Toledo Santos v. Grant et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DONIS ALEXANDER TOLEDO
SANTOS,
)
)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-25-1433-SLP
)
SCARLET GRANT, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Donis Alexander Toledo Santos, a noncitizen1 and Honduran national,
filed a Petition for Writ of Habeas Corpus (“Petition”), Doc. 1, challenging under 28 U.S.C.
§ 2241 his detention by U.S. Immigration and Customs Enforcement (“ICE”). 	United
States District Judge Scott L. Palk referred this matter to the undersigned Magistrate Judge
in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). 	The Court set an expedited briefing
schedule. Respondents timely filed a Response, Doc. 9, and Petitioner did not file a Reply.
For the reasons set forth below, the undersigned recommends that the Court grant the
Petition in part and order Respondents to provide Petitioner a bond hearing pursuant to 8
U.S.C. § 1226(a) within five business days or otherwise to release him if there is no hearing
within that time.
1 Unless quoting, this Report and Recommendation “uses the term ‘noncitizen’ as
equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020)
(citing 8 U.S.C. § 1101(a)(3)).
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I. 	Background
Petitioner, a citizen of Honduras, entered the United States on or about March 30,
2023, at or near El Paso, Texas. Doc. 1-1 at 1; see also Pet. at 12; Resp. at 15. On April 4,
2023, ICE served Petitioner a Notice to Appear for immigration proceedings as “an alien
present in the United States who has not been admitted or paroled” under 8 U.S.C. § 1182.
Doc. 1-1 at 1; Doc. 9-1 at ¶ 4. ICE placed Petitioner into removal proceedings before the
Immigration Court pursuant to 8 U.S.C. § 1229a and charged him with being inadmissible
under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the United States without
inspection. Pet. at 12; Resp. at 15; see also Doc. 1-1; Doc. 9-1 at ¶ 4. On the same day,
ICE made a custody determination and Petitioner was released from custody on his own
recognizance pursuant to 8 U.S.C. § 1226. Pet. at 12; Doc. 1-2.
On October 5, 2023, Petitioner filed an application for Asylum, Withholding of
Removal and Relief under the Convention Against Torture. Resp. at 16; Doc. 9-1 at ¶ 5;
Doc. 9-2. On August 12, 2025, ICE re-arrested Petitioner while he was reporting to ICE
and cancelled his release on his own recognizance. Pet. at 12; Resp. at 16; Doc. 9-1 at ¶ 6.
ICE detained Petitioner pursuant to 8 U.S.C. § 1225(b)(2)(A). Resp. at 7.
Upon his detention, ICE issued a custody determination to continue Petitioner’s
detention without an opportunity to post bond or be released on other conditions. Pet. at
12. On October 10, 2025, Petitioner requested a bond hearing before an Immigration Judge
(“IJ”), which was denied because all IJs are subject to the binding precedent of Matter of
Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025), which holds that those who entered the
country without admission or parole are ineligible for a bond hearing. Pet. at 13; Doc. 9-1
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at ¶ 7. On November 26, 2025, Petitioner submitted another bond redetermination request,
which remains pending. 	Id. 	Accordingly, ICE held Petitioner as subject to mandatory
detention under § 1225(b)(2)(A). Resp. at 7.
When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility
in Cushing, Oklahoma. Pet. at 12. He remains detained there. See ICE Online Detainee
Locator System, at https://locator.ice.gov/odls/#/results (last visited Dec. 22, 2025).
II. 	Petitioner’s Claims
Petitioner asserts two counts in his Petition.
• 	Count 	I: 	Violation 	of 	the 	Immigration 	and 	Nationality 	Act
(“INA”). 	Petitioner alleges that his continued detention under
§ 1225(b)(2) is unlawful and violates the INA because that provision
does not apply to those, like him, who previously entered the country
and have been residing in the United States before being apprehended
and placed in removal proceedings. Pet. at 13.
• 	Count II: Violation of Due Process. 	Petitioner alleges that his
continued 	detention 	without 	a 	bond 	redetermination 	hearing 	to
determine whether he is a flight risk or danger to others violates his
right to due process. Id. at 14.
He asks the Court to “issue a Writ of Habeas Corpus requiring that Respondents release
Petitioner or, in the alternative, provide Petitioner with a bond hearing pursuant to 8 U.S.C.
§ 1226(a) within five days.” 	Pet. at 15 (citation modified). 	Petitioner also requests an
award of attorney fees and costs under the Equal Access to Justice Act (“EAJA”).2 Id.
2 To the extent Petitioner may be entitled to EAJA fees and costs as a prevailing party, he
must seek those separately after a final judgment. 	28 U.S.C. § 2412(d)(1)(B); see also
Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir. 2025) (interpreting “EAJA’s broad language
to unambiguously authorize fees in habeas actions challenging immigration detention”).
Accordingly, the Court need not address this request at this juncture.
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III. 	Standard of Review
To obtain habeas corpus relief, Petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 	28 U.S.C.
§ 2241(c)(3). “Challenges to immigration detention are properly brought directly through
habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v.
Davis, 533 U.S. 678, 687-88 (2001)).
“When called on to resolve a dispute over a statute’s meaning,” the Court must
“exhaust all the textual and structural clues bearing on that meaning.” 	Niz-Chavez v.
Garland, 593 U.S. 155, 160 (2021) (citation modified). 	“When an issue or claim is
properly before the court, the court is not limited to the particular legal theories advanced
by the parties, but rather retains the independent power to identify and apply the proper
construction of governing law.” 	Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991); see also United States v. Spradley, 146 F.4th 949, 958 (10th Cir. 2025) (noting a
court must “independently interpret the applicable statutory phrase irrespective of the
parties’ positions” (citation modified)).
IV. 	Analysis
A. 	The Court has jurisdiction to consider the Petition.
Based on specific provisions of the INA at issue, Respondents argue this Court lacks
jurisdiction to consider Petitioner’s claims. 	Resp. at 17-20. 	Chief Judge Timothy D.
DeGiusti and Judge Bernard M. Jones of this Court, though, have recently concluded the
INA “does not jurisdictionally bar” a habeas claim like Petitioner’s because such a claim
“does not challenge Respondents’ decision to commence or adjudicate proceedings or
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execute removal orders.” Colin v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *2 (W.D.
