Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TOMAS ALFREDO MOLINA OCHOA,
Petitioner,
vs. 	No. CIV 25-0881 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.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Respondents’ Objections to the Proposed
Findings & Recommendation Disposition, filed November 21, 2025 (Doc. 22)(“Objections”). The
Honorable Laura Fashing, United States Magistrate Judge for the United States District Court for
the District of New Mexico, files the Proposed Findings and Recommendation Disposition on
November 7, 2025 (Doc. 21)(“PFRD”). 	The PFRD notifies the parties of their ability to file
Objections within fourteen days and that the failure to file objections waives appellate review.
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PFRD at 36. 	On November 21, 2025, Respondents Kristi Noem1, in her official capacity as
Secretary of the U.S. Department of Homeland Security (“DHS”); Pamela Bondi2, 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 (collectively “Federal Respondents”),3 file the Objections. 	See Objections at 1.
Petitioner Tomas Alfredo Molina Ochoa does not file objections to the PFRD. The primary issues
are: (i) whether the court has subject-matter jurisdiction to hear Ochoa’s habeas petition, where
the Federal Respondents argue § 1252 strips the Court of jurisdiction in three provisions; (ii)
whether the Federal Respondents consent to jurisdiction, where the Federal Respondents make
statements “for the sake of argument”; (iii) whether the Federal Respondents may properly detain
Ochoa under § 1225, where he enters the United States without inspection two decades ago; (iv)
whether the Federal Respondents violate Due Process, where the Federal Respondents do not
provide Ochoa a bond hearing while detaining him for removal proceedings; (v) whether the Court
1 As of March 31, 2026, Noem is no longer the Secretary of Homeland Security. 	See
Trump 	Ousts 	Noem 	as 	Homeland 	Security 	Secretary,
https://www.nytimes.com/live/2026/03/05/us/trump-news (last visited April 9, 2026).
2 As of April 2, 2026, Bondi is no longer the U.S. Attorney General. See Pam Bondi Out
As Attorney General, https://www.politico.com/news/2026/04/02/pam-bondi-attorney-general-
justice-department-00855413 (last visited April 9, 2026).
3 The Federal Respondents’ counsel notes that they “do not represent George Dedos,
Warden, Cibola County Correctional Center, as that is a private facility, and Warden Dedos is not
a federal employee.” Objections at 1 n.1. The Federal Respondents’ counsel does state, however,
that all arguments made on the Federal Respondents behalf “apply with equal force to Warden
Dedos,” because he is detaining Petitioner Tomas Alfred Molina Ochoa at the United States of
America’s request. Objections at 1 n.1.
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should dismiss Ochoa’s habeas petition for failing to exhaustion his administrative remedies,
where the exhaustion requirement is discretionary or where the futility exception applies; (vi)
whether the Court should shift the burden to the Federal Respondents to prove continued detention
is appropriate for Ochoa, if the Court determines a bond hearing is necessary; (vii) whether the
Court should adopt the results that Magistrate Judge Fashing recommends in the PFRD that the
Court deny the MTD, and (viii) whether the Court should grant in part and deny in part the Verified
Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, filed September 11, 2025 (Doc.
1)(“Petition”). Pursuant to rule 72(b) of the Federal Rules of Civil Procedure, the Court conducts
a de novo review of the record to which the Federal Respondents properly object, and has “given
fresh consideration to” all parts of the PFRD to which the Respondents properly objects. United
States v. Raddatz, 447 U.S. 667, 675 (1980)(“Raddatz”). 	Accordingly the Court adopts the
PFRD’s recommendations to which the Federal Respondents do not object and conclude as
following, with respect to the Objections: (i) the Court has subject-matter jurisdiction to hear
Ochoa’s habeas petition, where the Federal Respondents argue § 1252 strips the Court of
jurisdiction, because Ochoa challenges his detention as unlawful without a final order of removal;
(ii) the Federal Respondents do not consent to jurisdiction, where the Federal Respondents make
statements “for the sake of argument,” because the Court independently determines it retains
jurisdiction and the Petition is not moot; (iii) the Federal Respondents may not detain Ochoa under
§ 1225, where he enters the United States without inspection two decades ago, because he is not
an “arriving alien,” nor is he “seeking admission”; (iv) the Federal Respondents do not violate Due
Process, where the Federal Respondents do not provide Ochoa a bond hearing while detaining him
for removal proceedings, because the Court determines the Federal Respondents’ conduct is a
statutory violation and does not amount to a Constitutional violation; (v) the Court does not dismiss
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Ochoa’s habeas petition for failing to exhaustion his administrative remedies, where the exhaustion
requirement is prudential, because requiring exhaustion goes against sound judicial discretion; and
(vi) the Court does not shift the burden to the Federal Respondents to prove continued detention
is appropriate for Ochoa, because the writ of habeas corpus is for securing a petitioner’s release
from unlawful detention and because Ochoa does not make the showing necessary to extend the
writ at this time.
FACTUAL BACKGROUND
In the Objections, the Federal Respondents do not address specifically or meaningfully the
PFRD’s factual background. See Objections at 1-12. See One Parcel of Real Prop., With Bldgs.,
Appurtenances, 	Improvements, 	and 	Contents, 	73 	F.3d 	1057, 	1060 	(10th 	Cir.1996)(“One
Parcel”)(observing “that a party’s objections to the magistrate judge’s report and recommendation
must be both timely and specific to preserve an issue for de novo review by the district court or
for appellate review”). Accordingly, the Court adopts the factual background as Magistrate Judge
Fashing reports in the PFRD, noting where Respondents do raise objects.
Here, the Court briefly reiterates the pertinent details. Around 2006, or roughly nineteen
years ago, Ochoa enters the United States of America from Guatemala. See PFRD at 2 (citing the
Petition ¶ 1, at 1). 	On June 24, 2025, an unmarked vehicle detains Ochoa and takes him into
immigration custody from private property in Sylmar, California. 	See PFRD at 2 (citing the
Petition ¶ 2, at 2). 	The United States charges Ochoa with entering the United States without
inspection under 8 U.S.C. § 1182(a)(6)(A)(i), serves Ochoa with an arrest warrant, and places him
in removal proceedings. See PFRD at 2 (citing the Petition ¶ 2, at 2).
While in removal proceeding, an immigration law judge (“ILJ”) from the Otero
Immigration Court determines Ochoa is ineligible for a bond hearing and is subject to mandatory
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detention. PFRD at 2 (citing the Petition ¶¶ 3-5, at 2-2). At the hearing, the ILJ makes “no factual
findings” that Ochoa is a flight risk or danger to the community. PFRD at 2 (citing the Petition ¶
5, at 2-3). Instead, the ILJ concludes Ochoa is an “applicant “who is “seeking admission” under
8 U.S.C. § 1225(b)(2)(A). PFRD at 2 (citing the Petition ¶ 5, at 2-3). On July 30, 2025, the ILJ
issues an order, and Ochoa has thirty days to file an appeal with the Board of Immigration Appeals
(“BIA”). See PFRD at 20 (citing the MTD at 15).
PROCEDURAL BACKGROUND
On November 7, 2025, Magistrate Judge Fashing files the PFRD. 	See PFRD at 1.
Respondents file the Objections on November 21, 2025. See Objections at 1. In the Objections,
the Respondents make five objections to the PFRD. 	See Objection at 1-12. 	First, the Federal
Respondents Object to the PFRD’s recommendation that the Court has subject-matter jurisdiction.
See Objections at 2. Second, the Federal Respondents Object to the PFRD’s implication that the
Federal Respondents concede jurisdiction. See Objections at 7. Third, the Federal Respondents
Object to the PFRD’s recommendation that § 1226 applies. 	See Objections at 8. 	Fourth, the
Federal Respondents Object to the PFRD’s recommendation that Ochoa need not exhaust
administrative remedies. 	See Objections at 8. 	Finally, the Federal Respondents Object to the
PFRD’s recommendation that burden shifting is appropriate should the Court require a bond
hearing. See Objections at 11.
