Alfaro Orellana v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 25-cv-03976-PAB
ALEX ORLANDO ALFARO ORELLANA,
Petitioner,
v.
KRISTI NOEM, Secretary, U.S. Department of Homeland Security,
PAMELA BONDI, U.S. Attorney General,
TODD M. LYONS, in his official capacity as Acting Director, U.S. Immigration and
Customs Enforcement,
ROBERT HAGAN, Director of the Denver Field Office, U.S. Immigration and Customs
Enforcement, and
JUAN BALTAZAR, Warden, Denver Contract Detention Facility,
Respondents.
ORDER
This matter comes before the Court on petitioner Alex Orlanda Alfaro Orellana’s
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Docket No. 1.
Respondents filed a response. Docket No. 12. Petitioner filed a reply. Docket No. 14.
I. BACKGROUND 1
Petitioner is a citizen of El Salvador. Docket No. 1 at 1, ¶ 1. He allegedly
entered the United States without inspection on or about January 25, 2008. 2 Id.
1 The following facts are undisputed unless otherwise stated.
2 Petitioner states that the government alleges he entered the United States
without inspection on or about January 25, 2008. Docket No. 1, ¶ 1. However,
petitioner does not provide any citation to where the government made this allegation.
Id. Respondents claim that petitioner “entered the United States without inspection or
admission on an unknown date.” Docket No. 12 at 8.
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Petitioner was not encountered by immigration officers upon entering the United States.
Id. at 6, ¶ 26. On November 16, 2025, petitioner was arrested in Garfield County,
Colorado for driving under the influence. Docket No. 12-1 at 3, ¶ 8. Petitioner has no
criminal convictions. Docket No. 1 at 7, ¶ 29. On the date of his arrest, November 16,
2025, Immigration and Customs Enforcement (“ICE”) officials encountered petitioner
and determined that he did not possess documentation authorizing his presence in the
United States. Docket No. 12-1 at 3, ¶ 9. On November 16, 2025, ICE issued a Notice
to Appear, initiating removal proceedings under 8 U.S.C. § 1229a. Id. at 4, ¶ 11. The
Notice to Appear charged petitioner with being inadmissible to the United States
pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). 3 Id. Respondents claim that petitioner is being
detained pursuant to 8 U.S.C. § 1225(b)(2)(A). Docket No. 12 at 8.
On December 1, 2025, petitioner had an initial hearing in his removal
proceedings before an immigration judge where he requested time to hire an attorney.
Docket No. 12-1 at 4, ¶ 12. On December 17, 2025 petitioner and his attorney
appeared before the immigration judge for a master calendar hearing. Id., ¶ 14. Upon
request, petitioner was granted additional time to prepare his case and another hearing
was scheduled for January 12, 2026. Id. Petitioner is currently detained at the Denver
Contract Detention Facility in Aurora, Colorado. Docket No. 1 at 7, ¶ 30. Petitioner has
not had a bond hearing. Id.; see generally Docket No. 12-1.
3 In her declaration, ICE Deportation Officer Irma Quinones claims that the Notice
to Appear charged petitioner with being deportable from the United States pursuant to 8
U.S.C. § 182(a)(6)(A)(i). Docket No. 12-1 at 4, ¶ 11. The Court presumes this was a
typographical error, as 8 U.S.C. § 1182(a)(6)(A)(i) governs the inadmissibility of
noncitizens, while 8 U.S.C. § 182(a)(6)(A)(i) does not exist. See 8 U.S.C. §
1182(a)(6)(A)(i).
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Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. Docket No. 1. Petitioner brings a claim for Violation of Substantive Due
Process (Count I); a claim for Violation of Procedural Due Process (Count II); a claim for
Violation of the Immigration and Nationality Act (the “INA”) under 8 U.S.C. §§ 1225 and
1226 (Count III); and a Violation of the INA under Bautista (Count IV). Id. at 13-19.
Petitioner seeks a declaration that 8 U.S.C. § 1226(a) governs his detention, a Writ of
Habeas Corpus ordering respondents to release petitioner or to provide him with a bond
hearing within seven days, an order under the All Writs Act, 28 U.S.C. § 1651(a), that
he not be transferred outside the District of Colorado, and attorney’s fees. Id. at 19-20.
On December 12, 2025, Magistrate Judge N. Reid Neureiter issued a minute order
pursuant to the All Writs Act prohibiting respondents from removing petitioner from the
District of Colorado. Docket No. 4.
II. ANALYSIS
The parties disagree on which statutory scheme controls petitioner’s detention.