Okla. Dec. 16, 2025); see also Urbina Garcia v. Holt, No. CIV-25-1225-J, 2025 WL
3516071, at *2 (W.D. Okla. Dec. 8, 2025) (same); Medina-Herrera v. Noem, No. CIV-25-
1203-J, 2025 WL 3460946, at *2 (W.D. Okla. Dec. 2, 2025) (same); Martinez Diaz v. Holt,
No. CIV-25-1179-J, 2025 WL 3296310, at *1 (W.D. Okla. Nov. 26, 2025) (same);
Escarcega v. Olson, No. CIV-25-1129-J, 2025 WL 3243438, at *1 (W.D. Okla. Nov. 20,
2025) (same).
Similar jurisdictional arguments by Respondents have also been rejected by
multiple district courts throughout the country. See, e.g., Hasan v. Crawford, No. 25-CV-
1408, --- F. Supp. 3d ---, 2025 WL 2682255, at *3 n.7 (E.D. Va. Sep. 19, 2025) (“Federal
courts throughout the country have similarly found that these jurisdiction-stripping
provisions do not deprive the federal courts of jurisdiction to review a noncitizen’s
challenge to the legality of his detention.” (collecting cases)). The undersigned agrees with
Chief Judge DeGiusti, Judge Jones, and those courts that have found jurisdiction exists to
consider arguments challenging detention in circumstances like Petitioner’s.
1. 	Sections 1252(a)(5) and 1252(b)(9)
Respondents first argue the Court lacks jurisdiction to consider the Petition because
(1) the INA channels “claims related to removal orders” to a court of appeals rather than a
district court, and (2) such claims include “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.’”
Resp. at 17 (citing 8 U.S.C. § 1252(a)(5) and quoting § 1252(b)(9) (citation modified)
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(emphasis 	added 	by 	Respondents)). 	Accordingly, 	Respondents 	argue 	that 	under
§ 1252(a)(5) and § 1252(b)(9), a “decision to effectively begin those proceedings” against
Petitioner under § 1225(b)(2)(A) “can be reviewed by the appropriate court of appeals as
part of an appeal of a final order of removal—but not this Court.” Resp. at 17.
Consistent with several district courts, the undersigned interprets Petitioner’s habeas
claim to be a challenge to his detention—not to ICE’s decision to “effectively begin those
proceedings” against him, as asserted by Respondents. 	Id. 	Courts have rejected
Respondents’ jurisdictional argument because detention orders “are separate and apart
from orders of removal.” Hasan, 2025 WL 2682255, at *4 (citation modified). Challenges
to detention orders “are legal in nature and challenge specific conduct unrelated to removal
proceedings.” 	Garcia Cortes v. Noem, No. 25-CV-02677, 2025 WL 2652880, at *2 (D.
Colo. Sep. 16, 2025) (citing Mukantagara v. U.S. Dep’t of Homeland Sec., 67 F.4th 1113,
1116 (10th Cir. 2023) (“Congress did not intend the zipper clause to cut off claims that
have a tangential relationship with pending removal proceedings. A claim only arises from
a removal proceeding when the parties in fact are challenging removal proceedings.”
(citation modified))); Gutierrez v. Baltasar, No. 25-CV-2720, 2025 WL 2962908, at *2-3
(D. Colo. Oct. 17, 2025) (rejecting similar jurisdictional arguments).
Here, 	like 	many 	recent 	habeas 	cases 	by 	noncitizens 	challenging 	mandatory
detention under § 1225(b)(2)(A), Petitioner does not challenge any removal order. “Rather,
he challenges the constitutionality and legality of his detention during the period before his
removal hearing.” 	S.D.B.B. v. Johnson, No. 	25-CV-882, 2025 WL 2845170, at *3
(M.D.N.C. Oct. 7, 2025). 	As such, Ҥ 1252(b)(9) does not deprive the court of
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jurisdiction.” 	Id. 	This interpretation tracks the same recent analysis of several district
courts. See, e.g., Caballero v. Baltazar, No. 25-CV-03120, 2025 WL 2977650, at *4 (D.
Colo. Oct. 22, 2025) (ruling § 1252(b)(9) does not present a jurisdictional bar to a
noncitizen challenging “the legality of his continued detention without a bond hearing”);
Jose J.O.E. v. Bondi, No. 25-CV-3051, --- F. Supp. 3d ----, 2025 WL 2466670, at *7 (D.
Minn. Aug. 27, 2025) (same) (collecting cases)).
The undersigned agrees with the prevailing analysis from other district courts and
concludes that § 1252(a)(5) and § 1252(b)(9) do not deprive the Court of jurisdiction.
2. 	Section 1252(g)
Respondents also argue the INA limits a district court’s jurisdiction to consider “any
cause or claim by or on behalf of any alien arising from the decision or action by the
[Department of Homeland Security (“DHS”)] to commence proceedings, adjudicate cases,
or execute removal orders against any alien under this chapter.” 	Resp. at 18 (quoting 8
U.S.C. § 1252(g) (citation modified; emphasis added by Respondents)). 	Respondents
assert that “the bar on considering the commencement of proceedings includes a bar on
considering challenges to the basis on which DHS chooses to commence removal
proceedings.” Id. at 18 (citation modified). Chief Judge DeGiusti and Judge Jones recently
rejected the same jurisdictional argument. 	See Colin, 2025 WL 3645176, at *2; Urbina
Garcia, 2025 WL 3516071, at *2; Medina-Herrera, 2025 WL 3460946, at *2; Martinez
Diaz, 2025 WL 3296310, at *1; Escarcega, 2025 WL 3243438, at *1.
In Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999),
the Supreme Court explained that § 1252(g)’s jurisdictional bar applies only to “three
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discrete actions”—the commencement of removal proceedings, adjudication of removal
proceedings, and execution of removal orders. The Supreme Court found it “implausible
that the mention of three discrete events along the road to deportation was a shorthand way
of referring to all claims arising from deportation proceedings.” 	Id.; see also id. at 487
(referencing the Court’s “narrow reading of § 1252(g)”). 	More recently, in Jennings v.
Rodriguez, 583 U.S. 281, 294 (2018), the Court reaffirmed this narrow reading, explaining
that Reno “did not interpret [§ 1252(g)] to sweep in any claim that can technically be said
to ‘arise from’ the three listed actions of the Attorney General.” 	Instead, the statutory
language refers “to just those three specific actions themselves.” Id.
