Brena Escobedo v. Holt et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JORGE DAVID BRENA 	)
ESCOBEDO, 	)
)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-25-1553-R
)
RUSSELL HOLT, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Jorge David Brena Escobedo, a noncitizen,1 seeks a writ of
habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States District Judge
David L. Russell referred the case to the undersigned Magistrate Judge for
initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. The Government
responded, Doc. 7, and Petitioner replied, Doc. 8. So the matter is at issue.
For the reasons below, the undersigned recommends the Court grant
Petitioner’s 	habeas 	petition, 	in 	part, 	and 	order 	Respondents 	to 	provide
1 	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)).
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within seven business
days or otherwise release Petitioner if he has not received a lawful bond
hearing within that period.
I. 	Factual background and procedural history.
Petitioner is a citizen of Mexico who entered the country in 2005. Doc. 1,
at 11. He has been detained since November 2025. Id. at 5.
Petitioner states ICE is holding him without bond because Immigration
Judges (IJs) are constrained by the Board of Immigration Appeals’ (BIA)
decision in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). Id. at 7-
8, 11-12.3 ICE has charged Petitioner as someone who “entered the United
States without admission or inspection” under 8 U.S.C. § 1182(a)(6)(A)(i). Id.
at 11; see § 1182(a)(6)(A)(i) (“An alien 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, is inadmissible.”).
II. 	Petitioner’s claims.
Petitioner raises two grounds for relief:
3 	In Hurtado, the BIA held that those who entered the country without
admission or parole are ineligible for a bond hearing and are detained under 8
U.S.C. § 1225(b)(2)(A). 29 I. & N. Dec. at 216. Hurtado is not binding on this
Court. 	See 	Loper 	Bright 	Enters. 	v. 	Raimondo, 	603 	U.S. 	369, 	413 	(2024)
(“[C]ourts 	need 	not 	and 	under 	the 	APA 	may 	not 	defer 	to 	an 	agency
interpretation of the law simply because a statute is ambiguous.”).
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Ground One: His mandatory detention under 8 U.S.C. § 1225(b)(2)
does not apply to him as he is detained under § 1226(a), and
Respondents are violating the Immigration and Naturalization Act
(INA) through his continued detention;
Ground Two: Respondents are violating his due process rights by
detaining 	him 	“without 	a 	bond 	redetermination 	hearing 	to
determine whether he is a flight risk or danger to others.”
Doc. 1, at 12-13.
Petitioner 	asks 	the 	Court 	to 	issue 	a 	show 	cause 	order 	ordering
Respondents to show cause why his habeas petition should not be granted
within three days4, issue a writ requiring his release or, in the alternative,
provide Petitioner with “a bond hearing pursuant to 8 U.S.C. § 1226(a) within
five days” and declare his detention unlawful. Id. at 13-14. He also seeks
attorneys’ fees and costs under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412. Id. at 14.
III. 	Standard of review.
An application for a writ of habeas corpus “is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.
475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “is in
4 	Petitioner’s request was rendered moot by the Court’s order directing
Respondents to respond to the petition. See Doc. 5.
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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
should “seek[] to afford the [statute’s] terms their ordinary meaning at the time
Congress adopted them” and to “exhaust all the textual and structural clues
bearing on the meaning.” Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021)
(internal quotation marks omitted). This Court’s “‘sole function’ is to apply the
law as the Court finds it, . . . not defer to some conflicting reading the
government might advance.” Id. (internal citation omitted); see also Oklahoma
v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11 (10th Cir.
2024) (stating that the court “must independently interpret the statutory
phrase irrespective of the parties’ positions”), judgment vacated on other
grounds, 145 S. Ct. 2837 (2025).
IV. 	Discussion.
A. 	The Court has jurisdiction to consider the petition.
Respondents maintain Petitioner’s argument is jurisdictionally barred.
Doc. 7, at 17. The undersigned disagrees.
