Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Fausto O.I.,1
Petitioner, 	Case No. 26-cv-854 (MJD/LIB)
v.
REPORT AND RECOMMENDATION
Kristi Noem, et al.,
Respondents.
Pursuant to a general referral made in accordance with 28 U.S.C. § 636, this matter
comes before the undersigned United States Magistrate Judge upon Petitioner Fausto O.I.’s
Petition for a writ of habeas corpus. [Docket No. 2]. Finding no hearing necessary, the Court
issues the present Report and Recommendation.2
For the reasons discussed herein, the undersigned recommends that Petitioner Fausto
O.I.’s Petition for a writ of habeas corpus, [Docket No. 2], be GRANTED, as set forth herein;
that Respondents be ordered to release Petitioner within forty-eight hours of any Order adopting
the present Report and Recommendation; and that Respondents be ordered to show cause why
they failed to comply with the Court’s January 30, 2026, Order.
1 This District has adopted the policy of using only the first name and last initial of any nongovernmental parties in
immigration opinions such as the present Report and Recommendation. See, e.g., Yee S. v. Bondi, No. 25-cv-2782
(JMB/DLM), 2025 WL 2879479, at *1 n.1 (D. Minn. Oct. 9, 2025); Sarail A. v. Bondi, No. 25-cv-2144 (ECT/JFD),
2025 WL 2533673, at *1 n.1 (D. Minn. Sept. 3, 2025). Accordingly, where the Court refers to Petitioner by his
name, only his first name and last initial are provided.
2 Upon review of the present record, the Court finds that a hearing is unnecessary in this action because the relevant
facts are not in dispute and because a hearing on the Petitioner’s claim would not aid the Court in its consideration
of the present Petition. See Wallace v. Lockhart, 701 F.2d 719, 730 (8th Cir. 1983) (observing that dismissal of a
“habeas petition without a hearing is proper . . . where the allegations, even if true, fail to state a cognizable
constitutional claim, where the relevant facts are not in dispute, or where the dispute can be resolved on the basis of
the record”).
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I. 	Background
Petitioner is a native and citizen of Ecuador. (See Petition [Docket No. 2] ¶¶ 1, 26–31).
Petitioner entered the United States without inspection in or around November 30, 2023. (Id.).
Upon arriving in the United States, Petitioner was arrested by Immigration and Customs
Enforcement (“ICE”) officers. (Id.). Petitioner was charged as being “an alien present in the
United States who has not been admitted or paroled” under Section 212(a)(6)(A)(i) of the
Immigration and Nationality Act, codified as 8 U.S.C. § 1182(a)(6)(A)(i). (Notice to Appear
[Docket No. 2-1]).
On December 1, 2023, Petitioner was released from ICE’s custody subject to certain
conditions outlined in his Order of Release on Recognizance. (Petition [Docket No. 2] ¶¶ 1, 26–
31; Exhibit B [Docket No. 2-2]).3 The Order effectuating Petitioner release indicated that
removal proceedings had been commenced against Petitioner under 8 U.S.C. § 1229a. (Exhibit B
[Docket No. 2-2]).
On October 29, 2024, Petitioner filed an Application for Asylum and Withholding of
Removal with the immigration court which also remains pending. (Petition [Docket No. 2] ¶
27).4 Petitioner’s asylum application remains pending. (Id.). Petitioner was issued a valid work
permit based on his pending application for asylum. (Id.).
On January 9, 2026, Immigration and Customs Enforcement (“ICE”) officers arrested
Petitioner in Minnesota. (Respondents’ Mem. [Docket No. 5]; Petitioner’s Reply [Docket No. 6]
3 Those condition provided that Petitioner could not change his place of residence without first securing permission;
could not violate any local, state, or federal laws; and was required to assist immigration officials in obtaining any
necessary travel documents. (Id.).
4 Prior to Petitioner’s arrival in the United States, a Petition of Alien Relative was filed on Petitioner’s behalf with
the United States Citizenship and Immigration Services. (Petition [Docket No. 2] ¶ 28). A petition for alien relative
is a form to initiate a process through which a United States citizen or lawful resident may help “an eligible relative
apply to immigrate to the United States and apply for a Green Card.” Lauro M. v. Bondi, No. 26-cv-134 (SRN/DJF),
2026 WL 115022, at *1 (D. Minn. Jan. 15, 2026).
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at 1).5 Upon being arrested in Minnesota, Petitioner was immediately transferred to a detention
facility in Texas. (Petition [Docket No. 2] ¶ 31). On January 26, 2026, Petitioner was transferred
to a detention facility in New Mexico, where he was detained at the time the present Petition was
filed. (Id.; Petitioner’s Reply [Docket No. 6] at 2).
Petitioner, through counsel, initiated this habeas action on January 30, 2026, by filing his
Petition. [Docket No. 2]. Petitioner argues that he is being unconstitutionally detained because
Respondents have unlawfully subjected him to mandatory detention under 8 U.S.C. § 1225(b)
without the possibility of a bond hearing. (See Id.).6 Petitioner requests that this Court order his
immediate release or in the alternative order Respondents to provide Petitioner with a bond
hearing. (See Id. at Prayer for Relief ¶ 3). Petitioner asserts that his immediate release is
warranted because Respondents have not produced any warrant authorizing his arrest or
detention. (See Petitioner’s Reply [Docket No. 6]).