1. 	The First Objection: Subject-Matter Jurisdiction.
The Federal Respondents argue that “at least three provisions” of § 1252 bar the Court’s
review of Ochoa’s claims. 	Objections at 2. 	The first bar, the Federal Respondents argue, is
§ 1252(e)(3). 	See Objections at 2. According to the Federal Respondents, § 1252(e)(3) “limits
judicial review of ‘determinations under § 1225(b) of this title and its implementation’ to only the
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District Court for the District of Columbia.” Objections at 2 (quoting §1252(e)(3)). The Federal
Respondents assert that § 1252(e)(3) “applies broadly to judicial review of § 1225(b), not just
determination under § 1225(b)(1).” Objections at 2 (citing Russell v. United States, 464 U.S. 16,
23 (1983). 	Section 1252(e)(3) is relevant, according to Respondents, because the “Petitioner
challenges the determination . . . that aliens who entered the United States without inspection are
subject to mandatory detention under § 1225(b)(2).” Objections at 3. The Federal Respondents
argue that the challenge, therefore, “seeks judicial review of a written policy or guidelines
implementing § 1225(b).” Objections at 3.
The Federal Respondents argue that § 1252(g) “categorically bars jurisdiction over ‘any
cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of
Homeland Security] to commence proceedings, adjudicate cases or execute removal orders against
any aliens.” Objections at 3 (emphasis and alterations in the original). The Federal Respondents
argue that detention arises from the decision to commence removal proceedings. See Objections
at 3. The detention pending removal, the Federal Respondents argue, is a “‘specification’” of the
decision to commence proceedings. 	Objections at 4 (quoting Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 485 n.9 (1999)(“Reno”)). 	The Federal Respondents
conclude that § 1252(g) prohibits judicial review. See Objections at 4.
The Federal Respondents argue that § 1252(b)(9) limits judicial review to Courts of
Appeals. 	See Objections at 4. 	According to the Federal Respondents, § 1252(b)(9) limits
“‘judicial review of all questions of law . . . including interpretation and application of statutory
provisions . . . arising from any action taken . . . to remove an alien from the United States’. . . [to]
the appropriate court of apples in the form of a petition for review of final removal order.”
Objections at 4 (citing 8 U.S.C. § 1252(b)(9) and Reno, 525 U.S. at 483). According to the Federal
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Respondents, § 1252(b)(9), along with § 1252(a)(5), mean that a court can only review any legal
or factual issue arising from any removal-related activity through the petition-for-review process.
See Objections at 5. The Federal Respondents assert that these provisions “divest district courts
of jurisdiction to review both direct and indirect challenges to removal orders, including decisions
to detain for purposes of removal or for proceedings.” 	Objections at 6 (citing Jennings v.
Rodriguez, 583 U.S. 281, 294-95 (2018)(“Jennings”)). The Federal Respondents argue that Ochoa
“challenges the decision and action to detain him,” and is “thus an ‘action taken . . . to remove
[him] from the United States.’” Objections at 6 (quoting 8 U.S.C. § 1252(b)(9)).
2. 	Second Objection: No Concessions to Jurisdiction.
The Federal Respondents Object to the PFRD’s interpretation of their statements
concerning jurisdiction. 	See Objections at 7. 	The Federal Respondents state that “the PFRD
asserts that the Court retains jurisdiction over the case until the order of removal becomes
administratively final and notes that the parties acknowledged this continuing jurisdiction during
the hearing.” Objections at 7 (citing the PFRD at 12). In the Objections, the Federal Respondents
assert that their “statement about jurisdiction assumed, for the sake of argument, that the Court had
jurisdiction to review the petition.” 	Objections at 7. 	Accordingly, the Federal Respondents
conclude, the Court lacks jurisdiction to review the petition. See Objections at 7.
3. 	Third Objection: Detention Under § 1225 and Due Process.
In the third Objection, the Federal Respondents contend that Ochoa’s detention does not
violate due process, because § 1225, rather than § 1226, governs his detention. See Objections at
8. The Federal Respondents cite Peña v. Hyde, No. CIV 25-11983 NMG, 2025 WL 2108913 (D.
Mass. July 28, 2025)(Gorton, J.), where the court finds an “unlawfully present alien, who had been
in the country for approximately twenty years, was nonetheless an ‘applicant for admission’ upon
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plain language reading of the statute.” Objections at 8. The Federal Respondents cite Chavez v.
Noem, 	No. 	3:25-CV-02325-CAB-SBC, 	2025 	WL 	2730228 	(S.D. 	Cal. 	Sept. 	24,
2025)(Bencivengo, J.), for a similar proposition, stating that the Honorable Judge Cathy A.
Bencivengo, United States District Judge for the United States District Court for the Southern
District of California, finds “under plain language reading of § 1225 that petitioners remained
applicants for admission.” 	Objections at 8. 	Finally, the Federal Respondents argue that due
process prohibits only the “unduly prolonged” detention of a noncitizen, and they assert that no
Constitutional violation exists here, because Ochoa’s detention lasts fewer than six months.
Objections at 8.
4. 	Fourth Objection: Exhaustion Requirement.
The Federal Respondents argue that the PFRD minimizes the significance of the exhaustion
requirement. See Objections at 9. The Federal Respondents assert that the United States Court of
Appeals for the Tenth Circuit applies the exhaustion requirement “more strictly.” Objections at 9
(citing Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010)). The Federal Respondents argue
that, 	in 	addition 	to 	the 	Tenth 	Circuit’s 	approach 	to 	the 	exhaustion 	requirement, 	policy
considerations “underscore the importance of exhaustion.” 	Objections at 9 (citing Puga v.
Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)). 	Finally, the Federal Respondents argue that the
futility exception does not excuse Ochoa’s failure to exhaust his administrative remedies. 	See
Objections at 9.
5. 	Fifth Objection: Burden Shifting.
Finally, the Federal Respondents Object to the PFRD’s recommendation of burden shifting
at the bond hearing. See Objections at 11. The Federal Respondents assert that neither Matthews
v. Eldridge, 424 U.S. 319 (1976)(“Matthews”), nor the “more general balancing test” from Diaz-
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Ceja v. McAleenan, No. 19-cv-00824-NYW, 2019 WL 2774211, at *9 (D. Colo. 2019)(Wang,
M.J.) justify burden shifting. 	Objections at 11. 	First, the Federal Respondents assert that
Matthews does not favor burden shifting. 	As to the first factor, the Federal Respondents assert
that Ochoa’s “case is moving quickly,” so the facts does not favor burden shifting. Objections at
11. The second factor also does not favor burden shifting, the Federal Respondents argue, because
Ochoa “is represented by counsel in a fast-moving immigration case.” Objections at 12. Finally,
the Federal Respondents state that the third factor does not favor burden shifting, because the
“government should not be tasked with higher burdens of proof then those proscribed by statute in
the absence of a prolonged detention.” Objections at 12. As for the “alternative dual balancing
test,” the Federal Respondents assert, “there is a statutory process for a bond hearing, and absent
specific facts . . . Petitioner is not entitled to burden shifting.” Objections at 12.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the required
proceedings when assigned, without the parties’ consent, to hear a pretrial matter dispositive of a
claim or defense. . . .”). Rule 72(b)(2) governs objections: “Within 14 days after being served with
a copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). Finally, when resolving
objections to a Magistrate Judge’s proposal, “[t]he district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C.
§ 636 provides:
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A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
“The filing of objections to a magistrate’s report enables the district judge to focus attention
on those issues -- factual and legal -- that are at the heart of the parties’ dispute.” United States v.
One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d
1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).
As the United States Court of Appeals for the Tenth Circuit notes, “the filing of objections
advances the interests that underlie the Magistrate’s Act, including judicial efficiency.” 	One
Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir.1986);
United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit holds “that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” 	One Parcel, 73 F.3d at 1060. 	“To further advance the
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, have
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059. In addition to requiring specificity in objections, the
Tenth Circuit states that “[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
See United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)(“In this circuit, theories
raised for the first time in objections to the magistrate judge’s report are deemed waived.”). In an
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unpublished opinion, the Tenth Circuit states that “the district court correctly held that [a
petitioner] had waived [an] argument by failing to raise it before the magistrate.” Pevehouse v.
Scibana, 229 Fed. Appx. 795, 796 (10th Cir. 2007).4
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expands the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court of the United States -- in the course of approving the United States Court of
Appeals for the Sixth Circuit’s use of the waiver rule -- notes:
It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of review
the district court should perform when no party objects to the magistrate’s report.