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Section 1252(a)(5) provides that “a petition for review filed with an
appropriate court of appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9)
provides another bar to judicial review, specifically for “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” “[e]xcept as otherwise provided in this section.”
Id. § 1252(b)(9). Section 1252(b)(9) is a “jurisdiction-stripping ‘zipper clause,’”
which 	“channel[s] 	review 	of 	all 	‘decisions 	and 	actions 	leading 	up 	to 	or
consequent upon final orders of deportation’ in the courts of appeal, following
issuance of an order of removal.” Mukantagara v. DHS, 67 F.4th 1113, 1115
(10th Cir. 2023) (quoting Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482-85 (1999)).
Section 1252(g) provides that “no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders.” 8 	U.S.C. § 	1252(g). 	The Court 	reads § 	1252(g)
narrowly, Reno, 525 U.S. at 482, as it does not cover “all claims arising from
deportation proceedings” or impose “a general jurisdictional limitation.” Id.
Instead, it “applies only to three discrete actions that the Attorney General
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may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases,
or execute removal orders.’” Id.
The 	Court 	has 	jurisdiction 	over 	the 	petition 	as 	Petitioner 	is 	only
challenging the way Respondents are conducting his detention—the lack of a
bond determination. See Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir.
2006) 	(holding 	that 	§ 	1252(a)(5) 	does 	“not 	eliminate 	a 	district 	court’s
jurisdiction to review habeas petitions challenging an alien’s detention” and
affirming district court’s finding that it had jurisdiction to review a habeas
petition challenging “DHS’s continued detention [of petitioner] without bond
or without providing a bond hearing”).
Likewise, § 1252(b)(9) does not bar this Court’s review. Petitioner does
not ask the Court to review a removal order (which has not been issued), or
Respondents’ decision to detain him or seek his removal. And, by addressing
the petition, the Court is not reviewing any part of Respondents’ process for
determining Petitioner’s eligibility for removal. See Jennings v. Rodriguez, 583
U.S. 	281, 	294-95 	(2018) 	(holding 	that 	§ 	1252(b)(9) 	“does 	not 	present 	a
jurisdictional bar” when “detained aliens” “are not asking for review of an order
of removal; they are not challenging the decision to detain them in the first
place or to seek removal; and they are not . . . challenging any part of the
process by which their removability will be determined”); see also Caballero v.
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Baltazar, 2025 WL 2977650, at *4 (D. Colo. Oct. 22, 2025) (finding § 1252(b)(9)
does not present a jurisdictional bar to a noncitizen challenging “the legality of
his continued detention without a bond hearing”); cf. Nielsen v. Preap, 586 U.S.
392, 402 (2019) (holding that § 1252(b)(9) did not strip the court of jurisdiction
to address the issue of mandatory detention without bond under § 1226(c)).
Finally, 	§ 	1252(g) 	does 	not 	bar 	this 	Court’s 	review 	of 	Petitioner’s
detention. 	Respondents 	argue 	§ 1252(g)’s 	language 	strips 	this 	Court 	of
jurisdiction 	to 	review 	any 	claim 	arising 	from 	the 	decision 	to 	commence
proceedings against Petitioner—including the “basis” for that decision. Doc. 9,
at 16. But the Supreme Court finds this interpretation “implausible” because
“the mention of three discrete events along the road to deportation was [not] a
shorthand way of referring to all claims arising from deportation proceedings.”
