Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BACHITAR SINGH,
Petitioner,
vs. 	No. CIV 25-1110 JB/KK
KRISTI NOEM, Secretary of Homeland
Security, PAMELA BONDI, U.S. Attorney
General, TODD M. LYONS, Acting Director of
Immigration and Customs Enforcement, MARY
DE ANDA-YBARRA, El Paso Field Office
Director, DORA CASTRO, Warden of the
Otero County Processing Center,
Respondents.
MEMORANDUM OPINION AND ORDER SUSTAINING THE OBJECTIONS TO THE
MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION1
THIS MATTER comes before the Court on: (i) the Respondents’ Objections to the
Proposed Findings and Recommended Disposition, filed December 4, 2025 (Doc. 18)(“Objections
to the TRO PFRD”); and (ii) the Respondents’ Objections to the Proposed Findings and
Recommended Disposition, filed January 13, 2026 (“Objections to the Habeas Petition PFRD”).
The Honorable Kirtan Khalsa, United States Magistrate Judge for the United States District Court
for the District of New Mexico, files two documents: (i) the Magistrate Judge’s Proposed Findings
and Recommended Disposition, filed November 21, 2025 (Doc. 14)(“TRO PFRD”); (ii) the
Magistrate Judge’s Proposed Findings and Recommended Disposition, filed December 31, 2025
1 Because Singh files for a TRO, the Court is concerned about being a good judge and
giving a timely ruling, while also learning a new body of law. The Court had the Court’s
Courtroom Deputy Clerk (“CRD”) call Singh’s counsel to find out how long it had to rule on
Singh’s motion for a TRO and still be a good judge. Singh’s counsel referenced Singh’s Final
Preliminary Hearing at 1:30 p.m. on January 20, 2025. 	Using this as a deadline, the Court has
worked to get out its opinion by this date.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 1 of 94

- 2 -
(Doc. 20)(“Habeas Petition PFRD”). 	Both PFRDs notify the parties of their ability to file
Objections within fourteen days and that the failure to file Objections waives appellate review.
See TRO PFRD at 22; Habeas Petition PFRD at 14. On December 4, 2025, the Respondents --
Kristi Noem, Secretary of Homeland Security, Pamela Bondi, United States Attorney General,
Todd M. Lyons, Acting Director of Immigration and Customs Enforcement, and Mary De Anda-
Ybarra, El Paso Field Office Director of ICE, collectively “the Federal Respondents”2 -- file their
Objections to the TRO PFRD. See Objections to the TRO PFRD at 1. On December 18, 2025,
Petitioner Bachitar Singh files a Response to the Respondents’ Objections to the Magistrate’s
Proposed 	Findings 	and 	Recommended 	Disposition, 	filed 	December 	18, 	2025 	(Doc.
19)(“Response”). 	On December 31, 2025, Magistrate Judge Khalsa files the Habeas Petition
PFRD. 	Habeas Petition PFRD at 1. 	On January 13, 2026, the Federal Respondents’ file their
Objections to the Habeas Petition PFRD. 	The primary issues that the TRO PFRD Objections
present are: (i) whether Singh is subject to mandatory detention under 8 U.S.C. § 1225(b)(2),
because he is an alien present within the United States without having been lawfully admitted, or
instead is subject to detention under 8 U.S.C. § 1226(a); (ii) whether Singh must be released, or in
the alternative, a bond hearing must be afforded; (iii) whether, if a bond hearing is granted, the
burden should be on the United States of America to prove by clear-and-convincing evidence that
circumstances have changed such that Singh is now a flight risk or a danger to persons or property;
(iv) whether the United States violates Singh’s due process rights because of his detention under
8 U.S.C. § 1225 without bond; and (v) whether Singh may file a motion for attorney’s fees under
2 Dora Castro, the Warden of the Otero County Processing Center, does not work for the
federal government, and the attorneys working for the United States government who file the
Objections to the PFRD do not represent Castro. Castro has indicated, however, that Castro adopts
all of the Federal Respondents’ positions and argument in these habeas cases.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 2 of 94

- 3 -
the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)(“EAJA”). 	The Court concludes that:
(i) while Singh is a candidate for mandatory detention under 8 U.S.C. § 1225(b)(1), because he is
an applicant for admission who has been present in the United States for less than two continuous
years before the date of determination of inadmissibility, the immigration officer who screened
Singh on September 4, 2025 did not determine that Singh is inadmissible under 8 U.S.C. §
1182(a)(6)(c) or 8 U.S.C. § 1182(a)(7), as § 1225(b)(1)(a)(i) requires; (ii) the United States
properly holds Singh under § 1225(b)(2), because he is an applicant for admission who is present
in the United States, is not lawfully admitted, is seeking admission, and the immigration officer
has determined that he is not entitled to be admitted; (iii) the United States has not violated Singh’s
due process rights, because the length of Singh’s detention to date does not violate procedural or
substantive due process; (iii) the Court does not decide who carries the burden of proof and what
that burden is in an 8 U.S.C. § 1226 bond hearing, because Singh is not entitled to a bond hearing
under § 1226; and (iv) Singh may not file a motion for fees under the EAJA because he is not the
prevailing party.
FACTUAL BACKGROUND
No party objects to the PFRD’s factual background. 	Finding that the facts as stated,
therefore, are not clearly erroneous, the Court adopts the PFRD’s facts. 	See Alexander v.
Kirkpatrick, 435 F. Supp. 3d 1216, 1221-22 (D.N.M. 2020)(Browning, J.)(“Because the parties
have not objected to it, the Court does not review the PFRD de novo, but rather reviews [the PFRD]
to determine if it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.”).
Singh is an Indian citizen who enters the United States without inspection on or about
September 15, 2023. See PFRD at 2. Singh does not cross the border at a port of entry, but crosses
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 3 of 94

- 4 -
at an unauthorized location, and immigration officials in Lukeville, Arizona detain him shortly
after he enters. See Notice to Appear, dated September 16, 2023, filed November 7, 2025 (Doc.
1)(“Notice”). 	Shortly after his arrival, United States immigration officials 	in Yuma, Arizona,
detain Singh. See PFRD at 2. The following day, immigration officials serve him with the Notice
to appear before an Immigration Judge, charging that he is inadmissible, because he is present in
the United States without being admitted or paroled. See PFRD at 2. The Notice is pursuant to
the removal proceedings under section 236 of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1226. In three places, the Notice states that Singh is not admitted or paroled. See, e.g.,
Notice at 1 (“You are an alien present in the United States who has not been admitted or paroled.”);
id. (“You were not then admitted or paroled after inspection by an Immigration Officer.”). The
Notice then says:
On the basis of the foregoing, it is charged that you are subject to removal from the
United States pursuant to the following provision(s) of law:
212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)] of the Immigration and Nationality
Act, as amended, in that you are an alien present in the United States at any time or
place other than as designated by the Attorney General.
Notice at 1. 	The Notice orders Singh to appear before an immigration judge in San Francisco,
California on April 2, 2026. See Notice at 1. That same day, on September 16, 2023, the United
States Department of Homeland Security (“DHS”) release Singh on his own recognizance, in
accordance with section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226. See PFRD
at 2. The Order of Release on Recognizance states: “You have been arrested and placed in removal
proceedings.” See Order of Release on Recognizance, dated September 16, 2023, filed November
7, 2025 (Doc. 1)(“Order of Release”). The Order of Release states: “In accordance with section
236 of the Immigration and Nationality Act [8 U.S.C. § 1226], Singh is released on his own
recognizance 	provided 	that 	he 	complies 	with 	certain 	conditions. 	One 	condition 	is 	that
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 4 of 94

- 5 -
“Employment not authorized.” Order of Release at 1. Singh has resided in the United States since
his release. 	See PFRD at 2. 	He has no criminal history and has complied fully with all of the
conditions of his release. See PFRD at 2. On March 19, 2024, Singh timely files an application
for asylum, withholding of removal, and protection under the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. 	See PFRD at 2. 	Effective
September 17, 2024, the United States grants Singh an Employment Authorization valid until
September 16, 2029. See PFRD at 2. Singh subsequently obtains a commercial driver’s license
and employment as a commercial truck driver. See PFRD at 2.
On or about September 4, 2025, while he is employed driving a commercial vehicle, Singh
travels through a United States Border Patrol checkpoint in New Mexico. See PFRD at 2. At the
checkpoint, immigration official Oscar Delgado re-detains Singh, despite the absence of any
material change in circumstances that would have rendered him a danger to the community or
flight risk. 	See PFRD at 2-3. 	At this second encounter, on September 4, 2025, Singh is
encountered north of Las Cruces, at the United States Border Patrol Checkpoint on I-25. 	See
Record of Deportable/Inadmissible Alien, at 2, dated September 7, filed November 28, 2025 (Doc.
16). 	Officer 	Delgado 	questions 	Singh 	about 	his 	citizenship. 	See 	Record 	of
Deportable/Inadmissible Alien at 2. 	Singh states that he is from India and provides a valid
Employment Authorization Document. 	See Record of Deportable/Inadmissible Alien at 2.
Delgado asks Singh how he enters the United States, and Singh replies that he enters illegally
through Arizona and that the United States Border Patrol Agents apprehends him in 2023. 	See
Record of Deportable/Inadmissible Alien at 2. A record check reveals that a United States Border
Patrol Apprehension occurs in Ajo, Arizona on September 15, 2023 for Entry Without Inspection.
See Record of Deportable/Inadmissible Alien at 2. Officer Delgado notes that Singh has a pending
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 5 of 94

- 6 -
EOIR 3 hearing on September 9, 2028, in California. See Record of Deportable/Inadmissible Alien
at 2. 	Singh is transported to the El Paso Sector Centralized Processing Center for “custody
redetermination.” See Record of Deportable/Inadmissible Alien at 2.
In an addendum, located at the bottom of page 2 of the Record of Deportable/Inadmissible
Aliens, another immigration officer, Lorenzo Zuniga, states he advises Singh of his rights in the
removal proceeding. See Record of Deportable/Inadmissible Alien at 2. Singh states that he is a
citizen 	and 	national 	of 	India 	and 	has 	a 	pending 	court 	hearing. 	See 	Record 	of
Deportable/Inadmissible Alien at 2. Agent Zuniga indicates on page 3 that “Singh is being served
with a Notice to Appear . . ., and placed in removal proceedings, per section 212(a)(6)(A)(i) [8
U.S.C. §1182(a)(6)(A)(i)] of the INA.” Record of Deportable/Inadmissible Alien at 3. 	Agent
Zuniga states that Singh “has [a] pending court date of August 09, 2028.” 	See Record of
Inadmissible Alien at 3. In the disposition section, Agent Zuniga states that Singh was processed
“on 09/07/2025 as per section 212(a)(6)(A)(i)(I)4 of the Immigration and Nationality Act.” Record
of Deportable/Inadmissible Alien at 3. Agent Zuniga states that “Subject I-862 was updated with
pending court date on 08/09/2028 in El Paso, TX.” Record of Deportable/Inadmissible Alien at 3.
Singh is then transferred to ICE/ERO5 . . .” Record of Deportable/Inadmissible Alien at 3. The
United States has held Singh without bond since that time and currently detains him at the Otero
3 An EOIR hearing is conducted by immigration judges as part of the Executive Office
for Immigration Review (EOIR). Immigration Court, ICE PORTAL ,
https://portal.ice.gov/immigration-guide/court.
4 The Court cannot find the subsection (I).
5 ERO stands for Enforcement and Removal Operations, which “manages all aspects of
the immigration enforcement process, including the identification, arrest, detention and removal
of aliens who are subject to removal or are unlawfully present in the U.S.” Enforcement and
Removal Operations, U.S. I MMIGRATION AND C USTOMS ENFORCEMENT ,
https://www.ice.gov/about-ice/ero.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 6 of 94

- 7 -
County Processing Center in Chaparral, New Mexico. See PFRD at 3.
Singh’s asylum application remains pending. See PFRD at 2. Singh’s next hearing is a
Final Preliminary hearing, which is set for January 20, 2025.6 The Court’s understanding is that
this hearing is the equivalent of a court’s pretrial conference before Singh has his final asylum
hearing.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the required
proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a
claim or defense. . . .”). Rule 72(b)(2) governs objections: “Within 14 days after being served with
a copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). Finally, when resolving
objections to a Magistrate Judge's proposal, “[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. §
636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
6 On January 16, 2026, the Court’s Courtroom Deputy Clerk called Singh’s counsel about
what the status of Singh’s asylum proceedings are, and the date comes from Singh’s counsel. See
28 U.S.C. § 636(b)(1)(A)(“A judge of the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge. The judge may also receive further
evidence . . . .”).
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 7 of 94

- 8 -
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
“The filing of objections to a magistrate's report enables the district judge to focus attention
on those issues -- factual and legal -- that are at the heart of the parties' dispute.” United States v.
One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d
1057, 1059 (10th Cir.1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As
the United States Court of Appeals for the Tenth Circuit notes, “the filing of objections advances
the interests that underlie the Magistrate's Act, including judicial efficiency.” One Parcel, 73 F.3d
at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.1986); United States v.
Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit holds “that a party's objections to the magistrate judge's report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” 	One Parcel, 73 F.3d at 1060. 	“To further advance the
policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate's findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059. In addition to requiring specificity in objections, the
Tenth Circuit states that “[i]ssues raised for the first time in objections to the magistrate judge's
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)(“In this circuit, theories
raised for the first time in objections to the magistrate judge's report are deemed waived.”). In an
unpublished opinion, the Tenth Circuit states that “the district court correctly held that [a
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 8 of 94

- 9 -
petitioner] had waived [an] argument by failing to raise it before the magistrate.” Pevehouse v.
Scibana, 229 Fed. Appx. 795, 796 (10th Cir.2007).7
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expands the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court of the United States -- in the course of approving the United States Court of
Appeals for the Sixth Circuit's use of the waiver rule -- notes:
It does not appear that Congress intended to require district court review of a
magistrate's factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of review
the district court should perform when no party objects to the magistrate's report.
See S.Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H.R.Rep. No. 94-
1609, p. 11 (1976), U.S.Code Cong. & Admin. News 1976, p. 6162 (hereafter
House Report). There is nothing in those Reports, however, that demonstrates an
intent to require the district court to give any more consideration to the magistrate's
report than the court considers appropriate. Moreover, the Subcommittee that
drafted and held hearings on the 1976 amendments had before it the guidelines of
the Administrative Office of the United States Courts concerning the efficient use
of magistrates. Those guidelines recommended to the district courts that “[w]here
a magistrate makes a finding or ruling on a motion or an issue, his determination
should become that of the district court, unless specific objection is filed within a
reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S.
7Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an unpublished
Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See
10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored. However,
if an unpublished opinion or order and judgment has persuasive value with respect
to a material issue in a case and would assist the court in its disposition, we allow
citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citing In re Citation of Unpublished
Opinions/Orders & Judgments, 151 F.R.D. 470 (10th Cir. 1993)). 	The Court concludes that
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the
Court in its disposition of the matters now before it.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 9 of 94

- 10 -
1283 before the Subcommittee on Improvements in Judicial Machinery of the
Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis
added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the
Southern District of New York, the chairman of a Judicial Conference Committee
on the administration of the magistrate system, testify that he personally followed
that practice. See id., at 11 (“If any objections come in, . . . I review [the record]
and decide it. If no objections come in, I merely sign the magistrate's order.”). The
Judicial Conference of the United States, which supported the de novo standard of
review eventually incorporated in § 636(b)(1)(C), opined that in most instances no
party would object to the magistrate's recommendation, and the litigation would
terminate with the judge's adoption of the magistrate's report. See Senate Hearings,
at 35, 37. Congress apparently assumed, therefore, that any party who was
dissatisfied for any reason with the magistrate's report would file objections, and
those objections would trigger district court review. There is no indication that
Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review
a magistrate's report to which no objections are filed. It did not preclude treating
the failure to object as a procedural default, waiving the right to further
consideration of any sort. We thus find nothing in the statute or the legislative
history that convinces us that Congress intended to forbid a rule such as the one
adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original).
The Tenth Circuit also notes, “however, that ‘[t]he waiver rule as a procedural bar need not
be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting Moore
v. United States, 950 F.2d 656, 659 (10th Cir.1991)(“We join those circuits that have declined to
apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not
apprise 	the 	pro 	se 	litigant 	of 	the 	consequences 	of 	a 	failure 	to 	object 	to 	findings 	and
recommendations.”). 	Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while “[a]ny party that
desires plenary consideration by the Article III judge of any issue need only ask,” a failure to object
“does not preclude further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard”). In One Parcel, the Tenth Circuit notes that the district
judge decides sua sponte to conduct a de novo review despite the objections’ lack of specificity,
but the Tenth Circuit deems the issues waived on appeal, because waiver advances the interests
underlying the waiver rule. 	See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 10 of 94

- 11 -
where district courts elect to address merits despite potential application of waiver rule, but Courts
of Appeals opt to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge's PFRD, on
“dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” United
States v. Raddatz, 447 U.S. 667, 674 (1980). “[I]n providing for a ‘de novo determination’ rather
than de novo hearing, Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate judge's proposed findings and
recommendations.” United States v. Raddatz, 447 U.S. at 676, (quoting 28 U.S.C. § 636(b) and
citing Mathews v. Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court
to 	consider 	relevant 	evidence 	of 	record 	and 	not 	merely 	review 	the 	magistrate 	judge's
recommendation” when conducting a de novo review of a party's timely, specific objections to the
magistrate judge's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections
are made to the magistrate's factual findings based on conflicting testimony or evidence . . . the
district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary
hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination” when
a party objects to the Magistrate Judge's report “based upon conflicting evidence or testimony.”
Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements
of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to the magistrate's
order.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court
need not, however, “make any specific findings; the district court must merely conduct a de novo
review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir.2000). “[T]he
district court is presumed to know that de novo review is required. Consequently, a brief order
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 11 of 94

- 12 -
expressly stating the court conducted de novo review is sufficient.” 	Northington v. Marin, 102
F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at 583-84). “[E]xpress references
to de novo review in its order must be taken to mean it properly considered the pertinent portions
of the record, absent some clear indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist.
No. 42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth Circuit holds that a district court properly
conducts a de novo review of a party's evidentiary objections when the district court's “terse” order
contains one sentence for each of the party's “substantive claims” and does “not mention his
procedural challenges to the jurisdiction of the magistrate to hear the motion.” Garcia v. City of
Albuquerque, 232 F.3d at 766. 	The Tenth Circuit explains that brief district court orders that
“merely repeat[ ] the language of § 636(b)(1) to indicate its compliance” are sufficient to
demonstrate that the district court conducts a de novo review:
It is common practice among district judges in this circuit to make such a statement
and adopt the magistrate judges' recommended dispositions when they find that
magistrate judges have dealt with the issues fully and accurately and that they could
add little of value to that analysis. We cannot interpret the district court's statement
as establishing that it failed to perform the required de novo review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court's adoption of the Magistrate Judge's “particular
reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C. § 636(b)(1)
and United States v. Raddatz require).
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 12 of 94

- 13 -
Where no party objects to the Magistrate Judge's PFRD, the Court reviews, as a matter of
course and in the interests of justice, the Magistrate Judge's recommendations. In Pablo v. Soc.
Sec. 	Admin., 	No. 	CIV 	11-0132 	JB/ACT, 	2013 	WL 	1010401 	(D.N.M. 	February 	27,
2013)(Browning, J.), the plaintiff fails to respond to the Magistrate Judge's PFRD, and thus waives
his right to appeal the recommendations, but the Court nevertheless conducts a review. See 2013
WL 1010401, at *1, *4. 	The Court generally does not, however, “review the PFRD de novo,
because the parties have not objected thereto, but rather review[s] the recommendations to
determine whether they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4. 	The Court, thus, does not
determine independently what it would do if the issues had come before the Court first, when there
is no objection, but rather adopts the PFRD where “‘the Court cannot say that the Magistrate
Judge's recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (quoting Workheiser v. City
of Clovis, No. CIV 12–0485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28,
2012)(Browning, J.). See Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at
*4 (D.N.M. February 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt
the PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5
(D.N.M. February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and
noting: “The Court did not review the ARD de novo, because Trujillo has not objected to it, but
rather reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This review,
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 13 of 94

- 14 -
which is deferential to the Magistrate Judge's work when there is no objection, nonetheless
provides some review in the interest of justice, and seems more consistent with the waiver rule's
intent than no review at all or a full-fledged review. Accordingly, the Court considers this standard
of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,
however, that demonstrates an intent to require the district court to give any more consideration to
the magistrate's report than the court considers appropriate.”). The Court is reluctant to have no
review at all if its name is going at the bottom of the order adopting the Magistrate Judge's PFRD.
LAW REGARDING STATUTORY INTERPRETATION
When interpreting statutes, the Court must start with the plain language. See Been v. O.K.
Industries, Inc., 495 F.3d 1217, 1227 (10th Cir. 2007)(“We review issues of statutory construction
de novo, ‘interpret[ing] the words of the statute in light of the purposes Congress sought to
serve.’”)(quoting Wright v. Fed. Bureau of Prisons, 451 F.3d 1231, 1233–34 (10th Cir.2006)). “It
is well established that ‘when the statute’s language is plain, the sole function of the courts -- at
least where the disposition required by the text is not absurd -- is to enforce it according to its
terms.’” Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004)(quoting Hartford Underwriters Ins. Co.
v. Union Planters Bank, N. A., 530 U.S. 1, 6, (2000)). See In re Trans Alaska Pipeline Rate Cases,
436 U.S. 631, 643 (1978)(noting that a court may not disregard the statute’s plain language unless
a literal application of the statutory language “‘would lead to absurd results . . . or would thwart the
obvious purpose of the statute’”)(quoting Commissioner v. Brown, 380 U.S. 563, 571, (1965)).
“Courts indulge ‘a strong presumption that Congress expresses its intent through the language it
chooses. Therefore, when the terms of a statute are clear and unambiguous, our inquiry ends and
we should stick to our duty of enforcing the terms of the statute as Congress has drafted it.’” United
Kingdom Ministry of Defence v. Trimble Navigation Ltd., 422 F.3d 165, 171 (4th Cir.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 14 of 94