Petitioner contends that his detention should be controlled by 8 U.S.C. § 1226 because
§ 1226 applies to the detention of noncitizens, like petitioner, “who have entered without
inspection and are encountered in the United States years after their initial entry.”
Docket No. 1 at 9-10. ¶ 38. Because he believes that § 1226 applies, petitioner argues
that respondents must release him or provide him a bond hearing. See id. at 20.
Respondents, however, contend that 8 U.S.C. § 1225(b)(2)(A) applies to petitioner, and
petitioner is therefore not entitled to a bond hearing and is subject to mandatory
detention. Docket No. 12 at 9-14.
The INA “contemplates two detention regimes for noncitizens pending removal
proceedings,” one controlled by § 1225 and one controlled by § 1226. Hernandez v.
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Baltazar, No. 25-cv-03094-CNS, 2025 WL 2996643, at *3 (D. Colo. Oct. 24, 2025)
(citation omitted). Section 1225 mandates detention pending removal proceedings,
providing that, “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.” 8 U.S.C. § 1225(b)(2)(A). Unless certain exceptions are present, as
provided for in §§ 1225(b)(2)(B) and (C), § 1225 “mandates detention without the
opportunity for a bond hearing for the noncitizens to whom it applies.” Hernandez, 2025
WL 2996643, at *3. Section 1226, on the other hand, does not mandate detention,
providing that “an alien may be arrested and detained pending a decision on whether
the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Under
§ 1226(a)(2), the Attorney General has the discretion to release a noncitizen on bond
while removal proceedings are pending. 8 U.S.C. § 1226(a)(2). “Federal regulations
provide that aliens detained under § 1226(a) receive bond hearings at the outset of
detention.” Jennings v. Rodriguez, 583 U.S. 281, 306 (2018).
A. Count III: Violation of the INA under 8 U.S.C. §§ 1225 and 1226
Respondents note that the Court has previously rejected respondents’ arguments
on the interpretation of 8 U.S.C. §§ 1225 and 1226 in Florez Marin v. Baltazar, No. 25-
cv-03697-PAB, 2025 WL 3677019 (D. Colo. Dec. 18, 2025). Docket No. 12 at 17 n.3.
Respondents request that the Court reconsider the arguments. Id. However,
respondents do not raise any significant new arguments that were not already
addressed in Florez Marin. Compare Docket No. 12, with Florez Marin, 2025 WL
3677019.
Respondents argue that Jennings supports concluding that 8 U.S.C.
§ 1225(b)(2)(A) applies to noncitizens who entered without inspection and remain
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unlawfully present. Docket No. 12 at 3-7. “[A] proper understanding of the relevant
statutes, in light of their plain text, overall structure, and uniform case law interpreting
them, compels the conclusion that § 1225’s provision for mandatory detention of
noncitizens ‘seeking admission’ does not apply to someone like [petitioner], who has
been residing in the United States for more than two years.” Mendoza Gutierrez v.
Baltasar, No. 25-cv-2720-RMR, 2025 WL 2962908, at *5 (D. Colo. Oct. 17, 2025)
(citation omitted) (collecting cases). The Court disagrees with respondents’ contention
that Jennings supports a different conclusion. The Supreme Court in Jennings held
that, “[i]n sum, U.S. immigration law authorizes the Government to detain certain aliens
seeking admission into the country under §§ 1225(b)(1) and (b)(2)” and that “[i]t also
authorizes the Government to detain certain aliens already in the country pending the
outcome of removal proceedings under [ ] § 1226(a).” Jennings, 583 U.S. at 289
(emphasis added). Therefore, Jennings distinguishes between noncitizens seeking
admission, who are subject to § 1225, and noncitizens who are already present in the
country, who are subject to § 1226.
Respondents argue that the text of 8 U.S.C. §§ 1225 and 1226 supports
detention without bond. Docket No. 12 at 10-14. The Court is unconvinced. In fact,
respondents’ argument that § 1225(b)(2)(A) applies to noncitizens already residing in
the United States is contrary to the plain language of § 1225. “The weight of authority
interpreting § 1225 has recognized that for section 1225(b)(2)(A) to apply, several
conditions must be met – in particular, an ‘examining immigration officer’ must
determine that the individual is: (1) an ‘applicant for admission’; (2) ‘seeking admission’;
and (3) ‘not clearly and beyond a doubt entitled to be admitted.’” See Loa Caballero v.
