Cisneros v. Noem et al

Petitioner Ricardo de Jesus Cisneros seeks a writ of habeas corpus requiring the
Government either to release him from custody or to afford him a bond hearing so it may
consider whether he should be detained or released during the pendency of removal proceedings
that the Government has instituted against him. The court denies his petition.
I.
Mr. Cisneros is a Mexican citizen who entered the United States in 2004 without
inspection or authorization. See Dkt. No. 1 at 10. He was arrested by ICE on December 30, 2025,
and was first held at the ICE Enforcement and Removal Operations center in West Valley City,
Utah. See id. at 8, 10.
Mr. Cisneros has since been transferred to the Henderson Detention Center in Nevada.
See Dkt. No. 8-1 at 3 ¶ 13. He was originally scheduled for an “initial hearing in removal
proceedings before the Las Vegas Immigration Court on February 9, 2026,” though that hearing
was later rescheduled for January 26, 2026. Id. at 3 ¶¶ 12, 14. He has remained in custody since
his December arrest. See id. at 3 ¶ 16.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RICARDO de JESUS CISNEROS,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
MEMORANDUM DECISION
AND ORDER
DENYING PETITION FOR WRIT
OF HABEAS CORPUS
Case No. 2:25-cv-1170-HCN
Howard C. Nielson, Jr.
United States District Judge
FOR PUBLICATION
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II.
A petitioner seeking habeas corpus relief under 28 U.S.C. § 2241 “attack[s] . . . the
legality of [his] custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, Mr. Cisneros’s
petition rests on the premise “that he is being unlawfully detained by the Executive.” Id. at 486.
He thus “bears the burden to demonstrate” that no law justifies his detention or that the law that
does so is unconstitutional. Nunez v. Carter, No. 22-cv-1261-CNS, 2022 WL 17416658, at *1
(D. Colo. Dec. 5, 2022); see also Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009). The court
concludes that he has failed to carry this burden.
A.
Mr. Cisneros first argues that his detention without a bond hearing is unauthorized by
statute. Specifically, he maintains that he is detained under 8 U.S.C. § 1226(a) and is thus
entitled to a hearing before an immigration judge to determine whether he should be released or
detained pending a final removal decision.
The Government responds that Mr. Cisneros is detained not under Section 1226(a), but
under 8 U.S.C. § 1225(b)(2)(A), which, it contends, requires Mr. Cisneros’s detention and leaves
it no discretion to release Mr. Cisneros pending resolution of the removal proceedings.1 Mr.
Cisneros replies that Section 1225(b)(2)(A) does not apply to him because he has not applied for
admission and was not detained when arriving at the border.
1 The Government also argues that the court lacks jurisdiction over Mr. Cisneros’s
petition under 8 U.S.C. § 1252(a)(5) and (b)(9), which limit judicial review “of an order of
removal” to an appeal of the Board of Immigration Appeals’ “final order.” But the Tenth Circuit
has held that these provisions do not “cut off claims that have a tangential relationship with
pending removal proceedings” and instead apply only when a party is “in fact . . . challenging
removal proceedings.” Mukantagara v. United States Dep’t of Homeland Sec., 67 F.4th 1113,
1116 (10th Cir. 2023). And the Supreme Court has squarely held that Ҥ 1252(b)(9) does not
present a jurisdictional bar” to judicial review of “the decision to detain” an alien pending
removal proceedings. Jennings v. Rodriguez, 583 U.S. 281, 294–95 (2018).
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1.
Under Section 1225(a)(1), “[a]n alien present in the United States who has not been
admitted or who arrives in the United States . . . shall be deemed for the purposes of this chapter
an applicant for admission.” (Emphasis added.) Congress’s use of the disjunctive “or” indicates
that Mr. Cisneros qualifies as an applicant for admission so long as he satisfies either of the
conditions surrounding the word “or.” See United States v. Pauldino, 443 F.2d 1108, 1112 (10th
Cir. 1971). This statute, in other words, covers not only aliens newly arriving in the United
States, but also aliens “present in the United States” who have not been “admitted.”
Mr. Cisneros is clearly “present in the United States.” The court must thus consider
whether he has been “admitted.” For purposes of the immigration code, this word is defined 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). Mr. Cisneros concedes that he was never
inspected, and he does not argue that any immigration officer authorized him to enter the United
States. It follows that he has not been admitted. He is thus an “applicant for admission” under the
plain terms of Section 1225(a)(1).