Here, Petitioner does not challenge the commencement of removal proceedings, the
adjudication of removal proceedings, or the execution of a removal order. 	Instead, he
challenges “the narrow legal questions of whether [his] detention under 8 U.S.C. § 1225
violates the INA and whether he is entitled to a bond hearing under § 1226’s discretionary
detention framework.” Gutierrez, 2025 WL 2962908, at *3. As such, Petitioner’s claims
fall outside the narrow jurisdictional limitations of § 1252(g) and, accordingly, § 1252(g)
does not deprive the Court of jurisdiction. 	Further, any decision to file charges against
Petitioner after he was detained does not change the analysis because the immigration
officer’s subsequent decision to pursue removal is unrelated to Respondents’ detention of
Petitioner under § 1225(b)(2)(A), which is the basis for his habeas challenge.3
3 Respondents’ citation to Tsering v. U.S. Immigr. & Customs Enf’t, 403 F. App’x 339, 343
(10th Cir. 2010) is inapposite because that petitioner had been ordered removed and was
challenging his removal based on false information provided to ICE leading to his removal.
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This conclusion is consistent with Chief Judge DeGiusti’s approach in Colin and
Judge Jones’ approach in Escarcega, Martinez Diaz, Medina-Herrera, and Urbina Garcia,
as well as numerous other district courts that have recently addressed Respondents’
jurisdictional challenge. 	See Colin, 2025 WL 3645176, at *2; Urbina Garcia, 2025 WL
3516071, at *2; Medina-Herrera, 2025 WL 3460946, at *2; Martinez Diaz, 2025 WL
3296310, at *1; Escarcega, 2025 WL 3243438, at *1; see also, e.g., Gutierrez, 2025 WL
2962908, at *3 (finding § 1252(g) did not strip the court of jurisdiction to consider
petitioner’s challenge to his detention under § 1225 rather than § 1226); S.D.B.B., 2025
WL 2845170, at *3 (same); Hasan, 2025 WL 2682255, at *4 (same); Garcia Cortes, 2025
WL 2652880, at *1 (same); Grigorian, 2025 WL 2604573, at *4 (same).
Respondents cite only one decision, from the District of Minnesota, that has
squarely ruled that § 1252(g) bars a district court’s jurisdiction to consider a petitioner’s
challenge to detention. See S.Q.D.C. v. Bondi, No. CV 25-3348, 2025 WL 2617973, at *3
(D. Minn. Sep. 9, 2025). That decision “appears to represent an extreme minority position,
both in its own district and nationally.” Gonzalez Martinez v. Noem, No. EP-25-CV-430,
See Alonso v. Tindall, No. 25-CV-652, 2025 WL 3083920, at *2 (W.D. Ky. Nov. 4, 2025)
(finding Tsering inapposite and concluding the court had jurisdiction to review petitioner’s
habeas challenge to detention under § 1225 rather than § 1226). Judge Jones has similarly
rejected Respondents’ arguments that Tsering precludes jurisdiction over this type of
habeas petition. See Urbina Garcia, 2025 WL 3516071, at *2 (“Here, Petitioner is simply
alleging that his continued detention without a bond hearing is in violation of federal law
(the INA). Hence, his claims do not ‘arise from’ and are not directly and immediately
connected to the Attorney General’s decision to commence proceedings, proceed with the
adjudication of Petitioner’s case, or any removal order. As such, § 1252(g) does not strip
this Court of jurisdiction.”); Medina-Herrera, 2025 WL 3460946, at *2 (same).
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2025 WL 2965859, at *2 (W.D. Tex. Oct. 21, 2025); see also Medina-Herrera, 2025 WL
3460946, at *2 n.2 (“But the Court disagrees [with S.Q.D.C.] and reiterates that Petitioner’s
challenge focuses solely on his continued detention without bond and not Respondents’
decision to commence proceedings, adjudicate his case, or execute a removal order.”).4
3. 	Conclusion
Chief Judge DeGiusti and Judge Jones of this Court recently rejected Respondents’
jurisdictional arguments in multiple cases. 	The undersigned similarly concludes that
neither § 1252(a)(5), § 1252(b)(9), nor § 1252(g) bars this Court from jurisdiction to
consider Petitioner’s challenge to his detention.
B. 	Section 1226(a) applies to Petitioner’s detention.
The two sections of the INA at issue are 8 U.S.C. §§ 1225 and 1226. 	Section
1225(a)(1) describes an “applicant for admission” as “an alien present in the United States
who has not been admitted or who arrives in the United States.” Id. § 1225(a)(1) (citation
modified). The statute defines “admission” and “admitted” as “the lawful entry of the alien
into the United States after inspection and authorization by an immigration officer.” 	Id.
§ 1101(a)(13). 	Under § 1225(b)(2)(A), “in the case of an alien who is an applicant for
4 The district court in S.Q.D.C. relied on Alvarez v. U.S. Immigr. & Customs Enf’t, 818
F.3d 1194, 1203 (11th Cir. 2016). 	S.Q.D.C., 2025 WL 2617973, at *3. 	Respondents
likewise rely on Alvarez to argue that “the bar on considering the commencement of
proceedings includes a bar on considering challenges to the basis on which DHS chooses
to commence removal proceedings.” Resp. at 18 (citation modified). Not only is Alvarez
distinguishable on its facts from those here, but district courts considering detention orders
have also recently disagreed with jurisdictional arguments relying on Alvarez. E.g., Avila
v. Bondi, No. CV 25-3741, 2025 WL 2976539, at *4 (D. Minn. Oct. 21, 2025); Belsai D.S.
v. Bondi, No. 25-cv-3682, 2025 WL 2802947, at *5 n.3 (D. Minn. Oct. 1, 2025); Grigorian
v. Bondi, No. 25-CV-22914, 2025 WL 1895479, at *4-5 (S.D. Fla. July 8, 2025).
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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.”
On the other hand, Section 1226(a) authorizes detention of a noncitizen “on a
warrant issued by the Attorney General” pending removal proceedings. 	Id. § 1226(a)
(citation modified). 	A noncitizen detained under § 1226(a) is entitled to a bond hearing.
See Jennings, 583 U.S. at 306 (“Federal regulations provide that aliens detained under
§ 1226(a) 	receive 	bond 	hearings 	at 	the 	outset 	of 	detention.”) 	(citing 	8 	C.F.R.
§§ 236.1(d)(1), 1236.1(d)(1))).
