Ababulgu v. Noem et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
IBRAHIM MENUR ABABULGU,
Petitioner,
v. Case No. 5:25-CV-1858-JKP
KRISTI NOEM,
Secretary of Homeland Security, et al.,
Respondents.
ORDER GRANTING
PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is a Petition for Writ of Habeas Corpus (ECF No. 1) filed pursuant to 28
U.S.C. § 2241. Respondents have filed a response (ECF No. 5) to the petition. The Court finds no
need for a reply to the petition. The petition is ready for ruling. After reviewing the briefing, pro-
vided evidence, and applicable law, the Court grants the petition for the reasons below.
I. BACKGROUND
Petitioner is in the custody of Respondents (sometimes referred to as “the Government”).
Petitioner is an asylum seeker from Ethiopia who was detained by Respondents on October 30,
2025, and is being held subject to mandatory detention without bond.
Petitioner last entered the United States without inspection on October 28, 2023. Govern-
ment authorities apprehended him on October 29, 2023, upon his unlawful entry into the United
States; placed him into removal proceedings, served him with a Notice to Appear (“NTA”) on
October 30, 2023; and released him the next day. Neither side provides the NTA or the release
order. But the Government provides documentation that it charged him with being present in the
United States without having been inspected or admitted under Section 212(a)(6)(i) of the Immi-
gration and Nationality Act (“INA”), codified at 8 U.S.C. § 1182(a)(6)(A)(i). See ECF No. 5-1.
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 1 of 12

2
According to Petitioner, he applied for relief from removal through a Form I-589 Application for
Asylum and for Withholding of Removal and protection under the Convention Against Torture
(“CAT”), on July 3, 2024.
Nothing of record reveals any violation of any condition of release. When Immigration and
Customs Enforcement (“ICE”) arrested and detained Petitioner on October 30, 2025, it provided
no reason for detention and has not indicated whether it has formally vacated or modified the prior
release. On November 25, 2025, the immigration court denied the applications for asylum, with-
holding of removal, and CAT protection while simultaneously ordering his removal to Ethiopia.
On December 15, 2025, Petitioner timely filed an appeal with the Board of Immigration of Appeals
(“BIA”), which remains pending.
On December 23, 2025, Petitioner filed the instant habeas petition, asserting that his de-
tention violates (1) the due process clause of the Fifth Amendment and (2) provisions of the INA.
His primary argument is that his detention violates the plain language of the INA because § 1225
does not apply to individuals who previously entered and are now residing in the United States.
Instead, such individuals are subject to a different statute, § 1226(a) that (1) expressly applies to
individuals who are charged as inadmissible for having entered the United States without inspec-
tion and (2) allows for release on conditional parole or bond. He contends that Respondents’ new
legal interpretation based on the BIA ruling, In re Yajure Hurtado, 29 I. & N. Dec. 216, 220 (BIA
2025), is plainly contrary to the statutory framework and contrary to decades of agency practice
applying § 1226(a) to people like him.
II. LEGAL STANDARD
Habeas petitioners must show they are “in custody in violation of the Constitution or laws
or treaties of the United States.” Villanueva v. Tate, ___ F. Supp. 3d ___, ___, No. CV H-25-3364,
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 2 of 12