Section 1225(b)(2)(A), in turn, provides that “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 [removal]
proceeding under section 1229a of this title.” Given the structure of this sentence, the court sees
no plausible basis for interpreting the phrase “an alien seeking admission” to have a narrower
meaning than “an alien who is an applicant for admission.” And other provisions of Section 1225
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suggest either that these phrases are synonymous, see 8 U.S.C. § 1225(a)(5), or that the former
phrase is broader than the latter, see id. § 1225(a)(3).2
In sum, Mr. Cisneros is an “applicant for admission” and is “seeking admission” within
the meaning of Section 1225(b)(2)(A). But he offers no evidence or argument that he is “clearly
and beyond a doubt entitled to admitted.” This statute thus requires his detention while his
removal proceedings are pending.
2.
Mr. Cisneros does not seriously dispute the textual analysis that leads to this conclusion.
He instead argues that this reading of the statute is “inconsistent with the statutory structure,
legislative history, and decades of settled agency practice.” Dkt. No. 9 at 2. And in his response
to the Government’s notice of supplemental authority, he also contends that the court should
reject this interpretation based on the assertedly implausible and unintended consequences that
would follow from it and what he describes as the great weight of authority rejecting it. See
generally Dkt. No. 17. His arguments are not well taken.
a.
Starting with structure, the court rejects Mr. Cisneros’s argument that reading
Section 1225 in accordance with its plain terms would “render § 1226(a) meaningless.” Dkt. No.
9 at 5. After all, even if Section 1225 covers all aliens who enter the United States without
inspection and authorization, Section 1226(a) still applies to other aliens who have been
admitted, including, for example, those who “overstay their visas, become deportable on many
2 Mr. Cisneros does not argue that “an alien seeking admission” means something
narrower than (or different from) “an alien who is an applicant for admission.” And the court
finds the Fifth Circuit’s recent decision rejecting such an argument highly persuasive. See
Buenrostro-Mendez v. Bondi, — F.4th —, 2026 WL 323330 (5th Cir. Feb. 6, 2026).
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different grounds, or were admitted erroneously due to fraud or some other error.” Buenrostro-
Mendez, 2026 WL 323330, at *7.3
Mr. Cisneros also argues that the Government’s reading of Section 1225 would render
superfluous 8 U.S.C. § 1226(c)(1)(E), which was recently added to the statute by the Laken
Riley Act. See Dkt. No. 17 at 7. That provision requires the detention pending removal of certain
inadmissible aliens who have been charged with, arrested for, or convicted of specified criminal
conduct, or who have admitted committing such conduct, when those aliens are released from the
custody of the criminal justice system. Mr. Cisneros argues that this amendment would be
“inexplicable if aliens present without inspection were already categorically barred from bond
under 8 U.S.C. § 1225(b)(2).” Id. But the overlap between these provisions provides no basis for
reading Section 1225(b)(2) more narrowly than its plain text warrants; as the Supreme Court has
explained, “[r]edundancy in one portion of a statute is not a license to rewrite or eviscerate
another portion of the statute contrary to its text.” Barton v. Barr, 590 U.S. 222, 239 (2020).
In all events, although the statutes overlap, they are not truly redundant. Mr. Cisneros is
correct that Subsection 1226(c)(1)(E) applies to some aliens who are applicants for admission
within the meaning of Section 1225(a)(1). But it does not apply only to such aliens. To the
3 In his response to the Government’s notice of supplemental authority, Mr. Cisneros
asserts that, if Section 1225 is read in accordance with the plain meaning of its text, then “visa
overstays pursuing adjustment of status in removal proceedings, who are likewise applicants for
admission, would also be categorically barred from bond.” Dkt. No. 17 at 6–7. He cites 8 U.S.C.
§§ 1255(a) and 1229a(c)(2)(A) in support of this assertion, but neither statute suggests—let alone
provides—that aliens who overstay their visas and seek to adjust their status are deemed
applicants for admission. By its plain terms, Section 1255(a) applies only to aliens who have
been “inspected and admitted or paroled into the United States” or who have “an approved
petition for classification as a VAWA self-petitioner.” And although Subsection 1229a(c)(2)(A)
(which Mr. Cisneros cites) does address the burden of proof in removal proceedings involving an
“applicant for admission,” Subsection 1229a(c)(3)(A) (which he does not cite) separately
addresses these burdens in removal proceedings involving “an alien who has been admitted to
the United States.”
