Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
ELVIS JANCARLOS MEJIA-BONILLA,
Petitioner,
v. Case No. 2:26-cv-00405 KWR-KK
DORA CASTRO, Warden, Otero County Processing Center,
TODD M. LYONS, Acting Director of
Immigration And Customs Enforcement,
MARY DE ANDA-YBARRA, El Paso Acting Field Office
Director for Detention and Removal,
U.S. Immigration and Customs Enforcement,
KRISTI NOEM, Secretary, U.S. Department
Of Homeland Security, AND PAMELA BONDI,
U.S. Attorney General,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1). Having reviewed the parties’ pleadings, briefing, and the relevant law, the Court
finds that the Petition is well-taken and therefore is GRANTED in part. The Court orders
Respondents to hold an individualized bond hearing for Petitioner within seven (7) days of the
entry of this order.
BACKGROUND
Petitioner is a citizen of Honduras who is currently detained by ICE at the Otero County
Processing Center. Pet ¶ 5, doc. 1. He has been residing in the United States since August 2023.
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Pet. at 1. He asserts he entered the United States without being inspected on or about August 23,
2023. Id.; Pet. ¶ 11. He was detained and released on his own recognizance. Pet. ¶ 12.
He was arrested again on August 17, 2025 on his way to work. Id. at 2; Id. at ¶ 14. He
obtained a work permit, worked and paid taxes. Id. at 2.
On September 5, 2025, the Board of Immigration Appeals issued a decision holding that
immigration judges lacked authority or jurisdiction to consider bond requests for any person who
entered the United States without admission. Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA
2025) (“Immigration Judges lack authority to hear bond requests or to grant bond to aliens who
are present in the United States without admission.”). Here, Petitioner asserts that he is unable to
obtain a bond hearing under Hurtado, even though he entered the United States three years ago.
Pet. at 2.
In sum, Petitioner has remained in federal immigration custody without an opportunity to
post bond or request a conditional release because his detention has been classified as mandatory
under 8 U.S.C. § 1225(b). Petitioner requests that the Court issue a writ of habeas corpus directing
his immediate release.
Respondents filed a response to the Petition in which they incorporated the arguments they
raised in a prior case before the Court. See Resp., Doc. 6 at 2-3 (citing Munoz Teran v. Bondi,
2:25-cv-1218 KWR-SCY, 2026 WL 161527 (D.N.M. Jan. 21, 2026)). The Respondents’ response
in Munoz Teran did not raise administrative exhaustion or jurisdiction. Moreover, neither the
response in this case nor in Munoz Teran asserted that the petitioner was detained under §
1225(b)(1). Rather, here Respondents assert that Petitioner is detained under § 1225(b)(2)(A).
Therefore, the Court declines to sua sponte raise administrative exhaustion or detention under §
1225(b)(1). The sole issue is whether §§ 1225(b)(2)(A) or 1226(a) applies to Petitioner.
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LEGAL STANDARD
Petitioner seeks release from detention under a habeas statute, 28 U.S.C. § 2241. The
Constitution guarantees that “absent suspension, the writ of habeas corpus remains available to
every individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)
(citing U.S. Const. art. I, § 9, cl. 2). A federal court may grant a writ of habeas corpus to a petitioner
who demonstrates that he is in custody in violation of the Constitution or federal law. 28 U.S.C. §
2241(c)(3). “Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas, 533 U.S. at 687-
88).
DISCUSSION
Petitioner asserts in his § 2241 habeas petition that he is in custody in violation of the
Constitution or laws or treaties of the United States, and he should be released. Respondents assert
that Petitioner is mandatorily detained pursuant to § 1225(b)(2)(A). At issue is whether Petitioner
is appropriately mandatorily detained under that provision, or whether he is entitled to a bond
hearing or release under the discretionary detention provisions of § 1226(a). As explained below,
Petitioner, who has lived in the United States for years, is subject to the discretionary detention
provisions of § 1226(a) and is therefore entitled to an individualized bond hearing before an
immigration judge.