3
2025 WL 2774610, at *4 (S.D. Tex. Sept. 26, 2025) (quoting 28 U.S.C. § 2241(c)(3)). They “bear[]
the burden of proving that [they are] being held contrary to law; and because the habeas proceeding
is civil in nature, the petitioner must satisfy [this] burden of proof by a preponderance of the evi-
dence.” Id. (quoting Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) and citing Bruce
v. Estelle, 536 F.2d 1051, 1058 (5th Cir. 1976)). Courts “considering a habeas petition must ‘de-
termine the facts and dispose of the matter as law and justice require.’” Id. (quoting 28 U.S.C. §
2243).
III. ANALYSIS1
Petitioner argues his continued detention by ICE is based on Respondents’ novel reading
of 8 U.S.C. § 1225, which was adopted by the Board of Immigration Appeals on September 5,
2025. See In re Yajure Hurtado, 29 I. & N. Dec. 216, 220 (BIA 2025).
Respondents assert that they properly detain Petitioner under § 1225(b)(1) and expressly
deny any detention under § 1225(b)(2). They characterize Petitioner as “an applicant for admis-
sion” who was “intercepted at or near the port of entry shortly after unlawfully entering” the United
States. They thus contend that he is properly described under § 1225(b)(1)(A)(iii)(II), and not un-
der the “catchall” provision of § 1225(b)(2)(A). According to Respondents:
The main difference between those described under § 1225(b)(1)(A)(iii)(II), and
not under the “catchall” provision (1225(b)(2)) is that the (b)(1) group is appre-
hended within two years of unlawful entry, and DHS has the discretion to either
place them into expedited removal proceedings or issue an NTA to place them into
“full” removal proceedings. Aliens detained under the catchall provision, however,
are not eligible to be placed into expedited removal proceedings and are subject
only to “full” removal proceedings.
1 In its analysis of the facts, issues, and arguments presented in this case, the Court notes close similarity to that
presented in many recent Petitions for Writ of Habeas Corpus filed in the Western District of Texas, and specifically,
the San Antonio Division. The Court finds the reasoning in these similar cases persuasive and finds the ultimate
determination based upon this reasoning correct. For that reason, and for the sake of expediency, the Court follows
these opinions closely. See, e.g., Acea-Martinez v. Noem, No. 5:25-CV-01390-XR (filed Oct. 28, 2025) (addressing §
1225(b)(2)); Guevara-Vasquez v. Thompson, No. 5:25-CV-01372-XR (filed Nov. 25, 2025) (addressing § 1225(b)(1)).
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 3 of 12

4
As contended by Respondents, Petitioner is detained under § 1225(b)(1)(A)(iii)(II) because he was
apprehended the same day he unlawfully entered the United States and was not placed in expedited
removal proceedings. They contend that § 1225(b) allows indefinite detention without a bond hear-
ing. Further, given the plain language of § 1225(a)(1), Respondents contend Petitioner cannot dis-
pute that he is an applicant for admission, nor can he plausibly challenge the determination that he
is “seeking admission” simply because he is not currently at the border requesting to come into the
United States. Respondents also challenge this Court’s jurisdiction. The Court will address the
jurisdictional challenges first.
A. Challenges to Jurisdiction
As a threshold matter, Respondents argue that 8 U.S.C. §§ 1252(g) and 1225(b)(4) preclude
review of Petitioner’s claims. The Court addresses each section in turn.
1. Section 1252(g)
Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or action by the Attorney General to com-
mence proceedings, adjudicate cases, or execute removal orders against any alien under [Chapter
12 of Title 8 of the United States Code].” The Supreme Court has emphasized that § 1252(g)
“applies only to three discrete actions that the Attorney general may take: her ‘decision or action’
to ‘commence proceedings, adjudicate cases, or execute removal orders.” Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis in original) (quoting 8 U.S.C. §
1252(g)). This provision “does not bar courts from reviewing an alien detention order, because
such an order, while intimately related to efforts to deport, is not itself a decision to execute re-
moval orders and thus does not implicate section 1252(g).” Santiago v. Noem, No. EP-25-CV-361-
KC, 2025 WL 2792588, at *3 (W.D. Tex. Oct. 2, 2025) (cleaned up) (quoting Cardoso v. Reno,
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 4 of 12

