Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
CHRISTIAN MOISES MONTERO CORDOVA,
Petitioner,
v. Case No. 1:26-cv-00526-KWR-DLM
KRISTI NOEM, in her official capacity as
Secretary of the U.S. Department of Homeland Security,
PAMELA BONDI, in her official capacity as Attorney General of the United States,
TODD M. LYONS, in his official capacity as
Acting Directory of U.S. Immigration and Customs Enforcement,
WILLIAM SHAW, in his official capacity as Director of the Albuquerque, NM ERO sub-office,
U.S. Immigration and Customs Enforcement, and
RAY CARNES, in his official capacity as Warden of the Torrance County Detention Facility,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Petitioner Christian Moises Montero
Cordova’s Petition for Writ of Habeas Corpus (Doc. 1). Petitioner asserts a single claim alleging
that his procedural due process rights were violated when he was re-detained without a
pre-deprivation hearing after having been released on his own recognizance. Doc. 1 ¶¶ 45–51
(Petition). Because Petitioner construes the “deprivation” as the arrest and re-detention, not the
final decision by an immigration judge denying bond or release, the Court disagrees with
Petitioner’s characterization of a pre-deprivation hearing. Thus, the Court finds that Petitioner’s
due process rights require a bond hearing pursuant to 8 U.S.C. § 1226(a).
Having reviewed the parties’ pleadings, exhibits, and the relevant law, the Court finds that
the Petition is well-taken, and therefore, is GRANTED in part and DENIED in part.
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BACKGROUND
Petitioner, a citizen of Ecuador, entered the United States in May 2024. Id. ¶ 27. Petitioner
and his wife are seeking asylum. Id. ¶ 2. After a brief detention, Petitioner was released on his own
recognizance and was served a Notice to Appear on June 3, 2024. Id. Petitioner has not missed an
appointment throughout his removal process. Id. On January 10, 2026, Petitioner was arrested and
detained in Minnesota by Immigration and Customs Enforcement as a part of “Operation Metro
Surge.” Id. ¶ 30. As of the filing of this Petition, Petitioner is detained at Torrance County
Detention Facility in Estancia, New Mexico. Id. ¶ 5.
On September 5, 2025, the Board of Immigration Appeals (“BIA”) 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, 225 (B.I.A. 2025) (“Immigration Judges lack authority to hear bond requests or to grant
bond to aliens . . . who are present in the United States without admission.”). In light of Hurtado,
Petitioner has remained in custody without an opportunity to post bond or request release because
his detention has been classified as mandatory under 8 U.S.C. § 1225(b)(2)(A).
Petitioner filed this Petition on February 23, 2026. See Doc. 1. On February 24, 2026, the
Court ordered Respondents to answer. Order to Answer, Doc. 3. On February 25, 2026, Petitioner
was ordered removed to Guatemala under an Asylum Cooperative Agreement. Doc. 8 at 1 (Status
Report). Petitioner timely filed an appeal of the removal order on March 23, 2026.1 Id. On March
1 Since Petitioner timely filed his appeal to the BIA, the statutory authority governing his detention
has not shifted to 8 U.S.C. § 1231 which mandates detention. See Johnson v. Arteaga-Martinez,
596 U.S. 573, 574 (2022); see also § 1231(a)(2) (noting that the noncitizen “shall” be detained).
Section 1231 begins once a removal order “becomes administratively final,” meaning that the
order has been affirmed by the BIA or the review period has expired. See Riley v. Bondi, 606 U.S.
259, 267 (2025). Petitioner has appealed his order of removal, and it has not yet been affirmed.
Therefore, § 1231 does not yet govern Petitioner’s detention.
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17, 2026, Respondents filed their response. Doc. 6 (Response). Respondents incorporate
arguments made in Munoz Teran v. Bondi, No. 2:25-cv-01218-KWR-SCY, 2026 WL 161527
(D.N.M. Jan. 21, 2026) and Santos Ramirez v. Bondi, No. 1:25-cv-01008-KWR-JMR, 2026 WL
84515 (D.N.M. Jan. 12, 2026).2 Id. at 2.
LEGAL STANDARD
The Constitution guarantees that the writ of habeas corpus is “available to every individual
detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S.
Const. art. I, § 9, cl. 2). 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). A challenge to immigration detention is “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)).
DISCUSSION
Petitioner asserts a single claim that his procedural due process rights were violated when
Respondents re-detained him without notice and a hearing. Doc. 1 ¶¶ 45–51. Respondents contend
that Petitioner is held under 8 U.S.C. § 1225(b) and subject to mandatory detention. Doc. 6 at 2.
Alternatively, Respondents argue that there is no requirement that Petitioner receive a
pre-deprivation hearing under 8 U.S.C. §§ 1225 or 1226 to comport with the demands of
2 Both of these cases agree that the Court has jurisdiction to address the inquiry about what statute
governs Petitioner’s detention. The other incorporated jurisdictional argument concerns judicial
review of an 8 U.S.C. § 1225(b)(1) determination, but here, Respondents argue that Petitioner is
detained under § 1225(b)(2)(A). Thus, the Court will not address Respondents cursory
jurisdictional arguments contained in other cases before this Court.
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procedural due process. Id. at 1 n.2. The Court first addresses whether Petitioner’s detention is
governed by § 1225(b)(2)(A) or § 1226(a) before turning to Petitioner’s due process argument.3
I. Whether § 1225(b) or § 1226(a) governs Petitioner’s detention.
Respondents argue that Petitioner’s detention is mandatory under § 1225(b)(2)(A). Doc. 6
at 1. Petitioner contends that his initial release was “under the discretionary authority of 8 U.S.C.
§ 1226(a).” Doc. 7 at 2. The Court agrees that Petitioner was initially released pursuant to
§ 1226(a) and that Respondents have not presently detained Petitioner under § 1225(b)(2)(A).
