Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TOMAS ALFREDO MOLINA OCHOA,
Petitioner,
v. 	Case No. 1:25-cv-00881-JB-LF
KRISTI NOEM, in her official capacity as
Secretary of the U.S. Department of Homeland
Security; PAMELA BONDI, in her official
capacity as Attorney General of the United
States; TODD LYONS, in his official
capacity as Acting Director and Senior
Official Performing the Duties of the
Director of U.S. Immigration and Customs
Enforcement; MARY DE ANDA-YBARRA,
in her official capacity as Field
Office Director of the El Paso Field Office
of U.S. Immigration and Customs
Enforcement, Enforcement and Removal
Operations; GEORGE DEDOS, in his
official capacity as Warden of the Cibola County
Correctional Center;
Respondents.
PROPOSED FINDINGS & RECOMMENDED DISPOSITION
THIS MATTER is before the Court on a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. 1) and Respondents’ motion to dismiss that petition (Doc. 5). United
States District Judge James Browning referred this case to me under 28 U.S.C. §§ 636(b)(1)(B),
(b)(3), and Va. Beach Fed. Sav. & Loan Ass’n v. Wood, 901 F.2d 849 (10th Cir. 1990) “to conduct
hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required
to recommend to the Court an ultimate disposition of the case.” Doc. 3 at 1. Having reviewed
the briefings and the law, and having heard the argument of counsel, I recommend that the Court
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 1 of 36

2
deny Respondents’ motion to dismiss and grant in part and deny in part the petition for a writ of
habeas corpus.
BACKGROUND
Petitioner Tomas Alfredo Molina Ochoa states in his verified petition that he came to the
United States from Guatemala nineteen years ago, and that he has worked as a gardener and
landscaper since entering the country.1 Doc. 1 ¶ 1. In late June 2025,2 Petitioner was performing
gardening work on private property in Sylmar, California, when an unmarked vehicle pulled up
to the property and he was taken into immigration custody. Id. ¶ 2. Petitioner was charged with
entering the United States without inspection under 8 U.S.C. § 1182(a)(6)(A)(i), served with an
arrest warrant, and placed in removal proceedings. Id.
An immigration judge (“IJ”) in the Otero Immigration Court determined Petitioner to be
statutorily ineligible for a bond hearing and subject to mandatory detention. Id. ¶¶ 3–5. The IJ
made no factual findings that Petitioner is a flight risk or a danger, and instead concluded that
Petitioner is an “applicant” who is “seeking admission” subject to mandatory detention under 8
U.S.C. § 1225(b)(2)(A). Id. ¶ 5. Petitioner asserts that he filed a pro se Board of Immigration
Appeals (“BIA”) Notice of Appeal of the IJ’s decision on August 22, 2025, id. ¶ 21, though
Respondents dispute that this notice was ever filed, Doc. 5 at 3.
Petitioner has remained in detention since his apprehension in June 2025, over four
months ago. During that time, he has remained separated from his family, his work, and the
broader community. Doc. 1 ¶ 30. In support of his request for bond, Petitioner submitted
1 Respondents acknowledged at the hearing that they had no evidence that contradicts the factual
statements in the petition regarding Petitioner’s background. Doc. 20 ¶ III(b)(i).
2 The petition does not provide an exact date, but Respondents assert that the date is June 24,
2025. Doc. 5 at 3.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 2 of 36

3
statements of support from his Lawful Permanent Resident (LPR) family members and his
clients to the IJ. Id. ¶ 28. Petitioner also included a letter from his mother’s primary doctor
referencing his LPR mother’s history of cancer. Id. ¶ 30. There is no indication that the IJ
considered any of these materials. Further, Petitioner asserts that staff at the Cibola County
Correctional Center, where he is detained, have not always properly administered the daily
medication he needs to manage his diabetes, resulting in significant, painful health effects. Id.
Petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on
September 11, 2025, to contest the IJ’s determination that he is subject to mandatory detention,
requesting that the Court (1) declare that Petitioner’s continued detention is unlawful and
unconstitutional and order his immediate release from ICE custody, or (2) conduct an immediate,
constitutionally adequate individualized custody determination. Doc. 1 at 19. Petitioner also
requests that the Court enjoin his transfer outside of the District of New Mexico during the
pendency of the case, and that the Court award him costs and reasonable attorney’s fees pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412. Id.
On September 23, 2025, the Court imposed a briefing schedule that conformed with 28
U.S.C. § 2243.3 Doc. 4. Respondents were ordered to respond to the petition and show good
cause why it should not be granted within three days of receipt of service, though they were
permitted to move for additional time not to exceed twenty days, and Petitioner’s reply to
Respondents’ answer was due three days after Respondents filed their response absent good
cause. Id.
3 Section 2243 of title 28, United States Code, requires a writ or order to show cause to “be
returned within three days unless for good cause additional time, not exceeding twenty days, is
allowed.” Once the writ or order is returned, “a day shall be set for hearing, not more than five
days after the return unless for good cause additional time is allowed.” Id.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 3 of 36

4
On October 14, 2025, the U.S. Attorney’s Office responded on behalf of Kristi Noem,
Pamela Bondi, Toddy Lyons, and Mary De Anda-Ybarra (“Federal Respondents”) with a motion
to dismiss the petition (Doc. 5). Petitioner filed proofs of service on October 17, 2025. See Doc.
10; Doc. 11. Counsel for Respondent George Dedos, the Warden of the Cibola County
Correctional Center, appeared on October 21. See Doc. 12. Federal Respondents stated that “all
arguments made on behalf of the [Federal Respondents] apply with equal force to Warden
Dedos, as he is detaining the Petitioner at the request of the United States,” Doc. 5 at 1 n.1, and
Warden Dedos joined Federal Respondents’ Motion to Dismiss, Doc. 14 at 1.4 Petitioner timely
responded to Respondents’ motion on October 24, 2025. Doc. 13.
I held a hearing on Respondents’ motion on November 3, 2025. Counsel for all parties
appeared and presented arguments. See Doc. 20. I took the matter under advisement, but
ordered the parties to keep me apprised of any developments in Petitioner’s underlying
immigration case. Doc. 15.
THE PARTIES’ LEGAL ARGUMENTS
I. 	Petitioner’s Argument for a Writ of Habeas Corpus
Petitioner contests only the determination by the IJ that he is statutorily ineligible for a
bond hearing, arguing that the failure to hold a bond hearing violates the Immigration and
Nationality Act (“INA”) and his Fifth Amendment right to due process. Doc. 1 ¶¶ 8, 56–64.
Petitioner argues that he should have been found subject to a provision of the INA that generally
entitles individuals taken into immigration custody pending a decision to a bond hearing at the
outset of their detention, 8 U.S.C. § 1226(a). Id. ¶ 32. Petitioner asserts that the government has
4 Because Warden Dedos joined the motion, I will refer to it as Respondents’ motion rather than
Federal Respondents’ motion throughout.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 4 of 36

5
a decades-long practice of applying § 1226(a) to individuals who, like Petitioner, have been
living in the United States and are charged with inadmissibility under 8 U.S.C. §
1182(a)(6)(A)(i). Id. However, the IJ instead found Petitioner subject to another provision of the
INA, 8 U.S.C. § 1225(b)(2)(A), which requires mandatory detention of “aliens seeking
admission.” Id. ¶¶ 5, 33. Despite Petitioner’s uncontested assertions that he has been living in
the United States for nineteen years, id. ¶ 1, the IJ determined him to be an “Applicant seeking
Admission” to the country. Doc. 1 ¶¶ 5, 29; Doc. 5 at 3. Petitioner argues that the IJ erred and
that he is entitled to a bond hearing under § 1226(a). Doc. 1 ¶¶ 57–60.
Petitioner asks the Court either to immediately release him, or to order a § 1226(a) bond
hearing where the government bears the burden of proving that Petitioner’s continued detention
is justified. Doc. 1 at 19. Petitioner also asks the Court to prohibit his transfer outside of the
District of New Mexico during the pendency of the case, and to award him costs and reasonable
attorneys’ fees pursuant to the Equal Access to Justice Act. Id.
II. 	Respondents’ Motion to Dismiss
Respondents answered the petition with a Motion to Dismiss, challenging the court’s
jurisdiction over the petition and also attacking the petition’s merits. Doc. 5. Respondents argue
that the petition should be dismissed (1) for lack of subject matter jurisdiction; (2) because
Respondents have not violated Petitioner’s limited due process rights; and (3) that even if
Petitioner were entitled to a § 1226(a) bond hearing, he still failed to exhaust his administrative
remedies, is not entitled to have the burden of proof shifted to the government, and that
immediate release is not an appropriate remedy.
Regarding the challenge to subject matter jurisdiction, Respondents argue that both
statutory and Tenth Circuit authority limit district court review of § 1225(b) orders. Doc. 5 at 13.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 5 of 36