5
216 F.3d 512, 516–17 (5th Cir. 2000)).
Petitioner does not challenge a decision to commence removal proceedings, adjudicate a
case against him, or execute a removal order. He instead specifically challenges the decision, or
basis, to detain him. For this reason, § 1252(g) does not deprive the Court of jurisdiction under
these facts and specific challenge. See Guevara v. Swearingen, No. 25 C 12549, 2025 WL
3158151, at *2 (N.D. Ill. Nov. 12, 2025).
2. Section 1225(b)(4)
Respondents’ arguments under 8 U.S.C. § 1225(b)(4) fare no better. Section 1225(b)(4)
provides:
The decision of the examining immigration officer, if favorable to the admission of
any alien, shall be subject to challenge by any other immigration officer and such
challenge shall operate to take the alien whose privilege to be admitted is so chal-
lenged, before an immigration judge for a proceeding under section 1229a of this
title.
This section is not relevant in cases like this one involving “an ‘applicant for admission’
who has not received a favorable determination of his admissibility.” Erazo Rojas v. Noem, No.
EP-25-CV-443-KC, 2025 WL 3038262, at *2 (W.D. Tex. Oct. 30, 2025). Nor does it pose a juris-
dictional bar in such cases. Id.; accord Ordonez-Lopez v. U.S. Dep’t of Homeland Sec., No. EP-
25-CV-470-KC, 2025 WL 3123828, at *2 (W.D. Tex. Nov. 7, 2025) (rejecting same argument).
While Respondents may have intended to refer to 8 U.S.C. § 1252(b)(4), to the extent they
“intended to refer to § 1225(b)(4) as a jurisdictional bar to Petitioner’s claims, the Court finds
nothing in that subsection that bars its jurisdiction here.” Cardona-Lozano v. Noem, No. 1:25-CV-
1784-RP, 2025 WL 3218244, at *1 n.2 (W.D. Tex. Nov. 14, 2025). And “to the extent that Re-
spondents invoke § 1252(b)(4), that section fails to assert a valid jurisdictional bar.” Id. at *2.
“Because Petitioner does not assert a challenge to an order of removal, nothing in that subsection
bars Petitioner from seeking relief from his continued detention in this case.” Id.
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 5 of 12

6
Similarly, to the extent Respondents merely intend to use § 1225(b)(4) to bolster a juris-
dictional argument under § 1252(b)(9), the Court will restate its position on the § 1252(b)(9) ju-
risdictional issue beginning with the next paragraph. But “their appeal to § 1225(b)(4) does not
alter the Court’s prior conclusion that § 1252(b)(9) does not bar it from hearing a habeas peti-
tioner’s challenge to their detention.” Erazo Rojas, 2025 WL 3038262, at *2.
3. Section 1252(b)(9)
To the extent Respondents contend that 8 U.S.C. § 1252(b)(9) presents a jurisdictional bar,
the Court rejects the contention. Section 1252(b)(9) provides:
Judicial review of all questions of law and fact, including interpretation and appli-
cation of constitutional and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States under this subchapter
shall be available only in judicial review of a final order under this section. Except
as otherwise provided in this section, no court shall have jurisdiction, by habeas
corpus . . . or by any other provision of law (statutory or nonstatutory), to review
such an order or such questions of law or fact.
Section 1252(b)(9) “does not present a jurisdictional bar where those bringing suit are not
asking for review of an order of removal, the decision to seek removal, or the process by which
removability will be determined.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591
U.S. 1, 19 (2020) (cleaned up); accord Nielsen v. Preap, 586 U.S. 392, 402 (2019). This provision
“does not . . . ‘sweep within its scope claims with only a remote or attenuated connection to the
removal of an alien’ . . . [or] preclude review of claims that ‘cannot be raised efficaciously within
the administrative proceedings’ already available.” Duron v. Johnson, 898 F.3d 644, 647 (5th Cir.
2018) (quoting Aguilar v. ICE, 510 F.3d 1, 10 (1st Cir. 2007)).
Courts have found that “certain claims are excluded from the sweep of section 1252(b)(9)
by virtue of legislative intent and judicial precedent.” Aguilar, 510 F.3d at 11. For example, chal-
lenging a decision to deny a bond hearing does not present circumstances that manifest a jurisdic-
tional bar under § 1252(b)(9). Preap, 586 U.S. at 402. And the provision’s “legislative history
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 6 of 12