On January 30, 2026, the Honorable Michael J. Davis, the District Court Judge presiding
over the present case, issued an Order requiring Respondents to answer the present Petition and
5 The Petition asserts that Petitioner was initially detained on January 12, 2026. (Petition [Docket No. 2] ¶ 17, 30).
However, Petitioner’s reply memorandum and Respondents’ memorandum both indicated that Petitioner was
arrested on January 9, 2026. (Respondents’ Mem. [Docket No. 5]; Petitioner’s Reply [Docket No. 6] at 1). The
Court uses the January 9, 2026, date as it comports with the other dates provided by the parties. The Court notes,
however, that regardless of whether Petitioner was arrest on January 9, 2026, or January 12, 2026, it would not alter
the Court’s present recommendations.
6 From the record now before the Court, it does not appear that Petitioner had requested a bond hearing at the time
he filed the present Petition. The Petitioner, however, initiated this proceeding based on Respondents categorical
policy decision (discussed in more detail below) that individuals, such as Petitioner, in immigration-related
detention are not entitled to a bond hearing. Respondents do not argue that the present Petition is premature, and
indeed, in the present action, Respondents continue to hold fast to their categorical policy decision. For the sake of
completeness, the Court finds that the present Petition is not premature. It would serve no purpose to dismiss this
action only to have Petitioner reraise the action after specifically requesting a bond hearing in immigration court
when even here Respondents argue that the categorical policy decision is correct, despite hundreds of Courts across
the country telling them otherwise. Moreover, Petitioner challenges not only Respondents decision that he is not
entitled to a bond hearing but also the constitutionality of his detention itself. Petitioner is presently detained, and
thus, he may challenge the constitutionality of that detention. Other Courts have granted habeas relief in
circumstances materially similar to the present case even when the petitioner had not requested a bond hearing in
immigration court. See, e.g., Gonzalo R.I. v. Bondi, No. 26-cv-248 (MJD/LIB), 2026 WL 191034, at *2 n.5 (D.
Minn. Jan. 22, 2026) (citing Avila v. Bondi, No. 25-cv-3741 (JRT/SGE), 2025 WL 2976539 (D. Minn. Oct. 21,
2025)), report and recommendation adopted, 2026 WL 198793 (D. Minn. Jan. 25, 2026).
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enjoining Respondents from removing Petitioner from the District of Minnesota until a final
decision is made on the present Petition. (Order [Docket No. 4]). That January 30, 2026, Order
also required Respondents to immediately return Petitioner to Minnesota if Respondents had
already removed Petitioner from Minnesota. (Id.).
On January 31, 2026, Petitioner was transferred from the detention facility in New
Mexico back to the detention facility in Texas. (See ICE Online Detainee Locator System at
https://locator.ice.gov/odls/#/search; Respondents’ Mem. [Docket No. 5] at 2). At the time
Respondents filed their memorandum, Petitioner was detained at the detention facility in Texas.
(See ICE Online Detainee Locator System at https://locator.ice.gov/odls/#/search; Respondents’
Mem. [Docket No. 5] at 2). On February 4, 2026, Petitioner’s counsel filed a “Notice of Status
Report” informing the Court that Petitioner “remains detained by Respondents at the Cibola
County Correctional Center in Milan, New Mexico,” and therefore, it appears that Respondents
have again transferred Petitioner back to New Mexico. (Petitioner’s Notice [Docket No. 7).
II. 	Jurisdiction
Respondents first argue that this action must be transferred to the Western District of
Texas because Petitioner is currently detained in Texas and because Petitioner was not detained
inside the District of Minnesota when the present action was filed. Respondents are incorrect.
For a Court to entertain a habeas petition under typical circumstances, the petitioner is
required to file the habeas petition in the district in which the petitioner is then-presently
detained at the time the petition is filed with the proper respondent being the individual who is
petitioner’s immediate custodian, which is commonly the warden of the facility where the
petitioner is detained. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); Id. at 448, 450
n.18 (referring to these requirements as “the immediate custodian and district of confinement
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rules”); 28 U.S.C. §§ 2242, 2241(a). These requirements exist because a writ of habeas corpus
“does not act upon the [detainee] who seeks relief, but upon the person who holds [the detainee]
in what is alleged to be unlawful custody,” Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484,
494–95 (1973), and the district court must “have jurisdiction over” that custodian, Padilla, 542
U.S. at 434.7
Although the district of a person’s place of confinement is traditionally the most common
venue for a person to file a habeas petition, the United States Supreme Court had made clear that
the location of the individual at the time a habeas petition is filed is not some dowsing rod
pointing to the only correct district. See Braden, 410 U.S. at 494–95. For example, an exception
to the general “immediate custodian” and “district of confinement” rules applies when a
petitioner, at the time their petition is filed, “is held in an undisclosed location by an unknown
custodian, it is impossible to apply the immediate custodian and district of confinement rules.”
Padilla, 542 U.S. at 450 n.18; see Ozturk v. Hyde, 136 F.4th 382, 392 (2d Cir. 2025) (quoting
Padilla). This exception applies with equal force “where the Government was not forthcoming
with respect to the identity of the custodian and the place of detention.” Padilla, 542 U.S. at 454.