6
Because the IJ found Petitioner subject to § 1225(b), and because Petitioner is not challenging
the order on one of the statutorily permitted bases—whether Petitioner is an alien, whether
Petitioner was ordered removed under § 1225(b), or whether Petitioner has some sort of lawful
status in the country—Respondents argue that the Court lacks subject matter jurisdiction over the
petition. Id. Petitioner responded that the jurisdictional limitation applies only to removal
orders, and that because Petitioner is seeking review of his detention rather than challenging an
order of removal, the Court retains jurisdiction over the petition. Doc. 13 at 6. Petitioner also
argues that the Court has jurisdiction over the petition pursuant to the Suspension Clause of the
U.S. Constitution. Id. at 5–6 (citing U.S. Const. art. I, § 9, cl. 2).
Respondents next argue that, even if the Court did have jurisdiction over the petition,
Petitioner’s limited due process rights have been met under § 1225. Doc. 5 at 14. They argue
that because Petitioner has been classified as an arriving alien under § 1225, he has no due
process rights beyond those afforded by statute, and none of those rights have been violated. Id.
Respondents contest Petitioner’s contention that he faces prolonged detention, referencing the
merits hearing held on November 5, 2025, in Petitioner’s underlying immigration case during the
pendency of this case. Id. at 14–15. Petitioner responded by disputing Respondents’ conclusion
that he is an arriving alien subject to mandatory detention under § 1225. Doc. 13 at 9–11.
Petitioner cites to several recent district court cases that consistently determined that “noncitizens
who previously entered without inspection and were apprehended in the interior of the country,”
like Petitioner, are covered by § 1226 rather than § 1225. Id. at 10–11. Petitioner also contends
that the outcome of the merits hearing in his underlying immigration case will not change his
detention because both he and the government have the right to appeal an adverse decision and
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 6 of 36

7
presumably will do so. Id. at 21. Petitioner will remain detained during that appeals process
absent this Court’s intervention. Id.
Finally, Respondents argue that even if the Court concludes that Petitioner should have
been subjected to § 1226(a) rather than § 1225, the Petitioner still should be denied a bond
hearing. First, Respondents argue that Petitioner failed to exhaust his administrative remedies by
not timely appealing the IJ’s § 1225(b) determination, and that the futility exception to
administrative exhaustion recognized by the Tenth Circuit does not apply here because
Petitioner’s appeal period expired before the BIA published an opinion that would have made the
appeal futile. Doc. 5 at 15–16. Petitioner responds that administrative exhaustion is not
mandatory, especially where appealing to the BIA would have been futile. Doc. 13 at 22–23.
Second, Respondents argue that if the Court orders a § 1226(a) bond hearing for Petitioner, the
burden of proof at that hearing should not shift to the government because Petitioner has not
been subject to prolonged detention. Doc. 5 at 16–17. Petitioner responded that the continued
violation of Petitioner’s due process rights justifies shifting the burden to the government to
prove that Petitioner is a flight risk or a danger. Doc. 13 at 9–11, 21–22. Third, Respondents
argue that Petitioner’s request for immediate release from custody is an inappropriate remedy.
Doc. 5 at 17–18. Petitioner did not directly address this argument in his response, but counsel
for Petitioner argued at the hearing that Petitioner’s immediate release would protect Petitioner
from the risk of being unlawfully removed from the country before this case has been resolved.
Doc. 20 ¶ VII.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 7 of 36

8
ANALYSIS
I. 	This Court Has Subject Matter Jurisdiction Over the Petition.
A. The Court Retains Jurisdiction Over the Petition Because it Challenges Petitioner’s
Detention Rather than an Order of Removal.
Federal courts possess jurisdiction over a matter only as authorized by the U.S.
Constitution and statute. Gunn v. Minton, 568 U.S. 251, 256 (2013). Section 2241 of title 28,
United States Code, grants district courts the authority to grant writs of habeas corpus, and
district courts may entertain petitions pursuant to § 2241 in relation to immigration cases.
Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008) (noting that district courts are the
appropriate forum for a noncitizen to bring § 2241 challenges to mandatory detention in the first
instance). However, the Tenth Circuit has clarified that district courts’ habeas jurisdiction is
limited regarding orders of removal. See Thoung v. United States, 913 F.3d 999, 1001–02 (10th
Cir. 2019) (“[T]he REAL ID Act imposes substantial limitations on judicial review, including
habeas review, of final orders of removal.”). Habeas petitions challenging an order of removal
must be filed in a circuit court of appeals, id., and even then, any challenge is limited to certain
grounds enumerated by statute, see Vaupel v. Ortiz, 244 F. App’x 892, 894–96 (10th Cir. 2007).
Nonetheless, the Supreme Court has recognized that district courts retain jurisdiction to consider
habeas petitions that challenge determinations by an IJ other than orders of removal. See
Jennings v. Rodriguez, 583 U.S. 281, 294–95 (2018) (reviewing a habeas petition after clarifying
that “respondents are not asking for review of an order of removal; they are not challenging the
decision to detain them in the first place or to seek removal; and they are not even challenging
any part of the process by which their removability will be determined”). Accordingly, the Tenth
Circuit has found that district courts have jurisdiction to hear a noncitizen’s challenge to
mandatory detention because that determination is distinct from an order of removal. Ochieng,
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 8 of 36

9
520 F.3d at 1115 (“It appears that subsequently-enacted provisions of the REAL ID Act limiting
habeas relief . . . do not apply in these circumstances, as [the petitioner] would not be seeking
review of an order of removal, but review of his detention.”); see also 8 C.F.R. § 1003.19(d)
(2025) (“Consideration by the Immigration Judge of an application or request of a respondent
regarding custody or bond . . . shall be separate and apart from, and shall form no part of, any
deportation or removal hearing or proceeding.”).
Indeed, several courts in this district, like district courts across the country, have found
subject matter jurisdiction over petitions challenging determinations that a petitioner was
statutorily ineligible for bond under § 1226(a). See Salazar v. Dedos, No. 1:25-cv-00835-DHU-
JMR, 2025 WL 2676729, at *9 (D.N.M. Sept. 17, 2025) (granting petitioner a writ of habeas
corpus challenging petitioner’s classification under § 1225 instead of § 1226(a)); Pastrana-
Saigado v. Lyons, No. 2:25-cv-00950-MLG-LF, Doc. 24 at 1–2 (D.N.M. Oct. 24, 2025)
(holding—“[l]ike the overwhelming majority of courts”—that § 1226(a) governed the
petitioner’s detention and that the petitioner was entitled to a bond hearing); Garcia Domingo v.
Castro, No. 1:25-cv-00979-DHU-GJF, — F. Supp. 3d —, 2025 WL 2941217, at *4–5 (D.N.M.
Oct. 15, 2025) (finding that the petitioner had established a substantial likelihood of success on
the merits of his claim that he had been erroneously classified as an “applicant for admission”
subject to § 1225); Cortez-Gonzalez v. Noem, No. 2:25-cv-00985-MLG-KK, Doc. 16 at 1–2
(D.N.M. Oct. 24, 2025) (ordering respondents to schedule an individualized bond hearing
pursuant to 8 U.S.C. § 1226(a)); see also, e.g., Bolante v. Achim, 457 F. Supp. 2d 898, 902 (E.D.
Wis. 2006) (“Although Congress has stripped district courts of habeas jurisdiction to consider
most immigration issues, district courts retain jurisdiction to review detention unrelated to a
removal proceeding, and therefore not subject to circuit court review under INA § 242.”);
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 9 of 36