- 15 -
2005)(quoting Sigmon Coal Co. v. Apfel, 226 F.3d 291, 305 (4th Cir.2000)). 	See Public Lands
Council v. Babbit, 167 F.3d 1287, 1314 (10th Cir. 1999)(Seymour, C.J.)(“In examining . . .
[statutory] language, we assume that the words chosen by Congress are employed in their ordinary
sense and accurately express Congress’ [] legislative purpose.”).
“A statute is ambiguous when it is ‘capable of being understood by reasonably well-
informed persons in two or more different senses.’” United States v. Quarrell, 310 F.3d 664, 669
(10th Cir. 2002)(quoting In re Geneva Steel Co., 281 F.3d at 1178). “The plainness or ambiguity
of statutory language is determined by the reference to the language itself, and the specific context
in which that language is used, and the broader context of the statute as a whole.” Ceco Concrete
Const., LLC v. Centennial State Carpenters Pension Tr., 821 F.3d 1250, 1258 (10th Cir.
2016)(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). If statutory meaning cannot
be derived “merely by reference to the text,” a court “may also look to traditional canons of statutory
construction to inform our interpretation,” Conrad v. Phone Directories Co., 585 F.3d 1376, 1381
(10th Cir. 2009), and “may seek guidance from Congress’s intent, a task aided by reviewing the
legislative history,” In re Geneva Steel Co., 281 F.3d at 1178. “Ambiguous text can also be decoded
by knowing the purpose behind the statute.” In re Geneva Steel Co., 281 F.3d at 1178.
LAW REGARDING TEMPORARY RESTRAINING ORDERS
The requirements for a TRO issuance are essentially the same as those for a preliminary
injunction order. See People's Trust Fed. Credit Union v. Nat'l Credit Union Admin. Bd., 350 F.
Supp. 3d 1129, 1138 (D.N.M. 2018)(Browning, J.); 13 Moore's Federal Practice ¶ 65.36(1), at 65-
83 (3d ed. 2004). The primary differences between a TRO and a preliminary injunction are that a
TRO may issue without notice to the opposing party and that TROs are limited in duration to
fourteen days. See Fed. R. Civ. P. 65(b)(1)-(2). 	In both cases, however, injunctive relief is an
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 15 of 94

- 16 -
“extraordinary remedy,” and the movant must demonstrate a “clear and unequivocal right” to have
a request granted. 	Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir.
2003)). See Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d at 1181. The Supreme Court of the
United States and the United States Court of Appeals for the Tenth Circuit have explained that
“[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties
until a trial on the merits can be held.” 	Univ. of Tex. v. Camenisch, 451 U.S. 390, 395,
(1981). See Keirnan v. Utah Transit Auth., 339 F.3d 1217, 1220 (10th Cir. 2003)(“‘In issuing a
preliminary injunction, a court is primarily attempting to preserve the power to render a meaningful
decision on the merits.’”)(quoting Tri-State Generation & Transmission Ass'n v. Shoshone River
Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986)).
To establish its right to a temporary restraining order under rule 65(b), a moving party must
demonstrate that “immediate and irreparable injury, loss, or damage will result” unless a court
issues the order. Fed. R. Civ. P. 65(b). “[I]rreparable injury” is “harm that cannot be undone, such
as by an award of compensatory damages or otherwise.” Salt Lake Tribune Pub. Co., LLC v. AT
& T Corp., 320 F.3d 1081, 1105 (10th Cir. 2003)(citing Tri-State Generation & Transmission Ass'n
v. Shoshone River Power, Inc., 805 F.2d at 355). A moving party must “establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)(“Winter”)(citing Munaf v.
Geren, 553 U.S. 674, 689-90 (2008)); Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542,
(1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12 (1982)).
The likelihood-of-success and irreparable-harm factors are “the most critical” in the
analysis. Nken v. Holder, 556 U.S. 418, 434 (2009). It is insufficient, moreover, that a moving
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 16 of 94

- 17 -
party demonstrate that there is only a “possibility” of either success on the merits or irreparable
harm. Diné Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276 (10th Cir. 2016)(“Diné”).
In Diné, the Tenth Circuit held that a relaxed test for preliminary relief is “inconsistent with the
Supreme Court's recent decision in Winter v. Natural Resources Defense Council,” which
“overruled the [United States Court of Appeals for the] Ninth Circuit's application of a modified
preliminary injunction test under which plaintiffs ... could receive a preliminary injunction based
only on a possibility, rather than a likelihood, of irreparable harm.” Diné, 839 F.3d at 1282
(citing Winter, 555 U.S. at 22). The Tenth Circuit concluded that, although the standard overruled
in Winter v. Natural Resources Defense Council, Inc. dealt with the irreparable-harm factor,
“Winter's rationale seems to apply with equal force” to the likelihood-of-success factor. Diné, 839
F.3d at 1282. Accordingly, the Tenth Circuit held that “any modified test which relaxes one of the
prongs for preliminary relief and thus deviates from the standard test is impermissible.” Diné, 839
F.3d at 1282.
Under rule 65(c), the Court may issue a temporary restraining order “only if the movant
gives security in an amount that the court considers proper to pay the costs and damages sustained
by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The
United States and its officers and agencies are exempt from this requirement. See Fed. R . Civ. P.
65(c). The Court must consider whether a bond is necessary. 	See Coquina Oil Corp. v.
Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987)(concluding that, where a trial
court does not “contemplate the imposition of the bond, its order granting a preliminary injunction
is unsupportable.”). See also Flood v. ClearOne Comm'ns, 618 F.3 1110, 1126 n.4 (10th Cir. 2010).
Courts in the Tenth Circuit “have ‘wide discretion under Rule 65(c) in determining whether to
require security,’” and may, therefore, impose no bond requirement. RoDa Drilling Co. v. Siegal,
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 17 of 94

- 18 -
552 F.3d 1203, 1215 (10th Cir. 2009)(quoting Winnebago Tribe of Nebraska v. Stovall, 341 F.3d
1202, 1206 (10th Cir. 2003)).
LAW REGARDING PRELIMINARY INJUNCTIONS
“It is well settled that a preliminary injunction is an extraordinary remedy, and that it should
not be issued unless the movant’s right to relief is clear and unequivocal.” Kikumura v. Hurley,
242 F.3d 950, 955 (10th Cir. 2001)(internal quotation marks omitted). To show that the extreme
remedy of a preliminary injunction should issue, “[a] party seeking an injunction from a federal
court must invariably show that it does not have an adequate remedy at law.” 	N. Cal. Power
Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1306 (1984). Before a district court may issue
a preliminary injunction pursuant to rule 65 of the Federal Rules of Civil Procedure, the movant
must make four showings: (i) that the movant is likely to “suffer irreparable injury unless the
injunction issues”; (ii) that “the threatened injury” to the movant if the court does not issue the
preliminary injunction “outweighs whatever damage the proposed injunction may cause the
opposing party”; (iii) that “the injunction, if issued, would not be adverse to the public interest”;
and (iv) that “there is a substantial likelihood [of success] on the merits.” Resolution Trust Corp.
v. Cruce, 972 F.2d at 1198. 	See Winter, 555 U.S. at 19 (“A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” (citing Munaf v. Geren, 553 U.S. at 688-89)). The
movant bears the burden of demonstrating all four prongs’ satisfaction. 	See Automated Mktg.
Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972). “[A]ny modified test which relaxes
one of the prongs for preliminary relief and thus deviates from the standard test is impermissible.”
Diné, 839 F.3d at 1282. “A plaintiff suffers irreparable harm ‘when the court would be unable to
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 18 of 94

- 19 -
grant an effective remedy after a full trial because such damages would be inadequate and difficult
to ascertain.’” 	Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., 778 F. Supp. 2d
1180, 1190 (D.N.M. 2011)(Browning, J.)(quoting Dominion Video Satellite, Inc. v. EchoStar
Satellite Corp., 269 F.3d 1149, 1156 (10th Cir. 2001)(citing Kikumura v. Hurley, 242 F.3d at
963)). “Tenth Circuit decisions have linked the ‘irreparable injury’ inquiry to the ‘likelihood of
success’ inquiry, holding that a plaintiff who cannot demonstrate a substantial likelihood of
success is not entitled to a presumption of irreparable harm.” Logan v. Pub. Emps. Ret. Ass’n,
163 F. Supp. 3d 1007, 1030 (D.N.M. 2016)(Browning, J.)(citing Schrier v. Univ. of Colo., 427
F.3d at 1266.
“[T]he limited purpose of a preliminary injunction ‘is merely to preserve the relative
positions of the parties until a trial on the merits can be held . . . .’” Schrier v. Univ. of Colo., 427
F.3d at 1258 (quoting Univ. of Tex. v. Camenisch, 451 U.S. at 395). In that vein, the Tenth Circuit
has identified the following three specifically disfavored preliminary injunctions: (i) ”preliminary
injunctions 	that 	alter 	the 	status 	quo”; 	(ii) ”mandatory 	preliminary 	injunctions,” 	meaning
injunctions 	that 	compel, 	rather 	than 	prohibit, activity 	on 	the 	enjoined 	party’s part; 	and
(iii) ”preliminary injunctions that afford the movant all the relief that it could recover at the
conclusion of a full trial on the merits.” 	Schrier v. Univ. of Colo., 427 F.3d at 1258 (internal
quotation marks omitted)(quoting O Centro, 389 F.3d at 977). 	Accord Westar Energy, Inc. v.
Lake, 552 F.3d 1215, 1224 (10th Cir. 2009)(citing O Centro, 389 F.3d at 975). 	Regarding
mandatory preliminary injunctions, the Court has explained:
The Tenth Circuit “characterize[s] an injunction as mandatory if the requested relief
‘affirmatively require[s] the nonmovant to act in a particular way, and as a
result . . . place[s] the issuing court in a position where it may have to provide
ongoing supervision to assure the nonmovant is abiding by the injunction.’” Schrier
v. Univ. of Colorado, 427 F.3d at 1261 (all alterations but first in Schrier v. Univ.
of Colo.)(quoting O Centro . . . 	389 F.3d at 979). 	The Tenth Circuit has thus
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 19 of 94

- 20 -
disclaimed -- or at least augmented -- the simpler and more intuitive way of defining
these terms, i.e., that a prohibitory injunction is one in which the court orders the
enjoined party not to do something, and a mandatory injunction is one in which the
court orders the enjoined party to do something.
Salazar v. San Juan Cty. Det. Ctr., No. CV 15-0417 JB/LF, 2016 WL 335447, at *40 (D.N.M. Jan.
15, 2016)(Browning, J.). “When evaluating whether the issuance of a requested injunction would
alter the status quo between the parties, the court should look at ‘the reality of the existing status
and relationships between the parties, regardless of whether the existing status and relationships
may ultimately be found to be in accord or not in accord with the parties’ legal rights.’” Salazar
v. San Juan Cty. Det. Ctr., 2016 WL 335447, at *40 (quoting SCFC ILC, Inc. v. Visa USA, Inc.,
936 F.2d 1096, 1100 (10th Cir. 1991), overruled on other grounds by O Centro, 389 F.3d at 975).
“The meaning of this category is self-evident.” 	Salazar v. San Juan Cty. Det. Ctr., 2016 WL
335447, at *41. 	With respect to preliminary injunctions that will change the status quo, “the
movant has an even heavier burden of showing that the four factors listed above weigh heavily
and compellingly in movant’s favor before such an injunction can be issued.” Salt Lake Tribune
Publ’g Co. v. AT&T Corp., 320 F.3d 1081, 1099 (10th Cir. 2003)(internal quotation marks
omitted)(quoting SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d at 1098-99).
“[I]n an action for money damages, the district court does not have the power to issue a
preliminary injunction . . . .” United States ex rel. Rahman v. Oncology Assocs., 198 F.3d 489,
495-96 (4th Cir. 1999)(citing Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.,
527 U.S. 308, 324-25 (1999)). See Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418-20 (8th
Cir. 1987)(concluding that a preliminary injunction should not issue where a remedy of money
damages was available). Federal courts have the inherent equitable power to issue a preliminary
injunction only when it is necessary to protect a movant’s entitlement to a final equitable remedy.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 20 of 94

- 21 -
See, e.g., De Beers Consol. Mines v. United States, 325 U.S. 212, 219-23 (1945); Reebok Int’l,
Ltd. v. Marnatech Enters., Inc., 970 F.2d 552, 559-60 (9th Cir. 1992).
LAW REGARDING 8 U.S.C. § 1225
Before jumping to § 1225(b)(2), it is important to zoom to 30,000 feet or more, and look
at the United States and § 1225 as a whole. The United States is the third-largest country in terms
of land mass, and it has an approximately 5,525-mile border with Canada, U.S. Department of
Homeland Security, Considerations for United States -- Canada Border Traffic Disruption
Management, at 2 (2012), and 1,954-mile border with Mexico, U.S. Customs and Border
Protection, Smart Wall Map, https://www.cbp.gov/border-security/along-us-borders/smart-wall-
map (last visited Jan. 1, 2026). Other entry points are Puerto Rico, the United States Virgin Islands,
Guam, and other island territories. See U.S. Department of the Interior, Insular Areas of the United
States 	and 	Freely 	Associated 	States 	(last 	visited 	Jan. 	1, 	2026),
https://www.doi.gov/library/internet/insular.8 In addition, aliens may seek entry into the United
States in many ways, including stowing away in vehicles, and at many places, like the waters of
the Rio Grande or the Arizona deserts. 	See Fact Sheet, Modes of Entry for the Unauthorized
migrant Population, Pew Research Center (May 22, 2006), https://www.pewresearch.org/race-
and-ethnicity/2006/05/22/modes-of-entry-for-the-unauthorized-migrant-population/.
Each day the United States Customs and Border Protection (“CBP”) must process over a
million individuals. See U.S. Customs and Border Protection, On a Typical Day in Fiscal Year
2024, CVP . . ., (“2024 CBP Statistics”), https://www.cbp.gov/newsroom/stats/typical-day-fy2024
8 Other notable U.S. territories include the American Samoa and the Commonwealth of the
Norther Mariana Islands. See U.S. Department of the Interior, Insular Areas of the United States
and Freely Associated States://www.doi.gov/library/internet/insular (last visited Jan. 1, 2026),
https.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 21 of 94

- 22 -
(last visited Jan. 8, 2025)(stating that CBP processes “1,150,387 passengers and pedestrians” on a
typical day).9 That figure encompasses “4,267 nationwide enforcement encounters between ports
of entry” each day and “3,682 nationwide enforcement encounters at ports of entry” each day.
2024 CBP Statistics.10 	Extrapolating out, that means in that 2024, CBP encounters over 400
million passengers and pedestrians, and, of those, there are almost three million enforcement
“encounters,” or 0.69% of the arriving people, where the individual is not a citizen or does not
have a lawful reason for entering the country.
In contrast to the CBP, which conducts screening at a scale involving hundreds of millions
of arriving individuals, the United States Immigration and Customs Enforcement (“ICE”),
Enforcement and Removal Operations (“ERO”), operates in an enforcement environment with
lower volume.11 	In 2024, ICE makes approximately 179,282 arrests, of which the ERO makes
“113,431” administrative arrests and “33,243” “at-large” arrests. 2024 ICE Report at 2-3. 	The
difference in volume drives the practical reality between inspections and removal determinations.
The scale and immediacy of inspection and admission determinations justify rapid, on-the-spot
9 The CBP does not just process individuals. On a typical day, CBP processes: “3.8 million
de minimis shipments”; “88,582 truck, rail, and sea containers”; and “270,800 incoming privately
owned vehicle.” 2024 CBP Statistics.
10 “Enforcement encounters” include U.S. Border Patrol (“USBP”) Title 8 Apprehensions,
Office of Field Operations (“OFO”) Title 8 Inadmissibles, and Title 42 Expulsions, and this does
not include citizens and individuals CBP admit through other lawful means. See CBP, Nationwide
Encounters 	Fiscal 	Year 	2025, 	https://www.cbp.gov/newsroom/stats/nationwide-encounters-
fy2025 (last visited Jan. 9, 2025).
11 The Homeland Security Act of 2002 “created ICE by merging the investigative and
interior enforcement elements of the former U.S. Customs Service and the Immigration and
Naturalization Service.” ICE, Annual Report Fiscal Year 2024, at 8 (2024)(“2024 ICE Report”).
Within ICE, the ERO’s mission is to protect “the homeland by arresting and removing noncitizens
who undermine the safety of U.S. communities and the integrity of U.S. immigration laws . . . .
[A]nd its primary areas of focus are interior enforcement operations, management of the agency’s
detained and non-detained populations, and removal efforts.” 2024 ICE Report at 9.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 22 of 94

- 23 -
judgments that may be based on incomplete information. 	Mandatory removal and deportation
decisions, by contrast, carry greater consequence and therefore lack the same justification for
summary determinations.
Courts are often quick to criticize Congress -- the most important political branch in our
democratic government -- for the way it writes laws. Given the magnitude of writing a statute that
governs the inspection of every citizen and alien’s entry into the United States, the Court
approaches the task of interpreting Congress’ work with an appreciation for the extraordinary
complexity of the task. Section 1225 and § 1226 are not written against a small or static backdrop.
They reflect Congress’ effort to regulate admission decisions across vast borders, innumerable
entry points, and an enormous volume of daily inspections.
1. 	History of 8 U.S.C. § 1225.
In 1996, Congress passes the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, 110 Stat. 3009-546 (“IIRIRA”), which amends the Immigration and Nationality Act
(“INA”), 66 Stat. 166. 	See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
473(1999). 	The legislative history indicates that, in enacting IIRIRA, Congress seeks to
“strengthen and tighten” immigration laws, addressing two interrelated concerns. 	Arevalo v.
Ashcroft, 344 F.3d 1, 4 (1st Cir. 2003). First, Congress identifies a structural inequity in the pre-
1996 regime where aliens who avoid ports of entry and enter the United States unlawfully are
entitled to more extensive procedural protections in deportation proceedings than those who
present themselves for inspection through lawful channels. 	See Hing Sum v. Holder, 602 F.3d
1092, 1100 (9th Cir. 2010)(“Hing Sum”)(discussing that the IIRIRA eliminates the “‘entry
doctrine’” where aliens who enter the United States “without inspection could take advantage of
the greater procedural and substantive rights affording in deportation proceedings, while aliens
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 23 of 94

- 24 -
who presented themselves at a port of entry for inspection are subject to more summary exclusion
proceeding”). Second, Congress confronts a problem of administrative scale. See Am. Immigr.
Laws. Ass’n v. Reno, 199 F.3d 1352, 1354 (D.C. Cir. 2000)(“Reno”). 	By 1996, immigration
officers are conducting inspections in the tens of millions annually, yet existing law permits broad
opportunities to contest admissibility determinations through hearings, producing delay and strain
on limited adjudicatory resources. 199 F.3d at 1354-55. Congress enacts the IIRIRA to correct
both the inequity in procedural treatment and the practical burden imposed on the inspection
system by amending the INA to eliminate its definition of “entry” and adding to § 1225 expedited
removal proceedings.
a. 	Applicants for Admission.
The IIRIRA eliminates a distinction between aliens who are applicants for admission and
aliens present in the United States. 	See Succar v. Ashcroft, 394 F.3d 8, 12 (1st Cir.
2005)(“Succar”)(stating that aliens either “(a) applicants for admission and (b) non-citizens present
in the United States who had previously made an entry into the country either with, or without, an
inspection”). 	For admission and removal, lawful admission -- not entry -- is now the defining
concept. See Ira J. Kurzban, Immigration Law Sourcebook, Volume 1, chapter 3, § I.B, at 73 (18th
ed. 2022)(“Kurzban”). Entry is less important with Congress’ enactment of the IIRIRA, in which
Congress strikes the definition for “entry” from the INA and replaces entry with a definition of
who is an applicant for admission. 	Kurzban, supra chapter 3, § I.B, at 73. 	By eliminating the
definition of “entry,” and replacing “entry” with the terms “admission” and “admitted,” Congress
“re-characterize[s] aliens who are present in the United States, but who have not been inspected
and admitted” as “applicants for admission.” Succar, 394 F.3d at 13. Congress defines admission
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 24 of 94

- 25 -
as the “lawful entry of the alien into the United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
The re-characterization is important, because, before the IIRIRA, only “applicants for
admission” are subject to “exclusion proceedings,” but aliens present in the country without an
inspection are subject to “deportation proceedings.” Succar, 394 F.3d at 12-13. See Landon v.
Plasencia, 459 U.S. 21, 25 (1982)(“The deportation hearing is the usual means of proceeding
against an alien already physically in the United States, and the exclusion hearing is the usual
means of proceeding against an alien outside the United States seeking admission.”). 	Aliens
subject to deportation proceedings are given more procedural protections than those subject to
exclusion proceedings. See, e.g., Landon v. Plasencia, 459 U.S. 21, 25-26 (1982)(discussing the
differences in the two types or proceedings, including the right of appeal for deportation
proceedings but not in exclusion proceeding). Specifically, deportable aliens are “entitled [to] a
hearing before a special inquiry officer in which the individual had the right to be represented, to
examine the government’s evidence, and to present evidence on his or her behalf.” Make The Rd.
New York v. Wolf, 962 F.3d 612, 618 (D.C. Cir. 2020)(“Make the Road”). The distinction that
immigration law historically draws between “deportation proceedings,” which concern the
removal of aliens already within the United States, and “exclusion proceedings,” which concern
the prevention of entry, reflect the long-recognized principle that “the Due Process Clause applies
to all ‘persons’ within the United States, including aliens, regardless of whether their presence is
lawful, 	unlawful, 	temporary, 	or 	permanent.” 	Zadvydas 	v. 	Davis, 	533 	U.S. 	678, 	693
(2001)(“Zadvydas”)(quoting U.S. Const. amend. XIV, § 1, and citing Plyler v. Doe, 457 U.S. 202,
210 (1982); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Kwong Hai Chew v. Colding, 344 U.S. 590,
596-598, and n.5 (1953); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). 	With IIRIRA’s
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 25 of 94