See S.Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H.R.Rep. No. 94-
1609, p. 11 (1976), U.S.Code Cong. & Admin. News 1976, p. 6162 (hereafter
House Report). There is nothing in those Reports, however, that demonstrates an
intent to require the district court to give any more consideration to the magistrate’s
report than the court considers appropriate. Moreover, the Subcommittee that
4 Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an unpublished
Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See
10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored. However,
if an unpublished opinion or order and judgment has persuasive value with respect
to a material issue in a case and would assist the court in its disposition, we allow
citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citing In re Citation of
Unpublished Opinions/Orders & Judgments, 151 F.R.D. 470 (10th Cir. 1993)). 	The Court
concludes that Pevehouse v. Scibana, Vaupel v. Ortiz, 244 F. App’x 892 (10th Cir. 2007), Aguilar-
Alvarez v. Holder, 528 F. App’x 862 (10th Cir. 2013), Namgyal Tsering v. U.S. Immigr. &
Customs Enf’t, 403 F. App’x 339 (10th Cir. 2010), Awe v. Napolitano, 494 F. App’x 860 (10th
Cir. 2012), Dawson v. Bd. of Cty. Comm’rs, 732 F. App’x 624 (10th Cir. 2018), and James v.
Chavez,511 F. App’x 742 (10th Cir. 2013), have persuasive value with respect to a material issue,
and will assist the Court in its disposition of this Memorandum Opinion and Order.
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drafted and held hearings on the 1976 amendments had before it the guidelines of
the Administrative Office of the United States Courts concerning the efficient use
of magistrates. Those guidelines recommended to the district courts that “[w]here
a magistrate makes a finding or ruling on a motion or an issue, his determination
should become that of the district court, unless specific objection is filed within a
reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S.
1283 before the Subcommittee on Improvements in Judicial Machinery of the
Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis
added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the
Southern District of New York, the chairman of a Judicial Conference Committee
on the administration of the magistrate system, testify that he personally followed
that practice. See id., at 11 (“If any objections come in, . . . I review [the record]
and decide it. If no objections come in, I merely sign the magistrate’s order.”). The
Judicial Conference of the United States, which supported the de novo standard of
review eventually incorporated in § 636(b)(1)(C), opined that in most instances no
party would object to the magistrate’s recommendation, and the litigation would
terminate with the judge’s adoption of the magistrate’s report. See Senate Hearings,
at 35, 37. Congress apparently assumed, therefore, that any party who was
dissatisfied for any reason with the magistrate’s report would file objections, and
those objections would trigger district court review. There is no indication that
Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review
a magistrate’s report to which no objections are filed. It did not preclude treating
the failure to object as a procedural default, waiving the right to further
consideration of any sort. We thus find nothing in the statute or the legislative
history that convinces us that Congress intended to forbid a rule such as the one
adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original).
The Tenth Circuit also notes, “however, that ‘[t]he waiver rule as a procedural bar need not
be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting Moore
v. United States, 950 F.2d 656, 659 (10th Cir.1991)(“We join those circuits that have declined to
apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s order does not
apprise 	the 	pro 	se 	litigant 	of 	the 	consequences 	of 	a 	failure 	to 	object 	to 	findings 	and
recommendations.”). 	Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while “[a]ny party that
desires plenary consideration by the Article III judge of any issue need only ask,” a failure to object
“does not preclude further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard”). In One Parcel, the Tenth Circuit notes that the district
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judge decides sua sponte to conduct a de novo review despite the objections’ lack of specificity,
but the Tenth Circuit deems the issues waived on appeal, because waiver advances the interests
underlying the waiver rule. 	See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals
where district courts elect to address merits despite potential application of waiver rule, but Courts
of Appeals opt to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s PFRD, on
“dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” United
States v. Raddatz, 447 U.S. 667, 674 (1980). “[I]n providing for a ‘de novo determination’ rather
than de novo hearing, Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate judge’s proposed findings and
recommendations.” United States v. Raddatz, 447 U.S. at 676, (quoting 28 U.S.C. § 636(b) and
citing Mathews v. Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court
to 	consider 	relevant 	evidence 	of 	record 	and 	not 	merely 	review 	the 	magistrate 	judge’s
recommendation” when conducting a de novo review of a party’s timely, specific objections to the
magistrate judge’s report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections
are made to the magistrate’s factual findings based on conflicting testimony or evidence . . . the
district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary
hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination” when
a party objects to the Magistrate Judge’s report “based upon conflicting evidence or testimony.”
Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements
of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to the magistrate’s
order.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court
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need not, however, “make any specific findings; the district court must merely conduct a de novo
review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir.2000). “[T]he
district court is presumed to know that de novo review is required. Consequently, a brief order
expressly stating the court conducted de novo review is sufficient.” 	Northington v. Marin, 102
F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at 583-84). “[E]xpress references
to de novo review in its order must be taken to mean it properly considered the pertinent portions
of the record, absent some clear indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist.
No. 42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth Circuit holds that a district court properly
conducts a de novo review of a party’s evidentiary objections when the district court’s “terse”
order contains one sentence for each of the party’s “substantive claims” and does “not mention his
procedural challenges to the jurisdiction of the magistrate to hear the motion.” Garcia v. City of
Albuquerque, 232 F.3d at 766. 	The Tenth Circuit explains that brief district court orders that
“merely repeat[ ] the language of § 636(b)(1) to indicate its compliance” are sufficient to
demonstrate that the district court conducts a de novo review:
It is common practice among district judges in this circuit to make such a statement
and adopt the magistrate judges’ recommended dispositions when they find that
magistrate judges have dealt with the issues fully and accurately and that they could
add little of value to that analysis. We cannot interpret the district court’s statement
as establishing that it failed to perform the required de novo review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
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at 724-25 (holding that the district court’s adoption of the Magistrate Judge’s “particular
reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C. § 636(b)(1)
and United States v. Raddatz require).
Where no party objects to the Magistrate Judge’s PFRD, the Court reviews, as a matter of
course and in the interests of justice, the Magistrate Judge’s recommendations. In Pablo v. Soc.
Sec. 	Admin., 	No. 	CIV 	11-0132 	JB/ACT, 	2013 	WL 	1010401 	(D.N.M. 	February 	27,
2013)(Browning, J.), the plaintiff fails to respond to the Magistrate Judge’s PFRD, and thus waives
his right to appeal the recommendations, but the Court nevertheless conducts a review. See 2013
WL 1010401, at *1, *4. 	The Court generally does not, however, “review the PFRD de novo,
because the parties have not objected thereto, but rather review[s] the recommendations to
determine whether they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4. 	The Court, thus, does not
determine independently what it would do if the issues had come before the Court first, when there
is no objection, but rather adopts the PFRD where “‘the Court cannot say that the Magistrate
Judge’s recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (quoting Workheiser v. City
of Clovis, No. CIV 12–0485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28,
2012)(Browning, J.). See Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at
*4 (D.N.M. February 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt
the PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5
(D.N.M. February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and
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noting: “The Court did not review the ARD de novo, because Trujillo has not objected to it, but
rather reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This review,
which is deferential to the Magistrate Judge’s work when there is no objection, nonetheless
provides some review in the interest of justice, and seems more consistent with the waiver rule’s
intent than no review at all or a full-fledged review. Accordingly, the Court considers this standard
of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,
however, that demonstrates an intent to require the district court to give any more consideration to
the magistrate’s report than the court considers appropriate.”). The Court is reluctant to have no
review at all if its name is going at the bottom of the order adopting the Magistrate Judge’s PFRD.
LAW REGARDING STATUTORY CONSTRUCTION
“Courts interpret statutes, no matter the context, based on the traditional tools of statutory
construction, not individual policy preferences.” Loper Bright Enters. v. Raimondo, 603 U.S. 369,
403 (2024). Traditional tools of statutory construction include: (i) the statute’s plain language, see
Coriz v. Rodriguez, 347 F. Supp. 3d 707, 716 (D.N.M. 2018)(Browning, J.)(citing Nat’l Ass’n of
Mfrs. v. Dep’t of Def., 583 U.S. 109, 127 (2018)(quoting BedRoc Ltd., LLC v. United States, 541
U.S. 176, 177 (2004)(“The inquiry begins with the statutory text, and ends there as the text is
unambiguous.”))); (ii) the court’s duty to “‘give effect . . . to every clause and word of a statute,’”
United 	States 	v. 	Harry, 	No. 	CR 	10-1915 	JB, 	2014 	WL 	6065677 	(D.N.M. 	Oct. 	14,
2014)(unpublished)(Browning J.)(quoting Bennett v. Spear, 520 U.S. 154, 173 (1997)); and (iii)
the canon of constitutional avoidance, see Clark v. Martinez, 543 U.S. 371, 385 (2005)(stating that
the canon is “a means of choosing between” two possible constructions of a statute)(italics in the
original); United States v. Vigil, No. CR 10-2310 JB, 2013 WL 3270995 (D.N.M. June 3,
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2013)(unpublished)(Browning, J.)(noting that the canon of construction requires courts to interpret
statutes “in a manner that avoids constitutional problems”). Accordingly, the Court beings with
the words Congress uses.