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Baltazar, No. 25-cv-03120-NYW, 2025 WL 2977650, at *6 (D. Colo. Oct. 22, 2025)
(internal quotation and citation omitted) (quoting 8 U.S.C. § 1225(b)(2)(A)). Section
1225(b)(2)(A)’s requirement that an applicant for admission be “seeking admission”
“requires that the applicant must be presently and actively seeking lawful entry into the
United States.” Id. Therefore, noncitizens who “have been here for years upon years
and never proceeded to obtain any form of citizenship . . . are not ‘seeking’ admission”
as defined in § 1225(b)(2)(A). Lopez-Campos v. Raycraft, 797 F. Supp. 3d 771, 781
(E.D. Mich. 2025). While these kinds of noncitizens, like petitioner, “may technically be
a noncitizen present in the United States who has not been admitted [making] them an
applicant for admission,” that does not mean that they are “seeking admission.” See id.
(internal quotations omitted). Respondents point to § 1225(b)(1)(A)(i) for the proposition
that “both those just arriving in the United States and those who entered without
inspection” are subject to § 1225. See Docket No. 12 at 10. Section 1225(b)(1)(A)(i)
provides:
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 without further hearing or review.
8 U.S.C. § 1225(b)(1)(A)(i).
Respondents argue that § 1225(b)(1)(A)(i)’s reference to § 1225(b)(1)(A)(iii),
which in turn references noncitizens who have “already been residing here and are
inadmissible,” demonstrates that § 1225 is applicable to noncitizens like petitioner. See
Docket No. 12 at 10. However, § 1225(b)(1)(A)(i) and (iii) are “better understood as
carve outs for the ‘certain other aliens’ that do not fall into § 1225’s otherwise general
application to arriving [non]citizens.” Hernandez, 2025 WL 2996643, at *6 (citing 8
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U.S.C. § 1225(b)(1)). Respondents also rely on 8 U.S.C. § 1225(a)(3) for the
proposition that a noncitizen can seek admission simply by meeting the definition of an
applicant for admission. Docket No. 12 at 11. Section 1225(a)(3) states that “[a]ll aliens
. . . 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). Again, respondents’ argument fails to account for the fact that, in
order for § 1225(b)(2)(A)’s mandatory detention provision to apply, it is not enough for a
noncitizen to be an applicant for admission; he must also be seeking admission.
Furthermore, to the extent respondents argue that an applicant for admission is
necessarily seeking admission, “[t]he ‘otherwise seeking admission’ language is simply
a catch-all provision to describe individuals seeking admission and subject to inspection
who may not fit the definition of ‘applicant for admission,’ such as a person not currently
present in the United States.” See Loa Caballero, 2025 WL 2977650, at *6 n.4.
Finally, respondents argue that their position is supported by legislative history.
Docket No. 12 at 14-16. The Court disagrees. Respondents contend that Congress
enacted the Illegal Immigration Reform and Immigration Responsibility Act of 1996
(“IIRIRA”) to stop non-citizens who had entered without inspection from having greater
procedural and substantive rights in deportation proceedings than noncitizens who
presented themselves at a port of entry for inspection. Id. at 15. However, “when
Congress enacted the IIRIRA, it ‘did not fully disrupt the old system, including the
system of detention and release’ on bond.” Hernandez, 2025 WL 2996643, at *7
(quoting Salcedo Aceros v. Kaiser, 2025 WL 2637503, at *12 (N.D. Cal. Sept. 12, 2025)
(“Congress’ concern about adjusting the law in some respects to reduce inequities in
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the removal process did not mean Congress intended to entirely up-end the existing
detention regime by subjecting all inadmissible noncitizens to mandatory detention, . . .
a seismic shift in the established policy and practice of allowing discretionary release
under Section 1226(a) – the scope of which Congress did not alter.”) (internal
quotations omitted)).
Contrary to respondents’ assertion, Congress's amendment of § 1226 provides
further evidence that petitioner’s case should be governed by § 1226 rather than by
§ 1225(b)(2)(A). See Docket No. 1 at 13-14. In January 2025, Congress amended
§ 1226, adding § 1226(c)(1)(E). See Laken Riley Act, Pub. L. No. 119-1, 139 Stat. 3
(2025). Section 1226(c)(1)(E) provides that the “Attorney General shall take into
custody any alien who –”
(E)(i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section
1182(a) of this title; and
(ii) is charged with, is arrested for, is convicted of, admits having
committed, or admits committing acts which constitute the essential
elements of any burglary, theft, larceny, shoplifting, or assault of a law
enforcement officer offense, or any crime that results in death or serious
bodily injury to another person,
when the alien is released, without regard to whether the alien is released
on parole, supervised release, or probation, and without regard to whether
the alien may be arrested or imprisoned again for the same offense.