Section 1226(a) allows immigration officers, in their discretion, to detain noncitizens or
release them on conditional parole. 8 U.S.C. § 1226(a). Release on one’s own recognizance is a
form of conditional parole under § 1226(a)(2)(B). See Matter of Cabrera-Fernandez, 28 I. & N.
Dec. 747, 747 (B.I.A. 2023) (“[They were] released on their own recognizance pursuant to DHS’
conditional parole authority under . . . 8 U.S.C. § 1226(a)(2)(B).”); Ortega-Cervantes v. Gonzales,
501 F.3d 1111, 1115 (9th Cir. 2007) (“It is apparent that the . . . phrase ‘release on recognizance’
[is] another name for ‘conditional parole’ under § 1226(a).”).
Here, Petitioner was released on his own recognizance, a form of conditional parole,
pursuant to § 1226(a). Doc. 1 ¶ 2; see also Matter of Cabrera-Fernandez, 28 I. & N. Dec. at 747.
3 Petitioner claims, in passing, that Petitioner’s removal order is “independently unlawful.” Doc.
7 at 7. In addition to jurisdictional issues arising from a district court’s review of a final order of
removal, Petitioner has not moved to amend his Petition to include any claim regarding the legality
of his removal order. Thus, the Court will not consider his arguments made concerning his removal
order and the legality of a “pre-termission” policy. Id.; see also Parker v. Scott, 394 F.3d 1302,
1319–20 (10th Cir. 2005) (“We do not review these claims because [Petitioner] failed to assert
them in his district court petition for habeas relief.”); Cone v. Dowling, 809 F. App’x 523, 526 n.3
(10th Cir. 2020) (declining to address a “claim [that] was not in [a petitioner’s] original habeas
petition”). Accordingly, any issue Petitioner intended to raise in his reply concerning the legality
of a “pre-termission policy” is not properly before the Court. However, it appears Petitioner
recognizes that any argument on this “pre-termission policy” is “beyond the scope of this Petition,”
but nevertheless wanted to notify the Court of the grounds for his appeal. See Doc. 7 at 7.
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Release on recognizance is not categorized as “humanitarian” or “public benefit” parole under 8
U.S.C. § 1182(d)(5)(A). Therefore, Petitioner’s initial release was authorized by § 1226(a) which
indicates that Petitioner cannot now be detained under § 1225(b). See Matter of M-S-, 27 I. & N.
Dec. 509, 516 (Att’y Gen. 2019) (“Yet [§ 1225] (under which detention is mandatory) and
[§ 1226(a)] (under which detention is permissive) can be reconciled only if they apply to different
classes of aliens.”); see also Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 485 (S.D.N.Y. 2025)
(noting that the respondents did not “dispute that [§§ 1225 and 1226] . . . are mutually exclusive”).
Furthermore, the Court finds that a plain reading of § 1225(b)(2)(A) demonstrates that Petitioner
is not “seeking admission,” and thus, his detention is governed by § 1226(a).
When interpreting a statute, courts first “examine the statute’s plain text” and “[a]bsent
ambiguity, [the] analysis ends there.” United States v. Koerber, 10 F.4th 1083, 1112 (10th Cir.
2021). Should the analysis continue, 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.” (citation omitted)). Courts also consider
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 considers non-textual evidence
bearing on Congress’s intent or purpose, such as legislative history, only if the statutory language
is ambiguous. See, e.g., United States v. Husted, 545 F.3d 1240, 1247 (10th Cir. 2008) (“[I]t is a
longstanding principle that absent ambiguity we cannot rely on legislative history to interpret a
statute.”).
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Under the Immigrant and Nationality Act (“INA”), two statutes generally govern a
noncitizen’s detention pending a final order of removal: §§ 1225 and 1226. See Jennings v.
Rodriguez, 583 U.S. 281, 289 (2018). Section 1225, which mandates detention and does not afford
a bond hearing, applies when “an applicant for admission” is “seeking admission” and “not clearly
and beyond a doubt entitled to be admitted.” § 1225(b)(2)(A). Section 1226 provides that a
noncitizen “may be arrested and detained” pending a removal decision. § 1226(a). Under
§ 1226(a), the Attorney General may detain the arrested noncitizens, release them on bond, or
release them on conditional parole. Section 1226(c) mandates detention for a noncitizen that 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) “is charged with, is
arrested for, is convicted of, admits having committed, or admits” to committing certain criminal
acts. 8 U.S.C. § 1226(c)(1)(E).
In sum, immigration law authorizes the detention of “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).” Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (quoting
Jennings, 583 U.S. at 289). For Petitioner’s detention to be governed by § 1225(b)(2)(A), the Court
must find that Petitioner (1) is an “applicant for admission,” (2) who is “seeking admission,” and
(3) is “not clearly and beyond a doubt entitled to be admitted.” § 1225(b)(2)(A).
Petitioner is likely an “applicant for admission” as defined by statute. “[A]pplicant for
admission” is defined as “an alien present in the United States who has not been admitted or who
arrives in the United States.” 8 U.S.C. § 1225(a)(1). “Admission” and “admitted” mean “the lawful
entry of the alien into the United States after inspection and authorization by an immigration
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officer.” Id. § 1101(a)(13)(A). Here, Petitioner is “present in the United States” as he has lived in
the United States for over a year, and he has not been inspected or admitted. Doc. 1 ¶¶ 27–30; Doc.
7 at 2. Thus, per the statutory definition, Petitioner may be deemed an “applicant for admission”
thereby satisfying the first criteria of § 1225(b)(2)(A).
The crux of the § 1225(b)(2)(A) inquiry is whether Petitioner can be deemed “seeking
admission.” As explained below, after a plain reading of the statute, the Court finds that Petitioner,
who has been living in the United States for over a year, is not “seeking admission.”
