Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ANDREY NOSSOV,
Petitioner
V.
CIVIL ACTION NO. 1:25-2562
(JUDGE MANNION)
ANGELA HOOVER, et al.,
Respondents
MEMORANDUM
Pending before the court is petitioner Andrey Nossov's petition for a
writ of habeas corpus pursuant to 28 U.S.C . §2241. (Doc. 1 ). For the reasons
stated he rein , Nossov's petition will be GRANTED.
I. 	BACKGROUND
Petitioner And rey Nossov is a citizen of Kazakhstan. (Doc. 1-2 , ,I 4 ).
He fled the country in 2023 after allegedly being targeted because of his
Russian ethnicity , beaten , threatened with death , and extorted by a Kazakh
nationalist with connections to law enforcement. Id ., ,I,I 12-15. He arrived in
the United States on September 28, 2023, at the Port of Entry in Hidalgo,
Texas, where he applied for admission. Id. , ,I 17 . He was issued a Notice to
Appear 	charging 	him 	with 	removability 	under 	8 	U.S.C. 	§1182 	as 	an
immigrant not in possession of valid entry documents. Id., ,I 19; (Doc. 1-4 ).
He then filed a "Form 1-589 , Application for Asylum and for Withholding of
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Removal , seeking asylum based on his nationality (Russian ethnicity) and
protection under the Convention Against Torture ["CAT"]." Id., ,r 20. He was
paroled into the United States, pursuant to 8 U.S.C. §1182(d)(5), which was
set to expi re on September 26, 2025. 	Id ., ,r 18. He took up residence in
Rochester and later New York, New York, where he had been working to
provide for himself and his son. (Doc. 1-3 at 6); (Doc. 1-5). He has no criminal
record .
On September 1, 2025, Nossov was taken into immigration custody by
Immigration and Customs Enforcement ("ICE" ). (Doc. 1 at 5). He has since
been detained 	pursuant to 8 U.S.C. §1225(b)(2)(A), and 	he 	is 	currently
located 	at 	the 	Cl inton 	County 	Correctional 	Facility 	in 	McElhattan,
Pennsylvania.
On December 31 , 2025, Nossov filed the present petition for a writ of
habeas 	corpus. 	(Doc. 	1 ). 	On 	January 	2, 	2026, 	the 	court 	ordered
Respondents to show cause as to why it should not be granted. (Doc. 2). On
January 23 , 2026, Respondents filed their response. (Doc. 	9). 	Finally, on
January 26, 2026, Nossov filed a reply to their response. (Doc. 	11 ). The
petition is now ripe for disposition.
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II. 	LEGAL STANDARD
Under 28 U.S.C. §2241, district courts have the authority to grant writs
of habeas corpus where a petitioner is "in custody under or by color of the
authority of the United States ... in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. §2241(c)(1), (3).
Furthermore, 	"[i]t 	is well 	established that a federal 	habeas corpus
petitioner 	generally 	has 	the 	burden 	of 	proving 	facts 	entitling 	him 	to 	a
discharge from custody." Goins v. Brierley, 464 F.2d 947, 949 (3d Cir. 1972).
However, "[w]ith respect to certain factual issues, the burden of proof may
be shifted to the state because of specific policy considerations or because
the available evidence is likely to be in the hands of the state." Id.
Ill. 	DISCUSSION
a. Jurisdiction
The court's authority to hear noncitizen habeas petitions under 28
U.S.C. §2241 is limited is some circumstances by 8 U.S.C. §§1252(9), (b)(9),
and (a)(2)(B)(ii).