1. 	Plain Language.
When interpreting statutes, the Court must start with the language. See, e.g., Been v. O.K.
Industries, Inc., 495 F.3d 1217, 1227 (10th Cir. 2007)(“We review issues of statutory construction
de novo, ‘interpret[ing] the words of the statute in light of the purposes Congress sought to serve.’”
(quoting Wright v. Fed. Bureau of Prisons, 451 F.3d 1231, 1233–34 (10th Cir.2006))). “It is well
established that ‘when the statute’s language is plain, the sole function of the courts -- at least
where the disposition required by the text is not absurd -- is to enforce it according to its terms.’”
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004)(quoting Hartford Underwriters Ins. Co. v. Union
Planters Bank, N. A., 530 U.S. 1, 6 (2000)). “Courts indulge ‘a strong presumption that Congress
expresses its intent through the language it chooses. Therefore, when the terms of a statute are
clear and unambiguous, our inquiry ends and we should stick to our duty of enforcing the terms of
the statute as Congress has drafted it.’” 	United Kingdom Ministry of Defence v. Trimble
Navigation Ltd., 422 F.3d 165, 171 (4th Cir. 2005)(quoting Sigmon Coal Co. v. Apfel, 226 F.3d
291, 305 (4th Cir. 2000)). 	See Public Lands Council v. Babbitt, 167 F.3d 1287, 1314 (10th
Cir. 1999)(Seymour, C.J.)(“In examining . . . language, we assume that the words chosen by
Congress are employed in their ordinary sense and accurately express Congress’ [ ] legislative
purpose.”). See, e.g., United States v. Janzad, No. CR 23-0346 JB, 2024 WL 3552404, at *9-24
(D.N.M. July 26, 2024)(unpublished)(Browning, J.); United States v. Delorme, No. CR 19-2322
JB, 2023 WL 8020262, at *17-20 (D.N.M. Nov. 17, 2023)(unpublished)(Browning, J.); United
States 	v. Teston, 	No. 	CR 	22-1400 	JB, 	2023 WL 3390968, 	at 	*8-16 	(D.N.M. 	May 	5,
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2023)(unpublished)(Browning, J.).
2. 	Canon Against Surplusage.
The Court must read a statute to give effect to every word that Congress uses and not
presume a phrase is surplusage. See Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th
1048, 1061 (7th Cir. 2025)(“Castanon-Nava”)(referring to rule of statutory construction that courts
must avoid a superfluous reading as a “cardinal rule[]”). 	Courts must resist interpretations that
“would render another provision superfluous.” Bilski v. Kappos, 561 U.S. 593, 608 (2010). This
rule holds true “even when Congress enacted the provisions at different times,” Bilski v. Kappos,
561 U.S. at 608; and the rule is “‘strongest when an interpretation would render superfluous
another part of the same statutory scheme,’” United States v. Molina Healthcare of New Mexico,
Inc., 	No. 	CIV 	16-1148 	JB/KK, 	2024 WL 4002950 	(D.N.M. Aug. 	30, 	2024)(Browning,
J.)(unpublished)(quoting Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013)). 	The canon
against surplusage does not mean, however, that redundancy is unusual in specific contexts. See
Marx v. Gen. Revenue Corp., 568 U.S. at 385 (stating that “redundancy is ‘hardly unusual’ in
statutes addressing costs” (quoting Microsoft Corp. v. I4I Ltd. P’ship, 564 U.S. 91, 107 (2011))).
3. 	Constitutional Avoidance.
When a court faces two equally plausible interpretations of a statute, it must read the statute
to avoid the Constitutional issue. See Jennings, 583 U.S. at 286 (stating that a court “may shun an
interpretation that raises serious constitutional doubts” under the constitutional-avoidance canon).
This canon reflects the judiciary’s obligation to construe statutes in a manner “best reflecting
congressional will” and that “avoids invalidation.” 	Zadvydas v. Davis, 533 U.S. 678, 689
(2001)(“Zadvydas”)(citing Almendarez–Torres v. United States, 523 U.S. 224, 238 (1998)). In the
immigration context, the Supreme Court has “read significant limitations into [] immigration
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statutes in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689. “[A] court
relying on [the avoidance] canon still must interpret the statue, not rewrite it.” Jennings, 583 U.S.
at 286 (emphasis in the original).
LAW REGARDING THE WRIT OF HABEAS CORPUS
Courts are most familiar with the writ of habeas corpus and its statutory authorization under
28 U.S.C. § 2241. Courts have less occasion to consider, however, habeas petitions that seek relief
other than release from unlawful detention. 	Upon review of relevant case law, tension exists
between the Supreme Court’s description of habeas as a flexible and “equitable remedy,” Schlup
v. Delo, 513 U.S. 298, 319 (1995), and the Supreme Court’s more traditional understanding that
courts generally do not use habeas to “order relief that neither terminates custody, accelerates the
future date of release from custody, nor reduces the level of custody,” Wilkinson v. Dotson, 544
U.S. 74, 86 (2005)(Scalia, J., concurring). Resolving that tension requires careful attention to the
historical development of the writ, its modern statutory framework, and the Constitutional
principles that define its scope. Accordingly, the Court examines: (i) the history of the writ at
common law and under the federal habeas statutes, including the “finality era,” Thuraissigiam, 591
U.S. at 120; and (ii) modern Supreme Court guidance on the scope of the writ, including its
relationship to the Suspension Clause. Gerald L. Neuman, Habeas Corpus, Executive Detention,
and the Removal of Aliens, 98 Colum. L. Rev. 961, 1015 (1998)(“Neuman”). 	Through this
framework, the Court concludes that habeas is an “adaptable remedy,” Boumediene v. Bush, 553
U.S. 723, 779 (2008)(“Boumediene”), and, while historical practice informs the scope of habeas
relief, it does not confine the writ to be used to release from custody in every instance; rather, in
limited and extraordinary circumstances, habeas may afford relief “as law and justice require,” 28
U.S.C. § 2243, consistent with its Constitutional function and historical purpose, see Schneckloth
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v. Bustamonte, 412 U.S. 218, 256 (1973)(Powell, J., concurring)(“No one would now suggest that
this Court be imprisoned by every particular of habeas corpus as it existed in the late 18th and 19th
centuries.”).
1. 	Habeas Corpus: The Great Wit.
The history of the writ of habeas corpus are “well-established.” 	Neuman at 970.5 “The
writ originated in England as a vehicle for bringing a person before a court in order to facilitate
proceedings in which his presence was required.” Neuman at 970. The “Great Writ” evolved and
achieves “its celebrity in the constitutional struggles” in the seventeenth century as a remedy
against Political arrests by the King’s council and minister.” Neuman at 971. During this period,
habeas affords that individuals the King arrests are not detained “on executive fiat rather than on
legally recognized grounds . . . and that prisoners would not languish in pretrial detention when
they should be bailed out.” Neuman at 971. Accordingly, the writ of habeas corpus acquires an
association with principle of due process that “individuals should be imprisoned only in
accordance with the law of the land.” Neuman at 971. “This understanding of due process includes
both the guarantee of traditional procedures and the broader notion of the rule of law, that the
grounds of detention must be provided by statute or common law.” Neuman at 971. The framers
of the United States Constitution enshrine the Great Writ in the Constitution stating: “The privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” U.S. Const. art I, § 9, cl. 2. See I.N.S. v. St. Cyr, 533 U.S. 289,
5 See, e.g., William F. Duker, A Constitutional History of Habeas Corpus 12-94 (1980); 9
W.S. Holdsworth, A History of English Law 104-25 (3d ed. 1944); Rollin C. Hurd, A Treatise on
the Right of Personal Liberty and on the Writ of Habeas Corpus and the Practice Connected With
It: With a View of the Law of Extradition of Fugitives 73-104 (Albany, W.C. Little & Co. 1858);
Daniel John Meador, Habeas Corpus and Magna Charta: Dualism of Power and Liberty 3-38
(1966); 	R.J. 	Sharpe, 	The 	Law 	of 	Habeas 	Corpus 	1-19 	(1976)(study 	from 	English 	and
Commonwealth perspective).