Reno, 525 U.S. at 482. And, in Jennings, the Supreme 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.” 583 U.S. at 294. Because Petitioner is only challenging
his continued detention without a bond determination hearing and not the
start of the removal proceeding itself, his claim falls outside the narrow
jurisdictional limitations of § 1252(g). See Gonzalez Cortes v. Holt, No. CIV-25-
1176-SLP, 2026 WL 147435, at *3 (W.D. Okla. Jan. 20, 2026) (finding § 1252(g)
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did not bar the petitioner’s claim that ICE was detaining him without a bond
hearing because it did “not ‘arise from’ and [was] not directly connected to the
commencement of removal proceedings, the adjudication of removability, or
the execution of any removal order,” rather, the petitioner was challenging “the
legality of his continued detention under the statutory framework governing
custody and bond determinations”); Gutierrez v. Baltasar, 2025 WL 2962908,
at *3 (D. Colo. Oct. 17, 2025) (finding § 1252(g) did not deprive the court of
jurisdiction “to consider the narrow legal questions of whether Mr. Gutierrez’s
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”).5
B. 	Section 1226 governs Petitioner’s detention.
Petitioner asserts that Respondents have violated the INA by detaining
him under the mandatory detention provision in § 1225(b)(2). Doc. 1, at 12-13.
He argues this provision does not apply to him because he had previously
5 	This Court, consistent with other district courts throughout the country,
has dispensed with arguments by the Government that 8 U.S.C. § 1252(a)(5),
(b)(9) and (g) deprive the Court of jurisdiction when a noncitizen challenges
their detention under § 1225(b)(2)(a). See Gonzalez Cortes, 2026 WL 147435,
at *2-3; Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at *1
(W.D. Okla. Jan. 2, 2026); see also Hasan v. Crawford, 800 F. Supp. 3d 641,
650 n.7 (E.D. Va. Sept. 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)).
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entered and had been residing in the United States for over twenty-five years.
See id. at 11. So, as someone who is not a recent arrival seeking inspection and
admission 	into 	the 	United 	States, 	Petitioner 	asserts 	his 	detention 	is
governed—not by § 1225(b)(2)—but by § 1226(a). Id. at 10-11.
The Court’s inquiry “begins with the statutory text” and ends there if it
“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). 	“[O]ftentimes 	the
‘meaning—or ambiguity—of certain words or phrases may only become evident
when placed in context.’” Id. (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000)). “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. (quoting Brown & Williamson, 529
U.S. at 133).
Section 1225(b)(2)(a) provides that:
[I]n 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 1229(a) of [Title 8].
8 U.S.C. § 1225(b)(2)(a). This section “authorizes the Government to detain
certain aliens seeking admission into the country.” Jennings, 583 U.S. at 289;
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see also Pizarro Reyes v. Raycraft, 2025 WL 2609425, at *5 (E.D. Mich. Sept. 9,
2025) (“[Section] 1225 governs removal proceedings for ‘arriving aliens.’”).
Section 1226(a), on the other hand, “authorizes the Government to
detain certain aliens already in the country pending the outcome of removal
proceedings.” Jennings, 583 U.S. at 289 (emphasis added). “Section 1226(a)
sets out the default rule: The Attorney General may issue a warrant for the
arrest and detention of an alien ‘pending a decision on whether the alien is to
be removed from the United States.’” Id. (quoting § 1226(a)).6 “‘Except as
provided in [Section 1226(c)],’ the Attorney General ‘may release’ an alien
detained under § 1226(a) ‘on . . . bond’ or ‘conditional parole.’” Id. (quoting
§ 1226(a)(1)-(2)). Courts have described § 1226(a) as a “catchall” provision
which “capture[s] noncitizens who fall outside of the specified categories” of
§ 1225. Pizarro Reyes, 2025 WL 2609425, at *5.
The resolution of Petitioner’s claim turns on whether he is a noncitizen
“seeking admission” as that phrase is used in § 1225, or an arrested and
6 	The 	Jennings 	Court 	acknowledged 	§ 	1226 	as 	the 	default 	rule 	for
detaining 	and 	removing 	noncitizens 	“already 	present” 	in 	the 	country.
Jennings, 583 U.S. at 303. The Court did not, however, specify whether the
“already present” rule applied only to persons who had once entered the
country lawfully—as Respondents argue—or to all noncitizens present in the
country whether lawfully admitted—as Petitioner argues. Because Jennings is
not definitive, the Court continues its analysis.