Under this exception, the proper district in which to file the habeas petition is “in the
district court from whose territory the petitioner had been removed,” Id., and “the naming of a
more remote custodian—[such as] the Secretary of Homeland Security [in immigration related
habeas proceedings]—satisfies the statutory requirements.” Ozturk, 136 F.4th at 392 (quoting
Demjanjuk v. Meese, 784 F.2d 1114, 1116 (D.C. Cir. 1986)). This exception exists to forestall
7 It is important to note that these rules “are not jurisdictional in the sense of a limitation on subject-matter
jurisdiction.” Padilla, 542 at 451. (Kennedy, J., concurring). The rules discussed here are “best understood as a
question of personal jurisdiction or venue.” Id. However, a Court’s consideration of the “immediate custodian” and
“district of confinement” rules is not bound by the more rigid rules governing venue and personal jurisdiction;
rather, the Court’s application of these habeas rules merely takes into consideration some of the same equitable
concerns underlying the doctrines of venue and personal jurisdiction. See Id. at 451–52.
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forum shopping by the Government and “[t]o help prevent the Kafkaesque specter of supplicants
wandering endlessly from one jurisdiction to another in search of a proper forum, only to find
that it lies elsewhere[.]” Eisel v. Sec’y of the Army, 477 F.2d 1251, 1258 (D.C. Cir. 1973); see
Abdiselan A.A. v. Bondi, No. 26-cv-358 (JRT/ECW), 2026 WL 161526, at *1 (D. Minn. Jan. 21,
2026) (quoting Eisel); Anariba v. Dir. Hudson Cnty. Corr. Ctr., 17 F.4th 434, 447–48 (3d Cir.
2021) (discussing how “[t]hese forum-shopping concerns intensify when the [habeas] petitioner
is an ICE detainee”).
The Court finds that the circumstances of the present case fit squarely within the above
discussed exceptions. Petitioner was arrested in Minnesota which is also where Petitioner
retained counsel to challenge his arrest and detention. Petitioner was then—at Respondents’
unilateral direction—immediately transferred to Texas without prior notice. Petitioner was then
transferred to a detention facility in New Mexico, again without proper notice and again at
Respondents’ unilateral direction. Petitioner remained in New Mexico for less than a week
before he was, without proper notice, transferred back to Texas. Now it appears that Petitioner
has been transferred back to New Mexico. Notably, at the time Petitioner was transferred from
New Mexico to Texas, Petitioner was already represented by counsel and had initiated this
action, but there is no indication in the record that Respondents made any effort to inform
Petitioner’s counsel of Petitioner’s transfer. 	This is exactly the type of situation which
emphasizes the need for the unknown custodian and unknown district of confinement exceptions.
The application of this exception to the present case is bolstered by two additional
considerations. First, all of Petitioner’s rapid movement from one place of detention to the next
has been effectuated by Government-controlled transfers. The Government may not use the
uncertainty created by its own actions to shop for a forum of its choosing. Second, the unknown
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nature of Petitioner’s immediate custodian and district of confinement during the relevant period
is illustrated by the disconnect between Respondents’ argument and Respondents’ assertion that
this case should be transferred to the Western District of Texas. The cases and arguments upon
which Respondents rely stand for the assertion that under typical circumstances the proper place
to file a habeas petition is the district of confinement at the time the habeas petition is filed, but
Respondents ask that this case be transferred to the Western District of Texas when even
Respondents’ own memorandum acknowledges that Petitioner was detained in New Mexico
when the present Petition was filed. The unknown nature of Petitioner’s immediate custodian and
district of confinement is made even more opaque by the fact that Respondents have unilateral
possession of the information regarding Petitioner’s location at any given time, but from the
record now before the Court, Respondents have made no effort to provide notice to Petitioner or
his counsel about Petitioner’s transfers between facilities.
Under the above discussed exception, the Court finds that this District was a proper
forum for Petitioner to file his Petition. Petitioner was arrested in Minnesota, had lived in
Minnesota for several years, and had retained counsel in Minnesota to challenge his arrest and
detention. Petitioner left the District of Minnesota only because Respondents secreted him away
to Texas before rapidly transferring him back and forth between facilities. Moreover, any
necessary information, witnesses, or records regarding Petitioner’s immigration status are most
likely be located in Minnesota. Furthermore, “[t]he decision to arrest and detain [Petitioner] was
directed to personnel within this District, and therefore witnesses and information about the
manner of his arrest would also be found in this District.” Jose A. v. Noem, No. 26-cv-480
(JMB/ECW), 2026 WL 172524, at *2 (D. Minn. Jan. 22, 2026). Each of these factors and the
overall circumstances of the present case weigh heavily in favor of finding that this District was
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a proper forum for Petitioner to file his habeas Petition. See, e.g., Jose A., 2026 WL 172524, at
*2; Abdiselan A.A. v. Bondi, No. 26-cv-358 (JRT/ECW), 2026 WL 161526, at *2 (D. Minn. Jan.
21, 2026); Tah L. v. Trump, No. 26-cv-171 (MJD/SGE), 2026 WL 184524, at *4 (D. Minn. Jan.
19, 2026), report and recommendation adopted as modified, 2026 WL 184529 (D. Minn. Jan. 23,
2026); Flores-Linares v. Bondi, No. 26-cv-298 (SJB), 2026 WL 179208, at *5 (E.D.N.Y. Jan. 22,
2026).