10
Martinez-Elvir v. Olson, No. 3:25-CV-589-CHB, — F. Supp. 3d —, 2025 WL 3006772, at *3
(W.D. Ky. 2025) (“[T]he Supreme Court has recognized that district courts retain jurisdiction to
hear habeas petitions concerning issues that are collateral or ancillary to removal proceedings.”).
I recommend that the Court follow Supreme Court and Tenth Circuit precedent and find
subject matter jurisdiction over the petition. Respondents argue that this Court lacks subject
matter jurisdiction because Petitioner is challenging a § 1225(b)(1) determination and is not
challenging the determination on the grounds enumerated by statute. Doc. 5 at 13–14. But
Petitioner is not challenging a § 1225(b)(1) determination—the IJ order specifically cites
§ 1225(b)(2)(A), not § 1225(b)(1).5 See Doc. 5 at 3. And regardless of whether the order was
issued pursuant to § 1225(b)(1) or (b)(2), Petitioner correctly notes that he is not challenging a
removal order—no removal order had been issued when the petition was filed—but rather his
continued detention without a bond hearing. Doc. 13 at 1, 6. The jurisdictional limits that
Respondents cite in Vaupel, 244 F. App’x at 894–96, and that the Tenth Circuit discussed in
Thoung, 913 F.3d at 1001–02, therefore do not apply here. See Ochieng, 520 F.3d at 1115.
Vaupel, which Respondents rely on, supports a finding of subject matter jurisdiction here, as the
Tenth Circuit in that case addressed the petitioner’s challenges to his continued detention even
after holding that it lacked jurisdiction over the removal order itself. See 244 F. App’x at 896.
The Supreme Court’s opinion in Jennings likewise is consistent with Petitioner’s argument, as
the Court there proceeded to analyze the petitioners’ detention without bond after noting that the
petitioners “are not asking for review of an order of removal; they are not challenging the
decision to detain them in the first place or to seek removal; and they are not even challenging
5 The IJ’s order refers specifically to “Sec 235(b)(2)(A) of the Immigration and Nationality Act,”
which is 8 U.S.C. § 1225(b)(2)(A). See Laken Riley Act, Pub. L. No. 119-1, § 3, 139 Stat. 3, 3
(2025).
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 10 of 36

11
any part of the process by which their removability will be determined.” 583 U.S. at 294–95.
Finding subject matter jurisdiction over Petitioner’s challenge to his detention without bond
therefore conforms with Supreme Court precedent, Tenth Circuit precedent, prior decisions of
courts in this district, and courts across the country. Petitioner raised the Suspension Clause as
an alternative ground for jurisdiction, Doc. 13 at 23–24, but this Court’s jurisdiction over the
petition is firmly established without resorting to the Suspension Clause.
B. The Court Retains Jurisdiction Over This Case Until Petitioner’s Order of Removal
Becomes Administratively Final.
Before moving on from subject matter jurisdiction, I must address one further
complication in this case. As discussed above, Petitioner is not challenging a removal order and
no removal order had been issued when the petition was filed, but an IJ issued an order for
Petitioner’s removal on November 5, 2025. Doc. 17 at 1; Doc. 17-1 at 3. Anticipating this issue,
the Court ordered the parties to address at the November 3 hearing how a merits hearing in
Petitioner’s underlying immigration case may affect this case. Doc. 8 at 2. While Petitioner is
challenging his continued detention pursuant to § 1225(b)(2)(A), after an order of removal is
final, the authority governing a noncitizen’s detention shifts to another statutory provision, 8
U.S.C. § 1231(a)(2). The question thus becomes determining the point at which Petitioner’s
challenge to pre-removal detention becomes moot now that an order of removal has been issued.
While Petitioner may only challenge his order of removal in the Tenth Circuit Court of
Appeals, see Thoung, 913 F.3d 1001–02, Petitioner’s challenge to his pre-removal detention
survives until his removal order becomes final. Section 1231(a)(2)(A) of title 8, United States
Code, provides that, after a noncitizen is ordered removed, “[d]uring the removal period, the
Attorney General shall detain the alien.” The statute clarifies that the
removal period begins on the latest of the following: (i) The date the order of
removal becomes administratively final. (ii) If the removal order is judicially
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 11 of 36

12
reviewed and if a court orders a stay of the removal of the alien, the date of the
court’s final order. (iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from detention or
confinement.
8 U.S.C. § 1231(a)(1)(B). The Supreme Court has concluded that a removal order is
administratively final for purposes of detention “once the BIA has reviewed the order (or the
time for seeking the BIA’s review has expired).” Johnson v. Guzman Chavez, 594 U.S. 523,
534–35 (2021). Another district court in the Tenth Circuit handled a similar issue, considering a
petitioner’s habeas challenge to mandatory detention after a final order of removal was entered.
See Carbajal v. Holder, 43 F. Supp. 3d 1184, 1188–90 (D. Colo. 2014). The petitioner in
Carbajal challenged his pre-removal detainment, but the court found that the challenge became
moot when the BIA affirmed petitioner’s removal order: “On that date, the Attorney General’s
authority to detain Applicant shifted to 8 U.S.C. § 1231(a)(2).” Id. at 1189.
At the November 3 hearing, the parties agreed that the Court would retain jurisdiction
over Petitioner’s challenge until any order of removal becomes final. Doc. 20 ¶ XI(a). Applying
the Supreme Court’s definition of “administratively final,” 594 U.S. at 534–35, and referencing
the guidance provided by Carbajal, 43 F. Supp. 3d at 1188–90, I recommend that this Court not
find the petition moot until the Petitioner’s time to appeal the removal order has expired, or if
Petitioner timely appeals, the BIA issues a decision on that appeal.
Since the hearing, the parties provided notice to the Court that Petitioner is appealing the
order of removal. Doc. 19 at 1; Doc. 19-1 at 2–6. Had Petitioner not appealed, he would have
had thirty days from the date of the order of removal before that order became final. See 8
C.F.R. § 1240.15 (2025) (“An appeal shall be filed within 30 calendar days after the mailing of a
written decision, the stating of an oral decision, or the service of a summary decision.”). Now
that Petitioner is appealing the order to the BIA, that order will not become final until “the BIA
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 12 of 36

13
has reviewed the order.” Johnson, 594 U.S at 534. Petitioner will remain detained pending the
appeal absent a bond hearing. Doc. 19 at 1; Doc. 19-3 at 2. At the November 3 hearing, counsel
for Petitioner, who regularly practices immigration law, indicated that Petitioner likely would be
detained another six or seven months before his case is heard by the BIA.6 Doc. 20 ¶¶ VI(b)(i),
VIII.
II. 	Violations of Petitioner’s Due Process Rights
Respondents next argue that, even if the Court finds subject matter jurisdiction over the
petition, Petitioner was correctly classified under § 1225(b) and that all of the rights provided by
that statute were met. Doc. 5 at 14–15. Petitioner argues that the IJ’s determination that he is
subject to § 1225(b)(2)(A) is erroneous, and that he should have been found subject to § 1226(a)
and thus entitled to a bond hearing. Doc. 1 ¶¶ 55–64.
Two relevant statutory provisions of the INA govern whether an individual is eligible for
a bond hearing or is subject to mandatory detention. Section 1226(a) of title 8, United States
Code, 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.” By
contrast, 8 U.S.C. § 1225(b)(2)(A) 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
6 There seems to be no definitive information about how long an appeal to the BIA may take.
However, the Executive Office for Immigration Review’s statistics and statements about the
appeals process appear to corroborate Petitioner’s contention that his case will not be heard
anytime soon. See Exec. Off. for Immigr. Rev., Adjudication Statistics (July 31, 2025),
https://www.justice.gov/eoir/media/1344986/dl?inline (showing that, as of the third quarter of the
2025 fiscal year, 186,473 appeals are pending before the BIA); Reducing the Size of the Board
of Immigration Appeals, 90 Fed. Reg. 15525, 15526 (Apr. 14, 2025) (to be codified at 8 C.F.R.
pt. 1003) (noting that “the number of cases completed annually by Board members has exceeded
the total number completed in 2015 only three years since then, and the current projection for
Fiscal Year 2025 is that completions will be less than in Fiscal Year 2015”).
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 13 of 36