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detained noncitizen who—having never sought to obtain lawful status—falls
under § 1226 and may be released on conditional parole or bond pending the
outcome of his removal proceeding.
Under ICE’s new internal guidance:
An ‘applicant for admission’ is an 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. Effective
immediately, it [sic] the position of DHS that such aliens are
subject 	to 	detention 	under 	[§ 	1225(b)(2)(A)] 	and 	may 	not 	be
released from ICE custody except by [§ 1182] parole. . . . For
custody purposes, these aliens are now treated in the same manner
that ‘arriving aliens’ have historically been treated. The only aliens
eligible for a custody determination and release on recognizance,
bond, 	or 	other 	conditions 	under 	[§ 	1226(a)] 	during 	removal
proceed[ings] are aliens admitted to the United States . . . with the
exception 	of 	those 	subject 	to 	mandatory 	detention 	under
[§ 1226(c)].
Savane v. Francis, 801 F. Supp. 3d 483, 490 (S.D.N.Y. 2025) (quoting ICE
Memo: Interim Guidance Regarding Detention Authority for Applications for
Admission).
The Court begins with § 1225’s title. “[T]the title of a statute and the
heading of a section are tools available for the resolution of a doubt about the
meaning of a statute.” Dubin v. United States, 599 U.S. 110, 121 (2023)
(internal quotation marks omitted). And “a title is especially valuable where it
reinforces 	what 	the 	text’s 	nouns 	and 	verbs 	independently 	suggest.” 	Id.
(internal quotation marks and alteration omitted).
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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 clarifies that the
section governs the entrance of noncitizens to the United States. Additionally,
its subheadings all relate to “arriving” noncitizens. See, e.g., § 1225(b)(1)
(labeled “Inspection of aliens arriving in the United States and certain other
aliens who have not been admitted or paroled” and describing their immediate
removal “without further hearing or review” unless there is a claim for asylum
or a fear of persecution); § 1225(b)(2) (labeled “Inspection of other aliens” and
describing detention of noncitizens “seeking admission”); § 1225(d) (labeled
“Authority Relating to Inspections” and describing the powers of immigration
officers to search and detain vessels and “arriving aliens”). And finally, it is
located between two other sections dealing with the arrival of noncitizens:
§ 1224, “Designation of ports of entry for aliens arriving by aircraft,” and
§ 1225a, “Preinspection at foreign airports.”
Next, the Court looks at the INA’s statutory definitions. See BP Am.
Prod. Co. v. Haaland, 87 F.4th 1226, 1235 (10th Cir. 2023) (analyzing statute
by leaning “on related statutory definitions in the Royalty Management Act.”).
Section 1225(a)(1) defines an “applicant[] for admission” as:
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An 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 and including an alien who is brought to the United
States after having been interdicted in international or United
States waters)[.]
8 U.S.C. § 1225(a)(1).
Section 1101(13)(A) of United States Code Chapter 8 provides that “[t]he
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.”
Respondents contend that Petitioner and other noncitizens who have
entered the country without inspection are applicants for admission under
§ 1225(a)(1), whether or not they are passively residing in the country. Doc. 7,
at 22, 25. But while Petitioner may qualify as an “applicant for admission,”
that 	alone 	does 	not 	make 	Petitioner 	“an 	alien 	seeking 	admission.” 	See
Escarcega v. Olson, No. CIV-25-1129-J, 2025 WL 3243438, at *2 (W.D. Okla.
Nov. 20, 2025) (“[I]f all ‘applicants for admission’ are also ‘seeking admission,’
then § 1225(b)(2)(A)’s inclusion of the phrase ‘seeking admission’ would be
redundant and courts should avoid statutory interpretations that ‘make[] any
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part [of the statute] superfluous.’” (quoting Fuller v. Norton, 86 F.3d 1016, 1024
(10th Cir. 1996)).7
Section 1225(b)(2)(A) provides that:
Subject to subparagraphs (B) and (C), in the case of an alien who
is an applicant for admission, if the examining immigration officer
determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained
for a proceeding under section 1229a of this title.