7
indicates that Congress intended to create an exception for claims ‘independent’ of removal.”
Aguilar, 510 F.3d at 11.
Notably, § 1252(b) merely sets forth nine applicable requirements “[w]ith respect to review
of an order of removal under subsection (a)(1).” Ozturk v. Hyde, 136 F.4th 382, 399 (2d Cir. 2025)
(quoting introductory text of § 1252(b)). The circumstances of this case do not place any order of
removal at issue. “Contrary to the government’s position, the mere fact that a noncitizen is detained
does not deprive district courts of jurisdiction under § 1252(b)(9).” Id. As stated by the Supreme
Court: “The question is not whether detention is an action taken to remove an alien but whether
the legal questions in this case arise from such an action.” Jennings v. Rodriguez, 583 U.S. 281,
295 n.3 (2018) (plurality op.) (emphasis in original); accord Ozturk, 136 F.4th at 399 (recognizing
that “the discussion of § 1252(b)(9) in Jennings is not part of the plurality opinion of the Court,”
while also recognizing that “the relevant part of Jennings does not support the conclusion that §
1252(b)(9) bars jurisdiction over habeas challenges to detention” and that part “in fact rejected the
government’s ‘expansive interpretation of § 1252(b)(9)’”).
Petitioner specifically challenges Respondents’ legal authority to subject him to mandatory
detention under § 1225, instead of detention with a bond hearing under § 1226(a). This specific
challenge does not constitute “a review [of] an order of removal, the decision to seek removal, or
the process by which removability will be determined.” Beltran v. Noem, No. 25-CV-2650, 2025
WL 3078837, at *3 (S.D. Cal. Nov. 4, 2025). Thus, § 1252(b)(9) provides no jurisdictional bar in
this case.
In addition, Petitioner does not have the opportunity to “efficaciously” present his claims
“‘within the administrative proceedings’ already available.” Duron, 898 F.3d 647 (quoting Agui-
lar, 510 F.3d at 11). Under these procedural facts, the core of this dispute is whether Petitioner can
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 7 of 12

8
be detained with no bond hearing, that is, with no administrative opportunity to contest her deten-
tion pending a removal determination. If § 1252(b)(9) precluded this habeas petition, Petitioner’s
detention would be effectively unreviewable, especially considering the BIA’s novel position that
immigration judges lack authority to entertain bond requests. See Jennings, 583 U.S. at 293; In re
Yajure Hurtado, 29 I. & N. Dec. at 220. “By the time a final order of removal was eventually
entered, the allegedly [illegal] detention would have already taken place. And of course, it is pos-
sible that no such order would ever be entered in a particular case, depriving that detainee of any
meaningful chance for judicial review.” Jennings, 583 U.S. at 293.
4. Conclusion Regarding Jurisdiction
For the reasons stated, the Court concludes Respondents’ jurisdictional challenges fail, and
the Court has jurisdiction to consider the arguments presented in the instant habeas petition.
B. Review of Substantive Merits
Under Respondents’ arguments concerning § 1225(b)(1), Petitioner is currently mandato-
rily detained because he was initially detained upon entering the United States and released as an
exercise of prosecutorial discretion rather than placed into expedited removal proceedings, which
would have invoked a mandatory detention provision. The arguments seem to ignore that he was
released after his initial apprehension and later applied for asylum. ICE detained Petitioner on
October 30, 2025, more than two years after he entered the United States without inspection on
October 28, 2023. See ECF No. 5-1 (showing entry date as October 28, 2023, and apprehension
date as October 29, 2023). An order of removal was issued on November 25, 2025, but a timely
appeal of that order remains pending. Reliance on § 1225(b)(1)(A)(iii)(II) is foreclosed under the
facts of this case if Petitioner “has been physically present in the United States continuously for
the 2-year period immediately prior to the date of the determination of inadmissibility under
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 8 of 12