The Court begins with the plain text of the phrase “seeking admission.” See Koerber, 10
F.4th at 1112. Since “seeking” is statutorily undefined, the Court will first consider the word
“admission.” “Admission” is statutorily defined as “the lawful entry of the alien into the United
States after inspection and authorization by an immigration officer.” § 1101(a)(13)(A). “Entry” is
statutorily undefined. Respondents do not assert that the word “entry” has any unusual, technical
meaning, and therefore, the Court will apply its “ordinary, contemporary, common meaning.” Star
Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405, 414 (2017). “Entry” ordinarily means “[t]he
action or an act of entering a place, area, building, etc.” Entry, Oxford English Dictionary,
https://www.oed.com/dictionary/entry_n?tab=meaning_and_use#5515547 (last visited Mar. 26,
2026); see also Entry, Black’s Law Dictionary (12th ed. 2024) (“Immigration. Any entrance of an
alien into the United States, whether voluntary or involuntary.”). Thus, the word “admission,” as
used in § 1225(b)(2)(A), refers to a noncitizen’s lawful act of physically entering the United States
after inspection and authorization by an immigration officer.
Turning to the statutorily undefined word “seeking,” in this context, it ordinarily means
trying to obtain something or trying to bring about or effect. Seek, Oxford English Dictionary,
https://www.oed.com/dictionary/seek_v#23724107 (last visited Mar. 26, 2026). In choosing the
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present participle “seeking,” courts should give effect to Congress’s verb choice and find that
“seeking” signals present and continuous action. Carr v. United States, 560 U.S. 438, 448 (2010)
(“Consistent with normal usage, we have frequently looked to Congress’ choice of verb tense to
ascertain a statute’s temporal reach.”); see also Present Participle, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/present%20participle (last visited Mar. 26, 2026).
Therefore, the Court finds that a plain reading of the phrase “seeking admission” demonstrates that
§ 1225(b)(2)(A) applies to noncitizens who are presently trying to lawfully and physically enter
the United States.4 Section 1225(b)(2)(A) does not apply to noncitizens who, like Petitioner, have
lived in the United States for an extended duration and are not presently seeking lawful entry into
the United States.
8 U.S.C. § 1225(a)(3) indicates that Petitioner is not “seeking admission.” Section
1225(a)(3) provides that “[a]ll 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. The word “or” is “almost always disjunctive, that is, the words it connects are to ‘be
given separate meanings.’” United States v. Woods, 571 U.S. 31, 45 (2013) (citation omitted).
Additionally, the use of the phrase “or otherwise” signals that the term “applicants for admission”
has a different meaning than the term “seeking admission.” Or Otherwise, Oxford English
Dictionary, https://www.oed.com/dictionary/otherwise_n?tab=meaning_and_use#33058328 (last
4 The Court understands the ordinary meaning of the word “entry,” as used in the statute, to mean
the physical act of going into the country. The meaning aligns with how “entry” is understood and
used by the United States Supreme Court in the immigration context. The word “entry” has long
referred 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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visited Mar. 26, 2026) (“In another way or ways; in a different manner; by other means; in other
words; differently.”).5 Thus, a plain reading of § 1225(a)(3) demonstrates that Petitioner may be
deemed an “applicant for admission” without necessarily being deemed “seeking admission.”
Further, Respondents interpretation renders recent amendments to 8 U.S.C. § 1226(c)
superfluous. Section 1226(c)(1)(E) mandates detention for certain noncitizens who are implicated
in certain crimes. It requires detention for a noncitizen who is (1) inadmissible as an alien present
in the United States without being admitted or paroled, and (2) “is charged with, is arrested for, is
convicted of, admits having committed, or admits” to committing certain crimes. Respondents’
interpretation of § 1225(b)(2)(A) would require the detention of every noncitizen who is present
in the country without being admitted or paroled. Such an interpretation would render the recent
§ 1226(c)(1)(E) amendment superfluous in that detention would be required regardless of the
noncitizen’s criminal involvement.
The Supreme Court, in dicta, has recognized that § 1225(b) generally applies “to aliens
seeking entry into the United States” and that § 1226(a) “applies to aliens already present in the
United States.” Jennings, 583 U.S. at 303. The Jennings Court further noted that § 1226(a) creates
a default rule for noncitizens 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 permitting “the Attorney General to release those aliens on bond.” Id. at 303. Thus, the
5 The grammatical placement of “or otherwise” also indicates that “seeking admission” must mean
something different than “applicants for admission.” Or Otherwise, Oxford English Dictionary,
https://www.oed.com/dictionary/otherwise_n?tab=meaning_and_use#33058910 (last visited Mar.
20, 2026) (“[F]ollowing a noun, adjective, adverb, or verb, to signify a corresponding word, thing,
idea, etc., of opposite or alternative meaning” (citation modified)). Here, the phrase “or otherwise”
follows a noun, “applicants for admission,” signifying that the phrase “seeking admission” is a
“corresponding word, thing, idea, etc., of opposite or alternative meaning.” Id.; see also
§ 1225(a)(3).
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Supreme Court’s construction of §§ 1225(b) and 1226(a) align with this Court’s reading of the
phrases “applicant for admission” and “seeking admission.”
The Court’s statutory reading 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 for an
extended period of time is not “seeking admission” and therefore not subject to mandatory
detention under § 1225(b)(2)(A). See, e.g., Castañon-Nava, 161 F.4th at 1061; see also Barco
Mercado v. Francis, __ F. Supp. 3d __, 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. De Anda-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.” (citation modified));
Buenrostro-Mendez v. Pamela Bondi, 166 F.4th 494, 510 (5th Cir. 2026) (Douglas, J., dissenting).
Here, Petitioner entered the United States in May 2024 and was detained until June 3, 2024.
Doc. 1 ¶ 27. Respondents released Petitioner on his own recognizance, and he remained in the
United States for over a year before his re-detention Id. ¶¶ 28–29. Petitioner was re-detained in
Minnesota. Id. Respondents do not suggest or point to any facts that Petitioner was seeking lawful,
physical entry into the United States at the time of his arrest. Applying this statutory interpretation
to the present facts, the Courts finds that Petitioner is not “seeking admission” under
§ 1225(b)(2)(A). Accordingly, Petitioner’s detention is governed by § 1226(a).