8 U.S.C. § 1226(c)(1)(E). Section 1226(c)(1)(E) mandates detention for a narrow
category of noncitizens who both entered the country without inspection and were later
arrested for, committed, or admitted to committing one of a list of enumerated crimes. 8
U.S.C. § 1226(c)(1)(E). This provision would be meaningless if noncitizens already
residing in the United States were all subject to mandatory detention under
§ 1225(b)(2). See Salcedo Aceros, 2025 WL 2637503, at *10 (“If Congress amended
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Section 1226 to create mandatory detention for certain inadmissible noncitizens, it
follows that those noncitizens were not already subject to mandatory detention.”).
For the foregoing reasons, “federal district courts have overwhelmingly rejected
Respondents’ broad interpretation of section 1225(b)(2).” See Loa Caballero, 2025 WL
2977650, at *5 (internal quotation and citation omitted) (collecting cases). Just as it did
in Florez Marin, the Court agrees with the weight of the authority finding that petitioner's
detention is controlled by § 1226(a) and not by § 1225(b)(2)(A).
Accordingly, the Court finds that petitioner is being detained under 8 U.S.C.
§ 1226(a). Because there is no evidence that petitioner has been provided a bond
hearing, his current detention violates § 1226(a). The Court will grant the habeas
petition on Counts III and IV and order respondents to provide petitioner a bond hearing
within seven days of the date of this order. 4 While petitioner alternatively requests that
the Court order his release, petitioner provides no explanation for why that is a more
appropriate remedy than ordering a bond hearing. See generally Docket No. 1. Thus,
in light of the fact that § 1226(a) authorizes detention, the Court finds that a bond
hearing is a more appropriate remedy.
B. Additional Relief
In addition to being granted a bond hearing, petitioner requests that the Court
declare that 8 U.S.C. § 1226(a) governs petitioner’s detention. A “declaratory relief
claim is moot if the relief would not affect the behavior of the defendant toward the
4 Because the Court will grant the habeas petition on the basis of Counts III, it will
not reach Counts I and II, petitioner's due process claims, or Count IV, petitioner’s
Bautista claim. See Hernandez, 2025 WL 2996643, at *8 (“the Court declines to
adjudicate Petitioner's due process claim on the merits at this time because the Court
grants the relief Petitioner seeks based on the applicability of § 1226(a)”).
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plaintiff.” Robert v. Austin, 72 F.4th 1160, 1164 (10th Cir. 2023) (citation omitted).
However, such claims are not moot if “(1) secondary or collateral injuries survive after
resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition
yet evading review; (3) the defendant voluntarily ceases an allegedly illegal practice but
is free to resume it at any time; or (4) it is a properly certified class action suit.” Riley v.
I.N.S., 310 F.3d 1253, 1257 (10th Cir. 2002) (internal quotation and citations omitted).
A declaration that petitioner’s detention was unlawful would not affect respondents’
behavior toward petitioner now that the Court has ordered respondents to provide
petitioner with a bond hearing. See Vaupel v. Ortiz, 244 F. App'x 892, 896 (10th Cir.
2007) (holding that petitioner's declaratory claims for relief were moot after petitioner's
release and deportation, declining “to issue an advisory opinion regarding the legality of
[petitioner's] detention, because a declaratory judgment on that question would have no
meaningful effect on the Department of Homeland Security's future conduct towards
him”) (internal quotation, alteration, and citation omitted).
As for petitioner’s request for attorney’s fees, the Court will not consider the
request because petitioner fails to comply with the Local Rules of the District of
Colorado. A motion for attorney’s fees must be filed in accordance with
D.C.COLO.LCivR 54.3. See D.C.COLO.LCivR 54.3 (“Unless otherwise ordered, a
motion for attorney fees shall be supported by affidavit . . . The Motion shall include . . .
for each person for whom fees are claimed: (1) a summary of relevant qualifications and
experience; and (2) a detailed description of the services rendered, the amount of time
spent, the hourly rate charged, and the total amount claimed.”).
III. CONCLUSION
Therefore, it is
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ORDERED that Alex Orlando Alfaro Orellana’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 is GRANTED in part. It is further
ORDERED that respondents shall provide petitioner with a bond hearing under 8
U.S.C. § 1226(a) within seven days of the date of this Court's order. It is further
ORDERED that within five days of petitioner’s bond hearing, the parties shall file
a status report indicating whether the bond hearing was held and whether bond was
granted or denied.
DATED December 22, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
____	___	___	___	__	________	____________	__	__	__	_____	________________________________	____________________________
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