8 U.S.C. § 1225(b)(2)(A). Courts interpreting this narrowing language have
thus concluded that “a noncitizen who has been present in the country for
multiple years without obtaining any 	form of citizenship is not ‘seeking
admission’ under § 1225(b)(2)(a).” Gonzalez Cortes, 2026 WL 147435, at *5; see
also Jennings, 583 U.S. at 297 (“[Section] 1225(b) applies primarily to aliens
seeking entry into the United States (‘applicants for admission’ in the language
of the statute).” (emphasis added)).
As noted, the INA defines “admission” as “the lawful entry of the alien
into the United States after inspection and authorization by an immigration
7 	This Court has rejected the argument that an “applicant for admission”
is synonymous with one “seeking admission,” relying, in part, on the Seventh
Circuit’s decision in Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th
1048, 2025 WL 3552514 (7th Cir. Dec. 11, 2025). See Gonzalez Cortes, 2026 WL
147435, at *5-6 (“The mere presence of Petitioner in the country does not mean
he is “seeking admission. . . . Accordingly, the Court does not find that
Petitioner’s circumstances fall under the plain language of § 1225(b)(2).”).
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officer.” 8 U.S.C. § 1101(a)(13)(A). “Seeking,” however, is undefined. “When a
term is undefined in a statute, [the Court] must look to its ordinary meaning.”
Rocky 	Mountain 	Wild 	v. 	Dallas, 	98 	F.4th 	1263, 	1291 	(10th 	Cir. 	2024).
“‘Dictionary definitions are useful touchstones to determine the ‘ordinary
meaning’ of an undefined statutory term.’” Id. (quoting In re Mallo, 774 F.3d
1313, 1321 (10th Cir. 2014)).
“Seeking” is the present participle of “seek,” which Merriam-Webster
defines as “to resort to,” “go to,” “to go in search of,” “look for,” “to try and
discover,” “to ask for,” “request,” “to try to acquire or gain,” “aim at,” “to make
an 	attempt,” 	or 	“try.” 	Seek, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/seeking#dictionary-entry-1 (last visited Feb. 24, 2026).
So the use of “seeking” “denotes an active and present effort.” Valverde v.
Olson, 2025 WL 3022700, at *3 (E.D. Wis. Oct. 29, 2025); see also Caballero,
2025 WL 2977650, at *6 (“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.’” (quoting Lopez-
Campos v. Raycraft, 797 F. Supp. 3d 771, 781 (E.D. Mich. Aug. 29, 2025))). As
a result, a noncitizen seeking admission is a person who, at the time of his or
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her detention, is presently pursuing lawful admission into the United States.
See Hernandez v. Baltazar, 2025 WL 2996643, at *5 (D. Colo. Oct. 24, 2025)
(“Courts have found that ‘[n]oncitizens who are just ‘present’ in the country
. . ., who have been here for years upon years and never proceeded to obtain
any 	form 	of 	citizenship[,] 	. 	. 	. 	are 	not 	‘seeking’ 	admission” 	under
§ 1225(b)(2)(A).” (quoting Lopez-Campos, 2025 WL 2496379, at *6)).
Section 1225’s placement in the overall statutory scheme reinforces this
conclusion. See, e.g., King, 576 U.S. at 486 (holding that courts are meant “to
construe statutes, not isolated provisions” (internal quotation marks omitted)).
Congress separated the removal of arriving aliens from its more general
section for “Apprehension and detention of aliens” in § 1226. This placement
implies Congress’s enactment of § 1225 was for a specific, limited purpose,
which the Supreme Court underscored in Jennings. See id. 583 U.S. at 289
(noting that § 1225(b)(1) and (b)(2) “authorize[] the Government to detain
certain aliens seeking admission into the country” and that § 1226(a) and (c)
“authorize[] the Government to detain certain aliens already in the country
pending the outcome of removal proceedings”); see also Zadvydas, 533 U.S. at
693 (“The distinction between an alien who has effected entry into the United
States and one who has never entered runs throughout immigration law. . . .