9
[subparagraph (b)].”
Section 1225(b)(1) requires detention of two categories of noncitizens who are subject to
expedited removal: (a) “arriving” aliens and (b) aliens who have not “been physically present in
the United States continuously for the 2-year period immediately prior to” being determined inad-
missible under subparagraph (b). Through § 1225(b)(1)(A), subparagraph (b) identifies only two
bases for determining the noncitizen to be inadmissible—8 U.S.C. § 1182(a)(6)(C) (discussing
aliens who seek admission by fraud or willful misrepresentation) and 8 U.S.C. § 1182(a)(7) (dis-
cussing required documentation for admission of immigrants and nonimmigrants).
Respondents insist Petitioner is detained under 8 U.S.C. § 1225(b)(1)(A)(iii)(II) because,
he was detained at the border in October 2023, issued an NTA, and released. Respondents’ position
conflicts with the plain language of § 1225(b)(1) given Petitioner’s release in October 2023. Even
if Petitioner may have been properly characterized as an “arriving alien” in October 2023, such
designation no longer applied to him when ICE took Petitioner into custody on October 30, 2025.
Thus, to contend that his present detention is authorized under § 1225(b)(1), Respondents must
show that Petitioner was determined to be inadmissible under either 8 U.S.C. § 1182(a)(6)(C) or
1182(a)(7) within two years of his entry into the United States. Respondents do not reveal the
reasons for the removal order. But even if the Court assumes without deciding that removal is
based on one of the noted provisions, such assumption does not help Respondents. The removal
order is not final given its timely appeal. Thus, Respondents have made no admissibility determi-
nation under § 1225(b)(1)(A). Moreover, § 1226 applies under the facts here, i.e., the Petitioner
was initially detained more than two years ago, was released on his own recognizance, and “has
been present without a determination of inadmissibility within two years of Petitioner’s entry.”
See Lopez v. Lyons, No. 2:25-CV-03174-DJC-CKD, 2025 WL 3124116, at *2 (E.D. Cal. Nov. 7,
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 9 of 12

10
2025). Lopez aptly states:
Respondents seek to categorize Petitioner’s initial 2022 contact with immigration
officials as a “determination of inadmissibility” for purposes of section 1225(b)(1).
But the Order of Release on Recognizance specifically states that Petitioner was
released pursuant to section 1226. Thus, the claim that Petitioner should now be
subject to expedited removal over three years after his initial entry into the United
States when he was initially released under section 1226 is inconsistent with the
facts and law.
Id. (footnote and citations omitted). This appears to be Respondents’ position in this case. But, in
general, § 1225(b)(1) “does not apply to aliens who are already present in the country.” Id. (quot-
ing Rico-Tapia v. Smith, ___ F. Supp. 3d ___, ____, 2025 WL 2950089, at *7 (D. Hawaii Oct. 10,
2025). Furthermore, mere “unlawful presence” under § 1182(a)(6)(A)(i) cannot, as a textual mat-
ter, serve as grounds for the necessary inadmissibility determination required by § 1225(b)(1)(A).
Moreover, § 1225(b)(1) requires detention for certain aliens undergoing expedited removal
proceedings. See 8 U.S.C. § 1225(b)(1), (b)(1)(B)(ii), (b)(1)(B)(iii)(IV). But Respondents seem to
admit that Petitioner is currently in “full” removal proceedings. Respondents have conceded in
other cases that a noncitizen cannot simultaneously be in both full and expedited removal proceed-
ings. See Patel v. Tindall, No. 3:25-CV-373-RGJ, 2025 WL 2823607, at *5 (W.D. Ky. Oct. 3,
2025) (collecting cases). Thus, even if § 1225(b)(1) could apply, as a general matter, to Petitioner,
he is not subject to expedited removal proceedings and, therefore, is not subject to the detention
provisions of § 1225(b)(1). Respondents cannot detain Petitioner in connection with expedited
removal proceedings that do not exist.
Stated simply, Respondents may not detain Petitioner under § 1225(b)(1). Because that
provision is inapplicable under the facts, Petitioner’s present detention necessarily falls under 8
U.S.C. § 1226, which entitles him to a bond hearing. See, e.g., Belsai D.S. v. Bondi, No. 25-CV-
3682 (KMM/EMB), 2025 WL 2802947, at *5 (D. Minn. Oct. 1, 2025) (addressing § 1225(b)(2)).
Despite Respondents’ reliance on § 1225(b)(1), rather than § 1225(b)(2), this Court sees no
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 10 of 12