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301 (2001)(“St. Cyr”)(stating that “the absolute minimum, the Suspension Clause protects the writ
‘as it existed in 1789’” (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996))). The Suspension
Clause does not create the writ, but Chief Justice Marshall interprets the Constitution as obligating
Congress to create “this great constitutional privilege.” Neuman at 974.6 Chief Justice Marshall
concludes Congress creates the writ in the First Judiciary Act of 1789. See Neuman at 974.
a. 	The Core of Habeas Petitions, Remedying Unlawful Detention.
The writ of habeas corpus has long functioned as a judicial mechanism for testing the
lawfulness of detention.7 	From its origins in English common law through its development in
6 In Ex parte Bollman, 8 U.S. 75 (1807) Chief Justice Marshall states:
Acting under the immediate influence of this injunction, they must have felt,
with peculiar force, the obligation of providing efficient means by which this great
constitutional privilege should receive life and activity; for if the means be not in
existence, the privilege itself would be lost, although no law for its suspension
should be enacted. 	Under the impression of this obligation, they give, to all the
courts, the power of awarding writs of habeas corpus.
8 U.S. at 95. Justice Scalia embraces Ex parte Bollman for the proposition that the Suspension
Clause does not have effect without legislation and that history provides context as to what right
the Suspension Clause enshrines. See St. Cyr, 533 U.S. at 340-41 (Scalia, J., dissenting)(stating
that there “no more reason for us to believe, than there was for the Marshall Court to believe, that
the Suspension Clause means anything other than what it says” (referring to Ex parte Bollman, 8
U.S. at 95)).
7 There is a historical debate whether State courts possess authority to issue writs of habeas
corpus directing the release of federal prisoners. 	See Neuman at 974. 	Neuman ultimately
concludes that historical practice does not support the view that the Suspension Clause preserves
state judicial power over federal detention. See Neuman at 975 (“I will not pursue the hypothesis
that the Suspension Clause was intended to preserve state judicial power over federal detention
and has been systematically violated for over a century.”). 	A related historical caution bears
emphasis: the standards governing the writ’s issuance as a safeguard against unlawful executive
detention differ from the doctrinal standards governing habeas as a form of postconviction
collateral review. See Neuman at 962 (“They are conflating the standards for the issuance of the
writ as a remedy for unlawful executive detention with the standards for its use as a means of
postconviction relief.”). Conflating these distinct historical functions risks obscuring the evolution
of habeas jurisprudence in different procedural contexts.
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American jurisprudence, habeas serves as a means by which courts inquire into whether the United
States has lawful authority to restrain an individual’s liberty.8 Historical practice does not confine
the concept of “lawfulness,” however, to a single category of legal defect. Neuman at 984 n.126
(discussing the shift of habeas petitions from “isolated constitutional violations by individual
officers or judges” to “the constitutionality of statutes”). Historically, petitioners invoke habeas to
challenge detention on multiple grounds, including: (i) allegations that the custodian acts without
statutory authority, see Ex parte D’Olivera, 7 F. Cas. 853 (C.C.D. Mass. 1813)(holding that a
justice of the peace detains deserting sailors “without color of jurisdiction,” because neither the
common law nor a statute authorizes detainment); see also Thuraissigiam, 591 U.S. at 172
(Sotomayor, J., dissenting); (ii) allegations that an act of Congress is unconstitutional, see Ex parte
Siebold, 100 U.S. 371, 374 (1879)(“The question is whether a party imprisoned . . . upon
conviction of a crime created by and indictable under an unconstitutional act of Congress, maya
be discharged on . . . on habeas corpus.”); or (iii) that the conditions or consequences of
8 Neuman notes that the 1789 Judiciary Act does not define the “standards” for habeas
relief, but Chief Justice Marshall describes the standards as those known to common law. Neuman
at 981-82. Furthermore, in Ex parte Watkins, 28 U.S. 193 (1830), Chief Justice Marshall describes
the writ:
The writ of habeas corpus is a high prerogative writ, known to the common law,
the great object of which is the liberation of those who may be imprisoned without
sufficient cause. It is in the nature of a writ of error, to examine the legality of the
commitment. 	The English judges, being originally under the influence of the
crown, neglected to issue this writ where the government entertained suspicions
which could not be sustained by evidence; and the writ when issued was sometimes
disregarded 	or 	evaded, 	and 	great 	individual 	oppression 	was 	suffered 	in
consequence of delays in bringing prisoners to trial. 	To remedy this evil the
celebrated habeas corpus act of the 31st of Charles II. was enacted, for the purpose
of securing the benefits for which the writ was given. This statute may be referred
to as describing the cases in which relief is, in England, afforded by this writ to a
person detained in custody. It enforces the common law.
Ex parte Watkins, 28 U.S. at 202.
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confinement rendered continued detainment unlawful, see Johnson v. Avery, 393 U.S. 483, 485
(1969)(acceptation a petitioner’s “motion for law books and a typewriter” as a petition for a writ
of habeas corpus, before invaliding prison regulations). Thus, habeas operates as an adaptable and
equitable vehicle through which detained individuals may test the legality of their restraint.
Although the historical inquiry into lawfulness takes varied forms, the traditional remedy
associated with habeas remains comparatively focused: release from custody, accelerated release,
or relief directly affecting the fact or duration of confinement. See Preiser v. Rodriguez, 411 U.S.
475, 498 (1973)(“But none of the state prisoners in those cases was challenging the fact or duration
of his physical confinement itself, and one was seeking immediate release or a speedier release
from that confinement -- the heart of habeas corpus.”).
b. 	The Finality Era.
The “finality era” reveals the breadth of the Great Writ and the durability of the lawfulness
inquiry. The body of case law following the Immigration Act of 1891 represents the “finality era,”
because, 	during 	this 	period, 	Congress 	makes 	“certain 	immigration 	decisions 	‘final.’”
Thuraissigiam, 591 U.S. at 128. 	See Neuman at 1008 (“Dissatisfaction with the courts’
performance led to congressional efforts to confer finality on the decisions of the executive
officials.”). The 1891 provision contains sweeping language stating: “‘All decisions made by the
inspection officers or their assistants toughing the right of any alien to land, when adverse to such
right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall
be subject to review by the Secretary of the Treasury.” Neuman at 1008 (quoting Act of March 3,
1891, ch. 551, § 8, 26 Stat. 1084, 1085). 	In Nishimura Ekiu v. United States, 142 U.S. 651
(1892)(“Nishimura”), the Supreme Court upholds the provisions, while preserving the writ of
habeas corpus “to ascertain whether the restrain is lawful.” 142 U.S. at 660. Thereafter, courts
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begin to give immigration officers “findings of fact” conclusiveness while assuring that the
“procedures set out in the 1891 act had been followed.” Thuraissigiam, 591 U.S. at 131-33. See
Neuman at 1010 (stating the Supreme “Court went on to confirm that the immigration statutes did
authorize the exclusion of person likely to become a public charge, that the inspector had been
properly appointed, and that the procedures followed were in accordance with the statute”).
Justice Gray, in Nishimura, pronounces the often-quoted statement that “the decisions of
executive or administrative officers, acting within powers expressly conferred by congress, are due
process of law.” 	142 U.S. at 661. 	See Thuraissigiam, 591 U.S. at 130 (quoting Nishimura);
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)(“Mezei”). As early as 1903,
however, the Supreme Court begins to question that pronouncement. See Yamataya v. Fisher, 189
U.S. 86, 100-01 (1903)(“But this court has never held . . . that administrative officers, when
executing the provisions of a statute involving the liberty of persons, may disregard the
fundamental principles that inhere in ‘due process of law.’”). 	The writ of habeas corpus is the
vehicle by which due process reemerges in exclusion and deportation detention. See Kwock Jan
Fat v. White, 253 U.S. 454, 464 (1920)(finding due process violation in officer’s omission of
favorable evidence from record for administrative appeal). For example, in Chin Yow v. United
States, 208 U.S. 8 (1908), the Supreme Court observes that, as between “persons alleging
themselves to be citizens . . . on one side, and the conclusiveness of the commissioner’s fiat, on
the other, when one or the other must give way, the latter must yield.” 208 U.S. at 12. Moreover,
the Supreme Court continues, stating that the United States cannot imprison an alien at the border
“without the process of law to which is given a right.” Chin Yow v. United States, 208 U.S. at 13.