II. Petitioner’s procedural due process rights call for a bond hearing.
Petitioner contends that his procedural due process rights were violated when he was not
provided notice and a bond hearing prior to being re-detained.6 Doc. 1 ¶ 49. Respondents
6 Petitioner does not specify whether he refers to “notice” as notice of a bond hearing pursuant to
§ 1226(a) or notice about the revocation of his conditional parole under 8 C.F.R. §§ 236.1(c)(9),
1236.1(c)(9) (2026). Petitioner blanketly refers to “notice” and does not refer to notice regarding
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contend that Petitioner is mandatorily detained under § 1225(b) and not entitled to a bond
hearing. Doc. 6 at 1. The Court finds that due process affords Petitioner a bond hearing under
§ 1226(a), and the hearing need not occur prior to his re-detention.
In considering a due process claim, the Court considers whether there exists a protected
liberty interest and whether the procedures provided afford the individual adequate process.
Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2001); see also Aguilar-Aguilar
v. Napolitano, 700 F.3d 1238, 1244 (10th Cir. 2012) (“To claim a violation of his right to procedural
due process, Petitioner ‘must have a liberty or property interest in the outcome of the
proceedings.’”).
A. Liberty interest.
Petitioner asks this Court to recognize a protected liberty interest in receiving a
pre-deprivation hearing. Doc. 1 ¶ 49. Respondents argue that there is “no binding authority
requiring such a pre-deprivation hearing under either § 1225 or § 1226.” Doc. 6 at 1 n.2. While
Respondents are correct that there is no explicit statutory authority requiring a pre-deprivation
hearing, Petitioner argues that this pre-deprivation requirement arises from the Fifth Amendment’s
Due Process Clause. Doc. 1 ¶¶ 45–51.
the revocation of his conditional parole. It appears that Petitioner’s reference to “notice” concerns
notice of a bond hearing. In any event, the Court will not make Petitioner’s arguments for him and
declines to sua sponte determine whether Petitioner meant notice of the revocation of conditional
parole or notice before a hearing before an immigration judge. Petitioner makes no argument and
provides no documentation suggesting that his conditional parole was improperly terminated.
Thus, the Court will not construe his reference to notice as such. 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).
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“Freedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that [the Due Process Clause] protects.”
Zadvydas, 533 U.S. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). A noncitizen that
is considered to have not entered the country is only entitled to “the procedure authorized by
Congress.” Sierra Immigr. & Naturalization Serv., 258 F.3d 1213, 1218 (10th Cir. 2001) (quoting
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)). However, once a
noncitizen “enters the country, the legal circumstance changes, for the Due Process Clause applies
to all ‘persons’ within the United States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693.
1. Petitioner does not have a protected liberty interest in receiving a
pre-detention hearing.
In finding that a noncitizen’s conditional release rises to the level of a protected liberty
interest, several courts have turned to a line of Supreme Court cases finding a protected liberty
interest in parole, probation, and pre-parole. See, e.g., Singh v. Carnes,
No. 1:26-cv-00235-DHU-GJF, 2026 WL 599138, at *3 (D.N.M. Mar. 3, 2026); J.A.E.M. v.
Wofford, __F. Supp. 3d__, No. 1:25-cv-01380-KES-HBK, 2025 WL 3013377, at *3 (E.D. Cal. Oct.
27, 2025). To determine whether a conditional release creates a protected liberty interest, at least
one circuit has “resolved the issue ‘by comparing the specific conditional release in the case before
them with the liberty interest in parole as characterized by Morrissey.’” Gonzalez-Fuentes v.
Molina, 607 F.3d 864, 887 (1st Cir. 2010) (citation omitted).
In Morrissey v. Brewer, the Supreme Court found that paroled individuals enjoy several
“of the core values of unqualified liberty” and build their lives upon “at least an implicit promise
that parole will be revoked only if [they] fail[] to live up to the parole conditions.” 408 U.S. 471,
482 (1972). Given the “grievous loss” caused by revocation of parole, the Court found that those
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released on criminal parole were entitled to due process before having their parole revoked. Id.
The Court expanded this principle to criminal probation, Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973), and even a pre-parole program, Young v. Harper, 520 U.S. 143, 145 (1997).
A noncitizen’s civil, conditional release and a citizen’s criminal parole are parallel in
several core constitutional respects. Like release on parole, or any release from detention,
Petitioner’s release “enables him to do a wide range of things” including work, “be with family
and friends,” and “form the other enduring attachments of normal life.” Morrissey, 408 U.S. at
482. Since his release on June 3, 2024, Petitioner has lived in the United States. Doc. 1 ¶ 27.
Although Petitioner was required to attend “subsequent hearings for [his] removal proceedings,”
id., a criminal parolee is also subjected “to many restrictions” not applicable to those not convicted
of a crime, Morrissey, 408 U.S. at 482. Respondents make no argument as to why Morrissey and
its progeny should not apply in the immigration context. The distinction between Petitioner’s status
as a noncitizen and the citizen in Morrissey is not necessarily dispositive. See Zadvydas, 533 U.S.
at 693 (finding that the Due Process Clause applies to all people within the United States regardless
of their status).
However, Morrissey does not necessarily stand for the proposition that a noncitizen,
previously released pursuant to § 1226(a), is entitled to a hearing prior to being detained again.