- 26 -
enactment, Congress eliminates the dual system of deportation and exclusion proceedings, and
replaces the dual system with the universal “removal proceedings,” under which immigration
officers process all aliens who are applicants for admission. See Succar, 394 F.3d at 13.
Within the removal proceedings’ current umbrella, Congress designates certain aliens as
subject to “expedited” removal and other aliens subject to removal under § 1229a, “the usual
removal 	process.” 	Dep’t 	of 	Homeland 	Sec. 	v. 	Thuraissigiam, 	591 	U.S. 	103, 	108-09
(2020)(“Thuraissigiam”). Similar to the previous “deportation proceedings,” “[t]he usual removal
process involves an evidentiary hearing before an immigration judge, and at that hearing an alien
may attempt to show that he or she should not be removed.” 	Thuraissigiam, 591 U.S. at 108.
Under IIRIRA’s expedited removal provision, immigration officers “shall order the alien
removed” if the immigration officer determines that the alien is inadmissible, “because she does
not have a valid entry document or other suitable travel document, or because she has obtained a
visa 	through 	misrepresentation.” 	Make 	The 	Road, 	962 	F.3d 	at 	619 	(citing
8 U.S.C. § 1225(b)(1)(A)(i)). Under the expedited removal processes, there is no hearing and no
opportunity for the alien to present evidence. See Make The Road, 962 F.3d at 619 (stating that
after the immigration officers’ determination “all that stands between that individual and removal
is a paper review by the officer’s supervisor”). 	Aliens applying for asylum or claim a fear of
prosecution are an exception to expedited removal proceedings. See Thuraissigiam, 591 U.S. at
109 (“If an applicant ‘indicates either an intention to apply for asylum’ or ‘a fear of persecution,’
the immigration officer ‘shall refer the alien for an interview by an asylum officer.’”)(quoting
8 U.S.C. §§ 1225(b)(1)(A)(i)-(ii)). Based on the asylum officer’s determination, an arriving alien
either receives “‘full consideration of his asylum claim in a standard removal hearing,”
Thuraissigiam, 591 U.S. at 110 (quoting 8 C.F.R. § 208.30(f)); see 8 U.S.C. § 1225(b)(1)(B)(ii));
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 26 of 94

- 27 -
or the expedited removal proceedings of 8 U.S.C. § 1225(b)(1)), see Thuraissigiam, 591 U.S. at
110 (stating that “all that an alien must show to avoid expedited removal is a ‘credible
fear’”)(quoting 8 U.S.C. § 1158(b)(1)(A)).
b. 	Expedited Removal
Thus, with IIRIRA’s passage, Congress closes the procedural anomaly of the “entry
doctrine,” Hing Sum, 602 F.3d at1100, and gives immigration officers the tools to process the
“million[s of] primary inspections” occurring at the border, Reno, 199 F.3d at 1355. 	Congress
passes the IIRIRA with the expedited removal provisions to address the practical reality that large
volumes of “arriving” aliens are overwhelming the usual removal processes. See Reno, 199 F.3d
at 	1355. 	Congress 	therefore 	empowers 	immigration 	officers 	to 	resolve 	straightforward
inadmissibility determinations quickly where the alien “indisputably” has no authorization to be
admitted into the United States. 	H.R. Conf. Rep. No.. 104–828, at 209 (1996)(“House
Report”)(stating that the “purpose of the provisions [paragraph (b)(1)] is to expedite the removal
from the United States of aliens who indisputably have no authorization to be admitted to the
United States . . . .”).
Furthermore, “[n]ew paragraph (b)(2) provides that an alien determined to be inadmissible
by an immigration officer (other than an alien subject to removal under paragraph (b)(1), or an
alien crewman or stowaway) shall be referred for a hearing before an immigration judge under
new section 240.” 	House Report at 209. 	The language “other than an alien subject to removal
under paragraph (b)(1)” in § 1225(b)(2)(A) is significant. 	House Report at 209. 	Section
1225(b)(1) authorizes immigration officers to conduct expedited removal for specified categories
of arriving aliens whom the officer determines to be inadmissible for reasons including fraud or
misrepresentation, see 8 U.S.C. § 1182(a)(6)(C), or a lack of valid entry documents, see
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 27 of 94

- 28 -
8 U.S.C. § 1182(a)(7). 	Where 	the 	immigration 	officer 	makes 	such 	a 	determination, 	the
immigration officer may order removal without further hearing or review, and impose the attendant
statutory consequences, including a bar on reentry. See 8 U.S.C. § 1182(a)(9)(A)(i) (stating that
any “alien who has been ordered removed under section 1225(b)(1) of this title . . . who again
seeks admission within 5 years of the date of such removal . . . is inadmissible”).
2. 	Structure of 8 U.S.C. § 1225.
In interpreting a Congressional statute, the plain language that Congress writes is the most
important, but the statute’s structure can help the Court interpret the statute’s words. 	Congress
titles § 1225: “Inspection by immigration officers; expedited removal of inadmissible arriving
aliens; referral for hearing.” 8 U.S. C. § 1225. Thus, from the title, the reader can surmise that
they are about: (i) inspection; (ii) expedited removal of arriving aliens; and (iii) referral for
hearings. The Court should be slow to read a lot more into § 1225 that what the title details.
Section 1225 has four subparts: (i) “Inspection,” 8 U.S.C. § 1225(a); (ii) “Inspection of
applicants for admission,” 8 U.S.C. § 1225(b); (iii) “Removal of aliens inadmissible on security
and 	related 	grounds,” 	8 U.S.C. § 1225(c); 	and 	(iv) 	“Authority 	related 	to 	inspections,”
8 U.S.C. § 1225(d). 	The Court views § 1225’s organization as reflecting a statutory design to
address inspections by immigration officials, the expedited removal process, and the process of
removing an alien after a hearing. Each subpart addresses a discrete component of the inspection
process, moving from examination to summary removal determinations and then to the ancillary
powers necessary to carry out those functions.
a. 	8 U.S.C. § 1225(a): Inspection.
As 	the 	title 	of 	§ 1225 	promises, 	Congress 	labels 	the 	first 	section 	“Inspection.”
8 U.S.C. § 1225(a). 	The 	Court 	does 	not 	quickly 	move 	past 	the 	word 	“Inspection.”
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 28 of 94

- 29 -
8 U.S.C. § 1225(a). “Inspection” denotes the “act of inspection,” or “a checking or testing of an
individual 	against 	established 	standards,” 	Inspection, 	Merriam-Webster.com 	Dictionary,
Merriam-Webster, https://www.merriam-webster.com/dictionary/inspection. (last visited on Jan.
17, 2026), and to “inspect” means “to view closely in critical appraisal: look over” or “to examine
officially,” 	Inspecting, 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster,
https://www.merriam-webster.com/dictionary/inspecting. (last visited on Jan. 17, 2026). 	The
ordinary meaning of inspection implies an, individualized encounter between an immigration
officer and a single alien -- often an officer face-to-face with an alien for evaluation purposes. The
Court finds the word “inspection” difficult to reconcile with mass or abstract enforcement. 	In
addition to focusing on the words that the statute uses, it is also important to note what words
§ 1225 does not use. Section 1225 does not speak in terms of “arrest” or “apprehension.” Those
concepts are present in the INA, but their absence from § 1225’s title and text indicates that
Congress places those powers elsewhere, and § 1225 is in a distinct procedural posture -- often
face-to-face inspection and examination at the threshold of entry.
Section 1225(a) gives the definition for five inspection terms that the statute uses. Section
1225(a)(1)’s opening clause is foundational to the statute’s operation, and Congress emphasizes
its breadth through deliberate phrasing. Section 1225(a)(1) defines aliens who are “treated as
applicant[s] for admission.” 	8 U.S.C. § 1225(a)(1). 	For purposes of this chapter, immigration
officers treat aliens as applicants for admission if they are:
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) shall be deemed for purposes of this chapter an applicant for admission.
8 U.S.C. § 1225(a)(1). Notably, an alien is an “applicant for admission” if the alien is “present in
the United States” and is “not admitted.” 8 U.S.C. § 1225(a)(1). The definition also covers aliens
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 29 of 94

- 30 -
“who arrive[] in the United States” regardless whether they arrive at a designated port of entry.
8 U.S.C. § 1225(a)(1). With this scope, Congress indicates that § 1225 treats almost all aliens are
as “applicants for admission.” It is hard to image how Congress could have written § 1225(a)(1)
more broadly.
In § 1225(a)(1), the United States is passive. 	The United States does not have to do
anything -- such as effecting a stop -- to impose the status of “applicant for admission” upon an
alien. 	An alien “present” in the United States who has not been admitted or who arrives in the
United States is, by law, an applicant for admission. At the same time, § 1225(a) indicates that the
aliens treated as “applicants for admission” has subgroups. 8 U.S.C. § 1225(a)(2). For stowaways,
who arguably, are aliens “present in the United States who [have] not been admitted” or is an alien
“who arrives in the United States,” and thus arguably an applicant for admission, the statutes states
they are not eligible to apply for admission or to be admitted. 	8 U.S.C. § 1225(a)(2). 	Section
1225(a)(3), titled “Inspection,” states all “aliens (including alien crewmen) who are applicants for
admission or otherwise seeking admission or readmission to or transit through the United States
shall be inspected by immigration officers.” 	8 U.S.C. § 1225(a)(3). 	The statute use of “or
otherwise seeking admission” suggests that aliens who are treated as applicant for admission are
not coterminous with aliens who are “seeking admission.” 8 U.S.C. § 1225(a)(3). Thus, § 1225(a)
suggest that not all applicants can apply for or seek admission. 	The Court notes that § 1225(a)
continues 	by 	defining 	“Withdrawal 	of 	application 	for 	admission,” 	and 	“Statements.”
8 U.S.C. §§ 1225(a)(4)-(5).12 	Although § 1225 does not define “admission” or “admitted,”
12 Section 1225 defines the withdrawal of application for admission by stating an “alien
applying for admission may, in the discretion of the Attorney General and at any time, be permitted
to withdraw the application for admission and depart immediately from the United States.”
8 U.S.C. § 1225(a)(4).
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 30 of 94

- 31 -
§ 1101(a)(13)(A) defines those terms as, “with respect to an alien, the lawful entry of the alien into
the 	United 	States 	after 	inspection 	and 	authorization 	by 	an 	immigration 	officer.”
8 U.S.C. § 1101(a)(13)(A).
Section 1225(a) frames § 1225’s scope by situating the section within an inspection-based
posture. Congress specifies which aliens are subject to inspection -- those seeking admission or
readmission -- and identifies those who are not, including stowaways. 	The provision further
contemplates that an applicant for admission may withdraw the application and “depart
immediately” from the United States, underscoring the section’s focus on entry-stage judgments.
8 U.S.C. § 1225(a)(4). 	By anchoring § 1225 in inspection concepts that Congress defines, it
signals that an inspection at the threshold of entry triggers the powers and procedures that follow.
Section 1225(a) thus presupposes an alien whom the United States has not admitted, but is
applying for admission, free to abandon the inspection process and depart without restraint.
b. 	8 U.S.C. § 1225(b): Inspection of Applicants for Admission.
Congress titles § 1225(b): “Inspection of applicants for admission.” 8 U.S.C. § 1225(b).
In providing the process for inspecting “applicants for admission,” Congress begins with
subparagraph (b)(1), which governs the inspection of “aliens arriving in the United States and
certain other aliens who have not been admitted or paroled.” 	8 U.S.C. § 1225(b)(1). 	Section
1225(b)(1) is the process for the “expedited” removal that Congress mentions in the title, even
though the word “expedited” appears nowhere in subparagraph (b)(1). 	Congress allows
§ 1225(b)(1) to apply to “certain other aliens,” and subparagraph § 1225(b)(2) governs the
inspection of “other aliens.” 8 U.S.C. § 1225(b)(2). As the Court discusses below, all aliens are
run through § 1225 (b)(1) first, and if an alien is an “arriving alien” or a “certain other alien” in
§ 1225(b)(1)(A)(iii), 	the 	alien 	never 	becomes 	an 	“other 	alien” 	in 	§ 1225(b)(2). 	See
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 31 of 94

- 32 -
8 U.S.C. § 1225(b)(2)(ii) (“Subsection (A) shall not apply to an alien -- (ii) to whom paragraph (1)
applies . . . .”). 	The remaining provisions of § 1225(b) establish enforcement and review
mechanisms, including authorization for State attorneys general to bring civil actions for harms
arising 	from 	detention 	or 	removal 	under 	subparagraphs 	(b)(1) 	and 	(b)(2), 	see
8 U.S.C. § 1225(b)(3), as well as procedures for challenging determinations that immigration
officers make, see 8 U.S.C. § 1225(b)(4). 	The heart of this dispute, in part, concerns the
relationship between § 1225(b)(1) and § 1225(b)(2), and, given its significance, the Court
describes these provisions in greater detail.
Section 1225(b)(1)’s title, “Inspection of aliens arriving in the United States and certain
other aliens who have not been admitted or paroled,” indicates Congress intends that immigration
officers apply the following provision to two groups of aliens. 8 U.S.C. § 1225(b)(1). The two
groups 	of 	aliens 	are 	“aliens 	arriving 	in 	the 	United 	States”13 	and 	“certain 	other.”
8 U.S.C. § 1225(b)(1). 	Congress, after defining the class of applicants for admission subject to
§ 1225(b)(1), establishes a framework for the “screening” of arriving aliens, including procedures
for asylum interviews and limitations on judicial review. 8 U.S.C. §§ 1225(b)(1)(A)-(C). Again,
language is important.
i. 	Screening of Arriving Aliens.
13 The Department of Homeland Security defines an “arriving alien” as:
An applicant for admission coming or attempting to come into the United States at a port-
of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien
interdicted in international or United States waters and brought into the United States by
any means, whether or not to a designated port-of-entry, and regardless of the means of
transport.
8 C.F.R. § 1.2.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 32 of 94

- 33 -
Congress 	says 	“screening” 	-- 	not 	arrest, 	not 	apprehension, 	and 	not 	custody.
8 U.S.C. § 1225(b)(1)(A). Merriam-Webster defines “screen” to mean “to examine methodically
in order to separate into different groups,” “to select or eliminate by a screening process,” or “to
test or examine for the presence of something,” reinforcing that § 1225(b)(1)’s use primarily is at
a port of entry, at the border, or at an immigration office where an immigration officer must
methodically separate inadmissible aliens from individuals whom Congress permits lawful entry.
Screen, 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/screen. (last visited on Jan. 18, 2026). 	See Jennings, 583 U.S. at 285
(“Every day, immigration officials must determine whether to admit or remove the many aliens
who have arrived at an official “port of entry” . . . or who have been apprehended trying to enter
the country at an unauthorized location.”). The process is about screening -- inspection driven --
and not about the arrest or apprehension of aliens. 	Furthermore, screening suggests that
immigration officers often begins the screening and inspection process in the presence of the alien,
after the alien presents to the immigration officer to verify entry documents.
ii. 	“Arriving Aliens” are the Default Group.
As the Court observes above, § 1225(b)(1) applies to two groups of aliens, and
§ 1225(b)(1)(A) further divides the groups into subgroups. See 8 U.S.C. § 1225(b)(1)(A). Section
1225(b)(1)(A)(i) states: “If an immigration officer determines that an alien . . . who is arriving in
the United States or [] [certain other aliens] in clause (iii) is inadmissible under 1182(a)(6)(C) or
1182(a)(7) of this title . . . the officer shall order the alien removed from the United States without
further hearing or review . . . .” 8 U.S.C. § 1225(b)(1)(A)(i). “[C]ertain other aliens” includes an
“alien . . . who has not been admitted or paroled into the United States, and who has not
affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 33 of 94

- 34 -
present in the United States continuously for the 2-year period immediately prior to the date of the
determination of inadmissibility under this subparagraph.” 8 U.S.C. § 1225(b)(1)(A)(iii). Taken
together, these provisions identify the universe of aliens subject to expedited removal following
inspection, 	characterized 	by 	removal 	“without 	further 	hearing 	or 	review.” 	8 U.S.C. 	§
1225(b)(1)(A)(i).
Section 1225(b)(1)(A)(i) is the general rule, applying to aliens “arriving in the United
States” 	but 	also 	to 	“certain 	other 	aliens” 	that 	Congress 	describes 	in 	“clause 	(iii).”
8 U.S.C. § 1225(b)(1)(A)(i). Although Congress applies expedited removal to all aliens arriving
or to whom clause (iii) is applicable, Congress pauses expedited proceedings for aliens claiming
asylum until an asylum officer can make a determination under subparagraph (B). 	See
8 U.S.C. § 1225(b)(1)(A)(i)-(ii). The final provision, or the “Designation Provision,” allows the
Attorney General, now the Secretary of Homeland Security, see Awe v. Napolitano, 494 F. App’x
860, 863 (10th Cir. 2012), 14 to make the general rule for arriving aliens, of expedited removal,
applicable to other groups subject. See Make The Road, 962 F.3d at 619.
(i). 	Certain Other Aliens: Designation Groups.
Section 1225(b)(1)(A)(i) applies to aliens inadmissible for fraud or misrepresentation, or
lack of documentation. 	See 8 U.S.C. § 1225(b)(1)(A)(i) (referencing inadmissibility under
§§ 1182(a)(6)(C) or 1182(a)(7)). Fraud, misrepresentation, and lack of documentation constitute
only two of several inadmissibility grounds, however. 	In § 1182(a) Congress enumerates other
14 The statute’s reference to the Attorney General reflects prior administrative structure.
See Awe v. Napolitano, 494 F. App’x 863 n.3. Congress transfers authority to commence removal
proceedings and adjudicate naturalization applications to the Secretary of Homeland Security in
2002, effective March 1, 2003. 	See Ajlani v. Chertoff, 545 F.3d 229, 231 n.2 (2d Cir. 2008).
Batalova v. Ashcroft, 355 F.3d 1246, 1248 n.1 (10th Cir. 2004). Accordingly, references to the
“Attorney General” in § 1225 are now properly understood to mean the Secretary of Homeland
Security.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 34 of 94

- 35 -
grounds, which include health-related grounds, criminal grounds, and security-related grounds,
among others. See 8 U.S.C. § 1182(a)(1)-(10). Read in this context, the Court reads § 1225(b)(2)
as broader than § 1225(b)(1), governing the inspection and processing of applicants for admission
who fall outside the narrow subset subject to expedited removal under § 1225(b)(1), including
those deemed inadmissible on grounds other than fraud or lack of documentation. 	See
8 U.S.C. § 1225(b)(2) (governing the inspection of “other aliens”).
(ii). 	Certain Other Aliens: Physical Presence.
Section 1225(b)(1) removes from expedited removal a second category of aliens. 	See
8 U.S.C. § 1225(b)(1)(A)(iii)(II). 	Section 1225(b)(1)(A)(iii)(II) limits immigration officers’
application of expedited removal to “certain other aliens,” whom the United States has not
admitted or paroled into the United States, and who does not show continuous physical presence
in the country for the two-year period immediately preceding the inadmissibility determination.
8 U.S.C. § 1225(b)(1)(A)(iii)(II). 	By negative implication, Congress excludes from expedited
removal admitted aliens, paroled aliens, and aliens who can demonstrate two years of continuous
physical presence, even if they remain classified as applicants for admission under § 1225(a)(1).
See 8 U.S.C. § 1225(b)(1)(A)(iii)(II). 	The physical-presence limitation thus gives operative
content to Congress’ decision to treat certain non-admitted aliens present inside the United States
as applicants for admission for inspection purposes. 	See 8 U.S.C. § 1225(a)(1) (treating as an
applicant for admission both an arriving alien and an “alien present in the United States who has
not been admitted”).
Reading § 1225 to encompass a subset of aliens present in the United States accords not
only with the statute’s text, but also with Supreme Court guidance. In Jennings v. Rodriguez, 583
U.S. 281 (2018)(“Jennings”), the Court implicitly recognizes this structure. See 583 U.S. at 297.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 35 of 94

- 36 -
Justice Alito describes § 1225(b) as applying “primarily to aliens seeking entry into the United
States.” Jennings, 583 U.S. at 297. The modifier “primarily” implies that § 1225(b) also reaches
some aliens who are not seeking entry. Aliens physically present within our borders, whom the
United States has not admitted, are not “seeking entry,” but instead are “seeking admission.” 8
U.S.C. § 1225(b)(2)(A) (referring to an “alien seeking admission”). 	Justice Alito’s further
statement that “§ 1226 applies to aliens already present in the United States” creates no tension;
both propositions coexist comfortably under the Court’s reading of § 1225(b), which recognizes
overlapping statutory categories rather than mutually exclusive ones.
The aliens whom § 1225(b)(1)(A)(iii)(II) covers 	includes, for example, aliens whose
inspection at a port of entry is “deferred” by an immigration officer, and whom the officer
temporarily permits the alien to enter the United States pending further inspection, see 8 C.F.R.
§ 235.2 (“Parole for deferred inspection.”), as well as certain previously admitted aliens whose
status reverts to that of an applicant for admission upon the commission of specified offenses, see
8 U.S.C. § 1101(a)(13)(C) (stating that a lawfully admitted alien “shall not be regarded as seeking
an admission . . . unless the alien. . . . has committed an offense identified in section 1182(a)(2)).
Congress authorizes expedited removal only where the applicant for admission cannot demonstrate
two years of continuous physical presence. See 8 U.S.C. § 1225(b)(1)(A)(iii)(II). If an alien can
demonstrate two years of physical presence, they are then subject to the usual removal proceedings
under § 1229a, however, the alien remains an applicant for admission. See 8 U.S.C. § 1225(b)(2)
(stating that an applicant for admission “shall be detained for a proceeding under section 1229a”).
(iii). 	Certain Other Aliens: Paroled.
At the same time, Congress distinguishes “parole into the United States,” under
8 U.S.C. § 1182(d)(5)(A), from “conditional parole” under § 1226(a), which authorizes release
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 36 of 94