But once an alien enters the country, the legal circumstance changes, for the
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Due Process Clause applies to all ‘persons’ within the United States, including
aliens, 	whether 	their 	presence 	here 	is 	lawful, 	unlawful, 	temporary, 	or
permanent.”).
Congress’s recent amendment of § 1226 through the Laken Riley Act
(LRA) also supports the Court’s interpretation. This amendment mandates
that ICE “shall take into custody” any noncitizen who is both inadmissible
under § 1182(a)(6)(A)(i) (“present in the United States without being admitted
or paroled”) and is “charged with, [] arrested for, [] convicted of, [or] admits
having 	committed” 	certain 	crimes. 	See 	8 	U.S.C. 	§ 1226(c)(1)(E)(i)-(ii).
“Considering that § 1182(a)(6)(A)(i) specifically refers to aliens ‘present in the
United States without being admitted or paroled,’ and that § 1226(c)(1)(E)
requires 	detention 	without 	bond 	of 	these 	individuals 	if 	they 	have 	also
committed 	a 	felony, 	the 	recently 	created 	statutory 	exception 	would 	be
redundant if § 1225(b)(2) authorized their detention as well. . . . 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.“
Pizarro Reyes, 2025 WL 2609425, at *5 (quoting Gomes v. Hyde, 804 F. Supp.
3d 265, 275 (D. Mass. July 7, 2025)). As this interpretation “would largely
nullify a statute Congress [recently] enacted,” the Court should reject it. Id.
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(internal quotation marks omitted); see also Marx v. Gen. Rev. Corp., 568 U.S.
371, 	386 	(2013) 	(“[T]he 	canon 	against 	surplusage 	is 	strongest 	when 	an
interpretation would render superfluous another part of the same statutory
scheme.”).
Respondents suggest that the LRA would not be rendered superfluous
by their interpretation as “Congress did not have the benefit of knowing the
Executive’s expanded use of § 1225 when it passed the [LRA]” because “[i]t was
legislating against the backdrop of a more restrained enforcement strategy of
the prior administration.” Doc. 7, at 28. But, “‘[w]hen Congress adopts a new
law against the backdrop of a ‘longstanding administrative construction’ courts
‘generally 	presume 	the 	new 	provision 	should 	be 	understood 	to 	work 	in
harmony with what has come before.’” Rodriguez v. Bostock, 779 F. Supp. 3d
1239, 1259 (W.D. Wash. 2025) (quoting Monsalvo Velazquez v. Bondi, 604 U.S.
712, 713 (2025)). So, “there would be no need to enact legislation requiring
detention for unlawful entrants (like [Petitioner]) only upon the additional
condition that they commit certain crimes if those same unlawful entrants
were subject to mandatory detention under § 1225(b)(2)(A) all along.” Perez v.
Walsh, 2026 WL 44777, at *5 (N.D. Ill. Jan. 7, 2026).
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Petitioner is not “seeking admission” as he has been in the United States
for over two decades. See Doc. 1, at 11.8 And as far as the Court is aware, he
has never sought a form of citizenship (asylum, permanent residency, refugee
status, visa application, etc.). So when ICE arrested and detained him, he was
not subject to mandatory detention under § 1225(b)(2)(A). Instead, Petitioner
is subject to § 1226, and “is entitled to a prompt bond hearing before an
immigration judge pursuant to § 1226(a).” Gonzalez Cortes, 2026 WL 147435,
at *7; see also Caballero, 2025 WL 2977650, at *8 (“The Court joins the
numerous courts across the country that have held that [noncitizens not
apprehended at the border, who have been present in the United States for
8 	In Castañon-Nava, the Seventh Circuit concluded Congress “could easily
have included noncitizens who are ‘seeking admission’ within the definition [of
‘applicants for admission’] but elected not to do so.” 161 F.4th 1048, 1061.