Other Courts have reached similar conclusions in cases where a petitioner, arrested and
detained in District A, is immediately transferred to District B but filed a habeas petition in
District A after having been transferred to District B. See Jose A., 2026 WL 172524, at *2;
Flores-Linares, 2026 	WL 179208, at *5. As another Court in this District observed in
circumstances materially similar to the present case, “[t]ransferring venue would prolong both
[Petitioner’s] detention and the adjudication of his claims” unnecessarily. Jose A., 2026 WL
172524, at *2.
Further, venue should not be transferred simply because a petitioner was unable to
file their petition prior to transfer, particularly when that transfer was not at a
petitioner’s request, is wholly outside of their control, and occurs in a very short
time after arrest. Transferring venue solely on the basis that a petitioner was
transferred, and thereby currently detained elsewhere, could also have the effect
of incentivizing forum shopping, as Respondents could quickly transfer detained
individuals to a district of their choosing
Id. The undersigned finds this rationale persuasive and applicable to the present case with equal
force.
That this District is a proper forum for the present Petition is further supported by the
rational underlying Braden. As the Supreme Court explained, “[s]o long as the custodian can be
reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the
[petitioner] be brought before the court for a hearing on his claim, or requiring that he be
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released outright from custody, even if the [petitioner] himself is confined outside the court’s
territorial jurisdiction.” Braden, 410 U.S. at 495. In the present case, the Respondents can
undoubtable be reached through service of process.8
In summation, the undersigned concludes, “as other judges in this District have, that
when ‘Government-controlled transfers,’ like the one in this case,” are effectuated without
proper notice “and before [meaningful] communication with counsel is possible such conduct
risks defeating timely judicial review,” and thus, under those circumstances, the original district
in which the petitioner was arrested remains a proper forum to seek habeas relief. Abdiselan
A.A., 2026 WL 161526, at *2 (cleaned up) (quoting E.E. v. Bondi (JWB/DTS), Order [Docket
No. 7] at 5 (D. Minn. Jan. 17, 2026)). To hold otherwise would create a legal quagmire for the
sake of procedural niceties. Accepting Respondents’ argument would require counsel for a
petitioner in immigration-related habeas proceedings such as this case to speculate as to the
whereabouts of their client in the face of rapid, Government-controlled transfers; to delay filing a
habeas petition until the Government, at a time of its own choosing, decided to inform counsel of
the petitioner’s ultimate location after the rapid transfers are all concluded; or to risk the petition
being summarily rejected as having been brought in an inappropriate forum. Such a circumstance
has no place in habeas litigation challenging the legality of detention, especially when, like here,
the arguments raised in support of that detention have been overwhelming rejected by Courts
across the nation.
8 The Court’s findings here are also supported by the Supreme Court’s definition of “custodian” as that term is used
in the relevant habeas statutes: “This custodian, moreover, is ‘the person’ with the ability to produce the prisoner’s
body before the habeas court” or who can release the individual if “no sufficient reasons” for detention is shown.
Padilla, 542 U.S. at 435. Respondents fit squarely within this definition regarding Petitioner. If it is demonstrated
that habeas relief is appropriate in the present case, any writ issued granting Petitioner his requested relief would be
directed at Respondents not the warden at the presently unknown facility where Petitioner happens to be detained.
Put differently, if habeas relief is granted in the form of Petitioner’s release from detention, it will be Respondents
who effect Petitioner’s return to Minnesota and his release; it will not be the warden of the facility at which
Petitioner is detained. Moreover, if relief is granted in the form of a bond hearing, it will be Respondents who effect
that bond hearing; the warden of the detention facility has no authority over and plays no part in such bond hearings.
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III. 	Constitutionality of Petitioner’s Detention
“Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553
U.S. 674, 693 (2008). To ensure that remedy remains available, district courts have been vested
with the authority to grant writs of habeas corpus to any individual who demonstrates that they
are being subjected to custodial confinement in violation of the Constitution, federal law, or a
treaty of the United States. See, e.g., Rasul v. Bush, 542 U.S. 466, 473 (2004); 28 U.S.C. §§
2241(a), 2241(c)(3). The district court’s habeas jurisdiction includes the authority to adjudicate
habeas challenges to a noncitizen individual’s immigration-related detention. See, e.g., Zadvydas
v. 	Davis, 	533 	U.S. 678, 	687–88 	(2001). 	“Petitioner 	bears 	the burden 	of 	proving 	by 	a
preponderance of the evidence that his detention is unlawful.” Abel Jimenez Jimenez v. Samuel
J. Olson, No. 25-cv-189 (CJW/KEM), 2025 WL 3633609, at *2 (N.D. Iowa Dec. 15, 2025)
(citing Aditya W. H. v. Trump, 782 F. Supp. 3d 691, 702 (D. Minn. 2025); Walker v. Johnston,
312 U.S. 275, 286 (1941)).
In the United States, immigration law permits “authorized immigration officials to detain
some classes of aliens during the course of certain immigration proceedings.” Jennings v.
Rodriguez, 583 U.S. 281, 286 (2018). For example, “the Government” is authorized “to detain
certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2).” Id. at 289.
Government officials are also authorized “to detain certain aliens already in the country pending
the outcome of removal proceedings under §§ 1226(a) and (c).” Id. Although both § 1225 and §
1226 authorize the detention of noncitizen individuals during the course of immigration
proceedings, those provisions operate in substantially different manners. See Id. “Under 8 U.S.C.