- 37 -
from immigration custody pending removal proceedings, 8 U.S.C. § 1226(a)(2)(B). Conditional
parole does not confer entry, does not alter an alien’s status as an applicant for admission, and does
not suspend the United States’ pursuit of removal; conditional parole is similar to bail in the
criminal context. See Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir. 2011)(stating that “akin to
bail release in criminal cases, conditional parole merely permits an alien to remain at liberty based
upon a determination that he poses no risk of danger or flight while his removal is actively
sought”)(emphasis in the original). The distinction between parole and conditional parole carries
concrete statutory consequences. 	Aliens “paroled into the United States” are not subject to
expedited removal under § 1225(b)(1). 	See 8 U.S.C. § 1225(b)(1)(A)(iii)(II).15 	They may also
seek adjustment of their immigration status under § 1255(a). See 8 U.S.C. § 1255(a) (stating that
“[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may
be adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe”). 	Legislative history confirms the distinction between parole and conditional parole.
See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007)(discussing the 1960 amendment
to 1255(a)). In the 1960, when Congress amends § 1255(a) to extend eligibility for adjustment of
immigration 	status 	to 	paroled 	aliens, 	it 	did 	so 	with 	reference 	to 	parole 	granted 	under
8 U.S.C. § 1182(d), not to aliens who had entered without inspection and were later released from
custody under the statutory precursor to § 1226(a). 	S.Rep. No. 86–1651 (1960), as reprinted in
1960 U.S.C.C.A.N. 3124, 3124-25, 3137 (extending § 1255 to “aliens paroled into the United
States,” but excluding those who “entered the United States surreptitiously”). 	This history
indicates that Congress does not understand conditional parole for aliens who entered without
15 The Court notes that persons who enter without inspection and are applicants for
admission can qualify for parole under § 1182, see U.S.C. § 1182(d)(5)(A), or conditional parole
under § 1226(a), see 8 U.S.C. § 1226(a)(2)(B).
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 37 of 94

- 38 -
inspection to be the same form of parole contemplated in § 1255 or in § 1225(b)’s exclusion from
expedited removal.
Section 1225(b)(1), though textually narrower than § 1225(b)(2), performs the operational
work within § 1225’s inspection framework. 	§ 1225(b)(1) governs the inspection of “arriving”
aliens and “certain other aliens,” including aliens present in the United States who have not been
admitted or paroled, and who cannot demonstrate two years of continuous physical presence.
8 U.S.C. § 1225(b)(1)(A)(i)-(iii). 	By contrast, § 1225(b)(2) applies to the residual category of
“other aliens” who are applicants for admission but fall outside the expedited-removal criteria and
are therefore placed into the usual removal proceedings under § 1229a. 	8 U.S.C. § 1225(b)(2).
The scale of these provisions illustrates their functional roles. In 2024, CBP conducts over 416
million inspections at the border, see 2024 CBP Statistic, while approximately 255,000 aliens file
I-485 applications, from within the United States, to adjust status to lawful permeant residence,
see Number of I-485 Applications to Register Permanent Residence or Adjust Status By Category,
Case Status, and USCIS Field Office or Service Center Location January 1, 2024 - March 31,
2024,
https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.uscis.gov%2Fsites
%2Fdefault%2Ffiles%2Fdocument%2Fdata%2Fi485_performancedata_fy2025_q1.xlsx&wdOri
gin=BROWSELINK (last visited Jan. 16, 2025).16 	Roughly, these figures indicate that the
overwhelming majority of admissibility determination occur in § 1225(b)(1)’s inspection context
-- over ninety-nine percent -- while only a small fraction of applicants for admission proceed
16 A foreign national, who is already present in the United States, generally fills out Form
I-485 to attain lawful permanent resident status. See Alicia Ward, United States Lawful Permanent
Residents: 2023, United States Department of Homeland Security at 2 (Sep. 9, 2024)(“LPR
Statistics”). Foreign nationals who live abroad or seek to enter the United States through a port of
entry do not use Form I-485. See LPR Statistics at 2.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 38 of 94

- 39 -
through the more cumbersome pathway in § 1225(b)(2). 	In theory, § 1225(b)(2) covers more
categories of aliens; in practical operation, however, the United States processes most aliens
through § 1225(b)(1), and § 1225(b)(2) functions as a narrow backstop. 	This structure reflects
Congress’ intentional division between summary inspection-based determinations near the point
of entry and interior inspections where the reliability of rapid admissibility determinations is
suspect.
iii. 	“Arriving” Aliens in § 1225(b)(1).
Congress’ words are important. Section 1225 repeatedly focuses the reader on the word
“arrive” -- “arriving aliens” in the title; aliens who “arrive” in applicants for admission; and
“certain other aliens” immigration officers are to treat as if they are arriving. Merriam-Webster
defines “arrive” as an intransitive verb meaning “to reach a destination” or “to make an
appearance: to come up on the scene.” 	Arrive, Merriam-Webster.com Dictionary, Merriam-
Webster, https://www.merriam-webster.com/dictionary/arrive. 	(last visited on Jan. 18, 2026).
Congress envisions § 1225(b)(1) as generally applying to aliens who present at a port of entry upon
reaching their destination -- the United States. See 8 U.S.C. § 1225(b)(1)(A)(i) (stating the general
rule of inspection). These provisions are about applicants for admission who are seeking lawful
entry, and that can occur at the border or on the interior when an alien arrives at an immigration
office for deferred inspection or when an alien files Form I-485 to change their immigration status.
That Congress allows the Attorney General to extend this framework to “certain other aliens”
present in the United States does not change Congress’ intent that § 1225 is primarily about
inspection for lawful entry; the extension confirms it. 8 U.S.C. § 1225(b)(1)(A)(iii). Removing
any doubt, Congress repeatedly employs the present participle “arriving.”
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 39 of 94

- 40 -
Congress’ use of the present participle “arriving” as an adjective modifying the noun
“alien” is significant, because, in traditional grammatical terms, the present participle signals an
imperfect or continuous aspect rather than a completed action. 	See P. Peters, The Cambridge
Guide to English Usage 409 (2004)(explaining particles “create different aspects for the verb”
either “imperfect” or “perfect”). Unlike the past participle, which ordinarily conveys a completed
or passive state, the present participle is active and describes an action that is ongoing or in
progress. 	See P. Peters, The Cambridge Guide to English Usage 409. 	By choosing the active,
imperfect form “arriving alien,” Congress signals that § 1225(b)(1) applies to aliens who are in the
process of inspection and arrival, and not to those whose entry is completed long ago and whose
presence in the United States is no longer properly understood as “arriving.”
The textual distinction between “arriving” aliens and aliens present in the interior of the
country reflects a longstanding principle of immigration law’s relationship with the Due Process
Clause. See Zadvydas, 533 U.S. 695 (“The distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.”). 	As
Justice Scalia explains, the Due Process distinction “makes perfect sense: with regard to the
question of what procedures are necessary to prevent entry, as opposed to what procedures are
necessary to eject a person already in the United States.” Zadvydas, 533 U.S. at 704 (Scalia, J.,
dissenting). 	That procedural observation applies with full force here, as the statutory language
reflects our nation’s understanding of immigration law. Applicants for admission, by presenting
themselves for inspection, subject themselves to the United States immigration system. An alien
who does not seek admission through inspection is in a different procedural posture than an alien
who has started the process of lawful entry. 	That Congress makes stowaways, who attempt to
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 40 of 94

- 41 -
enter without submitting to lawful inspection, not eligible to apply for admission under § 1225 is
confirmation enough of the difference in procedural posture.
iv. 	Section 1225(b)(2): “Other Aliens”.
After § 1225(b)(1) carries all of that water -- dividing applicants for admission into
subgroups, specifying who is subject to expedited removal, and describing how certain aliens can
seek asylum -- it is only then that § 1225(b)(2) comes over the horizon for consideration. Section
1225(b)(2) “serves as a catchall provision that applies to all applicants for admission not covered
by § 1225(b)(1).” Jennings, 583 U.S. at 287. Congress entitles this provision “Inspection of other
aliens” and labels § 1225(b)(2)(A) the rule “In general.” Like § 1225(b)(1), it applies only to
applicants for admission, but it governs a broader universe of aliens. See Jennings, 583 U.S. at
287 (“Section 1225(b)(2) is broader.”). 	Section 1225(b)(2) addresses the inspection of “other
aliens” that § 1225(b)(1) does not cover. 8 U.S.C. § 1225(b)(2). Congress is mindful, however,
to distinguish this group of “other aliens” in § 1225(b)(2) from the “certain other aliens” in
§ 1225(b)(1)(A)(iii).
“In general . . . 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 proceedings under section 1229a of this title.” 8 U.S.C. §
1225(b)(2)(A).17 	Section 1225(b) establishes two removal pathways that operate following an
17 Section 1229 is titled “Initiation of removal proceedings” and sets forth the regular
removal process of § 1229a. 	8 U.S.C. § 1229. 	Under §§ 1229 and 1229a, the United States
charges an alien with removability, serves the alien with a notice to appear, brings the alien before
an immigration judge, permits the alien to present evidence and argument, and affords the alien
Board of Immigration Appeals review and, ultimately, allows Courts of Appeals review. 	See
United States v. Gonzalez-Fierro, 949 F.3d 512, 519 (10th Cir. 2020). Section 1229a provides for
“usual removal proceedings,” Thuraissigiam, 591 U.S. at 108-09 (discussing the usual removal
proceedings from the expedited proceedings), which differ from the expedited removal process
that § 1225(b)(1) describes. 	See 8 U.S.C. § 1229(a)(b)(4) (discussing the alien’s “rights in the
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 41 of 94

- 42 -
immigration officer’s inspection of an applicant for admission and which apply to three classes of
aliens. The first pathway, in § 1225(b)(1), provides that, if an immigration officer determines that
proceeding” compared with the immigration officers’ determination without further hearings).
Section 1229a is the “sole and exclusive procedure for determining whether an alien may
be admitted to the United States or, if the alien has been so admitted, removed from the United
States,” unless “otherwise specified in this chapter,” including the “Expedited removal of aliens
convicted of committing aggravated felonies,” under 8 U.S.C. § 1228. 	8 U.S.C. § 1229a(a)(3).
Although 1229a is the exclusive procedure for removal proceedings, § 1229a does not mention
“detention. 8 U.S.C. § 1229a. Section 1229 presupposes detention. See 8 U.S.C. § 1229(a)(2)(B)
(stating that “[i]n the case of an alien not in detention, a written notice shall not be required under
this paragraph if the alien has failed to provide the address required under paragraph (1)(F)”).
Accordingly, the power to detain aliens during those removal proceedings must come from outside
those sections. Indeed, the Supreme Court, in Jennings, all but confirms the authority to detain
aliens civil during these proceedings comes from §§ 1225 and 1226. See 583 U.S. 289 (“In sum,
U.S. immigration law authorizes the Government to detain certain aliens seeking admission into
the country under §§ 1225(b)(1) and (b)(2). It also authorizes the Government to detain certain
aliens already in the country pending the outcome of removal proceedings under §§ 1226(a) and
(c).”).
The United States’ power to detain aliens that covers arriving aliens and “certain other
aliens” is in § 1231, which is titled “Detention and removal of aliens ordered removed.”
8 U.S.C. § 1231. 	Section 1225(b)(1) provides for “expedited removal.” 8 U.S.C. § 1225(b)(1).
When 	an 	“the 	officer 	[] 	order[s] 	the 	alien 	removed 	from 	the 	United 	States,”
8 U.S.C. § 1225(b)(1)(A), a “removal period” starts in § 1231. 	8 U.S.C. § 1231(a)(1)(B)(i).
Section 1231(a)(1) states that, “when an alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90 days (in this section referred to as
the “removal period”).” 8 U.S.C. § 1231(a)(1)(A). Section 1231(a)(2) then discusses “Detention”
and states, “In general, [d]uring the removal period, the Attorney General shall detain the alien.”
8 U.S.C. § 1231(a)(2)(A).
As the Court discusses later, § 1226 governs apprehension and detentions of aliens.
Section 1226 authorizes arrest upon warrant, and permits release on bond or conditional parole
unless mandatory detention applies. See 8 U.S.C. § 1226(a), (c). By regulation, when the United
States detains an alien under § 1226(a), the alien receives an initial bond hearing before an
immigration judge. See 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1). The removal proceedings that the
alien receives, however, are pursuant to § 1229a.
Section 1225(b), by contrast, establishes expedited removal. Aliens subject to § 1225(b)(1)
may be ordered removed “without further hearing or review,” save for the limited credible-fear
process. 	8 U.S.C. § 1225(b)(1)(A). 	Under § 1225(b)(2), aliens the United States detains “for a
removal proceeding” proceed under § 1229a just like those that the United States detains under
§ 1226. 	A key difference between the United States detaining an alien under § 1225(b)(2) and
§ 1226 is not the ultimate process the alien receives during their § 1229a proceedings, but the
initial bond hearing that applies only to § 1226 by regulation.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 42 of 94

- 43 -
an alien “arriving in the United States” or “certain other aliens” present in the country are
inadmissible, 	the 	officer 	orders 	removal 	without 	further 	hearing 	or 	review. 	8 U.S.C. §
1225(b)(1)(A)(i). The second pathway, in § 1225(b)(2), provides that immigration officers detain
and remove “other aliens” under § 1229a’s ordinary procedures. 	8 U.S.C. § 1225(b)(2)(A).
Within this framework, § 1225(b) contemplates four classes of aliens or noncitizens: arriving
aliens, see 8 U.S.C. § 1225(b)(1)(A)(i); applicants for admission present in the United States but
for less than two years, see 8 U.S.C. § 1225(b)(1)(A)(iii); applicants for admission present in the
United States for longer than two years but are seeking admission, see 8 U.S.C. § 1225(b)(2)(A),
and a residual category of other aliens, including crewmen and stowaways, whom are not eligible
to apply for admission, see 8 U.S.C. § 1225(b)(2)(B).
The statute’s language reflects an inspection-centered posture. An immigration officer’s
inspection of an alien in the posture of seeking admission triggers both § 1225(b)’s removal
pathways -- expedited removal under § 1225(b)(1) and the usual removal under § 1225(b)(2) --
and the pathways operate as alternative outcomes of the inspection process. Further confirming
the inspection posture, § 1225(a)(2) specifies that stowaways are not eligible to apply for
admission, and § 1225(b)(2)(B)(iii) correspondingly excludes stowaways from detention for non-
expedited removal proceedings. 	From this statutory pairing, i.e. the relationship between
§ 1225(b)(1) and § 1225(b)(2), the Court sees Congress’ intent as tying the concept of an
“applicant for admission” to inspection rather than to a freestanding status untethered from the
inspection context.
That understanding aligns with §1101’s statutory definition of “admission,” which defines
the term as “lawful entry . . . after inspection and authorization by an immigration officer.”
8 U.S.C. § 1101(a)(13)(A). 	The relationship between “applicant for admission” and lawful
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 43 of 94

- 44 -
inspection also accords with § 1225(a)’s provision permitting an applicant for admission to
withdraw an application for admission and depart immediately from the United States, reflecting
Congress’ expectation that the inspection process occurs at the threshold of entry and that aliens
who do not wish to submit to that process may simply leave. 8 U.S.C. § 1225(a)(4). Outside of
that inspection framework, § 1225 provides no independent scheme for detaining aliens; it instead
contemplates either inspection leading to admission or removal, or immediate departure in lieu of
inspection. 	The remaining § 1225 sections serve to reinforce that Congress is concerned the
inspection of applicant for admission at the border.
v. 	Section 1225(b)(2)(A): An Alien Seeking Admission.
Congress’ words matter. Section 1225 establishes an inspection-based regime governing
the treatment of arriving aliens and aliens present in the country. 	See 8 U.S.C. § 1225(a)(1).
Within that framework, § 1225(b)(2) operates as an exception to the “expedited” removal under
§ 1225(b)(1), providing aliens the usual removal proceeding, under § 1229a, only when three
conditions are met: (i) the alien is an applicant for admission; (ii) the alien is “seeking admission”;
and (iii) the examining immigration officer determines that the alien is not clearly and beyond
doubt entitled to be admitted. 	8 U.S.C. § 1225(b)(2)(A). 	Section 1225(b)(2)(A) distinguishes
between the legal status of being an applicant for admission and the act of seeking admission.
Congress uses the phrase “seeking admission” only sparingly in § 1225 and always with
precision. 	Cf., 8 U.S.C. § 1225(a)(2) (providing that stowaways are not “eligible to apply for
admission or to be admitted”). 	The phrase first appears in the inspection clause: “All aliens
(including alien crewmen) who are applicants for admission or otherwise seeking admission or
readmission to or transit through the United States shall be inspected by immigration officers.”
8 U.S.C. § 1225(a)(3). 	The phrase appears again in the statements provision: “An applicant for
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 44 of 94

- 45 -
admission may be required to state under oath any information sought by an immigration officer
regarding the purposes and intentions of the applicant in seeking admission to the United States.”
8 U.S.C. § 1225(a)(5). And it appears a third time in § 1225(b)(2)(A). That the phrase is absent
from the section otherwise is no coincidence. 	In the inspection clause, Congress’ use of “or”
confirms that being an applicant for admission is not coterminous with seeking admission; the
section treats them as related but distinct concepts. 8 U.S.C. § 1225(a)(3). In the statement clause,
Congress uses “seeking admission” to describe purposeful acts by the applicant for admission,
linking the phrase to conduct rather than status. 	8 U.S.C. § 1225(a)(5). 	When Congress then
employs the same phrase again in § 1225(b)(2)(A), it again does so such that the phrase helps
readers understand applicants for admission. 	The Court sees no reason to treat the insertion as
accidental or redundant.
Ordinary meaning confirms the point. “Seek” means “to go in search of,” “to ask for,” or
“to request.” Seek, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/seek. 	(last visited on Jan. 19, 2026). 	“Seek” denotes action directed
toward a goal, and not a static label. “Admission” or “admitted” means “the lawful entry of the
alien into the United States after inspection and authorization by an immigration officer.”
8 U.S.C. § 1101(a)(13)(A). With those definitions in mind, “seeking admission” naturally refers
to the act of “asking for” or “requesting” lawful entry through inspection or authorization. The
phrase therefore narrows the broader universe of “applicants for admission,” which encompasses
everyone present in the United States, who has not been admitted, and arriving aliens.
8 U.S.C. § 1225(a)(1). 	Although the phrase “seeking admission” narrows the class of aliens to
whom § 1225(b)(2) applies, it would be mistaken to read the provision as limited exclusively to
physical border encounters. An alien may seek lawful entry at a port of entry, but an alien may
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 45 of 94

- 46 -
also seek lawful admission from within the United States through statutory mechanisms such as
an application for adjustment of status on Form I-485 or other congressionally authorized
procedures for obtaining lawful admission.
Congress’ drafting is methodical. 	Section 1225(b)(1) governs arriving aliens and
designated “certain other aliens.” 	8 U.S.C. § 1225(b)(1). 	The use of “certain other aliens” in
§§ 1225(b)(1) and 1225(b)(1)(A)(iii) is careful craftsmanship by Congress to aid readers in not
confusing those aliens with the “other aliens” it describes in § 1225(b)(2). 	Congress is careful,
because it does not want applicants for admission receiving removal proceedings under § 1229a
when expedited proceeding are appropriate. 	Reading “seeking admission” to do real work
preserves that purpose and the section’s structure. 	Reading the phrase as surplusage would
collapse it. See Castañon-Nava, 2025 WL 3552514 *9 (stating the presumption against reading a
phrase as superfluous is ‘strongest when an interpretation would render superfluous another part
of the same statutory scheme’)(quoting Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013)).
The structure of § 1225 confirms this reading. Section 1225(b)(1) sets forth the general
rule governing inspections of applicants for admission. 	See 8 U.S.C. § 1225(b)(1)(A). 	Section
1225(b)(2) then appears on the horizon as a residual provision, applying only to “other” applicants
for admission that § 1225(b)(1) does not cover. 	See Jennings, 583 U.S. at 287 (describing
§ 1225(b)(2) as the “catchall provision that applies to all applicants for admission not covered by
§ 1225(b)(1)”). This sequencing reflects a familiar statutory pattern. Congress states the general
rule first and then follows it with the exceptions to the general rule. 	Reading § 1225(b)(2) to
govern all applicants for admission, without qualification, inverts the statutory pattern, allowing
the residual provision to swallow the general rule. Statutory interpretation does not permit such
an inversion.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 46 of 94

- 47 -
c. 	8 U.S.C. § 1225(c).
Section 1225(c) covers the removal of inadmissible aliens based on security and related
grounds, including removal without further hearing, the Attorney General’s review of a removal
order, and submission of a statement and information for the attorney general to consider. 	See
8 U.S.C. §§ 1225(c)(1)-(3). 	Subparagraph (c)(1) states that, if an immigration officer “suspects
that an arriving alien may be inadmissible under . . . section 1182(a)(3) of this title,” the
immigration officer shall “order the alien removed.” 	8 U.S.C. § 1225(c)(1). 	The specific
subparagraphs that § 1225(c)(1) contemplates are subparagraphs §§ 1182(a)(3)(A)-(C). 	See
8 U.S.C. § 1225(c)(1).
Section 1182(a)(3) covers the class of aliens who are “ineligible for visas or admission”
for security related reasons. 8 U.S. C. § 1182(a)(3). Subparagraph 1182(a)(3)(A) is the general
rule that applies to any alien who “seeks to enter” the United States for nefarious purposes,
including espionage and attempting to overthrow the government. 	8 U.S. C. § 1182(a)(3)(A).
Similarly, subparagraph 1182(a)(3)(B), which applies to terrorist activities, contemplates an alien
engaging in terrorist activity “after entry” into the United States. 8 U.S.C.§ 1182(a)(3)(B)(i)(II).
Finally, subparagraph 1182(a)(3)(C) applies generally to aliens “whose entry or proposed activities
in the United States . . . would have potentially serious adverse foreign policy consequences.”
8 U.S.C. § 1182(a)(3)(C)(i).
d. 	8 U.S.C. § 1225(d).
Section 1225(d) provides immigration officers with “[a]uthority relation to inspection.”
8 U.S.C. § 1225(d). The authority that Congress gives is the authority to search conveyances, or
vehicles,18 order detention and delivery of arriving aliens, administer oaths and consider evidence,
18 The Merriam-Webster Dictionary defines “conveyance” as “a means or way of
conveying: such as . . . a means of transport: vehicle.” 	Conveyance, Merriam-Webster.com
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 47 of 94