I. The discretionary detention provisions under § 1226(a) apply to Petitioner, rather
than the mandatory detention provisions under § 1225(b)(2)(A). 1
1 Section I is taken from several other opinions issued by the undersigned. See, e.g., Camac-
Huanca v. Noem, No. 2:25-CV-01253 KWR-JFR, 2026 WL 357651, at *2-6 (D.N.M. Feb. 9,
2026).
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At issue is whether § 1225(b)(2)(A) or § 1226(a) governs Petitioner’s detention while a
decision on his removal is pending. Mandatory detention under § 1225(b)(2)(A) applies to
noncitizens “seeking admission” into the United States. Petitioner asserts that he is entitled to a
bond hearing or immediate release pursuant to § 1226(a), as he has resided in the United States for
years and is not “seeking admission” into the United States. Despite this statutory language,
Respondents argue that the mandatory detention provision under § 1225(b)(2)(A) applies, as that
provision covers not only those who present themselves at the border, but any noncitizen who is
present in the United States without admission, pending a decision on removal. See, e.g., Matter
of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025) (“Immigration Judges lack authority to hear
bond requests or to grant bond to aliens who are present in the United States without admission.”).
As explained below, the statutory phrase “seeking admission” cannot be interpreted to apply to
Petitioner, who has lived in the United States for years. Therefore, Petitioner is entitled to a bond
hearing under § 1226(a).
In construing the statute at issue, the Court begins with its plain text. See Chickasaw Nation
v. United States, 208 F.3d 871, 876 (10th Cir. 2000). “If the terms of the statute are clear and
unambiguous, they are controlling absent rare and exceptional circumstances.” Id. In ascertaining
the meaning of the text, the Court considers the “language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997); see also Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th Cir.
2009) (“We also take into account the broader context of the statute as a whole when ascertaining
the meaning of a particular provision.”). The Court also considers traditional canons of statutory
interpretation. Conrad, 585 F.3d at 1381; Ramah Navajo Chapter v. Salazar, 644 F.3d 1054, 1062
(10th Cir. 2011). Generally, the Court only considers non-textual evidence bearing on Congress’s
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intent or purpose, such as legislative history, if statutory language is ambiguous. See, e.g., United
States v. Husted, 545 F.3d 1240, 1247 (10th Cir. 2008).
The Immigration and Nationality Act (“INA”) generally contemplates two detention
regimes for noncitizens pending a decision on removal. See Jennings v. Rodriguez, 583 U.S. 281,
289 (2018). The first detention regime provides that when “an applicant for admission” is “seeking
admission” and “not clearly and beyond a doubt entitled to be admitted,” the noncitizen “shall be
detained” for removal proceedings. 8 U.S.C. § 1225(b)(2)(A). This provision mandates detention
and does not expressly afford a bond hearing. Id. Section 1225 has exceptions to mandatory
detention, which are not relevant here. The second detention regime authorizes the arrest and
detention “on a warrant issued by the Attorney General” of noncitizens “pending a decision on
whether [they are] to be removed.” 8 U.S.C. § 1226(a). Section 1226(a) expressly authorizes the
Attorney General to detain the arrested noncitizen, or release them on bond or conditional parole.
Id. Section 1226(c) has certain exceptions which mandate detention. For example, mandatory
detention under § 1226(c) applies to a noncitizen who is (1) “present in the United States without
being admitted or paroled, or who arrives in the United States at any time or place other than as
designated by the Attorney General” and (2) “charged with, is arrested for, is convicted of, [or]
admits having committed” certain criminal acts. § 1226(c)(1)(E).
Put another way, “U.S. immigration law authorizes the Government to detain certain aliens
seeking admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the
Government to detain certain aliens already in the country pending the outcome of removal
proceedings under §§ 1226(a) and (c).” Jennings, 583 U.S. at 289 (emphasis added), quoted in
Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (concluding
that § 1226(a) applied to noncitizens already present in country who were not admitted).
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Thus, for § 1225(b)(2)(A)’s mandatory detention proceedings to apply, the Court must find
as follows: (1) the noncitizen is “an applicant for admission”, (2) who is “seeking admission,” and
(3) “not clearly and beyond a doubt entitled to be admitted.”