§ 1225(b)(2), which applies to ‘an alien seeking admission’ to the United States, detention while
immigration proceedings are conducted is mandatory,” but “under 8 U.S.C. § 1226(a), which
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applies to an alien who is unlawfully present in the United States, detention is discretionary and
may only be imposed after a hearing.” Mahamed C.A. v. Noem, No. 25-cv-4551 (MJD/JFD),
2025 WL 3771299, at *1 (D. Minn. Dec. 16, 2025), report and recommendation adopted, 2025
WL 3754012 (D. Minn. Dec. 29, 2025).
For 	decades, 	the 	United 	States 	government 	treated 	individuals 	in 	Petitioner’s
circumstances as aliens unlawfully present in the United States who, if arrested, were subject to
discretionary detention pursuant to 8 U.S.C. § 1226. See, e.g., Eliseo A.A. v. Olson, No. 25-cv-
3381 (JWB/DJF), 2025 WL 2886729, at *4 (D. Minn. Oct. 8, 2025).9 Those individuals were
entitled to a bond hearing. See, e.g., Jennings v. Rodriguez, 583 U.S. 281, 286–306 (2018).
However, in December 2025, the government made an abrupt change of course.
Respondents now argue that Petitioner is subject to mandatory detention under 8 U.S.C. § 122510
pursuant to recent guidance by the Board of Immigration Appeals finding that all aliens present
in the United States without proper authorization are subject to mandatory detention under §
1225.11
9 Detention under § 1226(a) is often referred to a discretionary detection. Section 1226(a) provides that “[o]n a
warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the
alien is to be removed from the United States.” “As long as the detained alien is not covered by § 1226(c), the
Attorney General ‘may release’ the alien on ‘bond . . . or conditional parole.’ Federal regulations provide that aliens
detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings, 583 U.S. at 306 (citations
omitted) (ellipses in original).
10 Detention under § 1225 is often referred to as mandatory detention. Section 1225 applies to “[a]n alien present in
the United States who has not been admitted or who arrives in the United States []whether or not at a designated port
of arrival,” and all such individuals are deemed for purposes of § 1225 to be “an applicant for admission.” §
1225(a)(1). “As relevant here, applicants for admission fall into one of two categories, those covered by §
1225(b)(1) and those covered by § 1225(b)(2).” Jennings, 583 U.S. at 287. Unlike § 1226, “neither § 1225(b)(1) nor
§ 1225(b)(2) says anything whatsoever about bond hearings.” Id. at 297. “Section 1225(b)(1) applies to aliens
initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation,” and these
individuals are “normally ordered removed ‘without further hearing or review’ pursuant to an expedited removal
process.” Id. “Section 1225(b)(2) is broader” operating “as a catchall provision that applies to all applicants for
admission not covered by § 1225(b)(1).” Id. Individuals covered by § 1225(b)(2) “‘shall be detained for a [removal]
proceeding’ if an immigration officer ‘determines that [they are] not clearly and beyond a doubt entitled to be
admitted’ into the country.” Id. (quoting § 1225(b)(2)(A)) (brackets in Jennings).
11 The BIA’s decision appears to be a consequence of a July 2025 policy announcement by ICE and the Department
of Homeland Security providing similar guidance. See Mahamed C.A., 2025 WL 3771299, at *2 (citing Santos M.C.
v. Olson, No. 25-cv-4264 (PJS/DJF), 2025 WL 3281787, at *2 (D. Minn. Nov. 25, 2025)).
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The present Petition and the arguments raised by both sides are substantively identical to
the 	numerous 	other 	immigration-related 	habeas 	petitions 	filed 	in 	this 	District 	in 	which
individuals argue that they are being unconstitutionally subjected to mandatory detention under §
1225. Respondents continue to raise the same argument despite the fact that their arguments have
been soundly rejected by nearly every Court which has substantively considered the argument,
including the undersigned and the overwhelming majority of district judges in this District who
has 	substantively 	considered 	the issue. 	See, 	e.g., 	Rosa F.L.T. 	v. 	Bondi, 	No. 	26-cv-807
(KMM/DTS), 2026 WL 254584, at *2 (D. Minn. Feb. 1, 2026); Gonzalo R.I. v. Bondi, No. 26-
cv-248 	(MJD/LIB), 	2026 	WL 	191034, 	at 	*3 	(D. 	Minn. 	Jan. 	22, 	2026), 	report 	and
recommendation adopted, 2026 WL 198793 (D. Minn. Jan. 25, 2026); Anibal A.A. v. Bondi, No.
26-cv-111 	(MJD/LIB), 	2026 	WL 	184551, 	at 	*3 	(D. 	Minn. 	Jan. 	20, 	2026), 	report 	and
recommendation adopted, 2026 WL 194041 (D. Minn. Jan. 23, 2026); Jessica C. v. Bondi, No.
26-cv-85 (ECT/LIB), 2026 WL 114290, at *2 (D. Minn. Jan. 15, 2026); Fuentes v. Olson, No.
25-cv-4456 (LMP/ECW), 2025 WL 3524455, at *1–3 (D. Minn. Dec. 9, 2025) (Provinzino, J.)
(collecting cases); Jose J.O.E. v. Bondi, 797 F. Supp. 3d 957, 968–70 (D. Minn. 2025); Ramon
R.C. v. Samuel J. Olson, No. 25-cv-3811 (ECT/LIB), 2025 WL 3900425, at *5–8 (D. Minn. Dec.