- 48 -
and to issue subpoenas. See 8 U.S.C. § 1225(d)(1)-(4). The authority to search vehicles allows
immigration officers to “board and search any vessel, aircraft, railway car, or other conveyance or
vehicle 	in 	which 	they 	believe 	aliens 	are 	being 	brought 	into 	the 	United 	States.”
8 U.S.C. § 1225(d)(1). 	The authority to detain allows immigration officers to order anyone
“bringing an alien . . . to the United States” to detain the alien “on the vessel or at the airport of
arrival, and to deliver the alien to an immigration officer for inspection or to a medical officer
examination.” 8 U.S.C. § 1225(d)(2)(A)-(B). Section 1225(d)(3) relates to immigration officers’
ability to administer oaths and take evidence “touching the privilege of any alien . . . to enter,
reenter, transit through, or reside in the United States.” 	8 U.S.C. § 1225(d)(3). 	Finally, the
subpoena authority allows immigration officers to require “the attendance and testimony of
witnesses . . . and the production of books, papers, and documents relating to the privilege of any
person to enter, reenter, reside in, or pass through the United States or concerning any matter which
is material and relevant to the enforcement of this chapter.” 8 U.S.C. § 1225(d)(4).
Section 1225(d) reinforces that § 1225’s scheme operates in an inspection-based posture.
Congress entitles this subsection “Authority relating to inspection,” and Congress frames the
powers it confers around identifying, examining, and processing individuals at or near the point of
entry. 8 U.S.C. §§ 1225(d)(1)-(4). The authority to board and search vessels, aircraft, and other
conveyances reflects a focus on intercepting and examining aliens who are arriving or are at the
threshold of entry. See 8 U.S.C. § 1225(d)(1). Further reinforcing the threshold character of the
statute, §§ 1225(d)(2)(A)-(B) limits the immigration officers’ authority to direct carriers to detain
Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/conveyance. 	(last
visited on Jan. 14, 2026).
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 48 of 94

- 49 -
aliens on vessels or at airports of arrival, and to deliver those aliens for inspection, underscoring
that the provision operates in the context of entry screening. See 8 U.S.C. §§ 1225(d)(2)(A)-(B).
The remaining inspection authorities follow a similar theme. 	Congress authorizes
immigration officers to administer oaths and to take evidence concerning an alien’s privilege to
enter, to reenter, to transit through, or to reside in the United States, and to issue subpoenas for
testimony and documents relating to that privilege. 	See 8 U.S.C. § 1225(d)(3)(4). 	These
provisions contemplate fact finding and adjudicative functions tied to determining admissibility
and entry status, and not generalized deportation or removal functions. Read in context, § 1225(d)
supplies the operational tools necessary for immigration officials to conduct inspections and to
make entry determinations, further confirming that Congress does not envision § 1225’s detention
and removal mechanisms apart from the inspection of an arriving applicant for admission inspect.
By contrast, § 1226 speaks in remarkably different terms. 	Section 1226 governs the
“Apprehension and detention of aliens.” 	8 U.S.C. § 1226. 	This section employs language
associated with warrants, see 8 U.S.C. § 1226(a); work authorization, see 8 U.S.C. § 1226(a)(3);
and the prior convictions, see 8 U.S.C. § 1226(c)(E)(ii). In the Court’s view, the contrast between
the inspection-focused terminology of § 1225 and the more ordinary, post-entry language of
§ 1226 reflects Congress’ considered judgment that different procedures are appropriate for
preventing entry than for removing individuals who have already entered and established presence.
Dep’t 	of 	Homeland 	Sec. 	v. 	Thuraissigiam, 	591 	U.S. 	103, 	(2020)(Alito,
J.)(“Thuraissigiam”)(discussing the “century-old rule regarding the due process rights of an alien
seeking initial entry” and an alien who has “‘effected an entry’”)(quoting Zadvydas, 533 U.S. at
693).
3. 	Due Process.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 49 of 94

- 50 -
The courts cannot interpret the INA and the role § 1225 plays in its statutory scheme apart
from the Constitutional principles that historically govern the relationship between due process
and the sovereign authority to admit or exclude noncitizens. See Thuraissigiam, 591 U.S. at 139-
140. The Court is mindful, however, to differentiate between due process the statute requires and
Constitutional Due Process. See Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018)(stating that the
Supreme Court, in Jennings, “chose to answer only the question whether the statutory text itself
included a limit on prolonged detention or a requirement of individual bond hearings . . . . The
Court then remanded the constitutional issues to our court”). 	Below, the Court details the law
regarding: (i) Constitutional Due Process, (ii) immigration law and due process, and (iii) how those
bodies of law shape courts’ statutory interpretations of the INA.
a. 	The Due Process Clause.
The Fifth Amendment to the United States Constitution states that the government shall
not deprive any person “of life, liberty, or property, without due process of law . . . .” U.S. Const.
amend. V, § 1. 	The Due Process Clause encompasses two distinct forms of protection:
(i) procedural due process, which requires the government to employ fair procedures when
depriving a person of a protected interest; and (ii) substantive due process, which guarantees that
the government cannot deprive a person of a protected interest for certain reasons. See Reid v.
Pautler, 36 F. Supp. 3d 1067, 1136 (D.N.M. 2014)(Browning, J.)(citing Cty. of Sacramento v.
Lewis, 523 U.S. 833, 845-46 (1998)). “Under either form of protection, however, a person must
have a protected interest in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe,
2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008)(Browning, J.).
i. 	Procedural Due Process.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 50 of 94

- 51 -
The Tenth Circuit prescribes a two-step inquiry in determining whether the defendant
violates an individual’s procedural due process rights: (i) ”[d]id the individual possess a protected
property [or liberty] interest to which due process protection was applicable?”; and (ii) ”[w]as the
individual afforded an appropriate level of process?” Camuglia v. City of Albuquerque, 448 F.3d
1214, 1219 (10th Cir. 2006)(quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.
1999)). “[T]o determine whether due process requirements apply in the first place, we must look
not to the ‘weight’ but to the nature of the interest at stake.” Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 570-71 (1972). “‘Liberty’ and ‘property’ are broad and majestic terms. They are
among 	the 	‘(g)reat 	(constitutional) 	concepts . . . purposely 	left 	to 	gather 	meaning 	from
experience.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 571 (quoting National Mutual Ins.
Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949)(Frankfurter, J., dissenting)). 	The
Supreme Court requires “due process protection for deprivations of liberty beyond the sort of
formal constraints imposed by the criminal process.” 	Bd. of Regents of State Colls. v. Roth,
408 U.S. at 571-72. 	“Yet, while the Court has eschewed rigid or formalistic limitations on the
protection of procedural due process, it has at the same time observed certain boundaries,” and
“the words ‘liberty’ and ‘property’ in the Due Process Clause of the Fourteenth Amendment must
be given some meaning.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
Concerning the Fourteenth Amendment’s meaning of “liberty”, the Supreme Court states
the following:
Without doubt, it denotes not merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, to establish a home and bring up
children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness of free men. In a Constitution for a free people, there can be
no doubt that the meaning of ‘liberty’ must be broad indeed.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 51 of 94

- 52 -
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
“The Fourteenth Amendment’s procedural protection of property is a safeguard of the
security of interests that a person has already acquired in specific benefits.” 	Bd. of Regents of
State Colls. v. Roth, 408 U.S. at 576. These property interests, as already explained, clearly can
include “real estate, chattels, or money,” but they “may take many forms.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. at 571-76.
Thus, the Court has held that a person receiving welfare benefits under
statutory and administrative standards defining eligibility for them has an interest
in continued receipt of those benefits that is safeguarded by procedural due process.
Goldberg v. Kelly, 397 U.S. 254 . . . [(1970)]. See Flemming v. Nestor, 363 U.S.
603, 611 . . . [(1960)]. Similarly, in the area of employment, the Court has held that
a public college professor dismissed from an office held under tenure provisions,
Slochower v. Bd. of Education, 350 U.S. 551 . . . [(1956)], and college professors
and staff members dismissed during the terms of their contracts, Wieman v.
Updegraff, 344 U.S. 183 . . . [(1952)], have interests in continued employment that
are safeguarded by due process.
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 576-77.
“To have a property interest in a benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577.
“Such an interest arises not from the Due Process Clause of the Constitution itself, but is created
by independent sources such as a state or federal statute, a municipal charter or ordinance, or an
implied or express contract.” Teigen v. Renfrow, 511 F.3d at 1079. See Paul v. Davis, 424 U.S.
693, 710 (1976)(“[Liberty and property] interests attain . . . constitutional status by virtue of the
fact that they have been initially recognized and protected by state law.”). “Property interests, of
course, are not created by the Constitution. 	Rather they are created, and their dimensions are
defined by existing rules or understandings that stem from an independent source such as state
law-rules or understandings that secure certain benefits and that support claims of entitlement to
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 52 of 94

- 53 -
those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577. See Farthing v. City of
Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994)(“Rather, property interests, which are the subject
of the present litigation, ‘are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law.’”)(quoting Bd. of Regents
of State Colls. v. Roth, 408 U.S. at 577)).
“[O]nce it is determined that the Due Process Clause applies, the question remains what
process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)(citing Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)). “An essential principle of due process is that a deprivation
of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the
nature of the case.” 	Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542. “[D]ue process is
flexible and calls for such procedural protections as the particular situation demands.” Mathews
v. Eldridge, 424 U.S. at 334. The Supreme Court explains that
the root requirement of the Due Process Clause [is] that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.
This principle requires some kind of a hearing prior to the discharge of an employee
who has a constitutionally protected property interest in his employment.
. . . .
[T]he pretermination hearing, though necessary, need not be elaborate. We have
pointed out that [t]he formality and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved and the nature of the
subsequent proceedings. In general, something less than a full evidentiary hearing
is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545 (footnote omitted).
The United States Court of Appeals for the Second Circuit states:
The Supreme Court . . . explained that procedural due process is a flexible standard
that can vary in different circumstances depending on “‘the private interest that will
be affected by the official action’” as compared to “the Government’s asserted
interest, ‘including the function involved’ and the burdens the Government would
face 	in 	providing 	greater 	process.” 	Hamdi 	v. 	Rumsfeld, 	542 	U.S. 	507,
[529] . . . (2004)(quoting Mathews v. Eldridge, 424 U.S. at 335). 	A court must
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 53 of 94

- 54 -
carefully balance these competing concerns, analyzing “‘the risk of an erroneous
deprivation’ of the private interest if the process were reduced and the ‘probable
value, if any, of additional or substitute safeguards.’” 	Id. (quoting Mathews v.
Eldridge, 424 U.S. at 335. . . .).
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004). The required hearing depends on:
(i) the private interest at stake; (ii) the risk of erroneous deprivation given the procedures the
government already guarantees, and whether additional procedural safeguards prove valuable; and
(iii) the government’s interest and the burdens that additional procedures might impose. 	See
Mathews v. Eldridge, 424 U.S. at 335. 	For example, “[w]here . . . the state must act quickly, a
meaningful post-deprivation hearing is adequate.” Clark v. City of Draper, 168 F.3d at 1189. See
Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1989)(concluding that removal of a child
from parents’ custody requires pre-deprivation hearing “except for extraordinary situations where
some valid governmental interest is at stake that justifies postponing the hearing until after the
event”).
The Court has considered procedural due process violations. 	See, e.g., A.M. through
Youngers v. N.M. Dep’t of Health, No. CIV 13-0692 JB/WPL, 2015 WL 13668431, at *37-43
(D.N.M. Dec. 7, 2015)(Browning, J.)(“Youngers”). 	For example, in Youngers, the Court
concludes that the New Mexico Department of Health violates due process when it affords a
woman with developmental disabilities no process before depriving her of medical care, conditions
of reasonable care, safety, and nonrestrictive confinement, because it affords her no process for
deprivation. 	See Youngers, 2015 WL 13668431, at *37-43. 	The Court also concludes a
municipality does not deny due process to tenured city employee when the city fired him, because
the city affords him a hearing. See Salazar v. City of Albuquerque, 776 F. Supp. 2d 1217, 1239
(D.N.M. 2011)(Browning, J.)(“A citizen is entitled to process and is not necessarily guaranteed a
win.”). 	See also Duprey v. Twelfth Judicial Dist. Court, 760 F. Supp. 2d at 1215 (denying due
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 54 of 94

- 55 -
process claims where a State employee “got her opportunity to be heard at a complex grievance
hearing, with an attorney and with an opportunity to question witnesses, and make opening and
closing arguments to a panel of decision-makers”); Camuglia v. City of Albuquerque, 375
F. Supp. 2d at 1299, aff’d 448 F.3d at 1220-21 (“[I]t cannot be denied that the City, acting through
its inspectors, may close a restaurant to protect the health of patrons and workers without first
providing a hearing to the restaurant owner.”).
ii. 	Substantive Due Process.
There are two substantive due process claims: (i) where the plaintiff alleges that the
government infringes upon a fundamental right, see Washington v. Glucksberg, 521 U.S. 702,
721-22 (1997)(“Glucksberg”); and (ii) where the plaintiff alleges that a government action
deprives arbitrarily the plaintiff of life, liberty, or property, in a manner that shocks the judicial
conscience, see Rochin v. California, 342 U.S. 165, 172 (1952)(concluding that a sheriff’s
application of stomach pumping to force an arrestee to vomit shocked the conscience). The Tenth
Circuit “appl[ies] the fundamental-rights approach when the plaintiff challenges legislative action,
and the shocks-the-conscience approach when the plaintiff seeks relief for tortious executive
action.” 	Halley v. Huckaby, 902 F.3d 1136, 1153 (10th Cir. 2018). 	But see Seegmiller v.
LaVerkin City, 528 F.3d 762, 768 (10th Cir. 2008)(Tymkovich, C.J.)(explaining that “there is no
hard-and-fast rule requiring lower courts to analyze substantive due process cases under only the
fundamental rights or shocks the conscience standards”). 	But see also Dawson v. Bd. of Cty.
Comm’rs, 732 F. App’x 624, 636 (10th Cir. 2018)(Tymkovich, C.J., concurring)(noting that,
“though our circuit has sometimes repeated Seegmiller’s ‘both tests work’ dicta, we do not follow
it. Instead, we follow a simple binary approach” which applies the fundamental rights test to
legislative actions and the shocks-the-conscience test to executive actions)(quoting, see, e.g.,
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 55 of 94

- 56 -
Leatherwood v. Allbaugh, 861 F.3d 1034, 1046 n.11 (10th Cir. 2017)(explaining both tests could
be used in case about revocation of a defendant’s suspended sentence)).
The fundamental rights approach proceeds in three steps. See Abdi v. Wray, 942 F.3d at
1028. First, the court must evaluate whether a fundamental right is at issue either: (i) “because the
Supreme Court or the Tenth Circuit has already determined that it exists”; or (ii) “because the right
claimed to have been infringed by the government is one that is objectively among those ‘deeply
rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’ such
that it is ‘fundamental.’” Abdi v. Wray, 942 F.3d at 1028 (quoting Glucksberg, 521 U.S. at 720-
21). 	Second, the court determines whether the right at issue “has been infringed through either
total prohibition or ‘direct and substantial’ interference.” Abdi v. Wray, 942 F.3d at 1028 (quoting
Zablocki v. Redhail, 434 U.S. 374, 387 (1978)). Third, if the right is fundamental, the Court must
determine whether the government action at issue satisfies strict scrutiny. See Abdi v. Wray, 942
F.3d at 1028 (noting that the government must “me[e]t its burden to show that the law . . . is
narrowly tailored to achieve a compelling governmental purpose”). If the right is not fundamental,
however, the Court applies rational basis review. 	See Reno v. Flores, 507 U.S. 292, 305
(1993)(explaining that strict scrutiny is requires “only when fundamental rights are involved”).
“Whether 	the 	conduct 	shocks 	the 	conscience 	is 	an 	objective 	test, 	based 	on 	the
circumstances, rather than a subjective test based on the government actor’s knowledge.” Pena v.
Greffet, 922 F. Supp. 2d at 1227 (citing James v. Chavez, 830 F. Supp. 2d 1208, 1276 (D.N.M.
2011)(Browning, J.)(concluding that the use of deadly force does not shock the conscience even
if the suspect does not have an intent to harm the officer, because the officer “had sufficient facts
before him to conclude that there was a threat of serious physical harm” and the “courts must
evaluate a [government actor’s] conduct objectively”), aff’d, 511 F. App’x 742 (10th Cir.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 56 of 94

- 57 -
2013)(unpublished)). For Executive action to shock the conscience, that action must be more than
mere negligence. E.g., Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)(“Moore”). Indeed,
even a reckless official’s or the action of one bent on injuring a person do not necessarily shock
the judicial conscience. Moore, 438 F.3d at 1040. “‘Conduct that shocks the judicial conscience’
is ‘deliberate government action that is arbitrary and unrestrained by the established principles of
private right and distributive justice.’” 	Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th
Cir.2013)(“Hernandez”)(quoting 	Seegmiller 	v. 	LaVerkin 	City, 	528 	F.3d 	762, 	767 	(10th
Cir.2008)). 	“To show a defendant’s conduct is conscience shocking, a plaintiff must prove a
government actor arbitrarily abused his authority or ‘employed it as an instrument of oppression.’”
Hernandez, 734 F.3d at 1261 (quoting Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir.2008)).
“The behavior complained of must be egregious and outrageous.” Hernandez, 734 F.3d at 1261.
See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)(stating that Rochin v. California, 342
U.S. 165 (1952) set the “benchmark” of executive abuse of power at “conduct ‘that shocks the
conscience’ and violates the ‘decencies of civilized conduct’”)(quoting Rochin v. California, 342
U.S. at 172-173); Breithaupt v. Abram, 352 U.S. 432, 435 (1957)(“We set aside the conviction
because such conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not
comport with traditional ideas of fair play and decency.”)(quoting Rochin v. California, 342 U.S.
at 174).
b. 	Due Process and Immigration Law.
“[T]he power to admit or exclude aliens is a sovereign prerogative.” Landon, 459 U.S. at
32 (citing as examples United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), and
Nishimura Ekiu v. United States, 142 U.S. 651, 659-60 (1892)). See Thuraissigiam, 591 U.S. at
139 (stating the sovereign’s prerogative is a “fundamental proposition”). 	The United States’
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 57 of 94

- 58 -
plenary power to admit or exclude aliens is no longer plenary once an alien enters the country, see
Landon, 459 U.S. at 32 (“Once an alien gains admission to our country and begins to develop the
ties that go with permanent residence his constitutional status changes accordingly.”), because the
Due Process Clause applies to “all persons,” Zadvydas, 533 U.S. at 693. In 1886, the Supreme
Court says:
The fourteenth amendment to the constitution is not confined to the protection of citizens.
It says: “Nor shall any state deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.” 	These provisions are universal in their application, to all persons within the
territorial jurisdiction, without regard to any differences of race, of color, or of nationality;
and the equal protection of the laws is a pledge of the protection of equal laws.
Yick Wo v. Hopkins, 118 U.S. at 369 (quoting U.S. Const. amend. XIV, § 1). Yick Wo v. Hopkins
deals with California detaining Chinese aliens without due process of law. 118 U.S. at 368-369.
Accordingly, whether an alien is “within” the United States is a determination with Constitutional
significance. 	See Leng May Ma v. Barber, 357 U.S. 185, 188 (1958)(“Leng May Ma”)(stating
that the Court recognizes “additional rights and privileges” for alien “within the United States after
an entry, irrespective of its legality”). Immigration law balances the United States’ prerogative to
admit or exclude with the constraints the Due Process Clauses places on United States by
distinguishing between aliens who are “on the threshold of initial entry,” Shaughnessy v. United
States ex rel. Mezei, 345 U.S. 206, 212 (1953)(“Mezei”), and those who gain a “foothold” or effect
entry in the United States, see Kaplan v. Tod, 267 U.S. 228, 258 (1925)(“Kaplan”). 	Congress
legislates against this settled Constitutional background of aliens at the threshold of entry and those
who effect an entry.
i. 	On the Threshold of Entry.
“The entry-doctrine fiction has always determined when and under what circumstances due
process applies in proceedings.” Kurzban, supra, chapter 3, § 1.H, at 80. Although IIRIRA ends
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 58 of 94

- 59 -
the traditional distinction between exclusion and deportation proceedings, the entry doctrine
endures regarding whether someone has Constitutional rights if they are in the United States, even
if the United States has not admitted the alien. See Kurzban, supra, chapter 3, § 1.H, at 80. For
more than a century, the Supreme Court recognizes that an alien seeking entry “requests a
privilege,” Landon, 459 U.S. at 32, and possesses only those procedural protections which
Congress chooses to provide, because the power to admit or exclude aliens is a core sovereign
prerogative, see U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)(“Whatever the
procedure authorized by Congress is, it is due process as far as an alien denied entry is
concerned.”). The United States’ power over aliens on the “threshold of entry” does not change
because an alien sets foot on United States’ soil. Thuraissigiam, 591 U.S at 140 (stating that, even
if the alien makes his way “25 yards into U.S. territory,” he is treated as an applicant for admission
“‘on the threshold’” of entry)(quoting Mezei, 345 U.S. at 212). 	Nor does the power change
because an alien is “paroled elsewhere in the country for years pending removal”; they, too, are
“‘treated for due process purposes ‘as if stopped at the border.’” Thuraissigiam, 591 U.S at 139
(quoting Mezei, 345 U.S. at 215). Thus, the sovereign’s prerogative endures for any alien stopped
at the border or “detained shortly after unlawful entry” despite circumstances that might suggest
the alien effects an entry. Kaplan, 267 U.S. at 257-58 (stating that, “in theory of law,” an alien is
inadmissible, but immigration officers permit the aliens to reside in the United States for nine
years, nonetheless remains “at the boundary line” and for purposes of due process has “gained no
foothold in the United States” for purposes of due process). See Leng May Ma 357 U.S. at 188-
90 (1958)(stating that an alien “paroled” into the United States pending admissibility has not
effected an “entry”). Aliens, whom the United States treats as “at the boundary line,” receive less
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 59 of 94