Respondents argue that Petitioner is an applicant for admission and the § 1225(b)(2)(A)
mandatory detention provisions apply. Petitioner is likely an applicant for admission under the
statute. Here, an “applicant for admission” is defined as “an alien present in the United States who
has not been admitted or who arrives in the United States.” § 1225(a)(1). “The terms ‘admission’
and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States
after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Because
Petitioner is present in the United States and has not been admitted, he may be deemed by the
statute to be an “applicant for admission,” satisfying the first criteria of § 1225(b)(2)(A).
But the detention provision under § 1225(b)(2)(A) applies only to noncitizens “seeking
admission.” § 1225(b)(2)(A). As explained below, under the plain meaning of the statute,
Petitioner, who has been living in the United States for years, is not “seeking admission.” Id.
“Admission” is defined as “the lawful entry of the noncitizen into the United States after inspection
and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). The term “entry” is
undefined in the statute. And Respondents do not argue that “entry” has any technical meaning in
the statutory provisions at issue. Assuming it has no technical meaning, it can be given its
“ordinary, contemporary, common meaning.” Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S.
405, 414 (2017) (internal quotation marks omitted); United States v. Santos, 553 U.S. 507, 511
(2008) (“When a term is undefined, we give it its ordinary meaning.”).
“Entry” most commonly means “[t]he action or an act of entering a place, area, building,
etc.” Entry, Oxford English Dictionary (2018); Merriam-Webster Dictionary Online,
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https://www.merriam-webster.com/dictionary/entry (last visited January 21, 2026) (“the act of
entering”); Entry, Black's Law Dictionary (12th ed. 2024) (“Immigration. Any entrance of an alien
into the United States, whether voluntary or involuntary.”). “Seeking” in this context most
naturally means trying to obtain something or trying to bring about or effect. Seek, Oxford English
Dictionary Online (2018). “Seeking” is also in the present participle form, which expresses present
action. Present Participle, Merriam Webster Dictionary, https://www.merriam-
webster.com/dictionary/present%20participle (last visited January 21, 2026); see also Lopez-
Campos v. Raycraft, 797 F. Supp. 3d 771, 781 (E.D. Mich. Aug. 29, 2025) (The use of the present
participle in § 1225(b)(2)(A) “implies action – something that is currently occurring, and in this
instance, would most logically occur at the border upon inspection.”). Taken together, the “seeking
admission” phrase in § 1225(b)(2)(A) applies to noncitizens who are trying to lawfully and
physically enter the country. It does not apply to noncitizens who have lived in the United States
for years and are not seeking lawful entry into the United States.2
Respondents appear to suggest that all “applicants for admission” are deemed to be
“seeking admission.” Respondents essentially interpret “seeking admission” as coterminous with
“applicants for admission.” Respondents’ construction “would render § 1225(b)(2)(A)'s use of the
phrase ‘seeking admission’ superfluous, violating one of the cardinal rules of statutory
2 The Court’s understanding of the plain, ordinary meaning of the word “entry” in this statute, i.e.,
that entry means the physical act of going into the country, accords with how it is understood and
used by the United States Supreme Court in the immigration context. The word “entry” has long
been used to refer to physically going into the country, regardless of whether the entrant is legally
in the United States. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“[O]ur
immigration laws have long made a distinction between those aliens who have come to our shores
seeking admission ... and those who are within the United States after an entry, irrespective of its
legality.”); Zadvydas, 533 U.S. at 693 (“The distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.”).
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construction.” Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir.
2025) (citing United States ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023)
(“[E]very clause and word of a statute should have meaning.”)). “If an interpretation of one
provision ‘would render another provision superfluous,’ courts presume that interpretation is
incorrect.” Castanon-Nava, 161 F.4th at 1061 (quoting in part Bilski v. Kappos, 561 U.S. 593, 607–
08 (2010)). “And this presumption is ‘strongest when an interpretation would render superfluous
another part of the same statutory scheme,’ as would be the case here.” Castanon-Nava, 161 F.4th
at 1061 (quoting in part Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013)). Therefore, the Court
declines to interpret “seeking admission” in a manner wholly synonymous with “applicant for
admission.”