If Petitioner is an “applicant for admission” and “seeking admission” under
§ 1225(b)(2)(A), he is not entitled to a bond hearing. 	If he is not an “applicant for
admission” and “seeking admission” under § 1225, then Petitioner falls within the confines
of § 1226(a), which would entitle him to a bond hearing. Petitioner argues he is being held
in violation of the INA and § 1225(b)(2) does not apply to him because he had “been
residing 	in 	the 	United 	States 	prior 	to 	being 	apprehended 	and 	placed 	in 	removal
proceedings.” 	Pet. at 13. 	According to Petitioner, his continued detention under
§ 1225(b)(2) is unlawful and he is entitled to a bond hearing under § 1226(a). Respondents
contend that Petitioner is an “applicant for admission” and therefore properly detained
under § 1225(b)(2)(A). 	Resp. at 15. 	Further, Respondents claim (1) § 1225(b)(2)(A) is
not limited to noncitizens “arriving” in the United States, (2) § 1226(a) is reserved for those
who do not fall within the confines of § 1225(b)(2)(A), and (3) any overlap between the
two provisions does not undermine ICE’s interpretation of the two statutes. Id. at 21-32.
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The undersigned has reviewed the statutory text, Congressional intent, legislative
history, and § 1226(a)’s application for the past three decades, as well as numerous recent
cases addressing this exact issue. The undersigned agrees with the great weight of authority
and finds that Petitioner falls within the confines of § 1226(a), and not § 1225(b)(2)(A).
Notably, Chief Judge DeGiusti and Judge Jones, the only two District Judges of this Court
to rule on this issue, recently applied § 1226(a) to five separate habeas petitioners similarly
situated to Petitioner. 	See Colin, 2025 WL 3645176, at *4-5; Urbina Garcia, 2025 WL
3516071, at *4; Medina-Herrera, 2025 WL 3460946, at *4; Martinez Diaz, 2025 WL
3296310, at *3; Escarcega, 2025 WL 3243438, at *3. The undersigned recommends that
the Court conclude Petitioner is entitled to a bond redetermination hearing under § 1226(a).
1. 	Statutory interpretation of § 1225(b)(2)(A) and § 1226(a)
When interpreting a statute, the “inquiry begins with the statutory text, and ends
there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176,
183 (2004). “If the statutory language is plain, [the Court] must enforce it according to its
terms.” 	King v. Burwell, 576 U.S. 473, 486 (2015). 	“But oftentimes the meaning—or
ambiguity—of certain words or phrases may only become evident when placed in context.”
Id. (citation modified). “So when deciding whether the language is plain, the Court must
read the words in their context and with a view to their place in the overall statutory
scheme.” Id. (citation modified).
At issue is whether “an applicant for admission” who is “seeking admission”
includes a noncitizen like Petitioner, who was living in the United States when arrested. 8
U.S.C. § 1225(a)(1). The statutory text does not provide a definitive answer as to what it
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means to be present without admittance where, as here, the noncitizen has already entered
and has been residing in the United States. Even when statutory terms are unambiguous,
context still matters. See United States v. Bishop, 412 U.S. 346, 356 (1973) (“Context is
important in the quest for [a] word’s meaning.” (citation modified)); United States v.
Ceballos-Martinez, 	387 	F.3d 	1140, 	1144 	(10th 	Cir. 	2004) 	(noting 	that 	statutory
interpretation “requires [courts] to interpret Congress’s choice of words in the context that
it chose to use them”). 	Further, “it is a cardinal principle of statutory construction that a
statute ought, upon the whole, to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534
U.S. 19, 31 (2001) (citation modified). When considering the INA’s overall context, the
undersigned concludes the statute limits the scope of the terms “applicant for admission”
and “seeking admission” in § 1225(b)(2)(A).
Giving effect to each clause and word of a statute includes an analysis of the
statute’s title. “A title is especially valuable where it reinforces what the text’s nouns and
verbs independently suggest.” Dubin v. United States, 599 U.S. 110, 121 (2023) (citation
modified). Section 1225 is titled: “Inspection by immigration officers; expedited removal
of inadmissible arriving aliens; referral for hearing.” (emphasis added). 	Use of the term
“arriving” to describe noncitizens indicates the section governs entrance of noncitizens to
the United States. 	Section 1225 is also located between two other sections dealing with
arrivals of noncitizens: § 1224 is titled “Designation of ports of entry for aliens arriving by
aircraft,” and § 1225a is titled “Preinspection at foreign airports.” The undersigned is not
persuaded by Respondents’ arguments to the contrary. See Resp. at 22-23.
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The undersigned’s reading is bolstered by the fact that § 1225 establishes an
inspection scheme for when to let noncitizens into the country. In fact, the subheading for
§ 1225(b)(2) reads “Inspection of Other Aliens,” reinforcing the idea that the subsection
applies to those coming in, not already present. 	Section 1225(d) is labeled “Authority
Relating to Inspections” and describes the powers of immigration officers to search and
detain vessels and “arriving aliens.” See 8 U.S.C. § 1225(d)(1) (authorizing immigration
officers to “board and search any vessel, aircraft, railway car, or other conveyance or
vehicle in which they believe aliens are being brought into the United States”); id.
§ 1225(d)(2) (authorizing immigration officers to detain an “arriving” noncitizen and
incoming vessel or aircraft and to deliver the “arriving” noncitizen for inspection). Section
1225 also explicitly addresses “stowaways” and “crewmen,” terms that likewise suggest
arrival at a border or port of entry. 	See id. § 1225(a)(2) (“An arriving alien who is a
stowaway is not eligible to apply for admission or to be admitted shall be ordered removed
upon inspection by an immigration officer.”); id. § 1225(a)(3) (“All aliens (including alien
crewmen) who are applicants for admission or otherwise seeking admission or readmission
to or transit through the United States shall be inspected by immigration officers.”).
As relevant here, § 1225(b)(2)(A) provides 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 for a proceeding under section 1229a of this title.” Id. § 1225(b)(2)(A). Chief
Judge DeGiusti recently held “that § 1225(b)(2)(A) unambiguously requires that an
‘applicant for admission’ also be ‘seeking admission’ for the section to control,” and
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“noncitizens ‘seeking admission’ are those who have not effected an entry into the United
States.” Colin, 2025 WL 3645176, at *4 (citation modified). Judge Jones similarly ruled
that “based on § 1225(b)(2)(A)’s plain language,” “the section only applies when a
noncitizen ‘applicant for admission’ is actively ‘seeking admission’ into the United States.”