Although Morrissey found that a criminal parolee was entitled to due process during the revocation
of parole, the process due was only “that some minimal inquiry be conducted at or reasonably near
the place of the alleged parole violation or arrest and as promptly as convenient after arrest while
information is fresh and sources are available.” 408 U.S. at 484–85. The Court found that “after
the arrest,” due process required that an individual, not directly involved in the case, determine
that reasonable ground existed for revoking parole. Id. The determination by this individual is
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meant to inquire whether there “is probable cause or reasonable ground to believe that the arrested
parolee” violated their conditions of parole and whether it is justified to “hold the parolee for the
final decision of the parole board on revocation.” Id. at 487. This language indicates that the arrest,
or Petitioner’s re-detention, may occur prior to any hearing. The phrases “at or reasonable near”
and “as promptly convenient after arrest,” do not suggest that a hearing must be conducted before
Petitioner is detained again.
Here, what Petitioner calls a “pre-deprivation hearing” is specifically referring to “written
notice and a hearing . . . prior to any re-detention” after having been released on an order of
recognizance. Doc. 1 ¶ 49. Even if this Court assumes that Morrissey applies in the civil
immigration context, Petitioner seeks greater procedural protection than Morrissey demands.
Morrissey characterizes the deprivation as “the final decision” revoking parole, not the arrest and
detention prior to any final decision revoking release as Petitioner’s analysis suggests. 408 U.S. at
487–88. The pre-deprivation hearing Morrissey requires “must lead to a final evaluation of any
contested relevant facts and consideration of whether the facts as determined warrant revocation.”
408 U.S. at 488. Similarly, the bond hearing required under § 1226(a) requires an immigration
judge to make an evaluation of the relevant facts as to whether a petitioner is a flight risk or a
danger to the community. See 8 C.F.R. §§ 236.1(c)(8), 1236.1(c)(8) (2026). These hearings precede
the final deprivation by the parole or immigration official.
Petitioner also argues that a bond hearing “is not an adequate substitute” because it “only
occurs after liberty has already been taken.” Doc. 1 ¶ 50. The crux of this issue is when a bond
hearing pursuant to § 1226(a) must occur by. Federal regulations provide that noncitizens detained
pursuant to § 1226(a) are entitled to “bond hearings at the outset of detention.” Jennings, 583 U.S.
at 306 (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1) (2026)). But “§ 1226(a)’s text [does not] even
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hint that the length of detention must specifically be considered in determining whether the alien
should be released.” Id.
The Supreme Court used the word “outset” to describe when the bond hearing should occur.
Id. “Outset,” in this context, means “[t]he action or fact of setting out upon a journey, course of
action, business, etc.; a start, a beginning.” Outset, Oxford English Dictionary,
https://www.oed.com/dictionary/outset_n1?tab=meaning_and_use#32797824 (last visited Mar.
26, 2026). As cited in Jennings, the accompanying regulations provide for “an initial custody
determination by the district director” and that “[p]rior to [a] final order . . . the immigration judge
is authorized . . . to detain the alien in custody, release the alien, and determine the amount of bond,
if any, under which the respondent may be released.” 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1) (2026).
The regulations do not impose a strict deadline in which the bond hearing must be held. Courts
have found that a bond hearing, after various lengths of detention, sufficiently provides the
petitioner with the process due. See, e.g., Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1246
(D.N.M. Sep. 17, 2025) (ordering a bond hearing after nearly three months of detention without a
hearing); Kostak v. Trump, No. 3:25-1093, 2025 WL 2472136, at *4 (W.D. La. Aug. 27, 2025)
(denying release and ordering a bond hearing after two months of detention); Gutierrez v. Garcia,
No. 2:25-cv-001145-WJ-KRS, 2026 WL 310064, at *5–7 (D.N.M. Feb. 5, 2026) (denying release
and ordering a bond hearing after nearly six months of detention). This reading of the bond hearing
deadline aligns with Morrissey’s requirement that the “revocation hearing must be tendered within
a reasonable time after the parolee is taken into custody.” 408 U.S. at 488. The Morrissey Court
found that a “lapse of two months . . . would not appear to be unreasonable.” Id.
Even assuming Morrissey applies to Petitioner’s case, Morrissey requires notice and a
hearing before the final revocation of Petitioner’s conditional parole, not before his detention.
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Accordingly, based on the argument before the Court, Petitioner has not met his burden of
demonstrating that he has a constitutionally protected liberty interest in receiving written notice
and a bond hearing prior to his re-detention. See 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.’” (citing § 2241(c)(3)).
2. Petitioner’s protected liberty interest.
Although the Court will not adopt Petitioner’s interpretation of the Due Process Clause and
Morrissey to recognize the liberty interest that Petitioner seeks, the Court finds that Petitioner still
maintains an interest in receiving the process authorized by Congress. Sierra, 258 F.3d at 1218.
Petitioner also has a liberty interest in freedom from detainment. See Hamdi, 542 U.S. at 529.
Under the Fifth Amendment, noncitizens are entitled to due process “in the context of
removal proceedings.” Trump v. J. G. G., 604 U.S. 670, 673 (2025) (citing Reno v. Flores, 507
U.S. 292, 306 (1993)). Therefore, immigration detainees “are entitled to notice and opportunity to
be heard ‘appropriate to the nature of the case.’” Id. (quoting Mullane v. Cent. Hanover Bank &
Tr. Co., 339 U.S. 306, 313 (1950)).
Petitioner claims that he was initially detained “at the U.S. southern border” before being
released on his own recognizance. Doc. 1 ¶ 27. Since Petitioner was initially released on a form of
conditional parole pursuant to § 1226(a), the Court finds that Petitioner is entitled to a bond hearing
under the statute. See United States v. Gonzalez-Fierro, 949 F.3d 512, 520 (10th Cir. 2020) (“[T]he
Supreme Court has ruled that when Congress enacts a procedure, aliens are entitled to it.” (quoting
United States v. Barajas-Alvarado, 655 F.3d 1077, 1084–85 (9th Cir. 2011))). Having found that
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Petitioner has protected interests in receiving the procedure authorized by Congress and his
freedom from detention, the Court considers what amount of process is due.
B. Due process requires that Petitioner receive a bond hearing.
Since the Court finds that Petitioner has a protected liberty interest, the Court must examine
the adequacy of the procedure to ensure that the deprivation meets the demands of the Constitution.