11
material difference between the facts of this case and the numerous other habeas cases that raise
the question of whether § 1225(b)(2) applies to all noncitizens who, like Petitioner, are already in
the country but entered without inspection. Under the facts here, whether the Government premises
detention on § 1225(b)(1) or (2), the issues surrounding the mandatory detention are essentially
the same. If § 1225(b) applies to Petitioner under the facts of this case, then § 1225(b) makes
detention mandatory for Petitioner. If not, § 1226(a) applies, thereby making detention discretion-
ary.
As already stated, § 1226(a) applies here. Absent an assertion by Respondents that they are
detaining Petitioner under § 1226, the Court has no need to consider whether § 1226 is a valid
basis for Petitioner’s current detention. See Martinez v. Hyde, 792 F. Supp. 3d 211, 223 n.23 (D.
Mass. 2025). The same can be said regarding potential detention under § 1225(b)(2).2 In addition,
the Court will not consider any specific constitutional or other challenge presented. While the
Court recognizes that Respondents’ interpretation and application of §§ 1225(b) and 1226(a) may
be the subject of a nationwide class action in the Central District of California, see Maldonado
Bautista v. Santacruz, ___ F. Supp. 3d ___, ___, No. 5:25-CV-01873-SSS-BFM, 2025 WL
3288403, at *9 (C.D. Cal. Nov. 25, 2025) (certifying proposed nationwide bond eligible class), the
Court does not view that case as precluding it from granting habeas relief in this case at this time.
There is no reason to delay Petitioner’s release.
Under the facts and circumstances of this case, this Court must conclude Petitioner’s de-
tention is unlawful, and habeas relief is proper.
2 Nevertheless, this Court agrees that: “Overwhelmingly, courts have rejected the interpretation . . . that § 1225(b)(2)
requires the detention of all noncitizens living in the country who are ‘inadmissible’ because they entered the United
States without inspection.” Belsai D.S. v. Bondi, No. 25-CV-3682 (KMM/EMB), 2025 WL 2802947, at *5 (D. Minn.
Oct. 1, 2025) (collecting cases).
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 11 of 12

12
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the Petition for Habeas Corpus (ECF No.
1). It is ORDERED that:
1. Respondents are DIRECTED to RELEASE Petitioner Ibrahim Menur Ababulgu from
custody, under appropriate conditions of release, to a public place no later than noon, January
7, 2026.
2. Respondents must NOTIFY Petitioner’s counsel of the exact location and exact time of
his release as soon as practicable and no less than two hours before his release.
3. Any possible or anticipated removal or transfer of Petitioner under this present detention
is PROHIBITED.
4. If Petitioner is re-detained pursuant to 8 U.S.C. § 1226, all applicable procedures must
be followed, including that he be afforded a bond hearing.
5. The parties shall FILE a Joint Status report no later than noon, January 8, 2026, con-
firming that Petitioner has been released.
A final judgment will be issued separately.
IT IS SO ORDERED this 5th day of January 2026.
JASON PULLIAM
UNITED STATES DISTRICT JUDGE
Case 5:25-cv-01858-JKP Document 6 Filed 01/05/26 Page 12 of 12