Escarcega, 2025 WL 3243438, at *2; see also Martinez Diaz, 2025 WL 3296310, at *3
(same). 	Chief Judge DeGiusti and Judge Jones further ruled that if all “applicants for
admission” are also “seeking admission,” as Respondents contend, then § 1225(b)(2)(A)’s
inclusion of the phrase “seeking admission” would be redundant and superfluous. Colin,
2025 WL 3645176, at *4; Martinez Diaz, 2025 WL 3296310, at *2. “Courts should avoid
statutory interpretations that make any part of the statute superfluous.” 	Colin, 2025 WL
3645176, at *4 (citation modified); see also Martinez Diaz, 2025 WL 3296310, at *2
(same).
The undersigned similarly interprets the term “seeking admission” to narrow the
category of “applicants for admission” subject to mandatory detention under the provision.
“‘Seeking’ means ‘asking for’ or ‘trying to acquire or gain.’ Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/seeking.” 	Lepe v. Andrews, No. 25-CV-
01163, 2025 WL 2716910, at *5 (E.D. Cal. Sep. 23, 2025). 	“The plain meaning of the
phrase ‘seeking admission’ requires that the applicant must be presently and actively
seeking lawful entry into the United States. 	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.” Caballero, 2025 WL 2977650,
at *6 (citation modified); accord Colin, 2025 WL 3645176, at *4-5. 	As such, the
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undersigned best understands mandatory detention under § 1225(b)(2)(A) to apply to
arriving noncitizens actively seeking admission at or near the border or port of entry.
This analysis is not impacted by Petitioner’s application for asylum and withholding
of removal. See, e.g., Issahaku v. Olson, No. CV 25-180, 2025 WL 3539290, at *5 (E.D.
Ky. Dec. 10, 2025) (holding petitioner’s pending asylum application was not dispositive
because she did not apply for asylum when she was arriving to the United States, which
would make her subject to § 1225(b)(1)); Mohammed v. Olson, No. 25-CV-02404, 2025
WL 3541819, at *4 (S.D. Ind. Dec. 10, 2025) (applying § 1226(a) to petitioner with active
asylum application previously on release until recent re-detention); Cruz Valera v.
Baltazar, No. 25-CV-03744, 2025 WL 3496174, at *3 (D. Colo. Dec. 5, 2025) (applying
§ 1226(a) to petitioner even though he had previously filed applications for asylum and
cancellation of removal, which were withdrawn, and for withholding of removal, which
was denied); Medina-Herrera, 2025 WL 3460946, at *4 (holding petitioner’s “application
to cancel his 2024 removal does not transform him into a person ‘seeking admission’ within
§ 1225(b)(2)’s context”); Martinez Diaz, 2025 WL 3296310, at *2 & *2 n.3 (rejecting
respondents’ argument that a petitioner was “seeking admission” because “he is engaged
to marry a United States citizen” after his arrest because “the phrase ‘seeking admission’
only applies to noncitizens who are presently and actively seeking lawful entry into the
United States at the border”); see also Chingo v. Stamper, No. 25-CV-00590, 2025 WL
3513833, at *4 (D. Me. Dec. 8, 2025) (“Rather, a noncitizen ‘already in the country pending
the outcome of removal proceedings’ is subject to discretionary detention under §1226(a).”
(quoting Jennings, 83 U.S. at 289)).
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Finally, § 1225’s place in the overall statutory scheme supports the undersigned’s
reading. See King, 576 U.S. at 486 (holding that courts are meant to “construe statutes, not
isolated provisions” (citation modified)). 	That Congress separated removal of “arriving
aliens” from its more general section for “Apprehension and detention of aliens” in § 1226,
implies that Congress enacted § 1225 for a specific, limited purpose. This interpretation is
also consistent with the Supreme Court’s guidance in Jennings that § 1225(b)(1) and (b)(2)
“authorizes the Government to detain certain aliens seeking admission into the country”
and § 1226(a) and (c) “authorizes the Government to detain certain aliens already in the
country pending the outcome of removal proceedings.” 583 U.S. at 289. That delineation
by Congress aligns with the Supreme Court’s recognition that “the distinction between an
alien who has effected entry into the United States and one who has never entered runs
throughout immigration law.” Zadvydas, 533 U.S. at 693 (citation modified).
After considering the text and statutory framework, the undersigned concludes the
terms “applicant for admission” and “seeking admission” in § 1225(b)(2)(A) do not cleanly
apply to noncitizens like Petitioner. 	He has resided in the United States and was not
arrested when attempting to cross the border or enter the country through a port. 	Pet. at
12. 	“As § 1225(b)(2)(A) applies only to those noncitizens who are actively ‘seeking
admission’ to the United States, it cannot, according to its ordinary meaning, apply to [the
petitioner], because he has already been residing in the United States for several years.”
Colin, 2025 WL 3645176, at *5 (quoting Lopez Benitez v. Francis, 795 F. Supp. 3d 475,
489 (S.D.N.Y. 2025)). 	Ultimately, a textual analysis of the immigration framework
suggests Petitioner’s circumstances align with § 1226(a), not § 1225(b)(2)(A).
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2. 	Legislative history and recent amendment of § 1226
The legislative history and recent amendment of § 1226 also indicate the statute
applies to noncitizens who reside in the United States but previously entered without
inspection. First, § 1226(a)’s predecessor statute, 8 U.S.C. § 1252(a)(1),
governed deportation proceedings for all noncitizens arrested within the
United States. See 8 U.S.C. § 1252(a)(1) (1994) (“Pending a determination
of deportability any noncitizen may, upon warrant of the Attorney General,
be arrested and taken into custody.”); Hose v. I.N.S., 180 F.3d 992, 994 (9th
Cir. 1999) (“A deportation hearing was the ‘usual means of proceeding
against a noncitizen already physically in the United States.’”). 	This
predecessor statute, like Section 1226(a), included discretionary release on
bond. 	See § 1252(a)(1) (1994) (“Any such noncitizen taken into custody
may, in the discretion of the Attorney General be continued in custody or be
released under bond.”). Upon passing [the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”)], Congress declared that
the new Section 1226(a) “restates the current provisions in the predecessor
statute regarding the authority of the Attorney General to arrest, detain, and
release on bond a noncitizen who is not lawfully in the United States.” H.R.
Rep. No. 104-469, pt. 1, at 229; see also H.R. Rep. No. 104-828, at 210
(same).
Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1260 (W.D. Wash. 2025) (citation modified);
see also Pizarro Reyes v. Raycraft, No. 25-cv-12546, 2025 WL 2609425, at *7 (E.D. Mich.
Sep. 9, 2025) (“If § 1226(a) adopted the predecessor[] [statute]’s authority to release
noncitizens unlawfully present in the United States on bond, then [petitioner] is entitled to
discretionary release on bond as well.”).