Rather than the two phrases being synonymous, the statutory language elsewhere in § 1225
appears to distinguish the phrase “applicants for admission” from the phrase “seeking admission,”
suggesting that these phrases have separate meanings. Section § 1225(a)(3) provides that “All
aliens … who are applicants for admission or otherwise seeking admission or readmission to or
transit through the United States shall be inspected by immigration officers.” Id. (emphasis added).
The word “or” in its “ordinary use is almost always disjunctive, that is, the words it connects are
to be given separate meanings.” Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting
United States v. Woods, 571 U.S. 31, 45 (2013)). Taken together, “or otherwise” is “used to refer
to something that is different from something already mentioned.” Or otherwise, Merriam Webster
Online, https://www.merriam-webster.com/dictionary/or%20otherwise (last visited January 12,
2026). If “applicant for admission” had the same meaning as “seeking admission”, there would be
no need to repeat the phrase “seeking admission” or use the phrase “or otherwise.” Thus, it is clear
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that the phrases “applicants for admission” and “seeking admission” do not have the same
meaning.
Respondents’ interpretation would also render superfluous recent amendments to §
1226(c). Section 1226(c)(1)(E) mandates detention for certain noncitizens who are implicated in
certain crimes. Section 1226(c)(1)(E), which was added to the statute in 2025 by the Laken Riley
Act, mandates detention for any noncitizen (1) who is inadmissible under § 1182(a)(6)(A)(i) as an
“alien present in the United States without being admitted or paroled,” and (2) who “is charged
with, arrested for, convicted of, or admits” to committing certain crimes. 8 U.S.C. § 1226(c)(1)(E).
Under Respondents’ interpretation, all noncitizen who are present in the country without being
admitted or paroled must already be mandatorily detained under § 1225(b)(2)(A), rendering the
recent amendment superfluous. Generally, courts “do not lightly” find that Congress adopted “two
separate clauses in the same law to perform the same work.” United States v. Taylor, 596 U.S. 845,
857 (2022).
The Court’s interpretation of § 1225(b)(2)(A) is consistent with the decisions of multiple
courts, which have found that a person who has been present in the United States is not “seeking
admission” and therefore not subject to mandatory detention under § 1225(b)(2)(A). See, e.g.,
Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025); see also
Barco Mercado v. Francis, No. 25-CV-6582 (LAK), 2025 WL 3295903, at *13 (S.D.N.Y. Nov. 26,
2025) (collecting cases in Appendix A); Pu Sacvin v. Ybarra, No. 2:25-CV-1031-KG, 2025 WL
3187432, at *3 (D. N.M. Nov. 14, 2025) (“Noncitizens seeking admission are those who have not
effected an entry into the United States.”) (quotation marks omitted); Buenrostro-Mendez v.
Pamela Bondi, _F.4th _, 2026 WL 323330, at *10 (5th Cir. 2026) (Douglas, J. dissenting).
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The Court’s interpretation is also consistent with the Supreme Court of the United States’
dicta. In Jennings, the Supreme Court explained that Section 1225(b) “applies primarily to aliens
seeking entry into the United States (‘applicants for admission’ in the language of the statute).”
Jennings, 583 U.S. at 297. In contrast, the Court explained that Section 1226 “applies to aliens
already present in the United States.” Id. at 303. The Court further noted that “Section 1226(a)
creates a default rule for those aliens [present in the United States] by permitting—but not
requiring—the Attorney General to issue warrants for their arrest and detention pending removal
proceedings,” and also “permits the Attorney General to release those aliens on bond.” Id. The
Jennings Court’s description of the relationship between §§ 1225 and 1226 is consistent with this
court’s conclusion.