14
not clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” Relevant to
this case is thus who can be considered an “applicant for admission” or “seeking admission.” 8
U.S.C. § 1225(b)(2)(A). The Supreme Court discussed both statutory sections and the classes of
individuals they apply to in Jennings v. Rodriguez, 583 U.S. 281 (U.S. 2018). The Court
explained that Ҥ 1225(b) applies primarily to aliens seeking entry into the United States
(‘applicants for admission’ in the language of the statute).” Id. at 297. The Court then discussed
§ 1226, explaining that “§ 1226 applies to aliens already present in the United States.” Id. at
303. The Court further provided that § “1226(a) creates a default rule for those aliens by
permitting—but not requiring—the Attorney General to issue warrants for their arrest and
detention pending removal proceedings,” and also “permits the Attorney General to release those
aliens on bond.” Id.
Courts in this district accordingly have granted relief to noncitizens alleging a presence in
the United States for years before their arrest, finding that § 1226(a) applied to their detention
rather than § 1225(b)(2). See Salazar, 2025 WL 2676729, at *4 (finding that a petitioner who
has lived in the United States since the 1980s is not “seeking admission” and is subject to §
1226(a)); Garcia Domingo, 2025 WL 2941217, at *4 (finding that a petitioner who had been
present in the United States for nine years was likely to succeed on the merits of his claim that he
had been erroneously classified as an “applicant for admission”); Pastrana-Saigado, No. 2:25-
cv-00950-MLG-LF, Doc. 17 at 1, Doc. 24 at 1–2 (finding that a petitioner who had been in the
United States for over twenty-five years was entitled to a bond hearing pursuant to § 1226);
Cortez-Gonzalez, No. 2:25-cv-00985-MLG-KK, Doc. 2 at 8, Doc. 16 at 1–2 (ordering a §
1226(a) bond hearing for a petitioner who alleged a presence in the United States since 2005).
Federal district courts across the country have also concluded that § 1226 applies in these
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 14 of 36

15
circumstances. See, e.g., Buenrostro-Mendez v. Bondi, No. H-25-3726, 2025 WL 2886346, at *1,
*3 (S.D. Tex. Oct. 7, 2025) (concluding “that § 1226, not § 1225, applies to [a petitioner’s]
detention” after the petitioner had lived in the U.S. unlawfully for over a decade); Mosqueda v.
Noem, No. 5:25-cv-02304 CAS (BFM), 2025 WL 2591530, at *6 (C.D. Cal. Sept. 8, 2025)
(concluding that § 1226(a) rather than § 1225(b)(2) applies “to individuals who, like petitioners,
have been residing in the United States and did not apply for admission or a change of status”);
Sampiao v. Hyde, No.� 1:25-cv-11981-JEK, — F. Supp. 3d —, 2025 WL 2607924, at *8 (D. Mass.
Sept. 9, 2025) (concluding that § 1226 applies to noncitizens who are arrested on a warrant while
residing in the United States); Kostak v. Trump, No. 3:25-1093, 2025 WL 2472136, at *3 (W.D.
La. Aug. 27, 2025) (“Respondents’ position that Section 1225 applies ‘because Petitioner is
present in the United States without being admitted’ is contrary to the Supreme Court’s analysis
of the application of 1225 to arriving aliens.”); Malets v. Horton, No. 4:20-cv-01041-MHH-SGC,
2021 WL 4197594, at *4 (N.D. Ala. 2021) (“In other words, § 1226 authorizes the Government
to detain certain aliens already in the country pending the outcome of removal proceedings.”)
(internal quotations omitted)); Martinez-Elvir, 2025 WL 3006772, at *8 (“Based on the Supreme
Court’s reading of [§ 1226 and § 1225], then, § 1226 also appears to apply to Petitioner since he
was detained not while arriving to the country, but instead while already in the United States.”)
(internal quotations omitted)); Caballero v. Baltazar, No. 25-cv-03120-NYW, 2025 WL
2977650, at *7 (D. Colo. Oct. 22, 2025) (concluding that a petitioner present in the United States
since 2006 “was not seeking lawful entry into the United States at the time he was detained—he
was already here” and “is not subject to § 1225(b)(2)(A)’s mandatory detention provision”).
Petitioner argues that he is not an “applicant for admission” pursuant to § 1225(b)
because he has been present in the United States for nineteen years before his detainment. Doc.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 15 of 36

16
1 ¶¶ 1, 54–55. Respondents do not directly contest this allegation, simply stating that Petitioner
“entered the United States at an unknown place and time without having been admitted or
paroled.” Doc. 5 at 3. But Petitioner alleges that he was arrested in “Sylmar, CA, far from the
border and approximately 162 miles from the San Ysidro, CA port of entry.” Doc. 1 ¶ 2.
Counsel for Federal Respondents stated at the November 3 hearing that Respondents possessed
no information regarding how long Petitioner has been in the United States. Doc. 20 ¶ III(b)(i).
Petitioner’s allegation that he was apprehended after being in the United States for nineteen years
and Respondents’ failure to show otherwise at this stage in the proceedings is consistent with the
conclusion that he is an “alien[] already present in the United States” subject to § 1226(a).
Jennings, 583 U.S. at 303. Another court in this district previously found that § 1226(a) likely
applies to noncitizens who have been present in the United States for less time than Petitioner
alleges. See Garcia Domingo, 2025 WL 2941217, at *4 (finding that a petitioner who had been
present in the United States for nine years was likely to succeed on the merits of his claim that he
had been erroneously classified as an “applicant for admission”).
Respondents’ briefing is contradictory on this issue. On the one hand, they state—like
the Supreme Court did in Jennings—that § 1226 applies to “noncitizens who previously entered
the United States” and that § 1225 applies to “noncitizen arriving aliens seeking an initial entry.”
Doc. 5 at 14; cf. Jennings, 583 U.S. at 297, 303. On the other hand, they cite the BIA’s reasoning
in a recent decision, In the Matter of Yajure Hurtado, that “[r]emaining in the United States for a
lengthy period of time following entry without inspection, by itself, does not constitute an
admission,” and that “[t]o hold otherwise would lead to an incongruous result that rewards aliens
who unlawfully enter the United States without inspection and subsequently evade apprehension
for number of years.” Doc. 5 at 5 (quoting Yajure Hurtado, 29 I. & N. Dec. 216, 228 (BIA 2025)
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 16 of 36

17
(internal quotations omitted)). Respondents thus seem to be making the incongruous argument
that the BIA was correct in determining that § 1226 should not apply to immigrants who
previously entered the United States illegally, even while acknowledging that § 1226 applies to
immigrants who previously entered the United States. Respondents do not address the Supreme
Court’s statement in Jennings that “§ 1226 applies to aliens already present in the United States,”
583 U.S. at 303. At the November 3 hearing, counsel for Federal Respondents conceded that he
was not aware of any court within the Tenth Circuit that has held that an alien who has resided in
the country for more than a decade is an arriving alien. Doc. 20 ¶ III(a)(ii).
A brief discussion of the BIA’s decision in Yajure Hurtado is warranted. In Yajure
Hurtado, a citizen of Venezuela crossed into the United States without inspection in November
2022. 29 I&N Dec. at 216. He was granted temporary protected status in 2024; that status
expired on April 2, 2025, and he was apprehended by immigration officials days later. Id. at
216–17. He requested a bond hearing before an immigration judge, but the judge held that he
had no jurisdiction to set bond. Id. at 217. The BIA considered whether the INA required
noncitizens who entered the United States without admission or inspection but have been
residing in the country for years to be subject to mandatory detention. Id. at 220. The BIA
concluded that noncitizens apprehended after already entering the United States remain
“applicants for admission” within the meaning of § 1225(b), because “[r]emaining in the United
States for a lengthy period of time following entry without inspection, by itself, does not
constitute an admission,” nor does “being arrested pursuant to a warrant and placed into removal
proceedings.” Id. at 228 (internal quotations omitted). The BIA reasoned that to hold otherwise
would reward noncitizens for evading apprehension and punish noncitizens who present
themselves at ports of entry. Id.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 17 of 36