See Thuraissigiam, 591 U.S. at 156 (Breyer, J., concurring)(noting that throughout the “finality
era,” the Supreme Court address procedural claims “that fundamentally under mined the efficacy
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of the process prescribed by law”). 	Although the Court reads the historical jurisprudence as
confirming that the petitioners traditionally invoke habeas to challenge unlawful detention on both
factual and procedural grounds -- even where Congress narrowly circumscribes review -- the Court
must address Mezei and the United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537
(1950)(“Knauff”), which continue to shape the modern understanding of when aliens may invoke
the Great Writ to assert due process rights.
Knauff involves an alien challenging her exclusion detention, without due process, through
a habeas petition. See 338 U.S. at 539. Congress authorizes the Attorney General to order “the
exclusion of aliens without a hearing.” 	Knauff, 338 U.S. at 540 (citing 22 U.S.C. § 223). The
petitioner argues that Congress’ authorization is unconstitutional and, furthermore, that the
regulations the Attorney General creates from Congress’ act are also unconstitutional. See Knauf,
338 U.S. at 542 (“Petitioner contends that the 1941 Act and the regulations thereunder are void to
the extent that they contain unconstitutional delegations of legislative power.”). 	The Supreme
Court rejects the argument that the statute is unconstitutional, stating that “[w]hen Congress
prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a
legislative power. 	It is implementing an inherent executive power,” and, consequentially,
“[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied
entry is concerned.” Knauff, 338 U.S. at 542-44. Although the Supreme Court does not entertain
the petitioner’s challenge to Congressional authority, it scrutinizes whether the Attorney General’s
regulations are within the authority Congress grants. 	Knauff, 338 U.S. at 544 (“We find no
substantial merit to petitioner’s contention that the regulations were not ‘reasonable’ as they were
required to be by the 1941 Act.”). What emerges from the Supreme Court’s analysis is a doctrinal
asymmetry. While historical jurisprudence forecloses an excludable alien from invoking the Due
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Process Clause to challenge Congress’ legislative choices, the same alien nevertheless may invoke
habeas corpus to test the Executives’ s implementation of those choices. This tension invites closer
examination. Before addressing the asymmetry, the Court turns to Mezei, which is understood as
extending Knauff, for further insight. 	See Neuman at 1017 (“In Mezei, the Majority extended
Knauff.”).
In Mezei, the Supreme Court considers whether the United States may detain for exclusion
an alien indefinitely, because no country will accept him. 	See 345 U.S. at 207. 	The facts are
remarkably different from Knauff, because of the potential length of detention, and because the
respondent lives in the United States for decades before the United States detains him while he
attempts to reenter the country. See Mezei, 345 U.S. at 213 (“Neither respondent’s harborage on
Ellis Island nor his prior residence here transforms this into something other an exclusion
proceeding.”). As to the length of detention, Justice Clark concludes that the “continued exclusion
[does not] deprive him of any statutory or constitutional right,” and, moreover, “an alien in
respondent’s position is no more ours than theirs.” Mezei, 345 U.S. at 215-16. Regarding the time
respondent spends in the United States, the Supreme Court sees no distinction between him and
arriving aliens, because the respondent “simply left the United States and remained behind the Iron
Curtain for 19 months.” Mezei, 345 U.S. at 214. Accordingly, the Due Process Clause tolerates
exclusion proceedings rather than deportation proceedings.
Now that the Court considers Mezei, it returns to the doctrinal asymmetry the Court
observes in Knauff with respect to how the Supreme Court treats the statute and regulations. Even
where the Supreme Court declines to permit direct due process challenges to Congress’ legislative
judgments concerning arriving aliens, it nevertheless allows the writ of habeas corpus to function
as a vehicle for testing the lawfulness of Executive implementation. See Knauff, 338 U.S. at 542-
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44. 	The Due Process Clause requires no more process than Congress elects to provide at the
border, yet habeas persists -- even in its most constrained form -- as a means for detainees to assert
that the Executive exceeds the authority Congress confers. 	For that reason, the Supreme Court
tests whether the regulations in Knauff are reasonable. In areas of policy where Congress vests
the Executive with discretion over factual determinations, judicial review is correspondingly
limited, with courts intervening only when the Constitution mandates oversight, such as arbitrary
or capricious determinations. 	Mezei illustrates that limitation, because the Supreme Court
recognizes the issues of national security in the midst of the Cold War. Osorio-Martinez v. Att’y
Gen. United States of Am., 893 F.3d 153, 174 (3d Cir. 2018)(“Osorio-Martinez”)(stating that “this
case stands in stark contrast to the key precedents we relied on in Castro [Knauff and Mezei]-- two
Cold War-era decisions about aliens detained on Ellis Island at the threshold of entry”). 	For
questions of law, however, the Supreme Court preserves habeas as a mechanism through which
the judiciary fulfills its Constitutional duty to say what the law is. See St. Cyr, 533 U.S. at 304-05
(“In sum, even assuming that the Suspension Clause protects only the writ as it existed in 1789,
there is substantial evidence to support the proposition that pure questions of law like the one
raised by the respondent in this case could have been answered in 1789 by a common-law judge
with power to issue the writ of habeas corpus.”). 	Read together, these decisions indicates that
habeas review functions less as a vehicle for expanding individual rights in this context than as a
structural safeguard ensuring that Executive detention remains subject to judicial determination of
legal authority. Regardless of the level of deference afforded to the political branches or the factual
postures of the case, the Great Writ endures as a safeguard against unchecked governmental
detention.
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That the Great Writ endures is without dispute. The Court now turns to the more difficult
question -- whether habeas retains the contours that the Framers enshrine in the Suspension Clause
and that the Judiciary Act of 1789 codifies.
2. 	The Writ of Habeas Corpus Modern Parameters.
The Supreme Court “has been careful not to foreclose the possibility that the protections
of the Suspension Clause have expanded along with post-1789 developments that define the
present scope of the writ.” 	Boumediene, 553 U.S. at 746. 	See Thuraissigiam, 591 U.S. at 152
(Breyer, J., concurring)(“Habeas corpus, as we have said, is an ‘adaptable remedy,’ and the ‘precise
application 	and 	scope’ 	of 	the 	review 	it 	guarantees 	may 	change 	‘depending 	upon 	the
circumstances.’” (quoting Boumediene, 553 U.S. at 779; see id., at 813 (Roberts, C.J.,
dissenting))). Indeed, the Supreme Court goes to great lengths to avoid answering what the writ’s
scope is under the modern habeas statute. 	See Thurissigiam, 591 U.S. at 126 (“But respondent
does not ask us to hold that the Suspension Clause guarantees the writ as it might have evolved
since the adoption of the Constitution. On the contrary, as noted at the outset of this discussion,
he rests his argument on ‘the writ as it existed in 1789.’” (quoting Brief for Respondent 26, n.12.));
Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979)(“Thus, we leave to another day the question of the
propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as
distinct from the fact or length of the confinement itself.”); Preiser v. Rodriguez, 411 U.S. at 499
(“But we need not in this case explore the appropriate limits of habeas corpus as an alternative
remedy to a proper action under § 1983. That question is not before us.”). What remains clear,
notwithstanding its doctrinal evolution, is that habeas corpus continues to reflect its historical core.
LAW REGARDING § 2241 CLAIMS
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“At its historical core, the writ of habeas corpus has served as a means of reviewing the
legality of Executive detention, and it is in that context that its protections have been strongest.”