See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989). In determining what process is
due, the Court considers (1) “the private interest that will be affected by the official action,” (2)
“the risk of an erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest,
including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
1. Private interest.
The first Mathews factor considers the private interest at stake. Petitioner’s basic interest
in being free from detention is at stake. See Hamdi, 542 U.S. at 529 (finding that freedom from
detention is “the most elemental of liberty interests”). Petitioner’s interest in receiving the
procedural protections authorized by Congress is also at stake. See Sierra, 258 F.3d at 1218. These
interests possess significant weight. Even balanced against the “broad power over naturalization
and immigration” possessed by Congress that justifies “rules that would be unacceptable if applied
to citizens,” Demore v. Kim, 538 U.S. 510, 521 (2003), Petitioner possesses two interests that tip
the scale in his favor. Thus, the Court finds that the first Mathews factor favors Petitioner.
2. Risk of erroneous deprivation and the value of additional safeguards.
The second Mathews factor considers the risk of erroneous deprivation under the
procedures used and the probable value of additional safeguards. Since Respondents argue that
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Petitioner is detained pursuant to § 1225(b), Petitioner has not received the bond hearing he is
owed under § 1226(a). The risk of erroneously revoking Petitioner’s conditional parole remains
high as, under Respondents’ interpretation, he will not receive a bond hearing to determine whether
he presents a flight risk or danger to the community. Without the opportunity to have the hearing
to which Petitioner is entitled, the risk of erroneous deprivation will remain high. A bond hearing
before a neutral immigration judge will provide immense value as an additional safeguard.
Therefore, the second Mathews factor favors Petitioner.
3. Government’s interest.
The final Mathews factor considers the “Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.” 424 U.S. at 335. When considering the Government’s interest, the
Supreme Court has instructed that “it must weigh heavily in the balance that control over matters
of immigration is a sovereign prerogative, largely within the control of the executive and the
legislature.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). The Government has an interest in
enforcing its immigration policies and preventing noncitizens from remaining “in the United States
in violation of our law.” Demore, 538 U.S. at 518. The Court recognizes that “[o]ver no
conceivable subject is the legislative power of Congress more complete.” Reno, 507 U.S. at 305
(citation modified). Thus, the Government’s interest in enforcing its immigration policies is
considerable.
Although the Government’s interest in enforcing its immigration policies must be afforded
considerable weight, the Government’s interest in detaining Petitioner without providing the
procedure he is due does not weigh nearly as heavily as its interest in lawful immigration
enforcement. The fiscal and administrative burdens of providing a bond hearing under § 1226(a)
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are minimal and do not provide adequate justification for foregoing the hearing entirely. Thus, the
third Mathews factor weighs in favor of Petitioner.
Accordingly, the Court finds that the Mathews factors weigh in favor of Petitioner, and
Petitioner is entitled to a bond hearing under § 1226(a).
III. The Court finds that a bond hearing is an adequate remedy.
Petitioner requests immediate release or a bond hearing in which Respondents bear the
burden of demonstrating that Petitioner is not a danger or flight risk. Doc. 1 at 17–18. Petitioner
contends that a bond hearing alone is not an adequate remedy because his liberty has already been
taken. Id. ¶ 50. Beyond this, Petitioner cites no law and applies no standard in his Petition
demonstrating that a bond hearing would be inadequate. Because Petitioner does not demonstrate
that § 1226(a) will provide inadequate process, the Court will not order that he be immediately
released or that Respondents bear the burden at his bond hearing.
Section 1226(a) gives Respondents discretion to detain, release on bond, or parole a
noncitizen. Generally, the release or bond decision is discretionary. 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.”).
Federal district courts have broad equitable powers to craft 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). 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. Assuming that the Court has the authority to order Petitioner’s
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immediate release, the Court, in its discretion, orders Respondents to provide Petitioner an
individualized bond hearing so that he may receive the process he is due under the statute. See
§ 1226(a) (providing that the Attorney General may continue to detain a noncitizen or release him
on bond or parole pending a decision of removal). Petitioner does not demonstrate that due process
requires immediate release as opposed to a bond hearing.
Petitioner bears the burden of proof to demonstrate that he is entitled to relief or a remedy,
including whether the burden should be placed on the Respondents to justify his detention at a
bond hearing. See 28 U.S.C. § 2241; Skaftouros, 667 F.3d at 158 (“[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.’” (citing
§ 2241(c)(3)); Odell v. Hudspeth, 189 F.2d 300, 302 (10th Cir. 1951) (finding, in a § 2241
proceeding, that the “burden of proof was upon the petitioner to sustain [the] allegations”).
Petitioner also bears the burden to demonstrate a “deprivation of rights leading to unlawful
detention” under § 2241. Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009); see also Smith v.
Workman, 550 F.3d 1258, 1273 (10th Cir. 2008) (noting that, in the context of a Brady violation,
the petitioner “bears the burden of showing that the prosecution suppressed material evidence
favorable” to the petitioner). Here, Petitioner has not demonstrated that due process requires his
release or shifting the burden at his bond hearing. See Zinermon v. Burch, 494 U.S. 113, 127 (1990)
(“Due process . . . is a flexible concept that varies with the particular situation.”).
A. Petitioner is not entitled to a shifted burden at his bond hearing.
Having already determined that due process does not require Petitioner’s immediate
release, the Court will consider whether Petitioner meets his burden demonstrating that
Respondents should bear the burden at his bond hearing. Petitioner does not adequately present
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this argument in his Petition since he does not cite any standard or law that suggests the burden
should shift. See Phillips, 244 F.3d at 800 n. 10 (observing that a court has no obligation to make
arguments or perform research on behalf of litigants). Petitioner presents the argument in his reply
more fully, but even if the argument were properly presented in his Petition, the argument fails.
