Harnandez v. Noem et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
PABLO SUAREZ HERNANDEZ,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
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Case No. CIV-25-1537-D
ORDER
Petitioner Pablo Suarez Hernandez filed a Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2241. [Doc. No. 1]. Petitioner is a citizen of Mexico who has resided in the
United States since 2011. He has been in the custody of the U.S. Immigration and Customs
Enforcement (ICE) since August 21, 2025, and his removal proceedings are ongoing.
Petitioner is currently detained pursuant to the mandatory detention provision contained in
8 U.S.C. § 1225(b)(2)(A).
The immigration court sent a notice of bond hearing to Petitioner’s counsel on
December 15, 2025. On December 17, 2025, the Immigration Judge (IJ) denied the request
for bond, citing a lack of jurisdiction based on the Board of Immigration Appeals’ decision
in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
Petitioner asserts that the IJ’s decision is governed by 8 U.S.C. § 1226(a) because
“the [i]mmigration [c]ourt’s refusal to exercise jurisdiction over [his] custody status is a
violation of the Immigration and Nationality Act [(INA)] and the Due Process Clause of
the Fifth Amendment.” [Doc. No. 1, at 2]. He contends that § 1225(b)(2)(A) “does not
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apply to him because he ‘was arrested in the interior and has resided [in the country] since
2006.’” [Doc. No. 8, at 8 (quoting Doc. No. 1, at 2 (footnote omitted))].
The matter was referred to United States Magistrate Judge Suzanne Mitchell for
initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B), (C). [Doc. No. 3].
Respondents filed a Response in Opposition to the Petition for Writ of Habeas Corpus.
[Doc. No. 7].
On February 2, 2026, the magistrate judge issued a Report and Recommendation
[Doc. No. 8], recommending that the Court grant in part the Petition and order Respondents
to provide Petitioner a bond hearing pursuant to 8 U.S.C. § 1226(a). Respondents filed a
timely objection to the Report and Recommendation. [Doc. No. 9]. Thus, the Court must
“make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made” and “may accept, reject or
modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” See 28 U.S.C. § 636(b)(1); see also F ED. R. C IV. P. 72(b)(3).
Respondents object to the magistrate judge’s conclusion that § 1226(a) applies to
Petitioner’s detention, and not § 1225(b)(2)(A), as suggested by Respondents. Generally,
Ҥ 1225 mandates detention without the opportunity for a bond hearing for the noncitizens
to whom it applies.” Hernandez v. Baltazar, No. 1:25-cv-03094-CNS, 2025 WL 2996643,
at *3 (D. Colo. Oct. 24, 2025) (citation omitted). In comparison, § 1226 provides the
noncitizen with the opportunity for a bond hearing. Id.; see also Aranda v. Olson, No. 4:25-
cv-156-GNS, 2025 WL 3499061, at *4 (W.D. Ky. Dec. 5, 2025) (“Overall, Section 1226(a)
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provides for a discretionary authority requiring an individualized bond determination
before a noncitizen may be taken into custody.”) (quotation and citation omitted).
Respondents 	contend 	that 	Petitioner 	is 	properly 	detained 	pursuant 	to
§ 1225(b)(2)(A), which provides:
Subject to subparagraphs (B) and (C), in the case of an alien who is an
applicant for admission, if the examining immigration officer determines that
an alien seeking admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a proceeding under section 1229a of
this title.
8 	U.S.C. 	§ 	1225(b)(2)(A). 	Respondents 	assert 	that 	Petitioner 	is 	an 	“applicant 	for
admission” because he is present in the United States and has not been admitted, citing
§ 1225(a)(1). See 8 U.S.C. § 1225(a)(1) (“An alien present in the United States who has
not been admitted . . . shall be deemed for purposes of this chapter an applicant for
admission.”).
In previously construing § 1225(b)(2)(A), the undersigned concluded in Colin that
the subsection “unambiguously requires that an ‘applicant for admission’ also be ‘seeking
admission’ for the section to control.” See Colin, 2025 WL 3645176, at *4. In their
Objection, Respondents argue that “seeking admission” is merely stating “applicant for
admission” another way.
The Court finds helpful the Seventh Circuit’s recent analysis of this issue. In
Casañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048 (7th Cir. 2025) , the Seventh
Circuit denied the government’s request to stay orders of the district court, finding that the
government’s 	argument 	that 	certain 	individuals 	were 	properly 	detained 	under
§ 1225(b)(2)(A) was likely to fail on the merits:
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[W]hile a noncitizen arrested in the Midwest might qualify as ‘an alien
present in the United States who had not been admitted,’ § 1225(a)(1), the
mandatory detention provision upon which Defendants rely, limits its scope
to an ‘applicant for admission’ who is ‘seeking admission,’ § 1225(b)(2)(A).
Put another way, ‘U.S. immigration law authorizes the Government to detain
certain aliens seeking admission into the country under §§1225(b)(1) and
(b)(2). It also authorizes the Government to detain certain aliens already in
the country pending the outcome of removal proceedings under §§ 1226(a)
and (c).
Id. at *9 (quoting Jennings, 583 U.S. at 289). 1
In addressing the government’s argument that “applicant for admission” is simply
synonymous with a person “seeking admission,” the Seventh Circuit noted that the
argument has “some superficial appeal,” acknowledging that § 1225(a)(3) “refers to
noncitizens ‘who are applicants for admission or otherwise seeking admission.’” Id.
However, the Seventh Circuit continued:
[I]t is Congress’s prerogative to define a term however it wishes, and it has
chosen to limit the definition of an ‘applicant for admission’ to ‘an alien
present in the United States who has not been admitted or who arrives in the
United 	States.’ 8 	U.S.C. 	§ 	1225(a)(1). 	It 	could 	easily 	have 	included
noncitizens who are ‘seeking admission’ within the definition but elected not
to do so.
What is more, Defendants’ construction would render § 1225(b)(2)(A)’s use
of the phrase ‘seeking admission’ superfluous, violating one of the cardinal
rules of statutory construction.
Id. (citation omitted).
1 The Court also acknowledges the contrary 2-1 decision in Buenrostro-Mendez v. Bondi, 166
F.4th 494 (5th Cir. 2026) and Avila v. Bondi, --- F.4th ----, 2026 WL 819258 (8th Cir. 2026).
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Upon 	consideration, 	the 	Court 	continues 	to 	conclude 	that 	§ 	1225(b)(2)(A)
unambiguously requires that an “applicant for admission” also be “seeking admission” for
the subsection to control.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
8] is ADOPTED, and the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
[Doc. No. 1] is GRANTED in part. IT IS THEREFORE ORDERED that Respondents
shall provide Petitioner with a prompt bond hearing under 8 U.S.C. § 1226(a), or release
Petitioner. A separate judgment shall be entered.
IT IS SO ORDERED this 31 st day of March, 2026.
TIMOTHY D. DeGIUSTI
Chief United States District Judge
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