St. Cyr, 533 U.S. at 301. 	See Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1276 (10th
Cir. 2018)(“Gonzalez-Alarcon”). Habeas corpus jurisdiction, moreover, is not easily revoked. See
St. Cyr, 533 U.S. at 298 (stating that there is a “longstanding rule requiring a clear statement of
congressional intent to repeal habeas jurisdiction”)(citing Ex parte Yerger, 75 U.S. 85, 102
(1869)(“We are not at liberty to except from [habeas corpus jurisdiction] any cases not plainly
excepted by law.”)(alteration in St. Cyr). Relief is available under § 2241 only where a petitioner’s
detention violates federal law. See 28 U.S.C. § 2241(c)(3) (instructing that courts must determine
whether petitioner “is in custody in violation of the Constitution or laws or treaties of the United
States”). 	The habeas corpus writ, however, encompasses more than just “challenges to the
jurisdiction of the custodian, but encompassed detentions based on errors of law, including the
erroneous application or interpretation of statutes.” 	St. Cyr, 533 U.S. at 303. 	See Gonzalez-
Alarcon, 884 F.3d at 1278 (“Congress has provided that ‘habeas corpus may be granted’ by a
federal court and that the court shall ‘dispose of the matter as law and justice require.’”)(quoting
28 U.S.C. §§ 2241, 2243). 	Upon invoking habeas jurisdiction, the “typical remedy” is release.
Munaf v. Geren, 553 U.S. 674, 693 (2008)(citing Preiser v. Rodriguez, 411 U.S. 475, 484
(1973)(“[T]he traditional function of the writ is to secure release from illegal custody.”)).
“Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004)(“Soberanes”)(citing Zadvydas, 533
U.S. at 687-88). The exhaustion of available administrative remedies, however, is a prerequisite
for § 2241 habeas relief, even though the statute itself does not expressly contain such a
requirement. 	See Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). 	A petitioner’s
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administrative exhaustion deficiencies do not affect habeas jurisdiction over challenges to
immigration detention. 	See Soberanes, 388 F.3d at 1311 (“And the exhaustion deficiencies we
have noted in other respects do not affect habeas jurisdiction over such claims.”)(citing Arango
Marquez v. INS, 346 F.3d 892, 896 (9th Cir.2003)).
“‘Generally, a habeas petition cannot be used to substitute for direct appeal.’” Soberanes,
388 F.3d at 1309 (quoting Latu, 375 F.3d at 1012). 	However, “[c]ourts have carved out an
exception to the exhaustion requirement for constitutional challenges to the immigration laws,
because the BIA has no jurisdiction to review such claims.” Soberanes, 388 F.3d at 1310 (citing
Akinwunmi, 194 F.3d at 1341). 	“[W]here Congress has not clearly required exhaustion, sound
judicial discretion governs.” McCarthy, 503 U.S. at 144. In the absence of a statutory exhaustion
mandate, courts retain discretion to require or excuse exhaustion based on competing institutional
and individual interests. See McCarthy, 503 U.S. at 144. The Tenth Circuit does not provide a
framework for evaluating the exhaustion requirement’s competing interests, however, the United
States Court of Appeals for the Second Circuit states:
[I]f an exhaustion requirement is judicially imposed instead of statutorily imposed,
a number of exceptions apply that allow courts to excuse a party’s failure to exhaust
administrative remedies. Specifically, exhaustion of administrative remedies may
not be required when ‘(1) available remedies provide no genuine opportunity for
adequate relief; (2) irreparable injury may occur without immediate judicial relief;
(3) administrative appeal would be futile; and (4) in certain instances a plaintiff has
raised a substantial constitutional question.’”
Beharry 	v. Ashcroft, 	329 	F.3d 	51, 	62 	(2d 	Cir. 2003)(“Beharry”), 	as 	amended 	(July 	24,
2003)(quoting Able v. United States, 88 F.3d 1280, 1288 (2d Cir. 1996)). In the Court’s view, these
factors reflect the pragmatic approach the Supreme Court discusses in McCarthy. See Bowen v.
City of New York, 476 U.S. 467, 484 (1986)(“Finally, application of the exhaustion doctrine is
‘intensely practical.’” (quoting Mathews v. Eldridge, 424 U.S., at 331, n.11)).
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When considering exhaustion requirements, a court must remain mindful that the concept
of exhaustion is distinct from the concept of procedural bar. See Latu v. Ashcroft, 375 F.3d 1012,
1017 	(10th 	Cir. 2004)(“Latu”)(“The 	government 	has 	apparently 	confused 	the 	concept 	of
exhaustion of administrative remedies with the concept of procedural bar.”). 	Section 1252(d)
states that “a court may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the aliens as of right . . . .” 8 U.S.C. § 1252(d). A habeas
petition is a “judicial remedy,” however, and not an administrative remedy. 	Latu, 375 F.3d at
1017. Accordingly, procedural bar is the correct concept when considering habeas petitions. See
Latu, 375 F.3d (stating that, generally, “a habeas petition cannot be used to substitute for direct
appeal”). Section 1252 limits Courts of Appeals jurisdiction to “whether the petitioner is (i) an
alien (ii) deportable (iii) by reason of a criminal offense listed in the statute.” Latu, 375 F.3d at
1017. When a petitioner files a habeas petition in district court asserting Constitutional challenges
outside the three jurisdictional facts that the statute enumerates, no procedural bar attaches,
because the petitioner lacks any avenue to raise those claims on direct appeal. See Latu, 375 F.3d
at 1017 (“Because Mr. Latu . . . admit[s] the jurisdictional fact that strips the court of jurisdiction
. . . he has not failed to seek an available judicial remedy, and he is not procedurally barred from
habeas review in the district court.”).
LAW REGARDING 8 U.S.C. § 1252’s JURISDICTION STRIPPING PROVISIONS
Section 1252 is titled: “Judicial review of orders of removal.” 8 U.S.C. § 1252. Section
1252(b) states the requirements judicial review of removal orders. 	See 8 U.S.C. § 1252(b).
Section 1252(e) specifically addresses judicial review of § 1225(b)(1) orders. 	See 8 U.S.C.
§ 1252(e). Finally, § 1252(g) provides the Attorney General exclusive jurisdiction “to commence
proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8
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U.S.C. § 1252(g). 	In sum, § 1252’s provisions create a jurisdictional scheme that narrowly
prescribes when courts may review removal orders and expedited removal proceedings, while
reserving to the Attorney General broad discretion over the commencement, adjudication, and
execution of removal actions.
1. 	8 U.S.C. § 1252(b)(9): Consolidation of Questions for Judicial Review.
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final order under this
section. 	Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas
corpus provision, by section 1361 or 1651 of such title, or by any other provision
of law (statutory or nonstatutory), to review such an order or such questions of law
or fact.
8 U.S.C. § 1252(b)(9). The Tenth Circuit states that § 1252(b)(9) does not apply in circumstances
where a petitioner challenges their detention and not “review of an order of removal.” Ochieng v.
Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008)(citing Singh v. Gonzales, 499 F.3d 969, 978 (9th
Cir.2007)(“Singh”)). 	See 	Gonzalez-Alarcon, 	884 	F.3d 	at 	1274 	(“Several 	courts 	have
acknowledged that § 1252 does not bar habeas relief as to claims that are independent of a removal
order.”); Madu v. U.S. Att’y Gen., 470 F.3d 1362, 1366 (11th Cir. 2006)(stating that a “petitioner
who contests the very existence of an order of removal does not seek ‘review of an order of
removal’ within the meaning of the REAL ID Act”); Kumarasamy v. Att’y Gen., 453 F.3d 169,
172 (3d Cir. 2006) (stating an alien challenging the legality of removal because he allegedly never
received notice of his removal order is “not seeking review of an order of removal”). In Singh,
the Court of Appeals for the Ninth Circuit asserts that “[b]y virtue of their explicit language, both
§§ 1252(a)(5) and 1252(b)(9) apply only to those claims seeking judicial review of orders of
removal.” 499 F.3d at 978.