Respondents assert this interpretation undermines the purpose of IIRIRA and
“effectively repeals” certain provisions of the law. Resp. at 23-25. 	The undersigned,
though, agrees with Judge Jones’ recent ruling in Urbina Garcia, rejecting Respondents’
identical assertions and holding that “when Congress enacted the IIRIRA, it did not fully
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disrupt the old system, including the system of detention and release on bond.” 2025 WL
3516071, at *4 (quoting Hernandez v. Baltazar, No. 25-CV-3094, 2025 WL 2996643, at
*7 (D. Colo. Oct. 24, 2025)).
Further, contrary to Respondents’ assertions, see Resp. at 25-30, Congress’ recent
amendment 	to 	§ 1226 	renders 	the 	government’s 	interpretation 	of 	§ 	1225(b)(2)(A)
superfluous. Earlier this year, Congress amended § 1226 via the Laken Riley Act, Pub. L.
No.119-1, 139 Stat. 3 (2025). The Laken Riley Act added § 1226(c)(1)(E), which mandates
detention for noncitizens who
• 	are inadmissible under § 1182(a)(6)(A) (noncitizens present in the
United States without being admitted or paroled, like Petitioner),
§ 1182(a)(6)(C) (misrepresentation), or § 1182(a)(7) (lacking valid
documentation) and
• 	have been arrested for, charged with, or convicted of certain crimes.
8 U.S.C. § 1226(c)(1)(E)(i)-(ii).
Considering that § 1182(a)(6)(A)(i) specifically refers to “alien[s] present in the
United States without being admitted or paroled,” and § 1226(c)(1)(E) requires detention
without bond of these individuals if they have also committed a felony, the new statutory
exception would be superfluous if § 1225(b)(2) already authorized their mandatory
detention. 	That is, because an “alien present in the United States” without admittance
would be unlikely to prove that they are “clearly and beyond a doubt entitled to be
admitted,” ICE would never need to rely on § 1226(c)(1)(E) to detain them. See Marx v.
Gen. Rev. Corp., 568 U.S. 371, 386 (2013) (“The canon against surplusage is strongest
when an interpretation would render superfluous another part of the same statutory
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scheme.” (citation modified)). 	District courts have noted that adoption of Respondents’
interpretation “would largely nullify a statute Congress enacted this very year and must be
rejected.” 	Pizarro Reyes, 2025 WL 2609425, at *5 (quoting Gomes v. Hyde, No. 25-cv-
11571, 2025 WL 1869299, at *7 (D. Mass. July 7, 2025) (citation modified)).
The undersigned’s recommended interpretation is consistent with numerous district
courts that have ruled on this issue. 	See, e.g., Menjivar Sanchez v. Wofford, No. 25-cv-
01187, 2025 WL 2959274, at *5 (E.D. Cal. Oct. 17, 2025) (noting “application of section
1225(b)(2)(A) to noncitizens already in the country would render superfluous a recent
amendment to section 1226(c).”); Alvarez Puga v. Assistant Field Off. Dir., Krome N. Serv.
Processing Ctr., No. 25-24535-CIV, 2025 WL 2938369, at *5 (S.D. Fla. Oct. 15, 2025)
(“If Respondents’ interpretation of section 1225 is correct—that the mandatory detention
provision in section 1225(b)(2)(A) applies to all noncitizens present in the United States
who have not been admitted—then Congress would have had no reason to enact section
1226(c)(1)(E).”); Quispe v. Crawford, No. 25-cv-1471, 2025 WL 2783799, at *5 (E.D. Va.
Sep. 29, 2025) (same); Maldonado v. Olson, No. 25-cv-3142, 2025 WL 2374411, *12 (D.
Minn. Aug. 15, 2025) (same).
3. 	The BIA’s current and historical interpretations of
§ 1225(b)(2)(A) and § 1226(a)
On September 5, 2025, the Board of Immigration Appeals (“BIA”) ruled that an
immigration judge lacks authority to consider a bond request for any person who is present
in the United States without admission, treating such person as an applicant for admission
who is seeking admission and subject to mandatory detention under § 1225(b)(2)(A).
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Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 220, 229 (BIA 2025). The BIA in Hurtado
concluded that § 1225(b)(2)(A) covers inadmissible noncitizens who lived unlawfully in
the United States for longer than two years without apprehension. Id. at 229.
The undersigned reaches a different conclusion from the BIA’s statutory analysis in
Hurtado. Notably, this Court is not bound by the BIA’s interpretation of § 1225(b)(2)(A).
See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 413 (2024) (“Courts need not and
under the APA may not defer to an agency interpretation of the law simply because a statute
is ambiguous.” (citation modified)). 	In Hurtado, the BIA characterized as a “legal
conundrum” the idea that a noncitizen’s continued unlawful presence means they are not
“seeking admission.” 29 I. & N. Dec. at 221. However, a noncitizen’s continued presence
cannot constitute “seeking admission” when that noncitizen never attempted to obtain
lawful status. 	The BIA also found that § 1225(b)(2)(A) does not render superfluous the
Laken Riley Act. 	Hurtado, 29 I. & N. Dec. at 222. However, both § 1225(b)(2)(A) and
§ 1226(c)(1)(E) mandate detention for inadmissible noncitizens, and whether one includes
additional conditions for such detention does not alter the redundant impact.
The BIA’s decision in Hurtado reflects a sharp pivot from longstanding immigration
practice and policies. 	For almost three decades, most noncitizens who entered without
inspection were placed in standard removal proceedings and received bond hearings, unless
subject to an exception. Months after passage in 1996 of the current immigration statutory
scheme, the Department of Justice issued implementing regulations about the IIRIRA and
explained that “despite being applicants for admission, aliens who are present without
having been admitted or paroled (formerly referred to as aliens who entered without
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inspection) will be eligible for bond and bond redetermination.” 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) (citation modified).
Decades of ICE practices lend support to Petitioner’s entitlement to a bond redetermination
hearing under § 1226(a) “because the longstanding practice of the government—like any
other interpretive aid—can inform a court’s determination of what the law is.” 	Loper
Bright Enters., 603 U.S. at 386 (citation modified). 	Respect for Executive Branch
interpretations of statutes may be “especially warranted” when the interpretation “was
issued roughly contemporaneously with enactment of the statute and remained consistent
over time.” Id.