- 60 -
Constitutional Due Process protections than an alien who effects an entry without first
encountering the United States.
ii. 	Effected Entry.
By contrast, once an alien effects entry and develops a presence within the United States,
removal implicates greater Constitutional protections. 	See Landon, 459 U.S. at 34 (“Our cases
have frequently suggested that a continuously present resident alien is entitled to a fair hearing
when threatened with deportation.”). 	Whether an alien effects entry is not purely a question of
presence in the country or temporal conditions; the question goes to the connection and the
relationship between the United States and the alien. See United States v. Verdugo–Urquidez, 494
U.S. 259, 271 (1990)(stating in dicta that “aliens receive constitutional protections when they have
come within the territory of the United States and developed substantial connections with this
country”); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5, (1953)(“The Bill of Rights is a
futile authority for the alien seeking admission for the first time to these shores. But once an alien
lawfully enters and resides in this country he becomes invested with the rights guaranteed by the
Constitution to all people within our borders.”); Yamataya v. Fisher, 189 U.S. 86, 100-01
(1903)(withholding judgment on question “whether an alien can rightfully invoke the due process
clause of the Constitution who has entered the country clandestinely, and who has been here for
too brief a period to have become, in any real sense, a part of our population, before his right to
remain is disputed”).
For example, in Osorio-Martinez v. Attorney General of the United States, 893 F.3d 153
(3d Cir. 2018)(“Osorio-Martinez”), the United States Court of Appeals for the Third Circuit
considers two classes of aliens subject to expedited removal under § 1225(b) and the related
jurisdiction-stripping provision in § 1252. 	See Osorio-Martinez, 893 F.3d at 162-63. 	The first
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 60 of 94

- 61 -
class consists of aliens “apprehended within hours of entering the country,” Osorio-Martinez, 893
F.3d at 166, while the second class consists of aliens physically present in the United States who
qualify for Special Immigrant Juvenile status under 8 U.S.C. § 1101(a)(27)(J). 	See Osorio-
Martinez, 893 F.3d at 163. In Castro v. Department of Homeland Security, 835 F.3d 422 (3d Cir.
2016)(“Castro”), the Third Circuit addresses the first class and holds that § 1225 does not violate
the Constitution, reasoning that the petitioners’ claims are “based on physical presence alone,” and
the claims arise in the context of aliens seeking initial entry or whom are apprehended immediately
after entry. Osorio-Martinez, 893 F.3d at 166 (citing Castro, 835 F.3d at 448). See Castro, 835
F.3d at 448 (stating that “most of the cases cited above did not involve aliens who were seeking
initial entry to the country or who were apprehended immediately after entry.”). By contrast, in
Osorio-Martinez, 	the 	Third 	Circuit 	holds 	that 	§ 1252’s 	jurisdiction-stripping 	clause 	is
unconstitutional as applied to the second class of aliens, concluding that those aliens have
“significant ties to this country” sufficient to trigger greater constitutional protection. 	Osorio-
Martinez, 893 F.3d at 167. The Third Circuit thus reaffirms the longstanding distinction between
aliens at or near the threshold of entry, and those who have effected entry, and establish presence
within the United States for purposes of due process analysis.
Because the Constitution distinguishes between aliens who effect an entry and those who
remain at the threshold of entry, an alien who enters the United States may, in certain
circumstances, receive greater procedural protections than an alien seeking initial admission. The
Supreme Court has repeatedly explained that, for aliens at the threshold of entry, the Constitution
requires no procedural process beyond that which Congress has provided by statute to govern their
application. See Mezei, 345 U.S. at 212 (“‘Whatever the procedure authorized by Congress is, it
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 61 of 94

- 62 -
is due process as far as an alien denied entry is concerned.’”)(quoting United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 544 (1950).
iii. 	Paroled and Conditional Parole.
Consistent with the “effected entry” framework, Congress has long exercised the power to
permit an alien’s physical presence within the United States while treating that individual, as a
matter of law, as remaining at the threshold of entry -- a legal fiction most clearly embodied in the
parole doctrine. “[A] deferred inspection necessarily involves parole into the United States under
INA § 212(d)(5),” 8 U.S.C. § 1182(d)(5). 	Charles Grodan, Stanley Madman, Yale-Loser,
Immigration Law and Procedure, § 8.05 [2][d], at 8-17 (“Gordan”). 	Parole permits physical
ingress to the United States without formal admission; “conceptually, a person remains on the
border, lacking the rights that accompany admission.” Gordan, supra, § 8.05[2][d], at 8-17. Stated
another way, parole is not an admission -- either at the border or out of detention. See Leng May
Ma v. Barber, 357 U.S. at 190; 8 U.S.C. § 1282(d)(5).
Congress’ parole provisions reinforce the distinction between physical presence and legal
entry that runs throughout immigration law. See Kaplan, 267 U.S. at 257-58. 	Section 1182(d)
authorizes the Secretary of Homeland Security to “parole into the United States” an alien applying
for admission for “urgent humanitarian” or “significant public benefit” reasons, while expressly
providing that such parole “shall not be regarded as an admission.” 	8 U.S.C. § 1182(d)(5)(A).
Parole therefore permits an applicant for admission to reside temporarily within the United States
while remaining, in theory of law, at the threshold of entry. See Kaplan, 267 U.S. at 257-58. The
parole framework, thus, allows the political branches to accommodate humanitarian and
administrative needs without conferring the constitutional and statutory protections that attach to
aliens the United States admits or those who establish a presence within the country.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 62 of 94

- 63 -
c. 	Statutory Due Process.
In balancing the sovereign’s prerogative to admit or exclude with the Due Process Clause’s
protections of all persons within the United States borders, the Supreme Court issues several
opinions, in Zadyvdas, Jennings, and Thuraissigiam, interpreting the INA touching on the issues
of due process. Although the legal questions that the Supreme Court confronts in each of the cases
is not the same, the legal discussion is instructive on how to navigate the intersection of
immigration law and due process.
i. 	Supreme Court Guidance.
In Zadvydas, the Supreme Court considers whether the immigration detention statute
governing post-removal-order custody, see 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V), authorizes
the indefinite detention of aliens whom the United States cannot deport. See Zadvydas, 533 U.S.
at 682. Both petitioners are lawful permanent residents whom the United States determines are
removable based on their criminal convictions. See 533 U.S. at 684-86. After the statutory ninety-
day removal period expires, the United States can repatriate neither petitioner because no country
will accept them. 	See 533 U.S. at 684-86. 	The United States nevertheless continues to detain
them under the post-removal detention statue, despite the ninety-day timeframe that Congress
places in §1231(a)(6). 	See 533 U.S. at 682. 	The petitioners file habeas petitions, under
28 U.S.C. § 2241, arguing that permanent confinement is contrary to the Constitution. 	See
Zadyvdas, 533 U.S. at 685.
The Supreme Court begins by stating a “statute permitting indefinite detention of an alien
would raise a serious constitutional problem.” 	See Zadyvdas, 533 U.S. at 690. 	“The Fifth
Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any ‘person . . . of . . .
liberty . . . without due process of law.’ Freedom from imprisonment -- from government custody,
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 63 of 94

- 64 -
detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects.”
Zadyvdas, 533 U.S. at 690 (quoting the U.S. Const. amend. V, § 1)(alterations in the original).
Continuing with its analysis, the Supreme Court states that only a sufficiently strong governmental
interest, accompanied by adequate procedural safeguards, can justify civil detention. 	See
Zadyvdas, 533 U.S. at 690. 	Preventing flight and protecting the community can justify limited
detention, but the Supreme Court states that indefinite detention without a realistic prospect of
removal cannot be Constitutional. 	See Zadyvdas, 533 U.S. at 692. 	Importantly, the Supreme
Court rejects the United States reliance on Mezei, explaining that, once an alien enters the United
States, “the legal circumstances change[],” because the Due Process Clause applies to all persons
within the United States, regardless of the legality of their presence. Zadyvdas, 533 U.S. at 693.
To avoid the Constitutional problem, the Supreme Court construes 8 U.S.C. § 1231(a)(6)
(1994 ed., Supp. V), to contain an implicit temporal limitation that the statute authorizes detention
only for “a period reasonably necessary” to accomplish removal. Zadyvdas, 533 U.S. at 689. The
Supreme Court adopts a “presumptively reasonable” six-month detention period. Zadyvdas, 533
U.S. at 700-01. After six months, if the alien can show that removal is not reasonably foreseeable,
continued detention becomes unauthorized unless the United States rebuts that showing. 	See
Zadyvdas, 533 U.S. at 701. 	The Supreme Court thus reaffirms that, while Congress possesses
broad authority over immigration, this authority remains subject to Constitutional limits once an
alien effects an entry and establishes a presence in the United States.19
19 In Zadvydas, the Supreme Court addresses post-removal-order detention as applied to
lawful permanent residents who had effected entry into the United States and later lost their
admitted status. See 533 U.S. at 682. The Court emphasizes that its Due Process analysis rested
on the petitioners’ prior entry and presence in the United States, noting that “[o]nce an alien enters
the country, the legal circumstance changes,” because the Due Process Clause applies to all persons
within the United States. Zadvydas, 533 U.S. at 693. The Court acknowledges that “[a]liens who
have not yet gained initial admission to this country would present a very different question.”
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 64 of 94

- 65 -
In Jennings, the Supreme Court considers whether 8 U.S.C. §§ 1225(b), 1226(a), and
1226(c) implicitly requires periodic bond hearings or impose a temporal limitation on detention.
See Jennings, 583 U.S. at 289. 	Respondent Alejandro Rodriguez, in Jennings, is a lawful
permanent resident whom the United States detains under § 1226, because he has several criminal
convictions. See Jennings, 583 U.S. at 289-90. The United States Court of Appeals for the Ninth
Circuit certifies a class of aliens that the United States detains under 8 U.S.C. § 1225(b), 1226(a),
and 1226(c) for longer than six months without providing a hearing justifying the detention, and
names Rodriguez as the class representative. See Jennings, 583 U.S. at 290-91. The Ninth Circuit
concludes those provision mandate a bond hearing every six months, invoking the Constitutional
avoidance 	canon, 	because 	“prolonged 	detention 	without 	adequate 	procedural 	protections’
authorized by the provisions ‘would raise serious constitutional concerns.’” Jennings, 583 U.S. at
289 (quoting Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), rev’d sub nom. Jennings, 583
U.S. 281). 	Justice Alito rejects the Ninth Circuit’s use of the Constitutional avoidance canon,
holding that the statutory text unambiguously authorizes detention until immigration officers finish
considering asylum applications under § 1225(b)(1)(B)(ii) or until removal proceedings conclude
under § 1225(b)(2)(A). See Jennings, 583 U.S. at 283. Section 1225(b)(1) and (b)(2) state that
applicants 	for 	admission 	“shall 	be 	detained” 	pending 	asylum 	consideration 	or 	removal
proceedings, and § 1226(c) similarly provides that the United States “shall” take into custody
Zadvydas, 533 U.S. at 682.
The Supreme Court confronts that unaddressed question in Clark v. Martinez, 543 U.S.
371 (2005)(“Clark”). 	In Clark, the Supreme Court applies Zadvydas’ statutory construction to
inadmissible aliens whom the United States had never admitted. Clark, 543 U.S. at 373. Writing
for the Court, Justice Scalia declines to rest the decision on Constitutional Due Process grounds.
See Clark, 543 U.S. at 378. Instead, he reasoned to “give these same words a different meaning
for each category [of removable aliens] would be to invent a statute rather than interpret one.”
Clark, 543 U.S. at 378. Thus, Zadvydas’ temporal limitation applies to inadmissible aliens as a
matter of statutory interpretation, not because the Due Process Clause independently requires it.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 65 of 94

- 66 -
certain criminal aliens and release them from custody “only if” narrow statutory conditions are
met. Jennings, 583 U.S. at 283. Because these provisions specify definite termination points and
employ mandatory language, the Supreme Court concludes that the statutes are not susceptible to
a reading that implicitly imposes periodic bond hearings. See 583 U.S. at 311-12.
In Jennings, the Supreme Court distinguishes Zadvydas, where the Supreme Court
previously reads a reasonableness time limit into 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V), to
avoid a Constitutional problem. See Jennings, 583 U.S. at 289-99. Justice Alito focuses on the
discretionary language “may be detained” in § 1231(a), and the statute containing no explicit
endpoint, creating ambiguity. Jennings, 583 U.S. at 299. By contrast, the detention provisions in
§ 1225 and § 1226 contain clear commands, and, with defined stopping points, leave no
comparable textual uncertainty for the avoidance cannon to resolve. 	See Jennings, 583 U.S. at
300-01. 	Accordingly, the Supreme Court reverses the Ninth Circuit’s judgment, and disagrees
with the Ninth Circuit’s statutory interpretation and remands the case for consideration of the
detainee’s Constitutional claims in the first instance, expressly declining to decide whether
prolonged detention under these provisions violates the Due Process Clause. Jennings, 583 U.S.
at 312.
The third recent Supreme Court cases analyzing due process and the INA is Thuraissigiam.
In Thurissigiam, the Supreme Court considers whether 8 U.S.C. § 1252(e)(2)’s limits on review
by federal courts of writ of habeas corpus violates either the Suspension Clause or the Due Process
Clause. See Thuraissigiam, 591 U.S. at 104.20 Respondent Vijayakumar Thuraissigiam is a Sri
20 “The Suspension Clause provides that ‘[t]he Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
it.’” 	Thuraissigiam, 591 U.S. at 116 (quoting U. S. Const., Art. I, § 9, cl. 2). 	Because section
1252(e)(2) restricts judicial review in habeas proceedings to whether a petition is an alien, whether
the United States orders the petitioner removed, or whether the petitioner can prove they some
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 66 of 94

- 67 -
Lankan national that crosses the United States’ border “without inspection or an entry document,”
and Border Patrol stops him “within 25 yards of the border.” Thuraissigiam, 591 U.S. at 114. The
United States detains him and places him in expedited removal proceedings under § 1225(b)(1).
See Thuraissigiam, 591 U.S. at 114. Thuraissigiam asserts a fear of returning to Sri Lanka and
seeks asylum under § 1225(b)(1)(A)(ii). See Thuraissigiam, 591 U.S. at 114. The United States
determines Thuraissigiam does not have a credible fear, and an immigration law judge affirms this
determination, placing Thuraissigiam back into removal proceeding. See Thuraissigiam, 591 U.S.
at 114.
Thuraissigiam files a petition of a writ of habeas corpus challenging the credible fear
determination, but the district court dismisses the petition, because § 1252(a)(2) and (e)(2) remove
credible fear determinations from federal courts’ jurisdiction under habeas petitions. 	See
Thuraissigiam, 591 U.S. at 115. The Ninth Circuit reverses the district court, because the Ninth
Circuit concludes that “§ 1252(e)(2) violates the Suspension Clause.” Thuraissigiam, 591 U.S. at
115. The Ninth Circuit states “that respondent ‘has procedural due process rights,’ specifically the
right ‘to expedited removal proceedings that conformed to the dictates of due process.’”
Thuraissigiam, 591 U.S. at 115 (quoting Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d
1097 (9th Cir. 2019), rev’d and remanded sub nom. Thuraissigiam, 591 U.S. 103).
Justice Alito, writing for the Court, reverses the Ninth Circuit. 	See Thuraissigiam, 591
U.S. at 140. 	He first holds that § 1252(e)(2)’s limits on habeas review do not violate the
type of lawful permanent residence status, see 8 U.S.C. § 1252(e)(2)(A)-(C), the Ninth Circuit
finds the provision violates Thuraissigiam’s Constitutional rights. See Thuraissigiam v. U.S. Dep’t
of Homeland Sec., 917 F.3d at 1111, n.15. 	The Supreme Court reverses the Ninth Circuit’s
decision, because respondent attempts use of the writ outside its historic role, which in this case is
to have the United States make another credible fear determination. See Thuraissigiam, 591 U.S.
at 118.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 67 of 94

- 68 -
Suspension Clause because the writ, as historically understood at the time of the Founding, does
not extend to providing merits review of exclusion decisions. See Thuraissigiam, 591 U.S. at 118.
Turning to due process, the Supreme Court explains that longstanding precedent draws a sharp
distinction between aliens who have effected entry and those who seek initial admission. 	See
Thuraissigiam, 591 U.S. at 138-39. The Supreme Court reiterates that the Constitution treats an
alien whom the United States has not admitted -- whether the United States physically stops them
at a port of entry, apprehends them shortly after unlawful entry, or paroles the alien into the country
for years -- is, “for due process purposes, as if stopped at the border.” Thuraissigiam, 591 U.S. a
139. 	In that posture, the alien “has only those rights regarding admission that Congress has
provided by statute.” Thuraissigiam, 591 U.S. at 140. Because Congress specifies the procedures
governing credible-fear screening and judicial review of those determinations, the Due Process
Clause requires nothing more regarding Thuraissigiam’s admission. See Thuraissigiam, 591 U.S.
at 140. 	The Supreme Court also emphasizes the structural consequences of adopting the Ninth
Circuit’s approach. 	See Thuraissigiam, 591 U.S. at 139 (stating the rule concerning the United
States’ plenary power to admit or exclude aliens “would be meaningless if it became inoperative
as soon as an arriving alien set foot on U.S. soil”). 	The Supreme Court thus reaffirms that the
political branches retain plenary authority to define the procedures governing admission
determinations and that courts may not Constitutionalize additional procedural entitlements in the
statue.
Taken together, these cases delineate the Constitutional framework governing immigration
detention and admission. 	Zadvydas establishes that, once an alien effects entry and establishes
presence within the United States, indefinite civil detention raises serious due process concerns
absent a realistic prospect of removal. 	See Zadyvdas, 533 U.S. at 690. 	Jennings clarifies that,
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 68 of 94

- 69 -
where Congress clearly authorizes detention for defined immigration proceedings, courts may not
rewrite statutes to impose extra-textual temporal limits, leaving the Constitutional questions --
whether the statute violates the Due Process Clause -- to be addressed directly. See Jennings, 583
U.S. at 311-12. Thuraissigiam confirms that aliens whom the United States has not admitted --
whether at the physical border or in the legal posture of as if at the border -- possess only those
procedural rights regarding admission that Congress’ written statutes provide. See Thuraissigiam,
591 U.S. at 139.
The distinction between territorial presence and effected entry doctrines resolves any
tension among these lines of authority. 	Physical presence within the United States generally
confers standing on aliens to invoke Constitutional protections, but the entry fiction permits
Congress to treat certain physically present aliens like those awaiting inspection or paroled for
admission processing as legally remaining at the threshold of entry. In that posture, procedural
entitlements flow from statute rather than from the Due Process Clause. With this Constitutional
framework in view, the Court now turns to § 1225’s structure.
ANALYSIS
The Court carefully reviews the PFRD and the relevant pleadings. 	In the TRO PFRD,
Magistrate Judge Khalsa recommends that the Court make three conclusions. See TRO PFRD at
1. First, she recommends that the Court concludes that Singh has made a strong showing that he
is substantially likely to succeed on his first habeas petition claim that his re-detention without a
bond hearing violates federal law, because §1226(a), instead of §1225(b)(2), governs Singh’s
detention. See TRO PFRD at 6. Second, she recommends that the Court conclude that Singh has
made a strong showing that he is substantially likely to succeed on his second habeas petition claim
of a Fifth Amendment of the United States Constitution, U.S. CONST . amend. V, due process
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 69 of 94

- 70 -
violation, because his re-detention without a bond hearing violates his Fifth Amendment due
process rights. See TRO PFRD at 13. Finally, she recommends that the Court conclude that the
burden of proof at the bond hearing is placed on the United States, because Singh at a previous
bond hearing shows under § 1226(a) that he is not a danger or a flight risk and circumstances have
not changed between the first bond hearing and Singh’s current detention. See TRO PFRD at 20-
21. Based on these recommendations, Magistrate Judge Khalsa recommends that the Court grant
Singh’s Motion for Temporary Restraining Order and Preliminary Injunction, filed November 7,
2025 (Doc. 2)(“TRO”), and issue a temporary restraining order and preliminary injunction
requiring all Respondents to release Singh immediately. See TRO PFRD at 1. In the alternative,
Magistrate Judge Khalsa recommends that the Court grant Singh’s TRO, and require the
Respondents to hold a bond hearing within five days of entry of the Court’s TRO order, at which
the burden is on the United States to show changed circumstances rendering Singh a danger or
flight risk, or immediately release him. 	See TRO PFRD at 1. 	In the Habeas Petition PFRD,
Magistrate Judge Khalsa recommends that the Court make two conclusions. See Habeas Petition
PFRD at 1, 13-14. First, she recommends that the Court conclude that the United States cannot
hold Singh under § 1225(b)(2), but instead must hold him under § 1226(a) and afford him a bond
hearing. See Habeas Petition PFRD at 11. Second, Magistrate Judge Khalsa recommends that the
Court permit Singh to file a motion for fees under the EAJA, 28 U.S.C. § 2412(d)(1)(A). 	See
Habeas Petition PFRD at 13-14. Based on these recommendations, she recommends that the Court
grant Singh’s habeas petition in part, and order the Respondents to hold a bond hearing within five
days of the entry of the Court’s order, and that should they not give him a bond hearing, that the
Court then order Respondents to immediately release Singh. 	See Habeas Petition PFRD at 14.
Pursuant to rule 72(b) of the Federal Rules of Civil Procedure, the Court conducts a de novo review
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 70 of 94

- 71 -
of the record and all parts of the Magistrate Judge Khalsa’s PFRD to which the Federal
Respondents properly object. The Federal Respondents object to all recommendations in both the
TRO PFRD and the Habeas Petition PFRD. See generally TRO PFRD Objections; Habeas Petition
PFRD Objections. After conducting this de novo review, the Court concludes that there are sound
reasons in the applicable law and the relevant facts to sustain the Objections to Magistrate Judge
Khalsa’s 	recommended 	dispositions 	and 	accordingly 	declines 	to 	adopt 	the 	PFRD’s
recommendations.
I. 	THE 	COURT 	SUSTAINS 	THE 	RESPONDENTS’ 	OBJECTION 	TO
MAGISTRATE JUDGE KHALSA’S CONCLUSIONS IN BOTH THE TRO PFRD
AND THE HABEAS PETITION PFRD THAT 8 U.S.C. § 1226(a) GOVERNS
SINGH’S DETENTION, AND THAT SINGH THEREFORE IS ENTITLED TO
EITHER IMMEDIATE RELEASE OR A BOND HEARING.
The Federal Respondents argue that Singh is subject to mandatory detention under §
1225(b)(2), because he is an alien present in the United States without having been admitted
lawfully to the United States, and that therefore the Court should not grant Singh either immediate
release or a bond hearing. See TRO PFRD Objections at 2; Habeas Petition PFRD Objections at
1. The Court concludes that the Federal Respondents are correct in concluding that they can hold
Singh under § 1225(b)(2). The Court determines that the United States may not properly detain
Singh under 8 U.S.C. § 1225(b)(1)(ii), which provides for mandatory detention, even though he is
an alien who has been present in the United States continuously for less than two years immediately
before the date of the determination of inadmissibility, he has not been admitted or paroled, he has
filed a claim for asylum, and immigration officers have determined that he is not entitled to be
admitted. 	See 8 U.S.C. § 1225(b)(1)(ii). 	This does not prevent the Court, however, from
sustaining the Federal Respondents’ Objection to Magistrate Judge Khalsa’s recommendation that
the Court order the United States to give Singh a bond hearing or to immediately release Singh,
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 71 of 94