30, 2025), report and recommendation adopted, 2026 WL 45113 (D. Minn. Jan. 7, 2026); Barco
Mercado v. Francis, No. 25-cv-6582 (LAK), ___ F. Supp. 3d ___, 2025 WL 3295903, at *13
(S.D.N.Y. Nov. 26, 2025); Victor F.M. v. Bondi, No. 25-cv-4778 (ECT/SGE), 2026 WL 25968,
at *2 (D. Minn. Jan. 5, 2026); Santos M.C. v. Olson, No. 25-cv-4264 (PJS/DJF), 2025 WL
3281787, at *2–3 (D. Minn. Nov. 25, 2025) (Schilz, C.J.); Andres R.E. v. Bondi, No. 25-cv-3946
(NEB/DLM), 2025 WL 3146312, at *3 (D. Minn. Nov. 4, 2025) (Brasel, J.); Belsai D.S. v.
Bondi, No. 25-cv-3682 (KMM/EMB), ___ F. Supp. 3d ___, 2025 WL 2802947, at *5 (D. Minn.
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Oct. 1, 2025) (Menendez, J.); Eliseo A.A. v. Olson, No. 25-cv-3381 (JWB/DJF), ___ F. Supp. 3d
___, 2025 WL 2886729, at *4 (D. Minn. Oct. 8, 2025) (Blackwell, J); Francisco T. v. Bondi, No.
25-cv-03219 (JMB/DTS), 2025 WL 3236513, at *3 (D. Minn. Nov. 19, 2025) (Bryan, J.); Avila
v. Bondi, No. 25-cv-3741 (JRT/SGE), 2025 WL 2976539, at *6 (D. Minn. Oct. 21, 2025)
(Tunheim, J.); E.M. v. Noem, No. 25-cv-3975 (SRN/DTS), 2025 WL 3157839, at *4–6 (D.
Minn. Nov. 12, 2025) (Nelson, J.); Ramirez Valverde v. Olson, No. 25-cv-1502, 2025 WL
3022700, at *3 (E.D. Wis. Oct. 29, 2025); J.A.M. v. Streeval, No. 25-cv-342 (CDL), 2025 WL
3050094, at *3 (M.D. Ga. Nov. 1, 2025); Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 489
(S.D.N.Y. 2025); Maldonado v. Olson, 795 F. Supp. 3d 1134, 1151 (D. Minn. 2025).
The undersigned finds no reason to depart from the well-reasoned judicial consensus
discussed above. “For decades, the government took the position that people in Petitioner’s
situation were not subject to mandatory detention,” Mahamed C.A., 2025 WL 3771299, at *2
(emphasis in original), and the government’s new interpretation departs from decades of
consistent statutory interpretation and the plain meaning of the relevant statutory text. There is
simply no reasonable basis upon which this Court could conclude that Petitioner—who at the
time of his arrest had already been residing in the United States for more than two years—is an
“alien seeking admission” subject to mandatory detention under § 1225(b)(2).12
12 “As other courts have observed, the use of the verb ‘seeking’ in § 1225(b)(2)(A) denotes an active and present
effort, such that an alien seeking admission is a noncitizen who, at the time of his arrest, is actively and presently
pursuing inspection and authorization by an immigration officer to lawfully enter the United States.” E.M., 2025
WL 3157839, at *4 (cleaned up) (quoting Ramirez Valverde v. Olson, No. 25-cv-1502, 2025 WL 3022700, at *3
(E.D. Wis. Oct. 29, 2025)). “‘Seek’ is an active verb, not a type of status that narrows the meaning of alien to one
who is attempting to obtain lawful admission to the United States.” E.M., 2025 WL 3157839, at *4 (cleaned up)
(quoting J.A.M. v. Streeval, No. 25-cv-342 (CDL), 2025 WL 3050094, at *3 (M.D. Ga. Nov. 1, 2025)). As another
Court analogized, “someone who enters a movie theater without purchasing a ticket and then proceeds to sit through
the first few minutes of a film would not ordinarily then be described as ‘seeking admission’ to the theater. Rather,
that person would be described as already present there.” Santos M.C., 2025 WL 3281787, at *3 (quoting Lopez
Benitez v. Francis, 795 F. Supp. 3d 475, 489 (S.D.N.Y. 2025)). “Even if that person, after being detected, offered to
pay for a ticket, one would not ordinarily describe them as ‘seeking admission’ (or ‘seeking’ ‘lawful entry’) at that
point—one would say that they had entered unlawfully but now seek a lawful means of remaining there.” Lopez
Benitez, 795 F. Supp. 3d at 489.
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Neither Petitioner’s application for asylum nor the Petition for Alien Relative filed on
Petitioner’s behalf changes the outcome here. Having submitted an application for asylum or
having had a petition for alien relative submitted on his behalf does not render Petitioner an alien
“seeking admission” or subject him to mandatory detention under § 1225. See, e.g., Lauro M.,
2026 WL 115022, at *1, 3; Martins de Oliveira v. Hyde, No. 25-cv-13940 (FDS), 2026 WL
74111, at *1, 3 (D. Mass. Jan. 9, 2026); Angel A.S.R. v. Noem, No. 26-cv-502 (JRT/EMB),
2026 WL 194515, at *1 (D. Minn. Jan. 26, 2026); Adriana M.Y.M. v. Easterwood, No. 26-cv-
213 (JWB/JFD), 2026 WL 184721, at *1, 4–5 (D. Minn. Jan. 24, 2026); Diego L. v. Bondi, No.