Petitioner argues in his reply that, as a matter of due process, the burden should be shifted
to Respondents at Petitioner’s bond hearing. Doc. 7 at 4–6. However, Petitioner cites no binding
case law demonstrating that the burden should shift to Respondents after Petitioner’s re-detention.
Rather, Petitioner points to a string of cases that have reasoned that due process warrants shifting
the burden “because the alien’s potential loss is so severe . . . he should not have to share the risk
of error equally.” Doc. 7 at 4 (quoting Lopez-Arevelo v. Ripa, 801 F. Supp. 3d 668, 688 (W.D. Tex.
2025)). He also argues that burden shifting may prevent erroneous deprivations of liberty. See Doc.
7 at 5 (citing Hernandez-Lara v. Lyons, 10 F.4th 19, 30–31 (1st Cir. 2021)). Beyond alluding to
balancing risks, Petitioner does not cite to any standard or law that the Court should apply in
determining whether the burden should shift at his § 1226(a) hearing.
When interpreting a statute, courts first “examine the statute’s plain text” and “[a]bsent
ambiguity, [the] analysis ends there.” Koerber, 10 F.4th at 1112. Should the analysis continue, 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, 519 U.S. at 341; see also Conrad, 585 F.3d
at 1381 (“We also take into account the ‘broader context of the statute as a whole’ when
ascertaining the meaning of a particular provision.” (citation omitted)). Generally, the Court
considers non-textual evidence bearing on Congress’s intent or purpose, such as legislative history,
only if the statutory language is ambiguous. See, e.g., Husted, 545 F.3d at 1247 (“[I]t is a
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longstanding principle that absent ambiguity we cannot rely on legislative history to interpret a
statute.”).
Beginning with the text of the statute, § 1226(a) does not specify which party bears the
burden of proof at a custody redetermination hearing. Section 1226(c), titled “Detention of
criminal aliens,” explicitly states that a noncitizen who commits certain criminal acts may only be
released if she meets certain criteria and “the alien satisfies the Attorney General that the alien will
not pose a danger to the safety of other persons or of property and is likely to appear for any
scheduled proceeding.” 8 U.S.C. § 1226(c)(4). However, the record does not indicate that
Petitioner has a criminal record that would place him within the scope of § 1226(c).
Although the plain language of the statute fails to clarify who bears the burden, relevant
regulations provide the following:
Any officer authorized to issue a warrant of arrest may, in the officer’s discretion,
release an alien not described in section 236(c)(1) of the Act, under the conditions
at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to
the satisfaction of the officer that such release would not pose a danger to property
or persons, and that the alien is likely to appear for any future proceeding.
8 C.F.R. §§ 236.1(c)(8), 1236.1(c)(8) (2026). The phrase “provided that the alien must demonstrate
to the satisfaction of the officer” indicates that the noncitizen bears the burden. This interpretation
aligns with BIA precedent that found that the burden is on the noncitizen. See In re Guerra, 24 I.
& N. Dec. 37, 40 (B.I.A. 2006) (“The burden is on the alien to show to the satisfaction of the
Immigration Judge that he or she merits release on bond.”); see also In re Adeniji, 22 I. & N. Dec.
1102, 1116 (B.I.A. 1999) (“Pursuant to 8 C.F.R. § 236.1(c)(8), the [noncitizen] must demonstrate
that his release would not pose a danger to property or persons, and that he is likely to appear for
any future proceedings.”). Although these regulations and decisions demonstrate that the
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noncitizen bears the burden of proof to initially be released, they do not suggest that the burden
switches to Respondents because Petitioner had previously been released.7
The Supreme Court has touched on burden allocation under § 1226(a), but the Court has
merely noted that the text does not indicate when each party should bear the burden. See Jennings,
583 U.S. at 306 (noting that “[n]othing in § 1226’s text . . . supports the imposition” of “periodic
bond hearings every six months in which the Attorney General must prove by clear and convincing
evidence that the alien’s continued detention is necessary”).
The Tenth Circuit has not addressed this issue. Circuits that have addressed tangential
issues regarding the constitutionality of § 1226(a) are split. The First and Second Circuits have
held that detainees are entitled to an additional bond hearing where the government bears the
burden after the detainment becomes prolonged. Hernandez-Lara, 10 F.4th at 40; Velasco Lopez v.
Decker, 978 F.3d 842, 854 (2d Cir. 2020). On the other hand, the Third, Fourth, and Ninth Circuits
have found that § 1226(a) does not entitle a detainee to a new bond hearing with a shifted burden
after detention becomes prolonged. See Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d
274, 279 (3d Cir. 2018); Miranda v. Garland, 34 F.4th 338, 366 (4th Cir. 2022); Rodriguez Diaz v.
Garland, 53 F.4th 1189, 1213–14 (9th Cir. 2022). As an initial matter, these circuits addressed a
related but materially different question than Petitioner presents. These circuits dealt with a
burden-shifting requirement after the detainee had been detained under § 1226 for a prolonged
7 The Court recognizes that some courts have recently turned to the BIA decision of Matter of
Sugay, 17 I. & N. Dec. 637, 640 (B.I.A. 1981) for the argument that no change should be made to
a previous bond decision “absent a change in circumstances.” See, e.g., Sing v. Hale, No. 2:26-cv-
53, 2026 WL 765623, at *3 (D. Vt. Mar. 18, 2026); Hernandez-Parrilla v. De Anda-Ybarra, No.
2:25-cv-01224-MIS-KK, 2025 WL 3632769, at *5 (D.N.M. Dec. 15, 2025). However, Petitioner
was not released due to a finding by an immigration judge. And Petitioner was released on a form
of conditional parole, no bond determination is at issue here. Therefore, the Court finds Matter of
Sugay to be inapposite.
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period of time. Here, Petitioner asks the Court to shift the burden after he had spent several months
living in the United States free from detention. Finding that a burden-shifting requirement is
warranted upon re-detention would significantly expand even the First and Second Circuits’
findings.