Respondents argue that the Court’s interpretation would treat noncitizens unlawfully
present in the United States preferentially to noncitizens who arrive at the border. They imply this
would be unfair or would reward noncitizens who pass the border without inspection. Because the
statutory language is unambiguous, the Court’s task is to ascertain its plain meaning, and the Court
generally should not address this extra-textual policy consideration. See McGraw v. Barnhart, 450
F.3d 493, 499 (10th Cir. 2006). Alternatively, this seemingly different treatment of those who are
already present in the United States is well-supported in case law. “The distinction between an
alien who has effected an entry into the United States and one who has never entered runs
throughout immigration law.” Zadvydas, 533 U.S. at 693; Leng May Ma v. Barber, 357 U.S. 185,
187 (1958) (“[O]ur immigration laws have long made a distinction between those aliens who have
come to our shores seeking admission ... and those who are within the United States after an entry,
irrespective of its legality.”).
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Respondents cite to a decision by the BIA holding that § 1225(b)(2)(A) applies to
noncitizens present in the country who were not inspected at the border. See Matter of Yajure
Hurtado, 29 I & N Dec. 216 (BIA 2025). Hurtado is not binding on this court, and the agency’s
interpretation carries only the “power to persuade.” Loper Bright Enters. v. Raimondo, 603 U.S.
369, 402 (2024). As explained above, the Court does not find Hurtado persuasive.
Here, applying the above statutory interpretation to the facts of this case, it is clear that
Petitioner is not “seeking admission” under § 1225(b)(2)(A). He has lived in the United States for
years. And neither the Petition nor the Respondents’ Response identified any facts to suggest
Petitioner was “seeking admission”, i.e., lawful physical entry into the country, at the time of his
arrest. Therefore, it is clear that the detention provision under § 1225(b)(2)(A) does not apply to
Petitioner.
Instead, Section 1226(a), the default, more general detention provision pending a decision
on removal, governs Petitioner’s detention. “Section 1226 generally governs the process of
arresting and detaining that group of aliens pending their removal.” Jennings, 583 U.S. at 288.
Thus, the Court grants in part the Petition.
II. The Court finds that a bond hearing is an appropriate remedy for violation of the
INA.
Petitioner appears to request immediate release. However, Petitioner did not carry his
burden to show that the Court is required to release him rather than order a bond hearing.
Moreover, he did not argue or carry his burden that the Court should shift the burden at any bond
hearing to the Respondents. As explained below, relying in part on the burden of proof and
principles of party presentation, the Court declines to immediately release Petitioner. Therefore,
exercising its discretion under § 2241, the Court will order an individualized bond hearing.
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Petitioner bears the burden of proof of showing that he is entitled to relief or a remedy. See
28 U.S.C. § 2241; see also Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009) (“The burden of
proof of showing deprivation of rights leading to unlawful detention [under § 2241] is on the
petitioner.”); Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (“[I]t was error for the
District Court to effectively impose on the Government the burden of proving that [petitioner] was
not ‘in custody in violation of the Constitution or laws or treaties of the United States’ ” under §
2241); Odell v. Hudspeth, 189 F.2d 300, 302 (10th Cir. 1951) (In § 2241 proceeding, “[t]he burden
of proof was upon the petitioner to sustain these allegations.”); see also Smith v. Workman, 550
F.3d 1258, 1273 (10th Cir. 2008) (noting that, in the context a Brady violation, the petitioner “bears
the burden of showing that the prosecution suppressed material evidence favorable” to the
petitioner); McDonald v. Feeley, 535 F. Supp. 3d 128, 135 (W.D.N.Y. 2021) (in § 2241 proceeding
challenging his immigration detention, petitioner bears burden of proving by preponderance of
evidence that he is detained contrary to law).
Section 1226(a) affords Respondents discretion to detain, release on bond, or parole a
noncitizen. Notably, this section does not expressly provide a statutory right to immediate release.