26-cv-382 (JMB/DJF), 2026 WL 145206, at *3 (D. Minn. Jan. 20, 2026); Jhony A. v. Bondi, No.
26-cv-146 (JMB/LIB), 2026 WL 114334, at *3 (D. Minn. Jan. 15, 2026); Rosa F.L.T., 2026 WL
254584, at *2; Mayamu K. v. Bondi, No. 25-cv-3035 (JWB/LIB), 2025 WL 3641819, at *4 (D.
Minn. Oct. 20, 2025) (citing Maldonado v. Olson, 795 F. Supp. 3d 1134, 1151 (D. Minn. 2025);
Carlos Q.-A. v. Noem, No. 25-cv-1382 (MSN/WEF), 2025 WL 2783800, at *7 (E.D. Va. Sept.
30, 2025)); Mahamed C.A., 2025 WL 3771299, at *3.
In summation, Petitioner is not subject to § 1225(b)’s mandatory detention regime.
Petitioner is thus entitled to habeas relief in the present proceedings.
The question remains as to the form of that relief. As his primary form of relief,
Petitioner seeks release from custody.
In the present case, Respondents do not provide any evidence demonstrating that
Petitioner’s January 9, 2026, arrest or his subsequent detention were the result of a warrant.
Nowhere in the record do Respondents proffer a basis for Petitioner’s January 9, 2026, arrest or
his subsequent detention other than § 1225’s mandatory detention provision.
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Unlike mandatory detention under § 1225, detention under § 1226 is predicated on the
issuance of a warrant. See, e.g., 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney
General, an alien may be arrested and detained pending a decision on whether the alien is to be
removed from the United States.”); Ahmed M. v. Bondi, No. 25-cv-4711 (ECT/SGE), 2026 WL
25627, at *3 (D. Minn. Jan. 5, 2026) (collecting cases and discussing warrant requirement found
in § 1226); Diego L. v. Bondi, No. 26-cv-382 (JMB/DJF), 2026 WL 145206, at *3 (D. Minn.
Jan. 20, 2026) (collecting cases); Luis N. v. Bondi, No. 26-cv-226 (JMB/DLM), 2026 WL
115070, at *3 (D. Minn. Jan. 15, 2026). Absent a warrant an individual may not be arrested or
detained under § 1226. See Ahmed M., 2026 WL 25627, at *3; Juan S.R. v. Bondi, 26-cv-5
(PJS/LIB), Order [Docket No. 8] (D. Minn. Jan. 12, 2026) (citing Ahmed M. and agreeing with
the rationale therein); Diego L., 2026 WL 145206, at *3.
Where there exists no authority upon which an individual is detained, “ordering a bond
hearing would treat the absence of statutory” authority in support of the individual’s arrest or
detention “as a mere procedural irregularity rather than a substantive defect. Habeas relief
requires more because it addresses the lawfulness of custody itself, not the adequacy of
procedures that might attend some other, uninvoked challenge to detention.” Vedat C. v. Bondi,
No. 25-cv-4642 (JWB/DTS), Order [Docket No. 9] at 6 (D. Minn. Dec. 19, 2025); see Ahmed
M., 2026 WL 25627, at *3. “Where the record shows Respondents have not identified a valid
statutory basis for detention in the first place, the remedy is not to supply one through further
proceedings.” Ahmed M., 2026 WL 25627, at *3 (quoting Vedat C. v. Bondi, No. 25-cv-4642
(JWB/DTS), Order [Docket No. 9] at 6 (D. Minn. Dec. 19, 2025)); see, e.g., Luis N., 2026 WL
115070, at *3; Diego L., 2026 WL 145206, at *3. Simply put, “[f]or detention that lacks a lawful
predicate,” such as Petitioner’s detention in the present case, “release is an available and
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appropriate remedy.” Vedat C. v. Bondi, No. 25-cv-4642 (JWB/DTS), Order [Docket No. 9] at 6
(D. Minn. Dec. 19, 2025); see Ahmed M., 2026 WL 25627, at *3; Luis N., 2026 WL 115070, at
*3; Diego L., 2026 WL 145206, at *3.
In the present case, Respondents have wholly failed to identify any valid statutory basis
for Petitioner’s arrest or his present detention. Thus, Petitioner’s detention is unlawful, and he is
entitled to immediate release from said detention. See, e.g., Lauro M. v. Bondi, No. 26-cv-134
(SRN/DJF), 2026 WL 115022, at *3 (D. Minn. Jan. 15, 2026); Ahmed M., 2026 WL 25627, at
*3; Juan S.R. v. Bondi, 26-cv-5 (PJS/LIB), Order [Docket No. 8] (D. Minn. Jan. 12, 2026);
Garrison G. v. Bondi, No. 26-cv-172 (JMB/DJF), 2026 WL 115026, at *4 (D. Minn. Jan. 15,
2026); Luis N., 2026 WL 115070, at *3; Guadarrama Ayala v. Henkey, No. 25-cv-682 (AKB),
2025 WL 3754138, at *6 (D. Idaho Dec. 29, 2025); J.A.C.P. v. Wofford, No. 25-cv-1354
(KES/SKO), 2025 WL 3013328, at *8 (E.D. Cal. Oct. 27, 2025); Lepe v. Andrews, 801 F. Supp.