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contrary, it extends to any alien “inadmissible under paragraph (6)(A), (6)(C), or (7) of section
1182(a) of this title” who has been detained by the criminal justice system in connection with
any of the specified criminal conduct. 8 U.S.C. § 1226(c)(1)(E)(i). And while Subsection
1182(a)(6)(A) does cover aliens “present in the United States without being admitted or
paroled,” Subsection 1182(a)(6)(C) generally extends to “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a
visa, other documentation, or admission into the United States or other benefit provided under
this chapter.” (Emphases added.) In other words, this subsection extends to aliens who have
obtained admission into the United States through fraud or willful misrepresentations.
Conversely, as the Fifth Circuit recently recognized, Section 1226(c) not only requires detention,
but also “eliminates the option of parole”—a discretionary form of relief otherwise available
under Section 1225(b)(2)(A)—“for those to whom it applies.” Buenrostro-Mendez, 2026 WL
323330, at *7.
Other provisions of Section 1225 confirm, moreover, that this statute is not limited to
aliens arriving at the border. Specifically, Subsection 1225(b)(1)—which requires immigration
officers to order certain aliens summarily removed “without further hearing or review”—may be
applied, with a narrow exception, not only to “an alien . . . who is arriving in the United States”
but also to “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 present in the United States continuously for the 2-year period immediately prior to
the date of the determination of inadmissibility under this subparagraph.” And although
Subsection 1225(b)(1) imposes these more stringent requirements on only a subset of those
aliens who have not been admitted into the United States, Subsection 1225(b)(2) is not so
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limited. Rather, as the Supreme Court has recognized, it is a “catchall provision that applies to all
applicants for admission not covered by § 1225(b)(1).” Jennings, 583 U.S. at 287.
b.
As for legislative history, it, of course, “is not the law.” Epic Sys. Corp. v. Lewis, 584
U.S. 497, 523 (2018). And it does not appear to support Mr. Cisneros’s position in all events.
Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility
Act in 1996, Section 1225 applied only to aliens arriving at a port of entry and required that such
aliens be placed in exclusion proceedings and detained until those proceedings concluded. See 8
U.S.C. § 1225(a)–(c) (1988); Buenrostro-Mendez, 2026 WL 323330, at *1; Hing Sum v. Holder,
602 F.3d 1092, 1099–1100 (9th Cir. 2010). By contrast, aliens “in the United States” who
“entered . . . without inspection” were subject to deportation proceedings, 8 U.S.C. § 1251(a)(2)
(1988), and were allowed to request release on bond, see Buenrostro-Mendez, 2026 WL 323330,
at *1; Hing Sum, 602 F.3d at 1100.
Under the pre-IIRIRA framework, whether aliens were subject to exclusion or
deportation proceedings thus depended on whether they had “entered” the United States. But this
focus “resulted in an anomaly”: “non-citizens who had entered without inspection could take
advantage of the greater procedural and substantive rights afforded in deportation proceedings,
while non-citizens who presented themselves at a port of entry for inspection were subjected to
more summary exclusion proceedings.” Hing Sum, 602 F.3d at 1100.
The IIRIRA sought to address this anomaly “by substituting ‘admission’ for ‘entry’ and
by replacing deportation and exclusion proceedings with a general ‘removal’ proceeding.” Id. By
expanding Section 1225 to address not only aliens who presented themselves at a port of entry,
but all applicants for admission—that is, aliens present in the United States who have not been
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admitted as well as those arriving at the border—Congress “ensure[d] that all immigrants who
have not been lawfully admitted, regardless of their physical presence in the country, are placed
on equal footing in removal proceedings under the INA.” Torres v. Barr, 976 F.3d 918, 928 (9th
Cir. 2020) (en banc). The statute thus eliminated the “equities and privileges” previously
afforded “illegal aliens who . . . entered the United States without inspection” that were “not
available to aliens who present[ed] themselves for inspection at a port of entry.” Id. (quoting
H.R. Rep. 104-469, pt. 1, at 225 (1996)). Mr. Cisneros’s proposed reading of Section 1225
would undo this legislative fix and reintroduce the anomaly Congress sought to eliminate.4
c.
Although Mr. Cisneros asserts that his interpretation of Section 1225 comports with
longstanding agency practice, the formal regulatory landscape, at least, does not appear to
support his contention. In particular, 8 C.F.R. § 235.3(b)(1)(ii) has long provided for mandatory
detention of any “alien who was not inspected and admitted or paroled into the United States but
who establishes that he or she has been continuously physically present in the United States for
the 2-year period immediately prior to the date of determination of inadmissibility.” (Again,
aliens who cannot make this showing may be summarily removed under 8 U.S.C. § 1225(b)(1).)