- 72 -
because Singh is still subject to mandatory detention under § 1225(b)(2), and the United States is
not holding Singh under § 1226(a).
While removal proceedings are adjudicated, the United States may detain an alien pursuant
to 8 U.S.C. § 1225 or § 1226. 	Section 1225(b)(1) applies to “applicants for admission” who
“arrive” in the United States, or who have been in the United States continuously for less than two
years, and Section 1225(b)(2) applies to “other aliens” that are applicants for admission seeking
admission. See 8 U.S.C. § 1225(a)(1), (b)(1)(A)(iii); Jennings, 583 U.S. at 287-89; Thuraissigiam,
591 U.S. at 108-09. 	The Court agrees with the United States that it may detain Singh with
mandatory detention under § 1225, and concludes that the United States relies on the right
provision. 	The Court concludes that the United States may properly detain Singh under §
1225(b)(2).
The relevant language of 8 U.S.C. § 1225(b)(1) states:
(b) 	Inspection of Applicants for Admission
(1) 	Inspection of aliens arriving in the united states and certain other
aliens who have not been admitted or paroled
(A) 	Screening
(i) 	In General –
If an immigration officer determines that an
alien (other than an alien described in subparagraph
(F)) who is arriving in the United States or is
described in clause (iii) is inadmissible under section
1182(a)(6)(C) or 1182(a)(7) of this title, the officer
shall order the alien removed from the United States
without further hearing or review unless the alien
indicates either an intention to apply for asylum
under section 1158 of this title or fear of persecution.
(ii) 	Claims for Asylum –
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 72 of 94

- 73 -
If an immigration officer determines that an
alien (other than an alien described in subparagraph
(F)) who is arriving in the United States or is
described in clause (iii) is inadmissible under section
1182(a)(6)(C) or 1182(a)(7) of this title and the alien
indicates either an intention to apply for asylum
under 	section 	1158 	of 	this 	title 	or 	a 	fear 	of
persecution, the officer shall refer the alien for an
interview by an asylum officer under subparagraph
(B).
(iii) 	Application to Certain Other Aliens
(I) 	In General –
The 	Attorney 	General 	may
apply 	clauses 	(i) 	and 	(ii) 	of 	this
subparagraph 	to 	any 	or 	all 	aliens
described 	in 	subclause 	(II) 	as
designated by the Attorney General.
Such designation shall be in the sole
and unreviewable discretion of the
Attorney 	General 	and 	may 	be
modified at any time.21
(II) 	Aliens Described –
An 	alien 	described 	in 	this
clause is an alien who is not described
in subparagraph (F), who has not been
admitted or paroled into the United
States, and who has not affirmatively
shown, to the satisfaction 	of an
immigration officer, that the alien has
been physically present in the United
States continuously for the 2-year
21 On January 21, 2025, the Acting Secretary of Homeland Security extends expedited
removal nationwide to encompass all persons who, upon detention, cannot prove their continuous
presence in the United States during the preceding two years. 	See Designating Aliens for
Expedited Removal, 90 Fed. Reg. 8,139, 8,140 (Jan. 24, 2045)(effective date Jan. 21, 2025).
Although § 1225(b)(1)(A)(iii)(I) references only the Attorney General, Congress has transferred
this power to expand expedited removal to certain other aliens to the Secretary of Homeland
Security. See 8 U.S.C. § 1103(a); 6 U.S.C. § 251; Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005).
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 73 of 94

- 74 -
period immediately prior to the date
of 	the 	determination 	of
inadmissibility 	under 	this
subparagraph.
8 U.S.C. § 1225(b)(1).
The relevant language of 8 U.S.C. § 1225(b)(2) states:
(A) 	In General --
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.
(B) 	Exception- Subparagraph (A) shall not apply to an alien --
(i) 	who is a crewman,
(ii) 	to whom paragraph (1) applies, or
(iii) 	who is a stowaway.
8 U.S.C. § 1225(b)(2). Section § 1225(b)(1) is the default provision for § 1225, and the majority
of aliens whom the United States properly may hold under § 1225 will fall within its scope; that
is, aliens qualifying as applicants for admission who either arrive at the border, and are
inadmissible because of fraud, misrepresentation, or lack of valid documentation, or aliens who
are present in the country continuously for less than two years immediately before the date of the
determination of inadmissibility, and are inadmissible because of fraud, misrepresentation, or lack
of valid documentation. 	See 8 U.S.C. §§ 1225(b)(1)(A)(i)(citing §§ 1182(a)(6)(C), (a)(7)),
(b)(1)(A)(ii)). 	Section 1225(b)(1)(A)(iii), which applies to aliens present in the country
continuously for less than two years, applies only to aliens whom the United States has not been
admitted or paroled into the country. 	See 8 U.S.C. § 1225(b)(1)(A)(iii). 	Congress defines
admission and admitted as “the lawful entry of the alien into the United States after inspection and
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 74 of 94

- 75 -
authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Section 1182(d)(5) governs
parole; it authorizes the Secretary of Homeland Security, “in his discretion,” to parole aliens
applying for admission to the United States “on a case-by-case basis for urgent humanitarian
reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5). Importantly, release on an alien’s
“own recognizance” pursuant to § 1226, termed conditional parole, does not qualify as the parole
that exempts an alien from the scope of §1225(b)(1)(A)(iii).
In 	1996 	Congress 	amended 	INA 	§ 	212(d)(5)(A), 	[codified 	at 	8 	U.S.C. 	§
1182(d)(5)(A)], to allow parole “only on a case by case basis for urgent
humanitarian reasons or significant public benefit. . . . [I]n 2007 the DHS Office of
the General Counsel opined that release of a detained noncitizen under INA §
236(a)(2), [codified at 8 U.S.C. § 1226(a)(2)(B),] is not equivalent to parole under
INA § 212(d)(5)(A). The BIA affirmed this interpretation in 2023.
Gordon, Mailman, Yale-Loehr, Immigration Law and Procedure § 62.01[3], at 62-17, 62-
19 (2025 ed.)(“Gordon”).
Turning to § 1225(b)(2), this provision is a “catchall provision.” Jennings, 583 U.S. at 287
(“Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for
admission not covered by § 1225(b)(1)”). This provision is not a catchall such that it covers every
applicant for admission, including all applicants for admission who have been present in the
interior for more than two years, as the United States understands the provision. 	Instead, this
provision is cabined within § 1225(b)’s broader “inspection” purpose, and is limited to “aliens
seeking entry into the United States (applicants for admission in the language of the statute)” who
do not fall within § 1225(b)(1)’s scope. Jennings, 583 U.S. at 297. This group of “other aliens”
includes arriving aliens and aliens present in the United States for less than two continuous years
who are inadmissible under some provision other than §§ 1182(a)(6)(C), (a)(7) who seek
admission, as well as aliens present in the interior of the United States for longer than two
continuous years who seek admission, such as applying to achieve some legal status. In reaching
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 75 of 94

- 76 -
this conclusion, the Court highlights that § 1225(b)(2)(B) states that any alien “to whom paragraph
(1) applies,” paragraph (1) being § 1225(b)(1), is not subject to § 1225(b)(2)(A), the catchall
provision. 	8 U.S.C. § 1225(b)(2)(B). 	This express exclusion emphasizes § 1225(b)(2)(A)’s
limited scope and that the majority of aliens whom the United States detains under § 1225 should
be detained under § 1225(b)(1).
In determining whether the United States correctly detains Singh under § 1225(b)(2),
therefore, the Court first must look to whether the United States properly can detain him under §
1225(b)(1). The Court determines that the United States may not detain Singh under § 1225(b)(1);
the United States does not detain Singh at the border as an “arriving” alien, and although the United
States detains Singh the second time before he has been present in the United States continuously
for two years, the immigration officer determines Singh to be inadmissible under § 1182(a)(6)(i),
which is not the two inadmissibility provisions, §§ 1182(a)(6)(C), (a)(7), that § 1225(b)(1) requires
to be applicable. 	Magistrate Judge Khalsa concludes that, “by the time [Singh] is re-detained,
[Singh] had been residing in the United States for two years.” 	TRO PFRD at 9. 	The Court is
uncertain how Magistrate Judge Khalsa reaches this conclusion.22 	The facts demonstrate that
22 The Court acknowledges that, after the date of his most recent detention on September
4, 2025, up to the current day, Singh has been present in the United States for more than two years.
The date that determines the eligibility of an alien to be held under § 1225(b)(1)(A)(iii), however,
is the date of detainment, when the determination of inadmissibility is made. See 8 U.S.C. §
1225(b)(1)(A)(iii)(explaining that an alien “who has not affirmatively shown, to the satisfaction
of an immigration officer, that the alien has been physically present in the United States
continuously for the 2-year period immediately prior to the date of the determination of
inadmissibility of under this subparagraph,” is subject to § 1225(b)(1)(A)(iii). The determination
of inadmissibility references § 1225(b)(1)(A)(i), which gives the general procedure for §
1225(b)(1)(A) and states: “If an immigration officer determines that an alien . . . who is arriving
in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or
1182(a)(7) of this title, the officer shall order the alien removed from the United States . . . . “).
That Singh has now been present in the United States for more than two years, because time has
elapsed during his detainment, does not mean that Singh is no longer eligible to be held under §
1225(b)(1)(A)(iii). Because Singh is present in the United States continuously for less than two
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 76 of 94

- 77 -
Singh first arrives in the United States on September 15, 2023. See PFRD at 2. The United States
then re-detains Singh on September 4, 2025, while Singh is traveling through a United States
Border Patrol checkpoint in New Mexico. See PFRD at 2. These dates indicate continued presence
in the United States for a time period of less than two years. Accordingly, Singh is present in the
United States for less than two continuous years at the time of his challenged detainment, he is
subject therefore to the expedited removal proceedings, and the United States properly holds him
under § 1225(b)(1), if the other provisions of § 1225(b)(12) are met. 	That the United States
previously detains Singh and releases him on his own recognizance under §1226 does not negate
§ 1225(b)(1)’s applicability; this interaction neither admits nor paroles Singh into the United
States, as § 1225(b)(1)(A)(iii) uses these terms. Admission requires that Singh crossed the border
in accordance with procedural regularity, which he does not do. See Matter of Quilantan, 25 I. &
N. Dec. 285, 290 (BIA 2010). Singh does not present himself at a port of entry, but instead crosses
the border at an unauthorized location and is later picked up and detained by immigration officials.
See PFRD at 2; Notice at 1. He is then released under § 1226(a), under conditional parole, which
the Court has already concluded above does not constitute “parole” within the meaning of §
1225(b)(1)(A)(iii) sufficient to remove him from the scope of the provision. 	Further, upon his
release from his initial detainment under § 1226, Singh is presented with a Notice to Appear which
states explicitly that he “arrived in the United States at or near Lukeville, Arizona, on or about
September 15, 2023 . . . [and was] not then admitted or paroled after inspection by an Immigration
Officer.” See Notice at 1.
years on the date that an immigration officer detains him and determines him to be inadmissible,
September 4, 2025, the Court determines that the United States may detain Singh under §
1225(b)(1)(A)(iii), if the other provisions of § 1225(b)(1) are met.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 77 of 94

- 78 -
The problem with applying § 1225(b)(1) is that the immigration officer at neither stop relies
on § 1182(a)(6)(C) or § 1182(a)(7), as § 1225(b)(1)(A)(i) requires. Both times, the immigration
officer relies on § 1182(a)(6)(A)(i). The first time, this looks like an intentional move to keep §
1225(b)(1)(A)(i) from applying. 	In any case, in the second detainment, the immigration also
makes it clear that he too is relying on § 1182(a)(6)(A)(i). 	Thus, both immigration officers’
determinations make clear that § 1225(b)(1)(A)(i) does not apply. 	Despite Singh satisfying all
other requirements of § 1225(b)(1), therefore, the immigration officers’ do not allow the expedited
removal in § 1225(b)(1).
Given that § 1225(b)(1) does not apply to Singh, § 1225(b)(2) may apply. Singh meets all
of the requirements for § 1225(b)(2). First, he is an applicant for admission. While he is no longer
an arriving alien, he is “[a]n alien present in the United States who has not been admitted . . .” 8
U.S.C. § 1225(a)(1). 	Second, from all of the examining immigration officer’s remarks and
documents, they have determined that the evidence does not show “clearly and beyond doubt” that
Singh is “entitled to be admitted.”23 	8 U.S.C. § 1225(b)(2). 	The officer found that he is not
23 Congress writes what the examining immigration officer has to determine in a
challenging way: “determines than an alien seeking admission is not clearly and beyond a doubt
entitled to be admitted . . . .” 	8 U.S.C. § 1225(b)(2). 	The issue is whether the officer has to
determine whether the alien seeking admission is not to be admitted or whether the alien is to be
admitted. If the reader eliminates the standard “clearly and beyond a doubt” from the sentence,
the officer has to determine that the alien is “not . . . to be admitted.” If “not” is part of the standard,
the officer has to determine whether the “alien . . . is . . . entitled to be admitted.”
If the officer must determine whether the alien is “entitled to be admitted,” the officer
would have to determine -- “not clearly and beyond a doubt” that the alien “is entitled to be
admitted.” That construction would not make sense. “Not” thus cannot be part of the standard,
but perhaps is part of the determination. This other construction would be that the officer must
determine “clearly and beyond a doubt” that the alien is “not . . . entitled to be admitted.” That
construction also does not make sense. This construction would be an impossibly high standard
on the officer, and he would have to admit every alien.
Guidance is found in § 1229a(c), where Congress puts the burden on the alien. 	See 8
U.S.C. § 1229a(c)(2)(A). The alien has the burden of proof that he or she “is clearly and beyond
a doubt entitled to be admitted.” U.S.C. § 1229a(c)(2)(A). In § 1225(b)(2), by putting the not in
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 78 of 94

- 79 -
lawfully present in the United States. Undisputed facts kept the officers from finding that he is
“entitled to be admitted.” 	Border Patrol Agent Delgado reports that Singh states “that he had
entered illegally through Arizona.” Record of Deportable/Inadmissible Alien at 1. Delgado further
notes that Singh has a pending removal proceeding before EOIR.24 At the time Singh is placed
into detention, he also has a pending asylum application. An alien who admits unlawful entry is
subject to ongoing removal proceedings, and seeks relief from removal cannot, by definition, be
clearly and beyond a doubt entitled to admission. Because Singh is an applicant for admission and
the immigration officer does not find that Singh is admissible, the immigration officer also find
that he is not “clearly and beyond a doubt” admissible or “clearly and beyond a doubt” entitled to
be admitted, § 1225(b)(2) applies by its plain terms. Finally, the Court concludes that Singh is
seeking admission. 	The Court disagrees with the Federal Respondents’ position that every
front of the standard, Congress is saying that the officers has to find that the alien is not “clearly
and beyond a doubt entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A). Not is a finding that the
evidence does not show that high standard. Thus, the immigration officer has to determine that,
on the record before the officer, the evidence does not show “clearly and beyond doubt” that the
alien is entitled to be admitted. The conclusion is similar to one that the evidence is not beyond a
reasonable doubt.
The word “not” does important work in this sentence. Under the ordinary-meaning canon,
words are given their common, everyday meaning unless the statute indicates otherwise. 	See
Scalia & Garner, Reading the Law: The Interpretation of Legal Texts at 69. Here, “not” negates
the demanding standard that follows. Congress does not require the officer to determine that the
alien is affirmatively inadmissible or unlawfully present; it required only a determination that the
alien fails to meet the exceptionally high threshold of being “clearly and beyond a doubt” entitled
to admission.
The rule against surplusage reinforces this reading. See Scalia & Garner, supra at 174. If
“not” is read narrowly or treated as requiring proof of unlawful presence, the phrase “clearly and
beyond a doubt” does no work. Congress chose a stringent entitlement standard and then made
detention mandatory whenever that standard is not satisfied. In short, once any genuine doubt
exists as to entitlement to admission, the statute commands detention. 	That is what “not”
accomplishes in § 1225(b)(2).
24 EOIR hearings are immigration court proceedings where individuals face removal or
deportation.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 79 of 94

- 80 -
applicant for admission is seeking admission and therefore subject to the scope of § 1225(b)(2).
See Objections to the TRO PFRD at 2. This argument improperly equates the term “applicant for
admission” 	and 	“alien 	seeking 	admission” 	in 	§ 	1225(b)(2)(A). 	Treating 	these 	phrases
synonymously is contrary to the presumption that Congress intends different words or phrases to
be accorded different meanings. 	Seeking admission, therefore, must mean something different
than applicant for admission, and therefore does not apply to every alien present in the United
States who has not been admitted. The Court also disagrees, however, with Magistrate Judge
Khalsa’s conclusion that “seeking admission” must only apply to aliens at the border, and cannot
apply to aliens present in the United States. 	This conclusion equates the phrase “seeking
admission” with an “arriving alien,” someone showing up at the United States’ borders looking to
enter the country. 	Congress uses the phrase “arriving alien” in § 1225(b)(1), however,
demonstrating that Congress knew how to use the phrase when it intended for a provision to apply
to arriving aliens. 	Treating these phrases synonymously, therefore, is also contrary to the
presumption that Congress intends different words or phrases to be accorded different meanings.
Magistrate Judge Khalsa relies on the conclusion that an alien, such as Singh, who already has
entered the United States, is no longer seeking admission because admission is defined as “lawful
entry.” Lawful entry, however, means more than just physical presence in the United States, and
it is entirely possible that an alien can be present in the United States without having effected
lawful entry. Admission requires at minimum “procedural regularity” with entry procedures. See
Matter of Quilantan, 25 I. & N. Dec. 285, 290 (BIA 2010). An alien, such as Singh, who crosses
over the border without presenting himself at a lawful point of entry for inspection cannot,
therefore, be considered admitted into the country, and therefore an alien in the interior of the
country can still be seeking admission. 	The Court instead believes that seeking admission is
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 80 of 94

- 81 -
something active that an alien must engage; an alien must request admission into the United States.
This seeking can occur at the border, by an arriving alien who requests admission at a lawful point
of entry; this seeking can also occur in the interior of the United States, however, when an alien
who has not been admitted, an applicant for admission, makes some attempt to gain lawful
admission, such as filing for an asylum or a visa. The Court believes that this interpretation does
not run counter to Justice Alito’s language in Jennings that “§ 1225(b) applies primarily to aliens
seeking entry into the United States (‘applicants for admission’ in the language of the statute.).”
Jennings, 583 U.S. at 297. 	The modifier “primarily” implies that § 1225(b) also reaches some
aliens who are not seeking entry. “Applicants for admission” means aliens present in the United
States who have not been admitted or who arrive in the United States, and § 1225(b)(2) requires
that the alien be an applicant for admission. Aliens physically present within our borders, whom
the United States has not admitted, are not “seeking entry,” but instead are “seeking admission.”
8 U.S.C. § 1225(b)(2)(A) (referring to an “alien seeking admission”). 	Justice Alito’s further
statement that “§ 1226 applies to aliens already present in the United States” creates no tension in
Justice Alito’s two statements; both of Justice Alito’s propositions coexist comfortably and are
consistent with the Court’s reading of § 1225(b), which recognizes that § 1225 at the border, and,
in some cases, in the interior. The Court therefore understands Singh, an alien present in the United
States who has filed an asylum application, to be seeking admission, and can be properly held
under § 1225(b)(2).
After his illegal entry on September 15, 2023, but before his second detainment on
September 4, 2025, however, Singh timely files an application for asylum, withholding of removal,
and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. See PFRD at 2. Singh’s asylum application remains pending, with his
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 81 of 94

- 82 -
next master calendar hearing set for January 20, 2025. See PFRD at 2. The Court understands
that this hearing is a Final Preliminary Hearing, which is the rough equivalent of a court’s pretrial
conference before trial. In other words, the next hearing for Singh will be his final asylum hearing.
Given that Singh has had multiple hearings -- and continues to have hearings -- on his asylum
application, the Court presumes that the United States finds Singh to have a credible fear of
persecution. 	The United States may detain an alien seeking asylum under § 1225(b). 	Under 8
C.F.R. § 235.3, “aliens over whom USCIS exercises jurisdiction pursuant to § 208.2(a)(1)(ii) [8
U.S.C. § 1158] of this chapter after being found to have a credible fear of persecution or torture
shall be detained in accordance with section 235(b) [8 U.S.C. § 1225(b)] of the Act.” 8 C.F.R. §
235.3(c)(2). Section 1158 establishes asylum interview procedures for aliens present in the United
States who have filed an asylum application. 	Read together, these provisions indicate that the
United States may detain aliens present in the United States who apply for asylum and whom the
United States finds to have a credible fear pursuant to INA § 235(b), codified at 8 U.S.C. § 1225(b).
If the asylum seeker is an “other alien” in § 1225(b)(2), then he shall be detained for a proceeding
under section 1229(a) of this title. 8 U.S.C. § 1225(b)(2)(A). 	The Court concludes, therefore,
that Singh’s asylum application does not negate the ability of the United States properly to detain
Singh under § 1225(b)(2). 	The Court therefore sustains the Federal Respondents’ Objection,
because the United States may detain Singh under § 1225(b)(2), and the United States does not
hold Singh under § 1226(a), as Magistrate Judge Khalsa concludes, which entitles Singh either to
immediate release or a bond hearing.
II. 	THE COURT SUSTAINS THE RESPONDENTS’ OBJECTION TO MAGISTRATE
JUDGE KHALSA’S CONCLUSION IN THE TRO PFRD THAT SINGH’S DETENTION
VIOLATES SINGH’S FIFTH AMENDMENT DUE PROCESS RIGHTS.
The Federal Respondents argue that Singh does not make a strong showing that he will
succeed on his claim that the United States violates his Fifth Amendment Due Process rights,
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 82 of 94