Accordingly, the government’s historical application of immigration laws also
supports the undersigned’s conclusion that § 1226(a) applies to Petitioner. 	Again, this
analysis aligns with other courts that have recently addressed this issue. See, e.g., Jiménez
García v. Raybon, No. 25-cv-13086, 2025 WL 2976950, at *4 (E.D. Mich. Oct. 21, 2025)
(finding that “ICE’s decision to upend 30 years of reasoned statutory interpretation is not
persuasive”); Sabi Polo v. Chestnut, No. 25-CV-01342, 2025 WL 2959346, at *11 (E.D.
Cal. Oct. 17, 2025) (“Accordingly, the Court finds the well-reasoned decisions of the many
district courts that have rejected the Government’s expansive view of 1225(b)(2) far more
persuasive than the new BIA ruling, a ruling at odds with its prior decisions and DHS’s
actions over the past thirty years.” (quoting Salcedo Aceros v. Kaiser, No. 25-cv-06924,
2025 WL 2637503, at *12 (N.D. Cal. Sep. 12, 2025)).
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4. 	Petitioner’s previous release pursuant to § 1226
Petitioner was detained and later released on his own recognizance under § 1226 in
April 2023. Doc. 1-2; see also Pet. at 12. In addition to the foregoing statutory analysis,
Petitioner’s current detention should be governed by § 1226(a) because he was arrested in
the United States and previously released on his own recognizance pursuant to § 1226(a)
more than two years ago. See Chen v. Soto, No. CV 25-17198, 2025 WL 3527239, at *3
(D.N.J. Dec. 9, 2025) (granting habeas relief and ordering respondents to provide a bond
hearing for petitioner previously released on his own recognizance pursuant to § 1226
because previously treating petitioner as subject to detention under § 1226 “defeats
respondents’ new position that a different statutory provision applies”); see also, e.g.,
Sanchez v. Arnott, No. 25-CV-3373, 2025 WL 3632721, at *6 (W.D. Mo. Dec. 15, 2025)
(granting habeas relief and ordering respondents to provide a bond hearing for a petitioner
previously released on his own recognizance pursuant to § 1226); Boutta v. Raycraft, No.
25-CV-1559, 2025 WL 3628232, at *15 (W.D. Mich. Dec. 15, 2025) (same); Bello Chacon
v. Hermosillo, No. 25-CV-02299, 2025 WL 3562666, at *2 (W.D. Wash. Dec. 12, 2025)
(finding petitioner’s prior release on recognizance pursuant to § 1226 indicates that he
“was—and continues to be—subject to discretionary detention under § 1226”).5
5 The undersigned acknowledges that some courts have ordered immediate release for
petitioners previously released on their own recognizance. 	See, e.g., Salinas v. Woosley,
No. 25-CV-121, 2025 WL 3243837, at *5 (W.D. Ky. Nov. 20, 2025) (ordering immediate
release for petitioner who had previously been released on her own recognizance shortly
after entering the United States and requiring a bond hearing if she is later re-arrested and
detained under § 1226(a)); Ramos v. Rokosky, No. 25CV15892, 2025 WL 3063588, at *9
(D.N.J. 	Nov. 	3, 	2025) 	(ordering 	immediate 	release 	for 	petitioner 	detained 	under
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5. 	Conclusion
In sum, the undersigned agrees with Chief Judge DeGiusti, Judge Jones, and the
myriad district courts that have recently applied § 1226(a) to govern detention of
noncitizens like Petitioner. Respondents’ arguments and the BIA’s decision to pivot from
decades of consistent statutory interpretation and to mandate Petitioner’s detention under
§ 1225(b)(2)(A) are contrary to many courts that have recently addressed this question of
statutory interpretation. 	In the Western District of Oklahoma, Chief Judge DeGiusti and
Judge Jones have ruled in five separate habeas challenges that § 1226(a) governs petitioners
who are already in the country.6 Judge Jones further held that because § 1225(b)(2)(A)
was “unambiguous” in support of the petitioner’s interpretation, he did not need to address
the 	statute’s 	legislative 	purpose, 	historical 	interpretation, 	or 	the 	Laken 	Riley 	Act.
Escarcega, 2025 WL 3243438, at *3; Martinez Diaz, 2025 WL 3296310, at *3. 	Judge
Jones noted, though, that “even if the Court did find § 1225(b)(2)(A) ambiguous, the
§ 1225(b)(2) who had previously been released pursuant to § 1226 and requiring a bond
hearing if petitioner is later re-arrested and detained under § 1226(a)). The undersigned,
though, agrees with those courts deciding the proper relief for a petitioner is a bond hearing
under § 1226(a) in front of an IJ. See Chen, 2025 WL 3527239, at *3-4.
6 In addition to orders by Chief Judge DeGiusti and Judge Jones applying § 1226(a) to
similarly 	situated 	petitioners, 	numerous 	Reports 	and 	Recommendations 	from 	the
undersigned and other Magistrate Judges in this district have recommended the same relief
with similar analysis. See, e.g., Alvarado Montoya v. Holt, No. CIV-25-1231-JD, Doc. 11
(W.D. Okla Nov. 4, 2025); Cortes v. Holt, No. CIV-25-1176-SLP, Doc. 11 (W.D. Okla.
Nov. 5, 2025); Munoz v. Holt, No. CIV-25-1190-G, Doc. 10 (W.D. Okla. Nov. 10, 2025);
Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, Doc. 10 (W.D. Okla. Nov. 13, 2025);
Valdez v. Holt, No. CIV-25-1250-R, Doc. 11 (W.D. Okla. Nov. 20, 2025). 	Chief Judge
DeGiusti and Judge Jones are the only District Judges of this Court who have ruled.
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section’s legislative purpose and historical interpretations do not support Respondents’
position.” Escarcega, 2025 WL 3243438, at *3 n.5 (citation modified).
Further, other district courts in the Tenth Circuit have uniformly applied § 1226(a)
in recent habeas challenges akin to Petitioner’s. 	See Pu Sacvin v. De Anda-Ybarra, No.
25-cv-1031, 2025 WL 3187432, at *3 (D.N.M. Nov. 14, 2025) (“Consistent with the
majority of district courts to address the issue, this Court finds that § 1226 governs here.”);
see also, e.g., Cruz Valera, 2025 WL 3496174, at *3 (same); Cortez-Gonzalez v. Noem,
No. 25-CV-00985, 2025 WL 3485771, at *5 (D.N.M. Dec. 4, 2025) (same); Espinoza Ruiz
v. Baltazar, No. 25-CV-03642, 2025 WL 3294762, at *2 (D. Colo. Nov. 26, 2025) (same);
Morales Lopez v. Baltazar, No. 25-CV-3078, 2025 WL 3251145, at *1 (D. Colo. Nov. 21,
2025) (same); Barreno v. Baltasar, No. 025-CV-03017, 2025 WL 3190936, at *1-2 (D.
