Doc. 1-2 at 6.) Consistently, the
Notice to Appear requiring Petitioner to appear for removal proceedings at a later date indicated
that he was “an alien present in the United States who has not been admitted or paroled,” rather
than “an arriving alien.” (Id. at 2.)
Moreover, logically, Petitioner had to have been detained and released under Section
1226(a) rather than Section 1225(b)(2)(A), because Section 1226(a) allows for a non-citizen to be
released on his own recognizance, i.e., on “conditional parole,” pending removal proceedings,
2 The crimes enumerated in Section 1226(c)(1)(E) are “burglary, theft, larceny, shoplifting, or assault of a law
enforcement officer … or any crime that results in death or serious bodily injury to another person.” 8 U.S.C. §
1226(c)(1)(E).
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while Section 1225(b)(2)(A) provides that an alien seeking admission “shall” be detained unless
an examining immigration officer determines that he is “clearly and beyond a doubt entitled to be
admitted.” 8 U.S.C. §§ 1225(b)(2)(A), 1226(a). And here, because Petitioner was placed in
removal proceedings, it cannot reasonably be disputed that no examining immigration officer
found Petitioner clearly and beyond a doubt entitled to be admitted prior to his release. It follows
that Section 1226(a) is also the statutory provision that should be applied to Petitioner’s re-
detention in September 2025. Further, because Petitioner was initially released pursuant to Section
1226(a), he necessarily demonstrated to the arresting immigration officer’s satisfaction that he was
not a flight risk or a danger to persons or property. 8 C.F.R. § 236.1(c)(8); (see also Doc. 1 at 12 ¶
13.)
In Respondents’ view, Section 1225(b)(2)(A) applies to Petitioner, because all non-citizens
who have not been lawfully admitted to the United States are “applicants for admission” even if
they are already present and have been residing in the United States for years. However,
Respondents’ argument is without merit for the following six reasons. First, by the time he was re-
detained, Petitioner had been residing in the United States for two years, and was thus an “alien[]
already present in the United States,” rather than an “alien[] seeking entry.” Jennings, 583 U.S. at
297, 303. Under Jennings, this means that Section 1226, rather than Section 1225(b), applies.
Second, applying Section 1225(b)(2)(A) to persons like Petitioner would nullify the portion
of the LRA that amends Section 1226 to require mandatory detention for non-citizens who (1) are
deemed inadmissible because they are “present in the United States without being admitted or
paroled” and (2) have been arrested for, charged with, or convicted of certain crimes. 8 U.S.C. §§
1182(a)(6)(A)(1), 1226(c)(1)(E). If, as Respondents claim, Section 1225(b)(2)(A) required
mandatory detention for all non-citizens deemed inadmissible because they are present in the
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United States without being admitted or paroled, then Congress would have had no reason to
amend Section 1226 to require mandatory detention for non-citizens who not only fall into that
category but also have been convicted of enumerated crimes. See, e.g., Sampiao v. Hyde, — F.
Supp. 3d —, 2025 WL 2607924, at *8 (D. Mass. Sept. 9, 2025); Loa Caballero v. Baltazar, Civ.
No. 25- 3120, 2025 WL 2977650, at *7 (D. Colo. Oct. 22, 2025). Respondents’ position is therefore
contrary to the presumption that, when Congress amends a statute, “it intends its amendment to
have real and substantial effect.” Stone v. I.N.S., 514 U.S. 386, 397 (1995), abrogation on other
grounds recognized by Riley v. Bondi, 606 U.S. 259, 276 (2025).
Third, Respondents’ position would render the phrase “seeking admission” in Section
1225(b)(2)(A) “superfluous, violating one of the cardinal rules of statutory construction.”
Castanon-Nava, 2025 WL 3552514, at *9 (7th Cir. Dec. 11, 2025).
Indeed, as the Supreme Court reminds us, if an interpretation of one provision “would
render another provision superfluous, courts presume that interpretation is incorrect.”
Bilski v. Kappos, 561 U.S. 593, 607–08 (2010). And this presumption is “strongest when
an interpretation would render superfluous another part of the same statutory scheme,” as
would be the case here. Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).
Id.
If Section 1225(b)(2)(A) were to apply to all “applicants for admission,” i.e., those who
“arrive[] in the United States” and those already “present in the United States who ha[ve] not been
admitted,” 8 U.S.C. § 1225(a)(1), then the statutory language limiting Section 1225(b)(2)(A) to
applicants for admission who are also “alien[s] seeking admission” would be a nullity. 8 U.S.C. §
1225(b)(2)(A). “By reading a phrase out of the statute, Respondents’ interpretation of § 1225
clearly violates the rule against surplusage.” Lopez Benitez, 2025 WL 2371588, at *6; see United
States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023) (“[E]very clause and
word of a statute should have meaning.”) (quotation marks omitted); TRW Inc. v. Andrews, 534
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U.S. 19, 31 (2001) (“[A] statute ought … to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.”).