3d 1104, 1119 (E.D. Cal. 2025); Martinez v. Hyde, 792 F. Supp. 3d 211, 223 n.23 (D. Mass.
2025); Membreno v. Thompson, No. 25-CA-1845-XR, 2026 WL 93980, at *5 (W.D. Tex. Jan. 7,
2026); Diego L., 2026 WL 145206, at *3; Adriana M.Y.M., 2026 WL 184721, at *1, 5; Diego
L., 2026 WL 145206, at *3 (D. Minn. Jan. 20, 2026); Gonzalo R.I. v. Bondi, No. 26-cv-248
(MJD/LIB), 2026 WL 191034, at *5–6 (D. Minn. Jan. 22, 2026), report and recommendation
adopted, 2026 WL 198793 (D. Minn. Jan. 25, 2026); Rosa F.L.T., 2026 WL 254584, at *2. On
that basis, the undersigned recommends that Respondents be ordered to immediately release
Petitioner 	following 	the 	issuance 	of 	any 	Order 	adopting 	the 	present 	Report 	and
Recommendation, and the undersigned further recommends that Respondents be required to
confirm Petitioner’s release within forty-eight hours of any Order adopting this Report and
Recommendation.
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IV. 	Respondents’ Noncompliance with Court’s Prior Order
As 	noted 	above, 	Judge 	Davis 	issued 	an 	Order 	on 	January 	30, 	2026, 	enjoining
Respondents from removing Petitioner from the District of Minnesota until a final decision is
made on the present Petition. (Order [Docket No. 4]). Judge Davis also ordered Respondents to
immediately return Petitioner to Minnesota if Respondents had already removed him from
Minnesota. (Id.).
Respondents have wholly failed to comply with Judge Davis’s January 30, 2026, Order.
Respondents were specifically directed to immediately return Petitioner to Minnesota, and they
have failed to do so. It has now been five days since Judge Davis issued his order, and Petitioner
continues to be detained outside the District of Minnesota. Even now, there still has been no
indication by Respondents that Petitioner is being returned to Minnesota. Rather than comply
with Judge Davis’s Order to transfer Petitioner back to Minnesota, Respondents instead
transferred Petitioner from New Mexico to Texas the day after Judge Davis issued his Order, and
it appears Respondents have again transferred Petitioner back to New Mexico.
Because the record establishes that Respondents are in violation of the Court’s January
30, 2026, Order, the undersigned recommends that Respondents be ordered to show cause why
they should not be held in civil contempt for failing to return Petitioner to the District of
Minnesota.
V. 	Objection Period
The undersigned notes that one last issue merits discussion—the time in which the parties
are 	permitted 	to 	object 	to 	the 	present Report and Recommendation, 	if 	they 	so 	choose.
This Report and Recommendation is not an Order or judgment of the District Court, and it is,
therefore, not appealable directly to the Eighth Circuit Court of Appeals. Instead, Local Rule
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72.2(b)(1) provides that “[a] party may file and serve specific written objections to a magistrate
judge’s” Report and Recommendation, such as the present Report and Recommendation, “within
14 days after being served with a copy of the” Report and Recommendation, “unless the court
sets a different deadline.” LR 72.2(b)(1). A party may then respond to those objections within
fourteen days after being served a copy of the objections. LR 72.2(b)(2). Thus, under normal
circumstances a party would be permitted fourteen (14) days in which to file its objections to the
present Report and Recommendation, if it chooses to object, and then the opposing party would
be permitted an additional fourteen (14) days in which to file its response to said object, if it so
chooses.
In the present case, however, Petitioner’s unlawful detention would be unnecessarily
further prolonged by this objection period to the point that the time limit in which the
undersigned recommends Petitioner be released would be doubled fourteen times over by the end
of the standard objection period. Put differently, if the parties were permitted the full objection
period, comprised of twenty-eight days, then the relief recommended by the undersigned would
be materially diminished because Petitioner would have been unlawfully detained for an
additional month or more.
Therefore, the Court, in its inherent power to manage pending litigation, reduces the time
in which any party is permitted to object to the present Report and Recommendation to two (2)
days, and correspondingly, the Court reduces to one (1) day the time in which any party is
permitted to respond to any objection. An objection period of any longer duration would
materially and unnecessarily undermine the recommended relief.
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VI. 	Conclusion
Therefore, based on the foregoing, and all the files, records, and proceedings herein, IT
IS HEREBY RECOMMENDED THAT:
1. 	Fausto O.I.’s Petition for a writ of habeas corpus, [Docket No. 2], be GRANTED, as set
forth herein;
2. 	Respondents be required to return Petitioner to Minnesota for immediate release;
3. 	Respondents 	be 	required 	to 	immediately 	release 	Petitioner 	from 	custody 	without
subjecting him to conditions greater than those provided in the December 1, 2023, Order
of Release on Recognizance;
4. 	Respondents be required to confirm Petitioner’s release from custody within forty-eight
(48) hours from the date of any Order adopting the present Report and Recommendation;
5. 	Respondents be precluded from re-detaining Petitioner under a statutory theory this Court
has rejected in this proceeding absent materially changed circumstances; and
6. 	Respondents be ordered to show cause why they should not be held in civil contempt for
failing to return Petitioner to the District of Minnesota.
Dated: February 4, 2026 	s/ Leo I. Brisbois
Hon. Leo I. Brisbois
U.S. MAGISTRATE JUDGE
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