Generally, the release or bond decision by an immigration judge involves the weighing of evidence
and is discretionary. § 1226(a); Jennings, 583 U.S. at 295. Discretionary bond decisions are
generally not reviewable. 8 U.S.C. § 1226(e) (“The Attorney General's discretionary judgment
regarding the application of this section shall not be subject to review. No court may set aside any
action or decision by the Attorney General under this section regarding the detention of any alien
or the revocation or denial of bond or parole.”). “This provision precludes the Court from
reviewing the IJ’s decision that denied bond because Petitioner was a flight risk.” Mwangi v. Terry,
465 F. App'x 784, 786–87 (10th Cir. 2012) (“Therefore, to the extent Mr. Mwangi challenges the
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agency's discretionary bond decision, the magistrate judge was correct that the court lacked
jurisdiction.”) (citing Demore v. Kim, 538 U.S. 510, 516–17 (2003)); Jennings, 583 U.S. at 295
(explaining that § 1226(e) bars a challenge to a discretionary judgment or decision by the Attorney
General regarding detention or release but does not preclude challenges to the statutory
framework); see also Ghanem v. Warden Essex Cnty. Corr. Facility, No. 21-1908, 2022 WL
574624, at *2 (3d Cir. Feb. 25, 2022) (“Although we lack jurisdiction to review any discretionary
determinations underlying the IJ's bond decision…”).
To be sure, federal district courts have broad equitable powers in ordering habeas relief.
Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992). A federal court is vested with “the largest
power to control and direct the form of judgment to be entered in cases brought up before it on
habeas corpus.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (citation omitted). “Federal habeas
corpus practice ... indicates that a court has broad discretion in conditioning a judgment granting
habeas relief.” Id. In issuing a writ of habeas corpus, a federal court has the power and authority
to dispose of habeas corpus matters “as law and justice require.” 28 U.S.C. § 2243; see also
Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012) (noting that § 2243 gives district courts
“broad discretion to craft appropriate habeas relief.”). Generally, the Court has authority to order
release. Munaf v. Geren, 553 U.S. 674, 693 (2008). “Once a right and a violation have been shown,
the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 (1971). It is the “nature of the violation” that “determines the scope of the remedy.” Id.
at 16.
Here, the Court in its discretion would order a bond hearing, as an individualized bond
hearing would provide Petitioner with the process he is due under the statute. See § 1226(a)
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(providing that the Attorney General may continue to detain a noncitizens pending a decision on
removal or may release the noncitizen on bond or parole); see Martinez Escobar v. Baltazar, No.
26-CV-00296-NYW, 2026 WL 503313, at *4 (D. Colo. Feb. 24, 2026) (ordering bond hearing
rather than immediate release where due process rights were violated by respondents’ failure to
apply § 1226(a) discretionary detention provisions); Gutierrez v. Garcia, No. 2:25-CV-001145-
WJ-KRS, 2026 WL 310064, at *5 (D.N.M. Feb. 5, 2026) (noting that process due is individualized
bond hearing); Velasquez Salazar v. Dedos, No. 1:25-cv-835, 2025 WL 2676729, at *5 (D.N.M.
Sep. 17, 2025) (“Because ... § 1226 governs Petitioner's detention, the due process owed to
Petitioner is that provided for in § 1226—namely, an individualized bond hearing before an IJ.”).
Accordingly, the Court finds that the proper remedy is an individualized bond hearing pursuant to
§ 1226(a).
Petitioner also does not argue or demonstrate in his Petition that any due process or
constitutional violation requires his release. He does not cite to any standard or law the Court
should apply in deciding whether a due process violation requires his release. For example, should
the Court apply the Mathews test in determining whether he should be immediately released, and
if so, how does the Mathews test apply to the facts of this case to warrant his immediate release?
The Court therefore declines to sua sponte analyze whether his constitutional claim requires his
release over a bond hearing, as this issue was not properly argued or presented to the Court. See
United States v. Davis, 622 F. App'x 758, 759 (10th Cir. 2015) (“[I]t is not this court's duty, after
all, to make arguments for a litigant that he has not made for himself.”); Phillips v. Hillcrest Med.
Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001) (observing that a court has no obligation to make
arguments or perform research on behalf of litigants) (quoting Pelfresne v. Village of Williams
Bay, 917 F.2d 1017, 1023 (7th Cir.1990) (“A litigant who fails to press a point by supporting it
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with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in
the face of contrary authority, forfeits the point. [The court] will not do his research for him.”).3
The principle of party presentation is particularly appropriate here, where this district court is
overwhelmed with habeas petitions, and petitioners request that the Court rule immediately. If the
Court were to act as Petitioner’s counsel and make arguments or do research on his behalf, it would
prejudice other petitioners by delaying a ruling on their petitions. Therefore, Petitioner has not
properly placed before the Court the issue of whether he must be immediately released, or he has
not carried his burden.
Moreover, Petitioner does not argue or explain why the Court should shift the burden to
Respondents on the issues of flight and dangerousness at the bond hearing, and the Court declines
to sua sponte raise this issue. 4
3 These principles apply even where a party is pro se. Although pro se pleadings should be
construed liberally, a district court may not act as a pro se party’s advocate, advancing arguments
or facts on their behalf. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th
Cir. 2005) (“[T]he court cannot take on the responsibility of serving as the litigant's attorney in
constructing arguments and searching the record.”); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (“At the same time, we do not believe it is the proper function of the district court to
assume the role of advocate for the pro se litigant.”). Moreover, pro se parties must comply with
the same procedural rules and substantive law as counseled parties. Nielsen v. Price, 17 F.3d 1276,
1277 (10th Cir.1994). Although the Court notes that Petitioner proceeds pro se, his filings were
clearly ghost-drafted by a lawyer as the legal claims and facts were well-presented, the citations
appear to be accurate, and the legal reasoning sophisticated. Generally, the Tenth Circuit does “not
allow ... ghostwritten briefs.” Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001). The Tenth
Circuit “require[s] disclosure of attorney ghostwriting because an attorney's provision of
substantial legal assistance to a pro se party both inappropriately shields the attorney from
accountability for his actions and affords the pro se party the unwarranted benefit of a liberal
construction of her filings.” Velasquez-Sierra v. Garland, No. 22-9556, 2023 WL 7179437, at *3
(10th Cir. Nov. 1, 2023). Moreover, his Petition requests attorney’s fees. Pet. at 19.
4 Petitioner may not raise new arguments in any reply, as it deprives the opposing party an
opportunity to respond. Geringer v. Strong, 766 F. App'x 620, 625 (10th Cir. 2019); Reedy v.
Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (the general rule in this circuit “is that a party
waives issues and arguments raised for the first time in a reply brief.”).
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III. This opinion and the judgment should not be construed as addressing detention under
§ 1231, if that provision becomes applicable.
The Petition presented the Court with a narrow issue, whether Petitioner’s detention
pending a decision on removal is governed by § 1225 or § 1226. Once an order of removal has
become final, the authority governing a noncitizen’s detention shifts to another statutory provision,
8 U.S.C. § 1231(a)(2). See Johnson v. Arteaga-Martinez, 596 U.S. 573, 574 (2022) (“After the
entry of a final order of removal against a noncitizen, the Government generally must secure the
noncitizen’s removal during a 90-day removal period, during which the Government “shall” detain
the noncitizen.”) (citing 8 U.S.C. §§ 1231(a)(1), (2)).
Section 1231 governs the detention of noncitizens “during” and “beyond” the “removal
period.” 8 U.S.C. § 1231(a)(2)–(6). In general, when a noncitizen is ordered removed, the Attorney
General shall remove them within 90 days, known as the “removal period.” § 1231(a)(1)(A). The
“removal period” begins once a noncitizen’s removal order “becomes administratively final,” §
1231(a)(1)(B), meaning the order has been affirmed by the BIA or the time for seeking review has
expired, 8 U.S.C. § 1101(a)(47)(B). Riley v. Bondi, 606 U.S. 259, 267 (2025) (“An order of
removal becomes final at the earlier of two points: (1) ‘a determination by the [BIA] affirming
such order,’ or (2) ‘the expiration of the period in which the alien is permitted to” petition the BIA
for review of the order.’) (citation omitted). During the removal period, detention is mandatory. §
1231(a)(2).