Fourth and relatedly, Respondents’ argument improperly equates the terms “applicant for
admission” and “alien seeking admission” in Section 1225(b)(2)(A). Treating these phrases
synonymously is contrary to the presumption that Congress intended different words or phrases to
be accorded different meanings. Lopez Benitez, 2025 WL 2371588, at *6. Moreover, Respondents
are correct that a non-citizen who, like Petitioner, has never lawfully entered the United States but
has been present here for a substantial period of time is included in the statutory definition of the
term “applicant for admission.” 8 U.S.C. § 1225(a)(1). But individuals like Petitioner do not fall
within the plain meaning of the phrase “alien seeking admission,” because “admission” is defined
as lawful “entry” into the United States, 8 U.S.C. § 1101(a)(13)(A), and such individuals “ha[ve]
already entered the country.” Lopez Benitez, 2025 WL 2371588, at *6 (quotation marks omitted).
What individuals like Petitioner are seeking—in his case, via an application for asylum—is not
lawful entry into the United States but rather “a lawful means of remaining” here. Id. at *7.
Fifth, Respondents’ position expands Section 1225(b)(2)(A)’s reach “far beyond how it has
been enforced historically, potentially subjecting millions more undocumented immigrants to
mandatory detention, while simultaneously narrowing [Section] 1226(a) such that it would have
extremely limited … application.” Id. at *8. “[T]he line historically drawn between” Sections
1225(b)(2)(A) and 1226(a)—including by the DHS—and which “mak[es] sense of their text and
the overall statutory scheme, is that [S]ection 1225 governs detention of non-citizens ‘seeking
admission into the country,’ whereas [S]ection 1226 governs detention of non-citizens ‘already in
the country.’” Id. Respondents have not proffered any sufficiently persuasive reason to justify the
radical shift they urge in the interpretation of the two statutes.
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Sixth and finally, the vast majority of district courts to have considered the issue, have
found that section 1226(a), rather than Section 1225(b)(2)(A), applies to non-citizens who did not
lawfully enter the United States but who have been present in the United States for a significant
period of time before the challenged detention. See, e.g., Eugenio Melchor-Rios v. Ortiz, et al., No.
25-CV-1055-WJ-GJF, 2025 WL 3764775, at *2 (Agreeing with the “overwhelming majority” that
§1226 governs discretionary detention of individuals “who previously entered and currently reside
in the United States”); Velasquez Salazar v. Dedos, No. 25-CV-00835-DHU-JMR, 2025 WL
2676729, at *4 (D.N.M. Sept. 17, 2025) (as to a petitioner that has been in the United States since
the late 1980s, “[i]t is clear that § 1226, not § 1225, should have governed Petitioner’s detention
from the outset”); Diaz-Cruz v. Dedos, No. 25-CV-01117-MLG-JMR, 2025 WL 3628517, at *2
(D.N.M. Dec. 12, 2025) (collecting cases and holding that “[l]ike the overwhelming majority of
courts who have considered the matter, this Court agrees that § 1226(a) governs [petitioner’s]
detention and, therefore, Diaz-Cruz is entitled to an individualized bond hearing”); Gonzalez
Ramos v. Dedos, No. 1:25-CV-00975-MLG-KRS, 2025 WL 3653928, at *4 (D.N.M. Dec. 17,
2025) (“The Court concludes Gonzalez Ramos’s detention is governed by § 1226(a). Gonzalez
Ramos entered the United States in 1998 and has lived here since. He therefore cannot be
considered an applicant ‘seeking admission’ pursuant to § 1225(b)(2)(A), as he has lived here for
decades.”); Pu Sacvin v. De Anda-Ybarra, No. 25-CV-01031-KG-JFR, 2025 WL 3187432, at *3
(D.N.M. Nov. 14, 2025) (“Noncitizens who entered the country years earlier are not considered to
be ‘seeking admission,’ and therefore fall under § 1226 rather than § 1225(b)(2)(A).” Molina
Ochoa v. Noem, No. 25-CV-00881-JB-LF, 2025 WL 3125846, at *7 (D.N.M. Nov. 7, 2025)
(collecting cases); Loa Caballero, 2025 WL 2977650, at *4-*7; Buenrostro-Mendez v. Bondi, Civ.
No. 25-3726, 2025 WL 2886346, at *3 (S.D. Tex. Oct. 7, 2025); Sampiao, 2025 WL 2607924, at
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*7-*8; Mosqueda v. Noem, Civ. No. 25-2304, 2025 WL 2591530, at *4-*5 (C.D. Cal. Sept. 8,
2025).