§ 1252(9) 	states 	"[ e]xcept 	as 	provided 	in 	this 	section 	and
notwithstanding 	any 	other 	provisions 	of 	law 	. 	. 	. 	no 	court 	shall 	have
jurisdiction to hear any cause or claim by or on behalf of any alien arising
from 	the 	decision 	or 	action 	by 	the 	Attorney 	General 	to 	commence
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proceedings, adjudicate cases, or execute removal orders against any alien
under this chapter." 8 U.S.C. §1252(g). Here, the court's jurisdiction is not
barred 	by 	§1252(g) 	as 	Nossov's 	claim 	neither 	challenges 	the
commencement of removal proceedings, the Attorney General's decision to
adjudicate, nor the execution of a removal order. See Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482 (1999) (finding that §1252(g)(2)
divests the court of jurisdiction "only to [these] three discrete actions").
§ 1252(b )(9) states "[j]udicial review of all questions of law and fact . . .
arising from any action taken or proceedings brought to remove an alien from
the United States ... shall be available only on judicial review of a final order
[of removal]. " 8 U.S.C. § 1252(b )(9). Here, the court's jurisdiction is not barred
by §1252(b)(9) as Nossov does not seek review of any law or fact arising
from a removal proceeding. See E.O.H. C. 	v. 	Sec'y United States Dept. of
Homeland Sec ., 950 F.3d 177, 186 (3d Cir. 2020) (finding that §1252(b)(9)
"does not reach claims that are independent of, or wholly collateral to, the
removal process").
§1252(a)(2)(B)(ii) prohibits district courts from reviewing discretionary
detention 	choices 	of 	the 	Attorney 	General 	or 	Secretary 	of 	Homeland
Security. 	8 U.S.C. 	§1252(a)(2)(B)(ii). 	Here, the court's jurisdiction 	is 	not
barred by §1252(a)(2)(B)(ii) as Nossov does not challenge a discretionary
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detention choice. See Patel v. O'Neil, 2025 WL 3516865, at *3 (M .D.Pa. Dec.
8, 2025) ("section 1252(a)(2)(B)(ii) is inapposite because the Respondents'
'statutory 	detention 	power 	is 	"not 	a 	matter 	of 	discretion" 	to 	which
§1252(a)(2)(B)(ii) applies"') (internal citations omitted).
Finally, courts considering the issue of whether a petitioner is being
wrongfully detained without a bond hearing "have almost universally held
that they 	have 	jurisdiction," 	and, 	therefore, 	that 	§§1252(9), 	(b)(9), 	and
(a)(2)(B)(ii) do not apply. Patel, 2025 WL 3516865 at *3.
b. Exhaustion of administrative remedies
"A petitioner challenging agency action must generally first exhaust
administrative 	remedies; 	however, 	in 	habeas 	proceedings, 	'exhaustion
exists as a judicially created doctrine applied at the Court's discretion."' Vadel
v. 	Lowe , 	2025 	WL 	3772059, 	at 	*3 	(M.D. Pa. 	Dec. 	31, 	2025) 	(quoting
Kashranov v. Jamison , 2025 WL 3188399, at *3 (E.D.Pa. Nov. 14, 2025)).
Here, further administrative review would be pointless, as Nossov is detained
under 8 U.S.C. §1225(b)(2)(A), which precludes immigration judges from
holding a bond hearing . See id. ; see a/so Matter of Yajure Hurtado, 29 I. &
N. Dec. 216 (BIA 2025) (holding that an immigration judge "has no authority
to consider bond requests for any person who entered the United States
without admission" ).
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c. 	8 U.S.C. §1226(a) applies to Nossov
Respondents argue that Nossov is subject to mandatory detention
pursuant to 8 U.S.C. §1225(b)(2)(A), which does not allow for courts to hold
a bond hearing . Nossov, on the other hand , argues that his detention under
§1225(b)(2)(A) violates the Immigration and Nationality Act ("INA") and his
procedural 	due 	process 	rights, 	and 	that 	he 	is 	subject to 	discretionary
detention 	under 8 U.S.C. §1226(a), 	which 	would 	entitle 	him 	to 	a 	bond
hearing.
Courts nationwide have been dealing with the very issue presented in
this case. Namely, whether a noncitizen habeas petitioner who has been
residing 	in the United States for some time 	is subject to the mandatory
detention provision of§ 1225(b )(2)(A). As noted by the Honorable Robert D.