Here, no party has asserted that § 1231 applies. Therefore, as of the entry of this order, it
appears that the Court retains the ability to order the relief requested in the Petition, i.e., to
determine whether §§ 1225 or 1226 applies to her detention pending a decision on removal. The
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Court’s order and judgment should not be construed to opine on whether or when in the future
Petitioner may be detained under § 1231.
IV. The Court need not rule on Petitioner’s remaining claims.
Petitioner also asserted a due process claim. Because the Court grants habeas relief, the
Court need not address his other claims or enter a declaration. See Banks v. Dretke, 540 U.S. 668,
689 n.10 (2004) (finding it unnecessary to address an additional claim in a habeas petition after
granting full relief on one claim because “any relief [petitioner] could obtain on that claim would
be cumulative.”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (stating
that “[a] fundamental and longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding them.”); Scott v. Mullin,
303 F.3d 1222, 1224 (10th Cir. 2002) (declining to address the remaining claims in a habeas
petition after already granting habeas relief on one claim). The Petition focuses on whether §§
1225(b) or 1226(a) applies to Petitioner’s detention. Petitioner’s due process claim was asserted in
a summary manner. As explained above, Petitioner failed to carry his burden or argue why
immediate release is the only available remedy, and why the Court cannot order a bond hearing.
Therefore, he has received all relief to which he is entitled.
Petitioner also asserts an APA claim. The APA provides a cause of action only where there
is no other adequate remedy in court. 5 U.S.C. § 704. Challenges to the fact or duration of
immigration detention are cognizable in habeas and “must be brought in habeas.” Trump v. J.G.G.,
604 U.S. 670, 672 (2025). In a concurring opinion, Justice Kavanaugh explained that “claims under
the APA are not available when there is another ‘adequate remedy in a court,’ ....” Trump v. J.G.G.,
604 U.S. at 674 (Kavanaugh, J., concurring). He further explained that “habeas corpus, not the
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APA, is the proper vehicle here.” Id. Because the relief Petitioner seeks, release from custody, is
attainable through habeas corpus, the APA does not supply an independent cause of action.
CONCLUSION
The Court concludes that Petitioner’s detention pending a decision on whether he should
be removed from the United States is governed by § 1226(a) as opposed to § 1225(b)(2)(A).
Accordingly, the Petition (Doc. 1) is granted in part. Respondents are directed to arrange an
individualized bond hearing pursuant to § 1226(a) for Petitioner before an immigration judge
within seven (7) days of the entry of this Order. Respondents shall not deny Petitioner bond or
parole on the basis that § 1225(b) requires mandatory detention. However, the Court makes
no determination whether or when in the future § 1231 applies to his detention, as it was not briefed
or raised in the Petition. The parties are ordered to file a status report within ten (10) days of the
entry of this order. The Court will enter a separate judgment.5
IT IS THEREFORE ORDERED that Petitioner’s Petition (Doc. 1) is hereby
GRANTED in part for the reasons described in this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Respondents shall provide an individualized bond
hearing before an immigration judge for Petitioner pursuant to § 1226(a), as opposed to § 1225(b),
within seven (7) days of the entry of this order, provided that the Court makes no determination
whether or when in the future § 1231 detention provisions may apply. Petitioner should be
provided notice of the bond hearing and an opportunity to prepare and present evidence, in
accordance with due process. If Petitioner has counsel for his immigration case, counsel shall be
5 The Court need not delay entry of judgment to wait for Respondents to comply with the Court’s
order. The Court “always retains jurisdiction to enforce its lawful judgments, including habeas
judgments.” Gall v. Scroggy, 603 F.3d 346, 352 (6th Cir. 2010); Burton v. Johnson, 975 F.2d 690,
693 (10th Cir. 1992) (explaining that district court has authority to enforce its habeas judgment).
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provided notice of any bond hearing, an opportunity to prepare for the hearing, and an opportunity
to appear at the bond hearing.
IT IS FINALLY ORDERED that the parties are directed to file a joint status report within
ten (10) days of the entry of this order.
____________/S/______________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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