18
Decisions of the BIA are persuasive, not binding, authority on the Court, and I
recommend that the Court reject the holding of Yajure Hurtado. The Supreme Court recently
directed district courts that they “must exercise independent judgment in determining the
meaning of statutory provisions” and “may not defer to an agency interpretation of the law
simply because a statute is ambiguous.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394,
413 (2024); see also Sampiao, 2025 WL 2607924, at *8 n.11. For the reasons discussed above,
the BIA’s conclusion conflicts with the Supreme Court’s reasoning in Jennings that § 1226
applies to noncitizens already residing in the United States. 583 U.S. at 303. While no decisions
of courts in this district have yet explicitly rejected Yajure Hurtado, their previous determinations
that noncitizens already present in the United States are subject to § 1226 necessarily implies a
rejection of Yajure Hurtado. See Garcia Domingo, 2025 WL 2941217, at *4; Pastrana-Saigado,
No. 2:25-cv-00950-MLG-LF, Doc. 24 at 1–2; Cortez-Gonzalez, No. 2:25-cv-00985-MLG-KK,
Doc. 16 at 1–2. Indeed, numerous other district courts have explicitly rejected Yajure Hurtado.
See, e.g., Martinez-Elvir, 2025 WL 3006772, at *10 (“[T]he Court disagrees with the BIA’s
conclusion that a noncitizen’s mere continued presence in the country alone means that they are
‘seeking admission’ when the noncitizen never attempted to obtain lawful status.”); Sampiao,
2025 WL 2607924, at *8 n.11. Another district court explained:
One of the only courts that has embraced this new legal interpretation of the INA
is the Board of Immigration Appeals (“BIA”) . . . In contrast, most of the federal
district courts that have considered this issue determined that 8 U.S.C. § 1226
rather than 8 U.S.C. § 1225 applies to noncitizens who have resided in the United
States for years, do not have a removal order, and are detained by ICE.
Gutierrez v. Baltasar, No. 25-CV-2720-RMR, 2025 WL 2962908, at *1 (D. Colo. Oct. 17, 2025).
That court noted that “[o]nly three of the thirty-eight decisions, none of which are from [the
Tenth Circuit], citing the BIA’s decision in Yajure Hurtado, have denied the relief requested by
the noncitizen.” Id. at *5.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 18 of 36

19
For the reasons provided above, I recommend that the Court find that the IJ erred in
treating Petitioner as “an applicant for admission” under § 1225(b)(2)(A) rather than finding that
he is an alien who was arrested and issued a warrant and notice to appear under § 1226(a), and
that Petitioner is entitled to a bond hearing pursuant to § 1226(a).
Respondents argue that Petitioner fails to establish a due process violation even if § 1226
applies, because “[h]is detention is not indefinite, and he is receiving process.” Doc. 5 at 15.
Respondents cite Mwangi v. Terry, 465 F. App’x 784, 787 (10th Cir. 2012). In Mwangi, the
Tenth Circuit affirmed a district court’s dismissal of a habeas petition alleging that the IJ’s denial
of bond violated his due process rights. Id. at 788. However, the petitioner in Mwangi, unlike
Petitioner here, was determined to be subject to detention under § 1226(a) before he filed his
habeas petition. Id. at 786–87. The petitioner in Mwangi, unlike Petitioner, was afforded a bond
hearing pursuant to § 1226(a), and at that bond hearing the IJ denied bond after finding that the
petitioner posed a danger to society. Id. at 786. The petitioner in Mwangi challenged the IJ’s
discretionary decision to deny him bond, and the Tenth Circuit affirmed the district court’s
finding that it lacked jurisdiction over the IJ’s discretionary decision. Id. at 786–87. In this case,
the IJ did not make any finding as to Petitioner’s flight risk or danger and instead found that he
lacked discretion to make any decision about bond. Doc. 1 ¶ 29. Petitioner is not challenging a
discretionary decision by the IJ that he be denied bond because he poses a flight risk or a danger,
but rather the IJ’s determination that he is statutorily ineligible for bond. Mwangi is not
applicable under these facts, and I recommend that the Court find that Petitioner’s erroneous
classification under § 1225(b)(2)(A) violated Petitioner’s due process rights in that Petitioner
was denied a bond hearing pursuant to § 1226(a).
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 19 of 36

20
III. 	Whether the Petition Should Be Dismissed Even if § 1226 Applies
Finally, Respondents argue that, should the Court find that § 1226 applies rather than
§ 1225, the petition still should be denied because (A) Petitioner failed to exhaust his
administrative remedies; (B) he is not entitled to shift the burden of proof to the government
during the bond hearing, and (C) he is not entitled to immediate release. Doc. 5 at 15–18.
A. Exhaustion of Administrative Remedies
Respondents first argue that “prudential exhaustion requirements still bar [Petitioner’s]
claim because he failed to appeal the July 30, 2025, Order of the Immigration Judge denying his
request for a custody redetermination.” Doc. 5 at 15. While Petitioner claims he filed a notice of
appeal on August 22, 2025, Doc. 1 ¶ 21, Respondents assert that there is no record of the appeal,
Doc. 5 at 15. Respondents also point out that the notice that Petitioner alleges he filed is largely
incomplete and omits crucial information. Doc. 5 at 15–16; see Doc. 1-3 at 2–4 (Pet’r’s Ex. B).
Petitioner responded that exhaustion is not mandatory and that any appeal to the BIA would have
been futile. Doc. 13 at 8–9.
Petitioners ordinarily are required to exhaust administrative remedies before seeking a
writ under § 2241, but exhaustion is not a statutory requirement. Garza v. Davis, 596 F.3d 1198,
1203 (10th Cir. 2010); see also Soberanes v. Comfort, 388 F.3d 1305, 1310–11 (10th Cir. 2004)
(Although appealing to the BIA normally is required to obtain subsequent judicial review,
exhaustion deficiencies do not affect habeas jurisdiction over challenges to immigration
detention.). As another court within the Tenth Circuit recently explained in the context of an
immigration habeas matter, “exhaustion is typically nonjurisdictional, and courts treat a rule as
jurisdictional only if Congress clearly states that it is.” Salvador F.-G. v. Noem, No. 25-CV-
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 20 of 36

21
0243-CVE-MTS, 2025 WL 1669356, at *6 (N.D. Ok. June 12, 2025) (citation modified)
(quoting Santos-Zacaria v. Garland, 598 U.S. 411, 416–17 (2023)). Section 1252(d)(1) of title
8, United States Code, does impose an administrative exhaustion requirement, but only as to
challenges to final orders of removal and not to challenges of pre-removal detention. See id.; see
also Gonzales v. O’Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (explaining that administrative
exhaustion applies to challenges of final orders of removal but not to challenges to preliminary
custody or bond determinations). Respondents concede that the “exhaustion requirement is
prudential, rather than jurisdictional, for habeas claims.” Doc. 5 at 12 (quoting Hernandez v.
Sessions, 872 F.3d 976, 988 (9th Cir. 2017)). And where exhaustion is not jurisdictional, “sound
judicial discretion governs.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992), superseded by
statute on other grounds as stated in Woodford v. Ngo, 548 U.S. 81, 84–85 (2006); see also L.G.
v. Choate, 744 F. Supp. 3d 1172, 1181 (D. Colo. 2024) (“When Congress does not require
exhaustion in the statute then the district court has discretion to decide if administrative
exhaustion is required.”); Lopez-Arevelo v. Ripa, No. EP-25cv337, 2025 WL 2691828 at *6
(W.D. Tex. Sept. 22, 2025) (“To wait, indefinitely, for a ruling on that appeal would be
inappropriate because it would exacerbate [the petitioner’s] alleged constitutional injury—
detention without a bond hearing.”); Lopez v. Barr, 458 F. Supp. 3d 171, 176 (W.D.N.Y. 20202)
(“[C]ourts can excuse a failure to exhaust if the case presents a substantial constitutional
question.”).
Even if administrative exhaustion were required, the Tenth Circuit has recognized a
“narrow exception to the exhaustion requirement” where “a petitioner can demonstrate that
exhaustion is futile.” Garza, 596 F.3d at 1203–04; see also Carr v. Saul, 593 U.S. 83, 93 (2021)
(“It makes little sense to require litigants to present claims to adjudicators who are powerless to
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 21 of 36

22
grant the relief requested.”). In Garza, for example, the Tenth Circuit rejected a petitioner’s
argument that appeal through the Bureau of Prisons (“BOP”) was futile, reasoning that the BOP
memoranda that the petitioner relied on did “not reflect any policy of categorical denial.” 596
F.3d at 1204.
The BIA’s decision in Yajure Hurtado appears to categorically deny relief to noncitizens
who, like petitioner, are apprehended after residing in the country and who seek to challenge an
immigration judge’s determination that they are subject to mandatory detention under § 1225(b).
See Mosqueda, 2025 WL 2591530, at *1, *7 (explaining that, in publishing Hurtado, the BIA
“adopted the legal interpretation of the new DHS policy” that categorically “considers anyone
arrested within the United States and charged with being inadmissible under 8 U.S.C.
§ 1182(a)(6)(A)(i) to be an ‘applicant for admission’ under 8 U.S.C. § 1225(b)(2)(A)”).
Respondents focus on the timeliness of Petitioner’s appeal, or lack thereof, rather than assert that
the BIA would not have categorically denied him relief. See Doc. 5 at 12–13, 15–16.
Respondents argue that the exhaustion exemption should not apply because Yajure Hurtado was
decided after Petitioner’s period to appeal the immigration judge’s determination had expired,
but they cite no authority for their contention that the futility exemption only applies if a
petitioner timely appeals. See Doc. 5 at 16. Respondents’ argument also assumes that, had
Petitioner timely appealed, the BIA would have rendered a decision in his case before it
published Yajure Hurtado. Assuming, for the sake of argument, that Petitioner did file a valid
notice of appeal on August 22, 2025—an earlier date than when Petitioner’s 30-day appeal
period expired, Doc. 5 at 16—the BIA would have had only fourteen days to review his case
before it published its opinion in Yajure Hurtado. For reference, Yajure Hurtado was published
140 days after the challenged custody determination in that case and thirty-seven days after the
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 22 of 36