Mariani:
The overwhelming majority of federal district courts that have
addressed this 	issue have interpreted the 	INA to find that
persons 	similarly 	situated 	to 	Petitioner-noncitizens 	who
previously entered the United States and are currently residing
in 	the 	United 	States-are 	not 	subject 	to 	the 	mandatory
detention provision of 8 U.S.C. § 1225(b)(2)(A) but instead are
subject to the discretionary detention pursuant to 8 U.S.C.
§1226(a) and accordingly are entitled to a bond hearing.
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Patel, 2025 WL 3516865 at *4 (citing Demirel v. Fed. Det. Ctr. Philadelphia ,
2025 WL 3218243, at *1 ("Although there is no apposite appellate authority,
there are 288 district court decisions addressing this issue. In all but six, the
Government's interpretation of the 	INA-the same interpretation it urges
here-was rejected" )). Furthermore, "every district court in the Third Circuit
to consider this issue has found that detainees similarly situated to 	[the
petitioner] are not subject to the mandatory detention provision." Id. The
undersigned joins in this consensus interpretation.
For 	§1225(b)(2)(A) 	to 	apply: 	"(1) 	there 	must 	be 	an 	'examining
immigration officer' who determines; (2) that an 'applicant for admission' ; (3)
is 'seeki ng admission '; and (4) 'not clearly and beyond a doubt entitled to be
admitted ."' Bethancourt v. Soto, 2025 WL 2976572 , at *5 (D.N.J. Oct. 22,
2025) (citing 8 U.S.C. §1225(b)(2)(A)).
The consensus view of the courts is that "seeking admission" requires
"active and ongoing conduct, such as physically attempting to come into the
United States at a border or port of entry. " Gonzalez Centeno v. Lowe, 2026
WL 94642, at *3 (M .D. Pa. Jan. 13 , 2026) (quoting Quispe v. Rose, 2025 WL
3537279, at *5 (M.D. Pa . Dec. 10 , 2025)). An individual affirmatively "seeking
adm ission" should not be confused as being the same as an applicant for
admission. 	See 	Patel , 2025 	WL 	3516865 	at 	*5 	(finding 	that 	such 	an
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interpretation of "seeking admission" violates the rule against surplusage).
Therefore, 	because 	"seeking 	admission" 	applies 	to 	individuals 	in 	an
affirmative act, §1225(b)(2)(A) does not apply to "noncitizens . .. who have
resided in the United States for years." Id.
As for §1226(a), it allows for the Attorney General to arrest and detain
a noncitizen "pending a decision on whether the alien is to be removed from
the United States ." 8 U.S.C. §1226(a). Pending that decision, the Attorney
General "(1) may continue to detain the arrested alien ; and (2) "may release
the alien on 	. . . bond of at least $1 ,500 with security approved by , and
containing conditions prescribed by, the Attorney General ; or ... conditional
parole ." 8 U.S.C. §1226(a)(1)-(2).
Here, Nossov has been living in the United States since September
28 , 2023. (Doc. 1-2 at 1117). Upon arrival, he applied for asylum, withholding
of removal , and CAT relief, and was paroled into the United States. Id. at 1111
18 , 20. He was not taken into immigration custody until September 1, 2025.
(Doc. 	1 at 	5). 	Therefore, 	he 	is 	not "seeking 	admission" 	as 	defined 	by
§1225(b)(2)(A). Accordingly, 8 U.S.C. §1226(a) applies.
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d. Nossov's detention under 8 U.S.C. §1225(b)(2)(A) violates
due process and warrants release
The Fifth Amendment protects against deprivation "of life, liberty, or
property without due process of law. U.S. Const. amend. V. This protection
"applies to all 'persons' within the United States, including aliens, whether
their presence here is lawful, unlawful, temporary, or permanent." Zadvydas
v. Davis, 533 U.S. 678, 693 (2001 ).