Colo. Nov. 14, 2025) (same); Arauz v. Baltazar, No. 25-CV-03260, 2025 WL 3041840, at
*3 (D. Colo. Oct. 31, 2025) (same); Hernandez v. Baltazar, No. 25-CV-3094, 2025 WL
2996643, at *7 (D. Colo. Oct. 24, 2025) (same); Caballero v. Baltazar, No. 25-CV-03120,
2025 WL 2977650, at *8 (D. Colo. Oct. 22, 2025) (same); Gutierrez v. Baltasar, No. 25-
CV-2720, 2025 WL 2962908, at *4-5 (D. Colo. Oct. 17, 2025) (same); Salazar v. Dedos,
No. 25-cv-00835, 2025 WL 2676729, at *4 (D.N.M. Sep. 17, 2025) (same).
Outside this circuit, the Seventh Circuit Court of Appeals recently ruled on a motion
to stay pending appeal that based on a “preliminary record” the government respondents
“are not likely to succeed on the merits of their argument that those individuals, whom ICE
arrested 	in 	Chicago 	without 	a 	warrant, 	are 	subject 	to 	mandatory 	detention 	under
§ 1225(b)(2)(A).” 	Castanon-Nava v. U.S. Dep’t of Homeland Sec., --- F.4th---, No. 25-
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3050, 2025 WL 3552514, at *9 (7th Cir. Dec. 11, 2025). The Seventh Circuit noted that
Congress “could easily have included noncitizens who are ‘seeking admission’ within the
definition [of ‘applicants for admission’] but elected not to do so.” Id.
In addition, an “overwhelming, lopsided majority” of district courts around the
country have applied § 1226(a) to govern detention for noncitizens like Petitioner.
Mercado v. Francis, --- F. Supp. 3d ---, 2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 2025)
(noting Respondents’ interpretation of § 1225 and § 1226 “has been challenged in at least
362 cases in federal district court” and “challengers have prevailed, either on a preliminary
or final basis, in 350 of those cases decided by over 160 different judges sitting in about
fifty different courts spread across the United States”); Sabi Polo, 2025 WL 2959346, at
*11 (“This Court . . . joins the numerous other district courts that have rejected the
government’s recent interpretation of the relationship between § 1225 and § 1226.”);
Buenrostro-Mendez v. Bondi, No. H-25-3726, 2025 WL 2886346, at *3 (S.D. Tex. Oct. 7,
2025) (“As almost every district court to consider this issue has concluded, the statutory
text, the statute’s history, Congressional intent, and § 1226(a)’s application for the past
three decades support finding that § 1226 applies to these circumstances.” (citation
modified)).
Finally, the undersigned has considered Respondents’ citations to recent cases
adopting their position that noncitizens like Petitioner fall under § 1225(b)(2)(A) despite
residing in the United States. See, e.g., Resp. at 8 n. 2 (collecting cases). For the reasons
previously discussed, the undersigned respectfully disagrees with the textual analysis and
statutory interpretation by these district courts about who is an “applicant for admission”
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and “seeking admission” under § 1225(b)(2)(A) to trigger mandatory detention. 	The
undersigned instead agrees with Chief Judge DeGiusti and Judge Jones of this Court and
the overwhelming number of other courts that have recently addressed this question.
After carefully analyzing the statute’s text, structure, and history, along with
longstanding immigration practices and Petitioner’s prior release on his own recognizance
under § 1226(a), the undersigned recommends that the Court apply § 1226(a) to govern
Petitioner’s current detention. As such, Petitioner is entitled under § 1226(a) to a prompt
individualized bond hearing before a neutral IJ. 	See, e.g., Alvarez Puga, 2025 WL
2938369, at *5 (finding “that section 1226(a) and its implementing regulations govern
[p]etitioner’s detention, not section 1225(b)(2)(A)” and that petitioner “is entitled to an
individualized bond hearing as a detainee under section 1226(a)”). 	Accordingly, the
undersigned recommends that the Court grant the Petition in part and order Respondents
to provide Petitioner with a bond hearing under § 1226(a) within five business days or
otherwise release him if he has not received a lawful bond hearing within that period.
C. 	The Court should decline to address Petitioner’s due process claim.
Finally, 	Petitioner 	argues 	that 	his 	continued 	detention 	without 	a 	bond
redetermination hearing violates his rights to due process. Pet. at 14. If the Court grants
Petitioner’s requested relief for a bond redetermination hearing under § 1226(a), the
undersigned recommends that the Court decline to decide the merits of the due process
claim, and allow Petitioner to renew that claim if Respondents do not provide him with a
bond hearing or release him within the ordered time. See, e.g., Colin, 2025 WL 3645176,
at *6 n.3 (“Because the Court grants the relief the Petitioner requests based on the
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applicability of 8 U.S.C. § 1226(a), the Court declines to decide the merits of Petitioner’s
due process claim.”); Pizarro Reyes, 2025 WL 2609425, at *8 (“The Court will decline to
decide the merits of [petitioner’s] due process claim given that the Court will grant the
relief he seeks based on its interpretation of the applicability of § 1226(a).”); Alvarez Puga,
2025 WL 2938369, at *6 (citing Pizarro Reyes and declining to decide the merits of
petitioner’s due process claim); Buenrostro-Mendez, 2025 WL 2886346, at *3 n.4 (same).
V. 	Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court GRANT in
part the Petition for habeas relief by ordering Respondents to provide Petitioner with a
bond hearing under 8 U.S.C. § 1226(a) within five business days or otherwise release
Petitioner if he has not received a lawful bond hearing within that period. 	The undersigned
further recommends that the Court order Respondents to certify compliance by filing a
status report within seven business days of the Court’s order.
The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. Any objection must be filed not later than December 31, 2025. See
id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). If a party wishes to respond to the other party’s
objections, such response must be filed not later than January 6, 2026. See Fed. R. Civ.
P. 72(b)(2). Failure to object timely waives the right to appellate review of the factual and
legal issues addressed in this Report and Recommendation. 	See Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 22 nd day of December, 2025.
Case 5:25-cv-01433-SLP Document 10 Filed 12/22/25 Page 29 of 29