23
July 30, 2025, order that Petitioner is challenging.7 Respondents’ argument also assumes that the
BIA would have reached a different conclusion as to Petitioner’s case than it did in Yajure
Hurtado. See Mosqueda, 2025 WL 2591530, at *7 (explaining that the court was “not convinced
that administrative review would allow BIA to correct its own mistakes” and that until “BIA no
longer applies a policy that likely violates federal law, the circumstances do not present a need
for requiring prudential exhaustion”).
There may be circumstances where a petitioner’s failure to timely appeal should foreclose
application of the futility exception, but the facts here do not justify such a conclusion. While
the time for Petitioner to appeal the IJ’s determination expired on August 30, 2025, Yajure
Hurtado was published only six days later, and there is no reasonable possibility that the BIA
would not have applied Yajure Hurtado to Petitioner’s case. I therefore recommend that the
Court exercise its “sound judicial discretion,” see McCarthy, 503 U.S. at 144, and find that
Petitioner was not required to exhaust his administrative remedies before seeking habeas relief.
Even if administrative exhaustion were required, Petitioner has demonstrated that appealing the
IJ’s determination to the BIA would have been futile.
B. Whether Petitioner is Entitled to Burden Shifting at a § 1226(a) Bond Hearing
Should the Court order a § 1226(a) bond hearing for Petitioner, the parties disagree about
who should bear the burden of proof at that hearing. Doc. 5 at 16–17; Doc. 13 at 19–22.
Petitioner argues that the government should be required to demonstrate that Petitioner’s
continued detention is warranted. Doc. 13 at 18–22. Respondents argue that noncitizens bear
the burden of proof in bond hearings and that the burden only shifts to the government where
7 The challenged order in Yajure Hurtado was issued on April 18, 2025, and the BIA published
its opinion on September 5, 2025. 29 I&N Dec. at 216.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 23 of 36

24
there is prolonged detention. Doc. 5 at 16–17. Respondents argue that Petitioner has “been
detained for less than four months,” which is not long enough to constitute prolonged detention.
Id. at 17.
Section 1226(a) of title 8, United States Code, is silent as to which party bears the burden
of proof at a bond hearing. Section 1226(c)(4) states, in part, that a noncitizen may not be
released unless he or she “satisfies the Attorney General” that the person is neither a flight risk
nor a danger, but that subsection relates to the detention of noncitizens with criminal records.
See § 1226(c)(1). The implementing regulations do not specify which party bears the burden,
simply stating that both parties may present evidence. See 8 C.F.R. § 1003.19(d) (2025) (“The
determination of the Immigration Judge as to custody status or bond may be based upon any
information . . . that is presented to him or her by the alien or the Service.”). The Supreme Court
also has not clarified which party bears the burden. See Sharon Shaji, Note, The Due Process
Owed to Noncitizens, 44 Cardozo L.R. 1635, 1638 (2023) (“In the absence of guidance from the
Supreme Court, federal circuit courts of appeals have produced a variety of approaches to burden
of proof allocation in § 1226(a) bond hearings.”). The Tenth Circuit has yet to decide this issue,
and the circuits that have are split. See Hernandez-Lara v. Lyons, 10 F.4th 19, 27–41 (1st Cir.
2021) (applying the Supreme Court’s Mathews v. Eldridge8 test before holding that with respect
to a petitioner who had been in custody for ten months, the government bore the burden of
proving danger by clear and convincing evidence or flight risk by a preponderance of the
8 The three factors a court must balance under the test articulated in Mathews v. Eldridge are:
(1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” 424 U.S. 319, 335 (1976).
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 24 of 36

25
evidence); Velasco Lopez v. Decker, 978 F.3d 842, 851, 855–57 (2d Cir. 2020) (applying the
Mathews test before holding that, after a showing of prolonged detention, the government bore
the burden of proving danger and flight risk by clear and convincing evidence); Borbot v. Warden
Hudson Cnty. Corr. Facility, 906 F.3d 274, 279 (3d Cir. 2018) (holding that the detainee bears
the burden of proof under § 1226(a)); Miranda v. Garland, 34 F.4th 338, 365–66 (4th Cir. 2022)
(applying the Matthews test and holding that noncitizens bear the burden of proving by a
preponderance of the evidence that they are neither a danger nor flight risk); Rodriguez Diaz v.
Garland, 53 F.4th 1189, 1193– 94, 1203–14 (9th Cir. 2022) (agreeing with the reasoning of the
Third and Fourth Circuits and holding that a petitioner was not entitled to a second bond hearing
where the government bore the burden of proof).
Petitioner cites a recent decision in this district that shifted the burden to the government
in a § 1226(a) bond proceeding. See Doc. 13 at 20 (citing Salazar v. Dedos, No. 1:25-cv-00835-
DHU-JMR, 2025 WL 2676729 (D.N.M. Sept. 17, 2025)). In Salazar, after determining that a
petitioner was subject to § 1226(a) rather than § 1225(b), the court examined whether the
government should bear the burden of proof at a subsequent bond hearing. 2025 WL 2676729 at
*6. The court found that courts typically applied one of two tests, and that shifting the burden to
the government was warranted under either. Id.
The first test is from a case that Respondents principally cite on this issue, L.G. v. Choate,
where the District Court of Colorado applied the three-factor test from Mathews v. Eldrige to
determine whether burden shifting was appropriate. 744 F. Supp. 3d 1172 (D. Colo. 2024); see
Doc. 5 at 16–17. The first Mathews factor involves balancing the private interest affected by the
official action. 2025 WL 2676729 at *6. The court in Salazar found that factor weighed in favor
of a petitioner who had been detained and separated from his family without a bond hearing for
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 25 of 36

26
less than three months. Id. at *7. Here, Petitioner has been detained for longer—over four
months—during which he remains separate from his family, including his mother who has a
history of cancer. See Doc. 1 ¶¶ 30. Petitioner also alleges he suffers from diabetes and claims
to be in pain because CCCC staff have not always provided him with proper medication. Id.
Respondents cite Choate for support because the detention in that case was thirty months long.
Doc. 5 at 17 (citing 744 F. Supp. 3d at 1178, 1181). The court in Salazar rejected that argument,
explaining that “the cases where the burden was shifted did not hinge on the duration of
detention; rather, they independently assessed what due process requires, considering the length
of detention among several other factors.” Salazar, 2025 WL 2676729 at *8.
The second Mathews factor involves the risk of erroneous deprivation of the petitioner’s
private interest through procedures used and the probable value of additional or different
procedural safeguards. Id. at *6. The court in Salazar found that shifting the burden to the
government at a bond hearing “likely will reduce the risk of the continuing erroneous deprivation
of Petitioner’s liberty interest.” Id. at *7. In reaching that conclusion, the court focused on how
the petitioner attempted to prove he was not a danger nor a flight risk by submitting evidence to
the IJ, who then appeared to not consider the materials at all. Id. The same is true here.
Petitioner described the evidence submitted to the immigration judge in support of bond, Doc. 1
¶¶ 28, 30, but the judge “did not make any factual findings” and instead issued a one-paragraph
order asserting that the judge lacked jurisdiction, id. ¶ 29. As the court concluded in Salazar,
requiring Respondents “to prove by clear and convincing evidence that Petitioner is a flight risk
and/or a danger to the community ameliorates” concerns that Petitioner will continue to languish
in custody “without meaningful consideration of these materials.” 2025 WL 2676729 at *7.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 26 of 36