Of particular note here, courts have reached this conclusion in habeas cases involving non-
citizens who, like Petitioner, were apprehended and released under Section 1226(a) years ago but
have recently been re-detained without a bond hearing. See, e.g., Romero v. Hyde, — F. Supp. 3d
—, 2025 WL 2403827, at *9-*13 (D. Mass. Aug. 19, 2025); Jimenez v. FCI Berlin, Warden, Civ.
No. 25-326, 2025 WL 2639390, at *7-*10 (D.N.H. Sept. 8, 2025); Lopez Benitez, 2025 WL
2371588, at *5-*9; Rosado v. Figueroa, Civ. No. 25-2157, 2025 WL 2337099, at *8-*11 (D. Ariz.
Aug. 11, 2025), report and recommendation adopted sub nom. Rocha Rosado v. Figueroa, Civ.
No. 25-2157, 2025 WL 2349133 (D. Ariz. Aug. 13, 2025).
For all of these reasons, Section 1225’s mandatory detention provision does not apply
because Petitioner has already effected an entry into the United States and has lived here for two
years. 3 I thus recommend that the Court find that 8 U.S.C. § 1226 governs Petitioner’s detention.
3 In light of In the Matter of Yajure Hurtado, I am confounded by Respondents’ argument that the Petition should be
denied because Mr. Singh has not requested a bond hearing and has thus failed to exhaust administrative remedies.
However, to the extent that the Court wishes to consider this argument, I refer to Judge Fashing’s analysis in Molina
Ochoa v. Noem, No. 1:25-CV-00881-JB-LF, 2025 WL 3125846 (D.N.M. Nov. 7, 2025), with which I agree, and urge
the Court to adopt:
Petitioners ordinarily are required to exhaust administrative remedies before seeking a writ under § 2241,
but exhaustion is not a statutory requirement. Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010); see
also Soberanes v. Comfort, 388 F.3d 1305, 1310–11 (10th Cir. 2004) (Although appealing to the BIA
normally is required to obtain subsequent judicial review, exhaustion deficiencies do not affect habeas
jurisdiction over challenges to immigration detention.). As another court within the Tenth Circuit recently
explained in the context of an immigration habeas matter, “exhaustion is typically nonjurisdictional, and
courts treat a rule as jurisdictional only if Congress clearly states that it is.” Salvador F.-G. v. Noem, No.
25-CV-0243-CVE-MTS, 2025 WL 1669356, at *6 (N.D. Ok. June 12, 2025) (citation modified) (quoting
Santos-Zacaria v. Garland, 598 U.S. 411, 416–17, 143 S.Ct. 1103, 215 L.Ed.2d 375 (2023)). Section
1252(d)(1) of title 8, United States Code, does impose an administrative exhaustion requirement, but only
as to challenges to final orders of removal and not to challenges of pre-removal detention. See id.; see also
Gonzales v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (explaining that administrative exhaustion
applies to challenges of final orders of removal but not to challenges to preliminary custody or bond
determinations). Respondents concede that the “exhaustion requirement is prudential, rather than
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jurisdictional, for habeas claims.” Doc. 5 at 12 (quoting Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir.
2017)). And where exhaustion is not jurisdictional, “sound judicial discretion governs.” McCarthy v.
Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), superseded by statute on other
grounds as stated in Woodford v. Ngo, 548 U.S. 81, 84–85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); see
also L.G. v. Choate, 744 F. Supp. 3d 1172, 1181 (D. Colo. 2024) (“When Congress does not require
exhaustion in the statute then the district court has discretion to decide if administrative exhaustion is
required.”); Lopez-Arevelo v. Ripa, No. EP-25cv337, 2025 WL 2691828 at *6 (W.D. Tex. Sept. 22, 2025)
(“To wait, indefinitely, for a ruling on that appeal would be inappropriate because it would exacerbate [the
petitioner's] alleged constitutional injury—detention without a bond hearing.”); Lopez v. Barr, 458 F. Supp.
3d 171, 176 (W.D.N.Y. 20202) (“[C]ourts can excuse a failure to exhaust if the case presents a substantial
constitutional question.”).
Even if administrative exhaustion were required, the Tenth Circuit has recognized a “narrow exception to
the exhaustion requirement” where “a petitioner can demonstrate that exhaustion is futile.” Garza, 596 F.3d
at 1203–04; see also Carr v. Saul, 593 U.S. 83, 93, 141 S.Ct. 1352, 209 L.Ed.2d 376 (2021) (“It makes
little sense to require litigants to present claims to adjudicators who are powerless to grant the relief
requested.”). In Garza, for example, the Tenth Circuit rejected a petitioner's argument that appeal through
the Bureau of Prisons (“BOP”) was futile, reasoning that the BOP memoranda that the petitioner relied on
did “not reflect any policy of categorical denial.” 596 F.3d at 1204.