To 	determine 	whether 	a 	habeas 	petitioner's 	detention 	under
§1225(b)(2)(A) violates due process, courts weigh three factors: (1) "the
private interest that will be affected by the official action"; (2) "the risk of an
erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards "; and
(3) "the Government's interest, including the function involved and the fiscal
and 	adm inistrative 	burdens 	that the 	additional 	or 	substitute 	procedural
requirements would entail." Mathews v. Eldridge , 424 U.S. 319, 335 (1976).
Application of the factors reveals a clear violation of due process. First,
the "most elemental of liberty interest[s]-the interest in 	being free from
physical detention"-is implicated. Hamdi v. 	Rumsfeld, 542 U.S. 507 , 529
(2004). Second , Nossov's erroneous detention under §1225(b)(2)(A) comes
with a lack of procedural safeguards, including the opportunity for a bond
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hearing , wh ich makes it extraordinarily difficult to challenge his detention.
Cunin v. McShane , 2025 WL 3542999, at *2 (M.D.Pa. Dec. 10, 2025) ("There
is a certai nty-not merely a risk-that the failure to grant [petitioner] a bond
heari ng would unlawfully deprive him of the opportunity to make the case for
his release and incarcerate him indefinitely" ). Third , while the Government
has an interest in detaining noncitizens "to ensure [their] appearance . .. at
future immigration proceedings and to prevent danger to the community,"
there 	is 	no 	such 	need 	here. 	Quispe, 	2025 	WL 	3537279 	at 	*7 	(citing
Zadvydas, 533 U.S. at 690). Upon arrival 	to 	the United States, 	Nossov
immediately applied for admission and was granted 	parole. 	Prior to 	his
detention , he complied with the conditions of his parole while 	he sought
asylum, withholding of removal , and CAT relief. (Doc. 	1-2 at ffll 	17-21 ).
Nossov's application for asylum is still pending, providing him with a strong
incentive 	to 	appear 	at 	future 	immigration 	proceedings. 	Id. 	at 	1l 	27.
Furthermore, he has no criminal history and there are no indications that he
poses a flight risk or danger to the community. Nor do Respondents argue
he does. Thus, upon weighing of the Mathews factors, the court finds that
Nossov's continued detention under §1225(b )(2)(A) violates his procedural
due process rights.
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e. 	EAJA fees and costs
Nossov will be permitted to file a motion for costs and fees pursuant to
the Equal Access to Justice Act ("EAJA") within thirty days of the entry of this
judgment. See Michelin v. Warden Moshannon Valley Correctional Center, -
-F.4 th -- , 2026 WL 263483 (3d Cir. Feb. 2, 2026) (holding that a petition for a
writ of habeas corpus from immigration detention under §2241 	is an EAJA
"civ il 	action ," 	entitling 	petitioners 	to 	attorneys' 	fees 	and 	costs 	if 	the
Government's position was not "substantially justified").
IV. 	CONCLUSION
For the foregoing 	reasons , Nossov's petition 	for a writ of habeas
corpus under 28 U.S.C. §2241 	will 	be 	GRANTED. 	Respondents wi ll 	be
ordered to immediately release Nossov and wi ll be permanently enjoined
from re-deta ining him under 8 U.S.C. §1225(b). Respondents will also be
tempora ril y enjoined from re-arresting Nossov for a period of 14 days to
ensure that th is habeas remedy 	is effective. 	If Respondents later detain
Nossov under 8 U.S.C. §1226, they will be required to provide him with notice
and , with in 10 days, a bond hearing before an immigration judge, who shall
provide an individualized assessment as to whether he poses a flight risk or
a danger to 	the 	community. If Nossov 	is 	re-detained 	under §1226 	and
Respondents fail to schedule a timely bond hearing , he will be permitted to
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reopen this matter. Finally, Respondents will be directed to file a declaration
or affidavit pursuant to 28 U.S.C. §1746 confirming that Nossov has been
released from custody . An appropriate order shall issue.
DATE: 	Jja(U?25-2562-01
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