Even if the Bureau of Immigration and Customs Enforcement has not in practice applied
Section 1225(b)(2) to aliens like Mr. Cisneros during previous presidential administrations, its
current understanding that such aliens are subject to this statute is perfectly clear. See Matter of
4 For those who care about such things, the court notes that the House Judiciary
Committee Report further confirms this understanding. This report makes clear that the IIRIRA
was intended to replace certain aspects of the then-current “entry doctrine” that resulted in illegal
aliens who had entered the United States without inspection receiving more favorable treatment
in immigration proceedings than aliens who presented themselves for inspection at a port of
entry by providing that “aliens who ha[d] entered without inspection” would no longer be
“considered to have been admitted.” H.R. Rep. No. 104-469, pt. 1, at 225–26.
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Yajure Hurtado, 29 I. & N. Dec. 216, 228 (BIA 2025). And that understanding comports with
both the plain terms of Section 1225 and the agency’s formal regulations.
Agencies are of course free to “change[] their minds . . . as long as the proper procedures
[a]re followed.” National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659
(2007). Mr. Cisneros identifies no required procedure that ICE failed to take in adopting its
current interpretation of Section 1225. Rather, he argues that “decades of consistent executive
practice are ‘significant in determining whether . . . power was actually conferred’” by a statute.
Dkt. No. 17 at 4 (quoting West Virginia v. EPA, 597 U.S. 697, 725 (2022)). But that interpretive
principle applies only to “ambiguous statutory text.” West Virginia, 597 U.S. at 723 (cleaned up).
The relevant text of Section 1225, by contrast, is perfectly clear.5
In all events, the proper interpretation of this statute is a question of law for this court, see
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 413 (2024), and even “[y]ears of consistent
practice cannot vindicate an interpretation that is inconsistent with a statute’s plain text,”
Buenrostro-Mendez, 2026 WL 323330, at *8. The court is, of course, willing to consider agency
interpretations for whatever persuasive value they may have. See Loper Bright, 603 U.S. at 402.
But Mr. Cisneros offers no reasoned administrative analysis in support of his position.6
5 The West Virginia decision also invoked the major-questions doctrine. See 597 U.S. at
724. Mr. Cisneros has not argued that this doctrine applies here. Nor could he; that doctrine
applies only when an agency acts without “clear congressional authorization,” id. at 732; see also
id. at 742 n.3 (Gorsuch, J., concurring), such as the clear mandate provided by the plain language
of Section 1225.
6 In his response to the Government’s notice of supplemental authority, Mr. Cisneros
cites an administrative statement, in response to comments relating to an interim rule that
appears to have included the regulation now codified at 8 C.F.R. § 235.3(b)(1)(ii), that “[d]espite
being applicants for admission, aliens who are present without having been admitted or paroled
(formerly referred to as aliens who entered without inspection) will be eligible for bond and bond
redetermination.” See Dkt. No. 17 at 4 (citing 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997)); 62
Fed. Reg. 10312, 10355. Mr. Cisneros neither identifies any justification or analysis offered by
the agency in support of this statement nor cites any portion of the actual interim rule that
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d.
Mr. Cisneros contends that reading Section 1225 in accordance with its plain terms would
lead to “a regime of sweeping mandatory detention for millions of long-present noncitizens,” a
consequence he describes as “historically unprecedented,” “implausible,” and “unsupported by
congressional design.” Dkt. No. 17 at 6. But it is not this court’s “task to assess the
consequences” of competing interpretations “and adopt the one that produces the least mischief.”
Lewis v. City of Chicago, 560 U.S. 205, 217 (2010). In all events, the legislative history
discussed above suggests that Congress amended Section 1225 precisely for the purpose of
eliminating the special “equities and privileges” afforded aliens who succeeded in “enter[ing] the
United States without inspection”—including, no doubt, the possibility of release during the
pendency of deportation proceedings—that were not afforded aliens who “present[ed]
themselves for inspection at a port of entry.” H.R. Rep. No. 104-469, pt. 1, at 225.
e.