Judges 	in 	this 	District 	have 	found 	the 	Seventh 	Circuit’s 	analysis 	to 	be
“persuasive.” Maldonado v. Noem, No. CIV-25-1379-J, 2026 WL 160950, at *1
(W.D. Okla. Jan. 21, 2026); Valdez, 2025 WL 3709021, at *2; see also Toledo
Santos v. Grant, No. CIV-25-1433-SLP, 2026 WL 184287, at *2 (W.D. Okla.
Jan. 23, 2026) (noting this Court's decision to apply § 1226 to a similarly
situated petitioner “is in accord” with the Seventh Circuit). In contrast, the
Fifth Circuit recently applied § 1225 to a similar habeas challenge. Buenrostro-
Mendez v. Bondi, No. 25-20496, --- F.4th ---, 2026 WL 323330, at *1, *4-9 (5th
Cir. Feb. 6, 2026). For the reasons discussed, the undersigned respectfully
disagrees with the Fifth Circuit’s decision, which is of course, not binding on
this Court. The undersigned instead agrees with this Court, Chief Judge
DeGiusti, Judge Palk, Judge Russell, Judge Heaton, and the overwhelming
number of other courts that recently addressed this question in many well-
reasoned and thorough decisions.
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many years without lawful status] are subject to the discretionary detention
framework of § 1226(a).”).
The 	undersigned 	recommends 	the 	Court 	grant 	Petitioner’s 	habeas
petition and order Respondents to provide Petitioner with a bond hearing
under § 1226(a) within seven business days of the Court’s adoption of this
Report 	and 	Recommendation 	or 	in 	the 	alternative, 	immediately 	release
Petitioner.
C. 	The 	Court 	should 	decline 	to 	address 	the 	merits 	of
Petitioner’s due process claim.
Given 	the 	undersigned’s 	recommendation 	as 	to 	the 	disposition 	of
Petitioner’s claim for relief under the INA, the undersigned recommends the
Court refrain from addressing the merits of Petitioner’s due process claim. The
Court can grant him the relief he seeks under § 1226(a). See Gonzalez Cortes,
2026 WL 147435, at *7 (“The Court declines to decide the merits of such claim
and Petitioner may renew such a claim if he is not provided with a bond
hearing or released within seven days of this Order.”); see also 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).”).
V. 	Recommendation and notice of right to object.
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For the reasons set forth above, the undersigned recommends the Court
grant 	in 	part 	Petitioner’s 	habeas 	application, 	in 	part, 	and 	order
Respondents to provide Petitioner with a bond hearing under 8 U.S.C.
§ 1226(a) within seven 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
certify compliance by filing a status report within ten business days
of the Court’s order.9
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by March 2,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.10 The undersigned further advises the parties that failure to make timely
9 	Petitioner 	has 	requested 	EAJA 	fees. 	Doc. 	1, 	at 	14. 	To 	the 	extent
Petitioner may be entitled to EAJA fees and costs as a prevailing party,
Petitioner 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”).
10 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to seven
days. See Fed. R. Civ. P. 72(b)(2) advisory committee’s note to 1983 addition
(noting that rule establishing 14-day response time “does not extend to habeas
corpus petitions, which are covered by the specific rules relating to proceedings
under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484
F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (“The Rules Governing § 2254 Cases
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objections to this Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein. Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation
disposes of the issues referred to the undersigned Magistrate Judge in the
captioned matter.
ENTERED this 24th day of February, 2026.
may be applied discretionarily to habeas petitions under § 2241” and that
“while 	the 	Federal 	Rules 	of 	Civil 	Procedure 	may 	be 	applied 	in 	habeas
proceedings, they need not be in every instance – particularly where strict
application would undermine the habeas review process”).
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