B. Mathews does not warrant shifting the burden at Petitioner’s bond hearing.
In determining burden-shifting procedure for prolonged detention under § 1226, several
circuits have turned to the Mathews factors. See Rodriguez Diaz, 53 F.4th at 1206; Miranda, 34
F.4th 358–59; Hernandez-Lara, 10 F.4th at 27–28; Velasco Lopez, 978 F.3d at 851. Assuming
Mathews applies in this context, the Mathews factors do not warrant shifting the burden at
Petitioner’s bond hearing.
As previously discussed, under the first Mathews factor, Petitioner has the basic interests
in his freedom from detention and receiving the procedure authorized by Congress. See Hamdi,
542 U.S. at 529; see also Sierra, 258 F.3d at 1218. Even weighed against the sovereign prerogative
over immigration matters that allows Congress to make rules for noncitizens that may not be
applied to citizens, the first Mathews factor favors Petitioner.
However, the second Mathews factor, in the context of shifting the burden at a subsequent
bond hearing, does not favor Petitioner.8 Since noncitizens, like Petitioner, “do not have a
constitutional right to enter or remain in the United States, the only protections afforded are the
minimal procedural due process rights for an “opportunity to be heard at a meaningful time and in
a meaningful manner.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009), cert.
denied, 559 U.S. 1067 (2010). Petitioner receives all the process he is due so long as he receives a
8 Because the Court has already found that Petitioner is entitled to receive notice and a bond
hearing under § 1226(a), this analysis assumes Petitioner receives notice and his bond hearing.
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bond hearing pursuant to § 1226(a). Petitioner will be given notice of and receive a bond hearing
before an immigration judge, and he will have the opportunity to present evidence that he should
be released. This opportunity to be heard is meaningful in time and manner because it precedes
any decision to deny or grant release. This process parallels the process in Morrissey which
provides for a pre-deprivation hearing, after detention has already occurred, to determine a final
revocation decision. See 408 U.S. at 487–88 (noting that detention for two months before a hearing
“would not be unreasonable”). Furthermore, Petitioner will have the opportunity to appeal an
adverse determination. See 8 C.F.R. §§ 1003.36, 1236.1(d) (2026).
The value of the additional safeguard Petitioner suggests, flipping the burden, does little to
lessen the risk of an erroneous deprivation in a proper fashion. The deprivation, the final decision
to revoke parole, occurs after a hearing before an immigration judge. An immigration judge has
the experience and tools necessary to make a well-reasoned decision about whether a noncitizen
may remain on bond or release. Provided that Petitioner receives notice of this hearing, he receives
the process he is due. Flipping the burden necessarily lessens the risk of any deprivation, proper
or erroneous, but it does so at the cost of exceeding the judicial role. See Landon, 459 U.S. at
34–35 (“The role of the judiciary is limited to determining whether the procedures meet the
essential standard of fairness under the Due Process Clause and does not extend to imposing
procedures that merely displace congressional choices of policy.”). Petitioner has not presented
any binding precedential or statutory justification for flipping the burden in this situation. Without
such support, the Court would lean on due process to displace a congressional policy choice. See
Perttu v. Richards, 605 U.S. 460, 470 (2025) (“[T]he statutory silence on the question before us
‘is strong evidence that the usual practice should be followed.’” (quoting Jones v. Bock, 549 U.S.
199, 212 (2007))). Since Petitioner receives the process he is due under the statute and the risk of
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an erroneous deprivation remains low so long as a hearing occurs, the second Mathews factor
favors Respondents.
The final Mathews factor considers the Government’s significant interest in immigration
proceedings as well as the fiscal and administrative burden that a burden-shifting requirement
would entail. The Court will not overlook that “it must weigh heavily in the balance that control
over matters of immigration is a sovereign prerogative, largely within the control of the executive
and the legislature.” Landon, 459 U.S. at 34. Detention has been deemed a valid part of sovereign
prerogative “necessary to give effect to the provisions for the exclusion or expulsion of aliens.”
Wong Wing v. United States, 163 U.S. 228, 235 (1896). The Supreme Court found that removal
proceedings “would be vain if those accused could not be held in custody pending the inquiry into
their true character, and while arrangements were being made for their deportation.” Id. Although
the fiscal and administrative burdens of a burden-shifting requirement would likely be minimal,
the legislature and executive’s silence on a burden-shifting requirement indicates that any
judicially imposed burden-shifting requirement here would be displacing a congressional policy
choice that the burden remain with Petitioner. See E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45, 52
(2025) (“Statutory silence is generally ‘inconsistent with the view that Congress intended to
require a special, heightened standard of proof.’” (quoting Grogan v. Garner, 498 U.S. 279, 286
(1991))). Thus, the significant weight afforded to the executive and legislature over immigration
matters renders the third Mathews factor favorable to Respondents.
Under the Mathews factors, the Court finds that due process does not require that
Respondents bear the burden at Petitioner’s bond hearing—even though he was previously
released on his own recognizance. Accordingly, the Court finds that a bond hearing under
§ 1226(a) provides Petitioner the process he is due.
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CONCLUSION
The Court concludes that Petitioner’s detention is governed by § 1226(a), not
§ 1225(b)(2)(A), and that due process entitles Petitioner to notice and a bond hearing under
§ 1226(a). Accordingly, the Petition (Doc. 1) is granted in part. However, the Court finds that
Petitioner failed to demonstrate that due process entitles him to notice and a hearing prior to being
re-detained. Therefore, the Petition is denied 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. 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.9
IT IS THEREFORE ORDERED that Petitioner’s Petition (Doc. 1) is hereby
GRANTED in part and DENIED in part for reasons described in this Memorandum Opinion
and Order.
IT IS FURTHER ORDERED that Respondents shall provide Petitioner an individualized
bond hearing before an immigration judge 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 provisions may apply.
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.
9 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, 975 F.2d at
693 (explaining that district court has authority to enforce its habeas judgment).
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__/S/__________________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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