Finally, Mr. Cisneros urges the court to follow the numerous district court decisions that
have interpreted Section 1225 in the manner he urges here. But the persuasiveness of nonbinding
precedent turns on quality, not quantity. As the Tenth Circuit has explained, the fact that “several
cases from other jurisdictions” have reached one result simply does not matter if their reasoning
is “not persuasive.” Timmons v. White, 314 F.3d 1229, 1235 (10th Cir. 2003). And in this court’s
incorporates this statement. Given the statement’s self-acknowledged inconsistency with the
language of the statute—and, apparently, the language of the interim rule—the court can only
conclude that it reflects an assertion of administrative authority (perhaps akin to prosecutorial
discretion) not to enforce the statute as written, as well as a representation regarding how the
agency intended to exercise that purported authority. The court need not decide whether the
agency had such authority: even if it did, its representation of how it intended to exercise that
purported authority certainly would not forever bar it from taking a different approach.
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judgment, Mr. Cisneros identifies nothing in the reasoning of the cases he cites that is
sufficiently persuasive to warrant reading Section 1225 contrary to its plain text.
B.
In the alternative, Mr. Cisneros argues that his detention without a hearing to determine
whether he should be detained or released pending a final removal decision amounts to
“indefinite” detention and thus violates his constitutional right to due process.
To be sure, “the Due Process Clause applies to all persons within the United States,
including aliens.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (cleaned up). And the Due
Process Clause generally does require “the opportunity to be heard” “before an individual is . . .
deprived of” “liberty.” Mathews v. Eldridge, 424 U.S. 319, 332–33 (1976) (cleaned up).
Given that detention is mandatory under § 1225(b)(2)(A), however, a bond hearing could
not remedy Mr. Cisneros’s deprivation of liberty and would thus serve no purpose. The court
must thus consider whether that deprivation itself—that is, Mr. Cisneros’s mandatory detention
pending the completion of his removal proceedings—violates his due process rights. The court
addresses only that question.
In Zadvydas, the Supreme Court addressed the detention of two individuals who
remained in custody for an extended period after final removal orders were entered against them
because the Government was unable to effectuate their removal. 533 U.S. at 684–86. The Court
held that such individuals could not be detained for longer than six months absent a “significant
likelihood of removal in the reasonably foreseeable future.” Id. at 701. Absent such a limitation,
the Court concluded that the prospect of “indefinite”—indeed, “potentially permanent”—
detention “would raise a serious constitutional problem” under the Due Process Clause. Id. at
690–91.
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But “Zadvydas . . . has no direct application to aliens who are detained and being given
due process”—that is, notice and the opportunity to be heard—“during removal proceedings.”
Buenrostro-Mendez, 2026 WL 323330, at *9. Indeed, the Supreme Court held in Demore v. Kim
that “[d]etention during removal proceedings is a constitutionally permissible part of that
process,” at least if it has a “definite termination point.” 538 U.S. 510, 529, 531 (2003). The
court has little doubt that under the precedents, detention pending a final removal decision
comports with due process.
To be sure, Mr. Cisneros seeks to distinguish Demore on the ground that the alien in that
case, unlike Mr. Cisneros, was detained partly because he had a criminal history and thus posed a
potential danger to the public. But he identifies no controlling authority holding that the
detention pending a final removal decision of an individual who has illegally entered the United
States without inspection or authorization violates due process, at least absent undue delay or
some indication that the Government’s purpose in detaining that individual is not to facilitate
deportation but instead to “lock up and punish aliens who have not committed a crime.” Banyee
v. Garland, 115 F.4th 928, 932–33 (8th Cir. 2024); see also Demore, 538 U.S. at 532–33
(Kennedy, J., concurring).
Further, although Mr. Cisneros hyperbolically asserts that the Government has
“effectively” subjected him to “indefinite civil confinement,” Dkt. No. 1 at 11, removal
proceedings in this case appear to be well underway, and Mr. Cisneros offers no reason to think
that they will not be concluded without undue delay or that the Government will have any
difficulty promptly effectuating his removal to Mexico if a final order of removal is entered
against him. At least under these circumstances, the court rejects Mr. Cisneros’s argument that
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his statutorily mandated detention pending the completion of his removal proceedings is
unconstitutional.
* 	* 	*
For the foregoing reasons, Docket Number 1, Mr. Cisneros’s Verified Petition for Habeas
Corpus, is DENIED. Docket Number 11, Request for Expedited Consideration, is DENIED AS
MOOT.
IT IS SO ORDERED.
Dated this 12th day of February, 2026.
BY THE COURT:
_____________________________
Howard C. Nielson, Jr.
United States District Judge
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