- 83 -
because the United States appropriately detains Singh under § 1225(b)(2) and because he is entitled
only to the due process rights that the statute afford him. See TRO PFRD Objections at 5. 	The
Court disagrees with this argument. The Fifth Amendment affords Singh substantive due process
protections, independent from the process § 1225 affords, that unreasonably prolonged detention
while his asylum claim is pending may trigger. The Court concludes, however, that the current
length of Singh’s detention, which begins on September 4, 2025, is not long enough to constitute
unreasonably prolonged detention. 	The Court therefore sustains Respondents’ Objection and
denies Singh’s habeas petition without prejudice, thus giving him the opportunity to refile should
his detention reach the status of unreasonably prolonged detention.
The Constitution does not apply equally to citizens and aliens within the United States
borders. 	Indeed, the Supreme Court “has firmly and repeatedly endorsed the proposition that
Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore
v. Kim, 538 U.S. 510, 522 (2003). The understanding of what due process affords an alien begins
with a discussion of the distinction between territorial standing and the entry fiction. See Gordon,
supra § 9.04, at 9-15. Territorial standing is the idea that an alien’s physical presence in the United
States, even if the alien enters illegally, functions as a proxy for ties to the country -- ties
sufficiently strong to confer on the alien standing to assert a range of Constitutional rights that an
alien who has not “made an entry” may not claim. E.g., United States v. Verdugo-Urquidez, 494
U.S. 259, 273-75 (1990)(concluding that undocumented aliens who voluntarily enter the United
States presumably have accepted some societal obligations, whereas those whom the United States
transports here have no voluntary connection with the country that might place them among the
United States people for purposes of the Fourth Amendment’s protection). By contrast, the entry
fiction is the idea that an alien on United States soil pending admission is under the law regarded
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 83 of 94

- 84 -
as still at the border -- regardless of their length of stay and ties to the community -- and thus
beyond the Constitution’s protection, which protects only those who have effected entry. See, e.g.,
Leng May Ma v. Barber, 357 U.S. 185, 190 (1958)(explaining that parole does not alter the
excluded alien’s status or otherwise bring her “within the United States,” and thereby entitle her
to the benefits of a deportation hearing); 	Chin Yow v. United States, 208 U.S. 8, 12-13
(1908)(“[T]he petitioner gains no additional right of entrance by being allowed to pass the frontier
in custody for the determination of his case.”). 	Put differently, the rule of territorial standing
presumes that aliens who reach United States soil under their own power -- legally or illegally --
have ties to the community sufficient to confer a wide range of Constitutional rights. See Gordon,
supra § 9.04, at 9-15. This presumption encompasses aliens who cross the border illegally without
ever encountering law enforcement. 	The entry doctrine, by comparison, concludes that aliens
whom the United States permits into the country absent some legal right to be there -- e.g., paroled
-- have no community ties, and, therefore, relatively few rights. See Gordon, supra § 9.04, at 9-
15.
This distinction has its historical basis in the old immigration processes of exclusion and
deportation, wherein exclusion is the administrative process that affords an alien whom the United
States concludes cannot enter the United States the opportunity to show why the United States
should grant entry. See Gordon, supra § 9.05[1], at 9-18. Deportation, by contrast, is the procedure
by which the United States expels an alien who already entered the country, whether legally or
illegally. 	See Gordon, supra § 9.05[1], at 9-18. 	Aliens in exclusion proceedings have few
Constitutional rights. Because of the entry fiction, the law deems aliens in exclusion proceedings
to be beyond the United States’ borders and therefore largely ineligible for the protection of United
States domestic laws. See Gordon, supra § 9.05[1], at 9-18. The aliens’ only protections are those
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 84 of 94

- 85 -
that the federal statute grants. See Gordon, supra § 9.05[1], at 9-18. The law deems deportable
aliens to be in the country, by contrast, because of the rule of territorial standing, and therefore to
have developed ties to the country sufficient to warrant a range of due process and equal protection
rights. See Gordon, supra § 9.05[1], at 9-18. The Supreme Court in Shaughnessy v. United States
ex rel. Mezei, 345 U.S. 206, 212 (1953)(“Mezei”), maintains this distinction, and the Supreme
Court acknowledges the difference between the Constitutional protections that the United States
affords to aliens who have territorial standing versus what the law affords aliens who have not
effected entry into the United States:
It is true that aliens who have once passed through our gates, even illegally,
may be expelled only after proceedings conforming traditional standards of fairness
in due process of law. 	But an alien on the threshold of initial entry stands on a
different footing: ‘Whatever the procedure authorized by Congress, it is due process
as far as an alien denied entry is concerned.’
345 U.S. at 212 (quoting United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)).
Congress erases the distinction between exclusion and deportation proceedings when it passes the
IIRAIRA in 1996, collapsing the two proceedings into a single “removal” proceeding. See Gordon,
supra § 9.05[1], at 9-18. The Supreme Court in Thuraissigiam confirms, however, that the entry
fiction still applies when determining what due process rights to afford to aliens. See 591 U.S. at
138-40. The petitioner makes it twenty-five yards into the United States before apprehension and,
on the basis of this presence into the United States, argues that the United States should afford him
greater due process protections. See Thuraissigiam, 591 U.S. at 139. Justice Alito, writing for the
Supreme Court, rejects this argument. See Thuraissigiam, 591 U.S. at 139. Speaking of the rule
regarding the due process rights of an alien seeking initial entry, Justice Alito states:
This rule would be meaningless if it became inoperative as soon as an
arriving alien set foot on U.S. soil. When an alien arrives at a port of entry -- for
example, an international airport 	-- the alien is on U.S. soil, but the alien is not
considered to have entered the country for the purposes of this rule. 	On the
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 85 of 94

- 86 -
contrary, aliens who arrive at ports of entry -- even those paroled elsewhere in the
country for years pending removal -- are “treated” for due process purposes “as if
stopped at the border.
Thuraissigiam, 591 U.S. at 139 (citing Leng May Ma v. Barber, 357 U.S. at 188-90; Mezei, 345
U.S. at 215; Kaplan v. Tod, 267 U.S. 228, 230-31 (1925)). Similarly, the Supreme Court reaffirms
the “entry fiction” doctrine in Zadvydas, 533 U.S. 678 (2001)(“Zadvydas”):
The distinction between an alien who has effected an entry into the United
States and one who has never entered runs throughout immigration law. 	See
Kaplan v. Tod, 267 U.S. 228, 230 (1925)(despite nine years’ presence in the United
States, an “excluded” alien “was still in theory of law at the boundary line and had
gained no foothold in the United States”); Leng May Ma v. Barber, 357 U.S. 185,
188-90 (1958)(alien “paroled” into the United States pending admissibility had not
effected an “entry”). 	It is well established that certain constitutional protections
available to persons inside the United States are unavailable to aliens outside of our
geographical borders. See United States v. Verdugo-Urquidez, 494 U.S. 259, 269
(1990)(Fifth Amendment’s protections do not extend to aliens outside the territorial
boundaries); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)(same). But once an
alien enters the country, the legal circumstances change, 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. The Tenth Circuit also embraces this concept. 	See Sierra Immigr. &
Naturalization Serv., 258 F.3d 1213, 1218 (10th Cir. 2001)(“Sierra”)(“Although he has been
physically present in the United States for more than twenty years, Sierra is ‘legally considered to
be detained at the border and hence as never having effected entry into this country.’”)(quoting
Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1440 (5th Cir.), amended by 997 F.2d 1122 (5th
Cir. 1993)). The Court therefore understands this distinction between an alien subject to territorial
standing and one subject to the entry fiction still to impact the extent of due process rights that the
United States affords an alien.
There are two cases that inform the Court’s understanding of the Tenth Circuit’s approach
to due process rights that the Constitution affords to arriving aliens: Rodriguez-Fernandez v.
Wilkinson, 654 F.2d 1382 (10th Cir. 1981)(“Rodriguez-Fernandez”), and Sierra. 	Rodriguez-
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 86 of 94

- 87 -
Fernandez involves a Mariel Cuban25 who arrives at Key West, Florida, aboard the Freedom
Flotilla, and, based on Rodriguez-Fernandez’s criminal record and lack of immigration documents,
immigration officers deem Rodriguez-Fernandez not entitled to enter and detain him pursuant to
§ 1225(b). See 654 F.2d at 1384. An immigration officer subsequently orders him deported. See
654 F.2d at 1384. 	Cuba refuses to accept him, however, and Rodriguez-Fernandez remains in
custody despite the inability of the United States to find a country that will accept him. See 654
F.2d at 1384. In ordering his release, the Tenth Circuit notes that “an excluded alien in physical
custody within the United States may not be ‘punished’ without being accorded the substantive
and procedural due process guarantees of the Fifth Amendment.” Rodriguez-Fernandez, 654 F.2d
at 1387. 	The Tenth Circuit reasons that the United States cannot order Rodriguez-Fernandez’
execution -- the ultimate denial of liberty under the Fifth Amendment -- solely because Cuba will
not accept him. See 654 F.2d at 1387. There is little chance that the United States will ever release
Rodrigez-Fernandez; the United States continues to detain him long after Cuba refuses to accept
him, and the Tenth Circuit concludes that such detention “has become imprisonment” in violation
of the Due Process Clause. Rodriguez-Fernandez, 654 F.2d at 1387. The Tenth Circuit concludes
that the detention of aliens after proceedings necessary to determine eligibility to enter the country
is permissible only during “a reasonable period of negotiations for their return to the country of
origin” and that, after such a time, the United States must release the alien. 654 F.2d at 1389-90.
Rodriguez-Fernandez therefore suggests that the United States cannot indefinitely detain aliens on
the threshold of entry without running afoul of the Due Process Clause.
25 Mariel Cubans are those who attempted to enter the United States in 1980 when “some
125,000 Cuban aliens arrived without visas in Florida aboard a flotilla of small boats,” Palma v.
Verdeyen, 676 F.2d 100, 101 (4th Cir. 1982), often referred to as the “Freedom Flotilla.”
Rodriguez-Fernandez, 654 F.2d at 1383.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 87 of 94

- 88 -
Sierra also involves a Mariel Cuban’s attempt to enter the United States. See 258 F.3d at
1215-16. After the United States denies Sierra entry, the United States paroles him into the United
States. See 258 F.3d at 1216. While on parole, Sierra is convicted of several crimes, prompting
the Immigration and Naturalization Service (“INS”) to deny his application to become a lawful
permanent resident. See 258 F.3d at 1216. An immigration judge then denies his application for
asylum and orders Sierra deported, at which point Cuba refuses to accept him. See 258 F.3d at
1216. Sierra applies for parole during his post-conviction detention, the right to which 8 C.F.R. §
212.12(g)(2) affords him because of his status as a Mariel Cuban, and the United States grants
parole; six months later, however, the United States revokes his parole. 	See 258 F.3d at 1216.
None of Sierra’s later requests for parole succeed. See 258 F.3d at 1216. Sierra then files a habeas
petition challenging the decisions to deny him parole under the Due Process Clause. See 258 F.3d
at 1216. The Tenth Circuit begins its analysis by emphasizing Sierra’s status as an arriving alien:
“Although he has been physically present in the United States for more than twenty years, Sierra
is ‘legally considered to be detained at the border and hence as never having effected entry into
this country.’” 258 F.3d at 1218 (quoting Gisbert v. U.S. Attorney Gen., 988 F.2d 1437, 1440 (5th
Cir.), amended by 997 F.2d 1122 (5th Cir. 1993)). As an alien subject to the entry fiction, “[t]he
Due Process Clause does not provide [Sierra] a liberty interest in being released on parole.
Ordinarily, then ‘[w]hatever the procedure authorized by Congress is, it is due process as far as an
alien denied entry is concerned.’” 258 F.3d at 1218 (quoting United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 544 (1950)). In a footnote, the Tenth Circuit clarifies that this “rule
applies to procedural due process challenges such as Sierra’s.” 258 F.3d at 1218 n. 3. The Tenth
Circuit distinguishes procedural due process challenges from substantive due process challenges
to Congressional legislation by citing to the warning in Rodriguez-Fernandez that “Congress could
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 88 of 94

- 89 -
not order the killing of Rodriguez-Fernandez and others in his status on the ground that Cuba
would not take them back.” Sierra, 258 F.3d at 1218 n. 3 (quoting Rodriguez-Fernandez, 654 F.2d
at 1287). Because Sierra receives the process that the relevant parole regulation gives him, and
his Fifth Amendment 	procedural due process rights are coextensive with the process under the
parole regulations, the Tenth Circuit holds that his challenge to his detention under the Due Process
Clause fails. See Sierra, 258 F.3d at 1218-20.
Based on the above precedent, therefore, the Court understands the Tenth Circuit’s
approach to the due process rights of an alien subject to the entry fiction, as follows: The Tenth
Circuit continues to follow Mezei’s holding that the procedure which Congress authorizes for
aliens subject to the entry fiction is due process; in other words, an alien subject to the entry
fiction’s procedural rights under the relevant statutes are coextensive with the alien’s Fifth
Amendment’s procedural due process rights. 	An alien subject to the entry fiction also has,
however, substantive due process rights which extend beyond the procedural protections that
Congress provides in the statute. The Court further concludes that Singh, an inadmissible alien that
the United States catches at the border, whom the United States then allows into the United States
under his own recognizance pursuant to the United States’ § 1226(a) power, qualifies as an alien
subject to the entry fiction who has not effected entry into the United States successfully. As a
consequence, the United States must afford Singh only the procedural due process protections that
the United States affords to aliens at the border, who have not entered into the United States -- that
is, whatever procedures Congress affords under the statute.
Looking at the procedural protections that § 1225 affords, the Court first notes that the
Supreme Court states in Jennings that § 1225 does not contain any additional process other than
what the statute grants. See Jennings, 583 U.S. at 297-301. Justice Alito in Jennings declines to
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 89 of 94

- 90 -
follow the approach that the Supreme Court takes in Zadvydas, 533 U.S. 678 (2001), where the
Supreme Court holds that, for “aliens admitted to the United States but subsequently ordered
removed,” § 1231(a)(6) contains an implicit “reasonable time” limitation on detention; the United
States may detain an alien beyond the ninety-day “removal period” only for such time as is
reasonably necessary to secure the alien’s removal, and detention may not continue if removal is
”no longer practically attainable.” Zadvydas, 533 U.S. at 682, 690. The Supreme Court reads this
implicit limitation into § 1231 under the Constitutional avoidance canon, because “[a] statute
permitting indefinite detention of an alien would raise a serious constitutional problem,” and “post-
removal-detention, unlike detention pending a determination of removability . . . has no obvious
termination point.” 	Zadvydas, 533 U.S. at 690, 697. 	Important to the Supreme Court’s
determination is the fact that the petitioners are aliens who have effected entry into the country,
and, therefore, the Supreme Court affords them full Constitutional protections:
We deal here with aliens who were admitted into the United States but
subsequently ordered removed. Aliens who have not yet gained initial admission
to this country would present a very different question. Based on our conclusion
that indefinite detention of aliens in the former category would raise serious
constitutional concerns, we construe the statute to contain an implicit ‘reasonable
time’ limitation 	. . . .
Zadvydas, 533 U.S. at 682. In Jennings, however, Justice Alito relies on the fact that, unlike §
1231, § 1225(b) has a definite termination point for detention -- the conclusion of removal
proceedings. See 583 U.S. at 299. Justice Alito concludes that, because § 1225(b) “mandate[s]
detention until a certain point and authorize[s] release prior to that point only under limited
circumstances,” the Supreme Court cannot reasonably read § 1225(b) to impose a limit on the
length of detention before the removal proceedings’ conclusion. Jennings, 583 U.S. at 297-303.
Jennings does not foreclose, however, the possibility that an alien has due process rights which the
Constitution affords separate and apart from the statute’s protections. See 583 U.S. at 312.
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 90 of 94

- 91 -
The Court determines, therefore, that the only procedural rights that Singh has is what §
1225 affords and therefore that continued detention without a bond hearing does not violate his
procedural due process rights. Based on the Tenth Circuit’s conclusion in Rodriguez-Fernandez,
however, the Court concludes that Singh has substantive due process protections that extend
beyond § 1225’s protections. The United States may violate an alien subject to the entry fiction’s
substantive due process rights if immigration detention becomes punitive. 	See Rodriguez-
Fernandez, 654 F.2d at 1387 (“[A]n excluded alien in physical custody within the United States
may not be ‘punished’ without being accorded the substantive . . . due process guarantees of the
Fifth Amendment.”). Nevertheless, “the mere fact that a person is detained does not inexorably
lead to the conclusion that the government has imposed punishment.” United States v. Salerno,
481 U.S. 739, 746 (1987). 	A restriction on liberty is punitive rather than regulatory if (a) the
government intends to impose punishment, or (b) the restriction is not rationally related to a
legitimate nonpunitive governmental purpose or is excessive in relation to that purpose. 	See
United States v. Salerno, 481 U.S. at 747; Kingsley v. Henderson, 576 U.S. 389, 398 (2015). 	The
Court determines that Singh cannot demonstrate, at this time, that his detention is so long that it
has crossed over into punishment and a violation of his due process rights. First, Singh provides
no evidence that his detention is the result of an intent to punish on the United States’ part. Further,
the Court determines that “facilitating deportation” is a rational, nonpunitive purpose for detention.
Demore v. Kim, 538 U.S. at 532-33 (Kennedy, J., concurring). Finally, the Court determines that
Singh’s detention to date, detained since September 4, 2025, is not so long so as to qualify as
“excessive in relation” to the purpose of facilitating deportation. See PFRD at 2. When there is
“an unreasonable delay by the INS in pursing and completing deportation proceedings, it could
become necessary then to inquire whether the detention is not to facilitate deportation . . . but to
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 91 of 94

- 92 -
incarcerate for other reasons.” Demore v. Kim, 538 U.S. at 532-33 (Kennedy, J, concurring). The
Court does not draw a bright-line rule of what constitutes an “unreasonable delay,” but concludes
that the approximate four-month detention up to this point does not constitute a violation of Singh’s
substantive due process rights, especially given the fact that his final preliminary hearing occurs
on January 20, 2026, after which Singh will be scheduled for a final determination on his asylum
application. 	Accordingly, the Court sustains the Federal Respondents’ Objection to Magistrate
Judge Khalsa’s conclusion in the TRO PFRD that Singh’s detention violates Singh’s Fifth
Amendment due process rights. 	The Court denies Singh’s habeas petition without prejudice,
however, and gives him the opportunity to refile should his detention extend to a length of time
sufficient to cross over to punishment and violate his substantive due process rights.
III. 	THE COURT SUSTAINS THE RESPONDENTS’ OBJECTION TO MAGISTRATE
JUDGE KHALSA’S CONCLUSION IN THE TRO PFRD THAT IF THE COURT ELECTS
TO ORDER A BOND HEARING UNDER § 1226(a), THE UNITED STATES BEARS THE
BURDEN 	OF 	PROVING 	BY 	CLEAR-AND-CONVINCING 	EVIDENCE 	THAT
CIRCUMSTANCES HAVE CHANGED SUCH THAT SINGH IS NOW A FLIGHT RISK
OR A DANGER TO PERSONS OR PROPERTY.
The Respondents object to Magistrate Judge Khalsa ordering a bond hearing and, at that
hearing, requiring the burden of proof to shift to the United States to prove by clear-and-convincing
evidence that the circumstances have changed such that Singh is now a flight risk or a danger to
persons or property. See Objections to the TRO PFRD at 6-7. The Court need not decide what
the bond hearing should look like, because it is not ordering the bond hearing. Accordingly, the
Court sustains the Respondents’ Objection, in so far as there will be no bond hearing at which the
burden shifting can occur.
IV. 	THE COURT SUSTAINS THE RESPONDENT’S OBJECTION TO MAGISTRATE
JUDGE KHALSA’S CONCLUSION IN THE HABEAS PETITION PFRD THAT SINGH
MAY FILE A MOTION FOR FEES UNDER THE EAJA, 28 U.S.C. § 2412(d)(1)(A).
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 92 of 94

- 93 -
The Respondents argue that the Court should not permit Singh to file a motion for fees
under the EAJA because, among other arguments, he is not the “prevailing party” in this case.
Objections to the Habeas Petition PFRD at 6. The Court agrees with the Respondents’ arguments.
Singh is not the prevailing party to this case, because the Court denies his habeas petition in full.
Accordingly, because the EAJA affords fees and other expenses only to private parties who prevail
in litigation against the United States if, among other conditions, the United States’ position is not
“substantially justified,” the Court sustains the Respondents’ Objection to Magistrate Judge
Khalsa’s conclusion that Singh may file an EAJA motion for fees. See Comm'r, I.N.S. v. Jean,
496 U.S. 154, 155 (1990); 28 U.S.C. § 2412(d)(1)(A).
IT IS ORDERED that (i) the Federal Respondents’ Objections to the Proposed Findings
and Recommended Disposition, filed December 4, 2025 (Doc. 18) are sustained; (ii) the Federal
Respondents’ Objections to the Proposed Findings and Recommended Disposition, filed January
13, 2026 are sustained; (iii) the Magistrate Judge Proposed Findings and Recommended
Disposition, filed November 21, 2025 (Doc. 14)(“TRO PFRD”) is rejected; (iv) the Magistrate
Judge Proposed Findings and Recommended Disposition, filed December 31, 2025 (Doc.
20)(“Habeas Petition PFRD”) is rejected; and (iv) the Petitioner’s Verified Petition Under 28
U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. 1), is denied without prejudice; (vi) the Court
sustains the Federal Respondents’ Objections, and a separate Final Judgment will be entered.
________________________________
UNITED STATES DISTRICT JUDGE
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 93 of 94

- 94 -
Counsel and parties:
Lance Curtright
Alejandra Martinez
De Mott, Curtright, & Armendariz, LLP
San Antonio, Texas
Attorneys for the Petitioner
Todd Blanche
Deputy Attorney General
United States Department of Justice
Washington, D.C.
--and--
Ryan Ellison
Acting United States Attorney
Jean Margaret Trenbeath
Assistant United States Attorney
United States Attorneys Office
Albuquerque, New Mexico
Attorneys for Respondents Kristi Noem, Pamela Bondi, Todd M. Lyons, Mary De Anda-
Ybarra
Dora Castro
Defendant
Case 2:25-cv-01110-JB-KK Document 22 Filed 01/20/26 Page 94 of 94