27
The third Mathews factor focuses on “the government’s interest, including the fiscal and
administrative burdens that the additional or substitute procedures would entail.” Id. at *6. The
court in Salazar held that “where [the petitioner] has submitted materials attempting to show that
he is neither a flight risk nor dangerous, . . . the Government has no interest in detaining
Petitioner absent a showing by them that the Petitioner is, in fact, at risk of flight or a danger to
the community.” Id. at *7. As in Salazar, Petitioner here submitted evidence to the immigration
judge that he is neither a flight risk nor dangerous, and the immigration judge did not make any
findings that suggested he was a flight risk or dangerous. Doc. 1 ¶¶ 28–30. The court in Salazar
further held that shifting the burden does not impose an unreasonable administrative or fiscal
burden on the government, because it “has vast resources at its disposal to gather information
about Petitioner’s eligibility for bond.” 2025 WL 2676729 at *8; see also Velasco Lopez, 978
F.3d at 853 (noting that a petitioner “was neither a flight risk nor a danger to the community but
was unable to prove that was the case” while “the Government had substantial resources to
deploy” in making that inquiry); Hernandez-Lara, 10 F. 4th at 31 (reasoning that “the
government is generally far more able to meet the burden of proof on the question of danger than
a detained noncitizen” and that noncitizens “face significant barriers to accessing” evidence
related to flight risk “in the wake of their seizure and initial detention.”); Choate, 744 F. Supp. 3d
at 1185 (noting that “the government, and therefore the public, may save fiscal resources if
detention is only used for noncitizens who are proven to be a flight risk or dangerous”).
After concluding that burden-shifting was warranted under the first test, the court in
Salazar also considered a second test that considered the “government’s and the individual’s
respective interests, and then consider[ed] whether the existing process adequately balanced and
protected the two.” Salazar, 2025 WL 2676729 at *8 (citing Diaz-Ceja v. McAleenan, No. 19-
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 27 of 36

28
cv-00824-NYW, 2019 WL 2774211, at *9 (D. Colo. 2019)). The court determined that the
government’s interest in detaining a petitioner is minimal absent a showing of flight risk or
danger to the community, while a petitioner’s “interest in liberty, on the other hand, is
particularly strong after nearly three months of detention, separated from his family and
community, without the opportunity for a meaningful bond hearing.” Id. Here, Petitioner has
attempted to demonstrate that he is neither a flight risk nor a danger to the community, Doc. 1 ¶¶
28–30, yet he remains “separated from his family and community, without the opportunity for a
meaningful bond hearing” for longer than the petitioner in Salazar. See 2025 WL 2676729 at *8.
Because the facts here are nearly identical to those in Salazar, except that Petitioner has
been detained for longer, I recommend that the Court follow Salazar and order that the
government bear the burden at a § 1226(a) bond hearing of proving by clear and convincing
evidence that Petitioner is a flight risk or a danger to the community.
C. Whether Petitioner’s Immediate Release is an Appropriate Remedy
One of Petitioner’s prayers for relief is his “immediate release from ICE custody,” or
alternatively, “an immediate, constitutionally adequate individualized custody determination.”
Doc. 1 at 19. Respondents argue that immediate release is not an appropriate remedy. Doc. 5 at
17–18. Petitioner did not directly respond to this argument in briefing, but at the November 3
hearing, his counsel argued that Petitioner’s immediate release would guard against the danger
that Petitioner will be unlawfully removed from the country before this case has been resolved.
Doc. 20 ¶ VII.
In similar cases in this district, courts have ordered a prompt bond hearing but not the
petitioner’s immediate release. See Salazar, 2025 WL 2676729, at *9 (ordering respondents to
provide petitioner with a § 1226(a) bond hearing but only ordering immediate release if
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 28 of 36

29
respondents did not provide that bond hearing within seven days); Cortez-Gonzalez, 2:25-cv-
00985-MLG-KK, Doc. 16 at 2 (ordering respondents to provide petitioner with a § 1226(a) bond
hearing within seven days but not ordering immediate release). In Pastrana-Saigado, the Court
ordered Petitioner immediately released upon payment of a $3,500 bond, but only because the IJ
already had determined that the petitioner was neither a danger nor a flight risk and had stated
that he would order release on a $3,500 bond if he had authority to do so. 2:25-cv-950-MLG-LF,
Doc. 24 at 2. In line with these other cases, I recommend that the Court order Respondents to
provide Petitioner with a bond hearing pursuant to § 1226(a) at which the government bears the
burden of proving by clear and convincing evidence that Petitioner is a flight risk or a danger to
the community within seven days of the Court’s order. However, I recommend that the Court
only order Petitioner’s immediate release if he is not afforded a bond hearing within seven days.
IV. 	Petitioner’s Request for an Injunction Prohibiting His Transfer Outside of the
District of New Mexico
While Petitioner has not moved for a temporary restraining order or a preliminary
injunction, Petitioner did request in his prayers for relief that that the Court “[p]rohibit
Petitioner’s transfer outside the District of New Mexico during the pendency of this action.”
Doc. 1 at 19. Respondents did not address this request in briefing but argued against it during
the November 3 hearing and provided case law in support of their position.
Respondents first argued that the Court lacks jurisdiction to enjoin Petitioner’s transfer
outside of the District, citing another district court case, Edison C. F. v. Decker, No. 20-15455
(SRC), 2021 WL 1997386 (D.N.J. May 19, 2021). Doc. 20 ¶ V. In Edison, a habeas petitioner in
ICE custody moved for a temporary restraining order enjoining the government from transferring
him to another facility. 2021 WL 1997386, at *6. The court first noted “that it is extremely
doubtful that [it] has jurisdiction to enjoin his transfer in this habeas matter,” because “Congress
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 29 of 36

30
has provided the Government with considerable discretion in determining where to detain aliens
pending removal or the outcome of removal proceedings.” Id. The court cited several other
cases within its district that found that there was no jurisdiction to enjoin the transfer of an alien
in an immigration habeas matter. Id. However, the Court did “not reach the ultimate question of
jurisdiction,” because it determined that the petitioner failed to meet the requirements for a
preliminary injunction. Id. At the November 3 hearing, counsel for Respondents acknowledged
that other judges in the District of New Mexico have enjoined the government from transferring
habeas petitioners outside of the District. Doc. 20 ¶ V(a).
In Perez Parra v. Castro, for example, the court granted petitioners’ motion for a
temporary restraining order enjoining their transfer outside of the District of New Mexico. 765
F. Supp. 3d 1241, 1242 (D.N.M. 2025). Petitioners cited the “transfers of Venezuelans depicting
similar characteristics to Petitioners” and requested an injunction preventing their transfer to the
U.S. Naval Base at Guantanamo Bay. Id. at 1243. At the time, the court could not say “that
without this injunction it would not be jurisdictionally deprived to preside over the original writ
of habeas corpus should petitioners be transferred,” and thus found “an injunction is necessary to
achieve the ends of justice entrusted to this Court.” Id. The court further cited “many instances
where district courts utilize[d] [their] inherent authority under the [All Writs Act] to retain
jurisdiction and enjoin transfers.” Id. at 1243–44 (citing SEC v. Vision Communs., 74 F.3d 287,
291 (D.C. Cir. 1996); Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 54 (D.D.C. 2004); Lindstrom v.
Graber, 203 F.3d 470, 474–76 (7th Cir. 2000)). More recently, courts in this district have
granted temporary restraining orders preventing petitioners’ transfers outside of the District for
purposes of safeguarding jurisdiction. See K.S. v. Castro, No. 2:25-cv-00756-WJ-JMR, Doc. 15
at 2–3 (D.N.M. Oct. 22, 2025) (granting a temporary restraining order enjoining petitioner’s
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 30 of 36

31
transfer outside of the District of New Mexico after finding it “necessary and appropriate to
exercise its inherent authority to enter an order in aid of its jurisdiction in this matter”); Cortez-
Gonzalez v. Noem, No. 2:25-cv-00985-MLG-KK, Doc. 11 at 2 (granting a temporary restraining
order enjoining petitioner’s transfer “to any facility outside the District of New Mexico during
the pendency of this habeas action”); Gamez Lira v. Noem, No. 1:25-cv-00855-WJ-KK, 2025
WL 2581710, at *2, 4–5 (D.N.M. Sept. 5, 2025) (stating that “[t]he Supreme Court has held that
habeas relief is available only in the district of confinement” and finding a temporary restraining
order enjoining petitioner’s removal from the state of New Mexico necessary to retain
jurisdiction) (citing Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004)).
Respondents argued in the alternative that, even if the Court did have jurisdiction to
enjoin Petitioner’s transfer, Petitioner’s transfer outside of the District will not affect the Court’s
jurisdiction over the matter. Doc. 20 ¶ V. Respondents cite Rumsfeld v. Padilla, 542 U.S. 426
(2004). In Padilla, the Supreme Court discussed a case where a petitioner initially filed suit
against her immediate custodian in the Northern District of California, where she was in custody.
Id. at 440 (citing Ex parte Endo, 323 U.S. 283 (1944)). While both the petitioner and her
custodian were located in the Northern District of California when the petition was filed, the
petitioner was moved to Utah during the case. Id. Despite the fact that the petitioner’s
immediate physical custodian was no longer within the Northern District of California, the Court
held that the District Court for the Northern District of California retained jurisdiction because at
least one of the respondents was located in that district. Id. at 440–41. Put simply,
Endo stands for the important but limited proposition that when the Government
moves a habeas petitioner after she properly files a petition naming her immediate
custodian, the District Court retains jurisdiction and may direct the writ to any
respondent within its jurisdiction who has legal authority to effectuate the
prisoner’s release.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 31 of 36