The BIA's decision in Yajure Hurtado appears to categorically deny relief to noncitizens who, like
petitioner, are apprehended after residing in the country and who seek to challenge an immigration judge's
determination that they are subject to mandatory detention under § 1225(b). See Mosqueda, 2025 WL
2591530, at *1, *7 (explaining that, in publishing Hurtado, the BIA “adopted the legal interpretation of the
new DHS policy” that categorically “considers anyone arrested within the United States and charged with
being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) to be an ‘applicant for admission’ under 8 U.S.C. §
1225(b)(2)(A)”). Respondents focus on the timeliness of Petitioner's appeal, or lack thereof, rather than
assert that the BIA would not have categorically denied him relief. See Doc. 5 at 12–13, 15–16.
Respondents argue that the exhaustion exemption should not apply because Yajure Hurtado was decided
after Petitioner's period to appeal the immigration judge's determination had expired, but they cite no
authority for their contention that the futility exemption only applies if a petitioner timely appeals. See Doc.
5 at 16. Respondents’ argument also assumes that, had Petitioner timely appealed, the BIA would have
rendered a decision in his case before it published Yajure Hurtado. Assuming, for the sake of argument, that
Petitioner did file a valid notice of appeal on August 22, 2025—an earlier date than when Petitioner's 30-
day appeal period expired, Doc. 5 at 16—the BIA would have had only fourteen days to review his case
before it published its opinion in Yajure Hurtado. For reference, Yajure Hurtado was published 140 days
after the challenged custody determination in that case and thirty-seven days after the July 30, 2025, order
that Petitioner is challenging.7 Respondents’ argument also assumes that the BIA would have reached a
different conclusion as to Petitioner's case than it did in Yajure Hurtado. See Mosqueda [v. Noem], 2025
WL 2591530, at *7 [(C.D. Cal. Sept. 8, 2025)](explaining that the court was “not convinced that
administrative review would allow BIA to correct its own mistakes” and that until “BIA no longer applies a
policy that likely violates federal law, the circumstances do not present a need for requiring prudential
exhaustion”).
There may be circumstances where a petitioner's failure to [exhaust administrative remedies] should
foreclose application of the futility exception, but the facts here do not justify such a conclusion. . . . there
is no reasonable possibility that the BIA would not have applied Yajure Hurtado to Petitioner's case. I
therefore recommend that the Court exercise its “sound judicial discretion,” see McCarthy, 503 U.S. at 144,
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Given the length of time that Petitioner has already been detained without a bond hearing, and for
reasons further discussed in my PFRD on the TRO/Preliminary Injunction Motion (Doc. 14), the
Court may consider ordering Petitioner’s immediate release as he has requested. However, the
majority of judges in this district who have ruled in similar cases have ordered a prompt bond
hearing rather than the petitioner’s immediate release. Thus, and to avoid further delaying a ruling
on the Petition, in line with those cases, I recommend that the Court Order Respondents to give
Petitioner a bond hearing pursuant to Section 1226(a) within five days of the Court’s Order. If
Petitioner is not afforded a bond hearing within that time, I recommend that the Court order his
immediate release.
2. Attorney’s Fees
Petitioner also requests that he be awarded reasonable costs and attorney’s fees. (Doc. 1 at
18.) The Tenth Circuit has recently made clear that the Equal Access to Justice Act (“EAJA”)
“unambiguously authorize[s] fees in habeas actions challenging immigration detention.” Daley v.
Ceja, 158 F.4th 1152 (10th Cir. 2025). EAJA provides that a court shall award to a prevailing party
other than the United States fees and other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action, brought by or against the United States
in any court having jurisdiction of that action, unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. §
112 S.Ct. 1081, and find that Petitioner was not required to exhaust his administrative remedies before
seeking habeas relief.
Molina Ochoa v. Noem, No. 1:25-CV-00881-JB-LF, 2025 WL 3125846, at *9–10 (D.N.M. Nov. 7, 2025).
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2412(d)(1)(A). Consistent with this provision, I recommend that Petitioner be permitted to file a
motion for EAJA fees, and that briefing on that motion proceed according to the deadlines in Local
Rule 7.4.
RECOMMENDATION
I RECOMMEND that the Court GRANT in part the Verified Petition for Writ of Habeas
Corpus as follows:
1. Respondent must provide Petitioner a bond hearing under Section 1226(a) within five
days of the Court’s Order.
2. If Respondents do not comply, Petitioner shall be immediately released.
3. Respondents shall file a status report within six days of the Court’s Order as to the
status of the bond hearing or release; and
4. Petitioner may file a motion for EAJA fees and briefing on the motion shall proceed
according to the deadlines in Local Rule 7.4.
____________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER 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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