32
Id. at 441. The Endo Court also noted that the issue was “not colored by any purpose to
effectuate a removal in evasion of the habeas corpus proceedings,” 323 U.S. at 304, suggesting
that the holding may have been different had the respondents transferred the petitioner out of the
district with the intent to disrupt the court’s jurisdiction.
Courts in this district have cited Padilla for the proposition that they would lose
jurisdiction over a petitioner’s transfer outside of the District. See Gamez Lira, 2025 WL
2581710, at *2; K.S., No. 2:25-cv-00756-WJ-JMR, Doc. 15 at 2. But Respondents argue that
Padilla holds that the Court will not lose jurisdiction after a petitioner’s transfer outside of the
District so long as at least one of the respondents in control of Petitioner’s custody remains in the
District. Doc. 20 ¶ V. Applying this argument to the facts of this case, Respondent Dedos, as
Warden of the Cibola County Correctional Center, is currently Petitioner’s immediate custodian
and was appropriately named in this suit. Assuming for the sake of argument that Petitioner is
transferred to another district during this case, Respondents argue that Padilla still authorizes this
Court’s jurisdiction over the case even though Warden Dedos would no longer be Petitioner’s
immediate custodian, because at least one of the other Respondents in this case—Respondents
Noem, Bondi, or Anda-Ybarra—are subject to this Court’s jurisdiction and can be ordered to
effectuate any writ or order this Court issues regarding Petitioner’s custody. The Tenth Circuit,
as have other circuits applying Padilla, agree with Respondents. See Pinson v. Berkebile, 604 F.
App’x 649, 652–53 (10th Cir. 2015) (holding that “the District of Colorado acquired jurisdiction
when [the petitioner] filed his habeas petition,” and that his “transfer does not defeat that initial
jurisdiction”) (citing Padilla, 542 U.S. at 440–41); see also Anariba v. Dir. Hudson Cnty. Corr.
Ctr., 17 F.4th 434, 445–47 (3d Cir. 2021) (holding that the District Court for the District of New
Jersey retained jurisdiction over a habeas petitioner that was transferred outside of the district
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 32 of 36

33
during the pendency of the case); Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1238–39 (D.C.
Cir. 2004) (reasoning that if a petitioner filed a petition in the Northern District of Ohio, naming
a warden in Ohio as a respondent, “then under Endo that court would have retained jurisdiction
over his petition notwithstanding [the petitioner’s] later transfer to the federal penitentiary in
South Carolina where he is now incarcerated”); Ozturk v. Hyde, 136 F.4th 382, 391–92 (2d Cir.
2025) (holding that an ICE detainee’s “subsequent transfer to Louisiana [did not] strip the
District of Vermont of habeas jurisdiction” after the petition had been validly filed in the District
of Vermont).
I therefore recommend that the Court deny Petitioner’s request that Respondents be
enjoined from moving Petitioner outside of the District of New Mexico. Should Petitioner be
transferred outside of the District, this Court will retain jurisdiction over the matter and will still
be able to order any appropriate relief. See Padilla, 542 U.S. at 411. However, Petitioner may
move for a temporary restraining order or preliminary injunction should he believe Respondents
will transfer him for “any purpose to effectuate a removal in evasion of the habeas corpus
proceedings.” Endo, 323 U.S. at 304.
V. 	Costs and Reasonable Attorney’s Fees Pursuant to the Equal Access to Justice
Act
Petitioner’s final prayer for relief asks the Court to award him costs and reasonable
attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 1
at 19. The EAJA provides that
a judgment for costs . . . but not including the fees and expenses of attorneys, may
be awarded to the prevailing party in any civil action brought by or against the
United States or any agency or any official of the United States acting in his or
her official capacity in any court having jurisdiction of such action.
28 U.S.C. § 2412(a)(1). The EAJA further provides that
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 33 of 36

34
[e]xcept as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition
to any costs awarded pursuant to subsection (a), incurred by that party in any civil
action (other than cases sounding in tort), including proceedings for judicial
review of agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the position of the
United States was substantially justified or that special circumstances make an
award unjust.
28 U.S.C. § 2412(d)(1)(A). Very recently, the Tenth Circuit held that the EAJA “unambiguously
authorize[s] fees in habeas actions challenging immigration detention.” Daley v. Ceja, No. 24-
1191, — F.4th —, 2025 WL 3058588 (10th Cir. Nov. 3, 2025).
While Respondents did not address Petitioner’s request for attorney’s fees in briefing,
they did argue against the request during the November 3 hearing. During the hearing,
Respondents cited Barco v. Witte, 65 F.4th 782 (5th Cir. 2023), for the proposition that fees are
not recoverable by the prevailing party in a habeas corpus case. Doc. 20 ¶ IV. While
Respondents could not have known it at the time of the hearing, the Tenth Circuit rejected
Barco’s reasoning and holding that same day. Daley, 2025 WL 3058588 at *9. However,
Respondents did argue that even if the EAJA did apply to habeas proceedings, the substantial
justification exception applies because this is a novel area of law without Tenth Circuit authority
on point. Doc. 20 ¶ IV.
A fee award is required under the EAJA if “(1) plaintiff is a ‘prevailing party’; (2) the
position of the United States was not ‘substantially justified’; and (3) there are no special
circumstances that make an award of fees unjust.” Hackett v. Barnhart, 475 F.3d 1166, 1172
(10th Cir. 2007) (quoting 28 U.S.C. § 2412(d)(1)(A)). The EAJA requires a prevailing plaintiff
to, “within thirty days of final judgment in the action, submit to the court an application for fees
and other expenses” that includes an allegation “that the position of the United States was not
substantially justified.” 28 U.S.C. § 2412(d)(1)(B). The Tenth Circuit has stated that “once an
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 34 of 36

35
EAJA application is filed, the government is on notice . . . that it must justify both its position in
any underlying administrative proceedings and its position in any subsequent district court
litigation.” Hackett, 475 F.3d at 1170.
The Court need not determine whether the government’s position was substantially
justified at this point. Should the Court grant the Petitioner relief, the Petitioner may file an
EAJA application alleging that the government’s position was not substantially justified. See id.
Once that application is filed, the government will have the opportunity to demonstrate that its
position in both the underlying immigration case and this present district court litigation was
substantially justified. See id.
CONCLUSION
For the forgoing reasons, I recommend that the Court DENY Respondent’s Motion to
Dismiss (Doc. 5) and GRANT IN PART and DENY IN PART the Petition for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1). I recommend that the Court grant the petition in
that Respondents be ordered to provide Petitioner with an individualized bond hearing pursuant
to § 1226(a), where the government shall bear the burden of justifying by clear and convincing
evidence Petitioner’s continued detention. I recommend that the Court order the bond hearing to
be provided within seven days of its order, and that if Petitioner does not receive a bond hearing
within seven days, that the Court order that Petitioner be immediately released from custody. I
recommend that the Court deny the petition insofar as prohibiting Petitioner’s transfer outside of
the District of New Mexico during the pendency of this action.
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 35 of 36

36
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). Written objections
must be both timely and specific. United States v. One Parcel of Real Prop., With Buildings,
Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73
F.3d 1057, 1060 (10th Cir. 1996). A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party wants to have appellate review
of the proposed findings and recommended disposition. Failure to file timely and specific
objections will result in waiver of de novo review by a district or appellate court. Id. In
other words, if no objections are filed, no appellate review will be allowed.
____________________________________
LAURA FASHING
UNITED STATES MAGISTRATE JUDGE
Case 1:25-cv-00881-SMD-LF Document 21 Filed 11/07/25 Page 36 of 36