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Section 1252(b)(9) does not “channel” review of prolonged detentions to Courts of
Appeals. See Aguilar v. U.S. Immigr. & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d
1, 11 (1st Cir. 2007)(“Aguilar”)(stating that §1252(b)(9) “is a judicial channeling provision, not a
claim-barring one”). In Jennings, the Supreme Court implies that § 1252(b)(9) covers, although
not compressively, actions “[seeking] review of an order of removal; . . . challenging the decision
to detain them in the first place or to seek removal; and . . . challenging any part of the process by
which their removability will be determined.” 	Jennings, 583 U.S. at 294. 	In making this
implication, the Supreme Court “eschewed ‘uncritical literalism’ leading to results that ‘no
sensible person could have intended.’” Jennings, 583 U.S. at 293-94 (quoting Gobeille v. Liberty
Mut. Ins. Co., 577 U.S. 312, 319 (2016)). Uncritical literalism, according to the Supreme Court,
is reading “capacious phrases like ‘arising from’” in an extreme way to allow “prolonged detention
[to be] effectively unreviewable.” Jennings, 583 U.S. at 293. Accordingly, the Court concludes
§ 1252(b)(9) does not channel claims challenging the legality or the duration of detention to Courts
of Appeals. See Aguilar, 510 F.3d at 11 (“In line with this prescription, we have held that district
courts retain jurisdiction over challenges to the legality of detention in the immigration
context.”)(citing Hernández v. Gonzales, 424 F.3d 42, 42 (1st Cir.2005)(holding that detention
claims are independent of removal proceedings and, thus, not barred by section 1252(b)(9)).
2. 	8 U.S.C. § 1252(e)(3): Challenges on Validity of the System.
In general, regarding challenges on validity of the system:
Judicial review of determinations under section 1225(b) of this title and its
implementation is available in an action instituted in the United States District
Court for the District of Columbia, but shall be limited to determinations of -- (i)
whether such section, or any regulation issued to implement such section, is
constitutional; or (ii) whether such a regulation, or a written policy directive,
written policy guideline, or written procedure issued by or under the authority of
the Attorney General to implement such section, is not consistent with applicable
provisions of this subchapter or is otherwise in violation of law.
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8 U.S.C. § 1252(e)(3). 	Section 1252(e)(3) “sets forth the process for bringing a constitutional
challenge to § 1225(b) or its implementing regulations.” Vaupel v. Ortiz, 244 F. App’x 892, 895
(10th Cir. 2007). See Make the Rd. New York v. Noem, No. 25-5320, 2025 WL 3563313, at *16
(D.C. Cir. Nov. 22, 2025)(“Make the Rd. II”)(“These ‘[c]hallenges on validity of the system’ may
contest either the constitutionality of the statute or whether a regulation, policy, or directive is
inconsistent with the law or Constitution.”)(alterations in the original)(quoting § 1252(e)(3)(A)).
Accordingly, 	the 	Court 	concludes 	§ 1252(e)(3) 	channels 	systemic 	challenges 	to 	the
Constitutionality or legality of § 1225(b) and its implementation into a single forum. By contrast,
challenges that do not raise systemic attacks on § 1225(b), or its implementing, authorities remain
within this Court’s habeas jurisdiction when they concern an individual petitioner’s detention and
the legality of that detention.
3. 	8 U.S.C. § 1252(g): Exclusive Jurisdiction.
Except as provided in this section and notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of Title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such title, no court shall
have jurisdiction to hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g). “The provision applies only to three discrete actions that the Attorney General
may take: her “decision or action” to “commence proceedings, adjudicate cases, or execute
removal orders.” Reno, 525 U.S. at 482 (quoting 8 U.S.C. § 1252(g)(italics in Reno, but not in
§ 12252(g))). See Jennings, 583 U.S. at 294 (stating that “arising from” in § 1252(g) refers to “just
those three specific actions themselves”). With Reno as its guide, the Tenth Circuit explains that
Congress directs § 1252(g) at “‘a particular evil: attempts to impose judicial constraints upon
prosecutorial discretion.’” Aguilar-Alvarez v. Holder, 528 F. App’x 862 (10th Cir. 2013)(quoting
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Reno, 525 U.S. at 485 n.9). 	The Tenth Circuit recognizes, moreover, that Reno does not limit
§ 1252(g) exclusively to discretionary decisions, and, therefore, courts must determine whether a
claim “arises from” one of the three actions that the statute specifies. Namgyal Tsering v. U.S.
Immigr. & Customs Enf’t, 403 F. App’x 339, *3 (10th Cir. 2010)(“Namgyal Tsering”)(stating the
Reno does not “‘explicitly state that the provision applies only to review of discretionary decisions
by the Attorney General in these areas and not to review of non-discretionary decisions.’” (quoting
Foster v. Townsley, 243 F.3d 210, 214 (5th Cir. 2001))). 	Accordingly, the Tenth Circuit
undertakes to determine if the claims before it “‘arise from’ actions over which § 1252(g)
precludes judicial review.’” Namgyal Tsering, 403 F. App’x at *3 (quoting 8 U.S.C. § 1252(g)).
In undertaking that inquiry, the Tenth Circuit adopts the United States Court of Appeals
for the Fifth Circuit’s approach, stating claims fall within § 1252(g) when they are connected
directly and immediately to a decision or action to commence proceedings, adjudicate cases, or
execute removal orders. 	See Namgyal Tsering, 403 F. App’x at *3 (“We agree with the Fifth
Circuit that ‘claims that clearly are included within the definition of “arising from” . . . [are] those
claims connected directly and immediately with a “decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders.”‘“(quoting Humphries v.
Various Federal USINS Employees, 164 F.3d 936, 943 (5th Cir.1999)(“Humphries”)(alterations
in original))). Humphries illustrates the spectrum of claims that the phrase “arising from” captures.
164 F.3d at 943. On one end are claims with only a weak, remote, or tenuous connection to the
specified actions, which fall outside § 1252(g). 	See Humphries, 164 F.3d at 943 (stating that
“claims with no more than a weak, remote, or tenuous connection to a ‘decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal orders’” are on
one end of the spectrum)(quoting 8 U.S.C. § 1252(g)). On the other end are claims “directly and
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immediately” connected to those actions, which the statute bars from judicial review. Humphries,
164 F.3d at 943. Applying that framework, the Fifth Circuit holds that claims alleging involuntary
servitude and mistreatment during detention do not arise from the Attorney General’s decision to
commence or execute removal proceedings, because the injury occurs before the proceeding
commences, see Humphries, 164 F.3d at 944, while a claim of retaliatory exclusion “bears more
than a cursory” relationship to the decision to exclude the petitioner and therefore falls within
§ 1252(g)’s jurisdictional bar, Humphries, 164 F.3d at 945.
Using this framework, the Tenth Circuit in Namgyal Tsering concludes that the petitioner’s
claims are “directly and immediately connected” to the execution of his removal order. 	403 F.
App’x at *3. 	In Namgyal Tsering, petitioner Namgyal Tsering alleges that “ICE submitted a
request for travel documents for Mr. Tsering to the Nepal Embassy and included in its request a
false Nepali passport that portrayed Mr. Tsering as a Nepali citizen.” 403 F. App’x at *3 (internal
quotations omitted). 	The Tenth Circuit determines Tsering’s Substantive and Procedural Due
process claims are connected directly and immediately “to the execution of his removal order,
because these travel documents allowed for Mr. Tsering’s removal to Nepal.” Namgyal Tsering,
403 F. App’x at *3. 	Accordingly, the Tenth Circuit concludes those claims are subject to
§ 1252(g)’s limitation on judicial review. See Namgyal Tsering, 403 F. App’x at *3.
LAW REGARDING 8 U.S.C. § 1225
Before jumping to § 1225(b)(2), it is important to zoom to 30,000 feet or more, and look
at the United States and § 1225 as a whole. The United States is the third-largest country in terms
of land mass, and it has an approximately 5,525-mile border with Canada, see U.S. Department of
Homeland Security, Considerations for United States -- Canada Border Traffic Disruption
Management, at 2 (2012), and 1,954-mile border with Mexico, U.S. Customs and Border
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Protection, Smart Wall Map, https://www.cbp.gov/border-security/along-us-borders/smart-wall-
map (last visited Jan. 1, 2026). Other entry points are Puerto Rico, the United States Virgin Islands,
Guam, and other island territories. See U.S. Department of the Interior, Insular Areas of the United
States 	and 	Freely 	Associated 	States 	(last 	visited 	Jan. 	1, 	2026),
https://www.doi.gov/library/internet/insular.9 In addition, aliens may seek entry into the United
States in many ways, including stowing away in vehicles, and at many places, like the waters of
the Rio Grande or the Arizona deserts. 	See Fact Sheet, Modes of Entry for the Unauthorized
migrant Population, Pew Research Center (May 22, 2006), https://www.pewresearch.org/race-and-
ethnicity/2006/05/22/modes-of-entry-for-the-unauthorized-migrant-population/.
Each day the United States Customs and Border Protection (“CBP”) must process over a
million individuals. U.S. Customs and Border Protection, On a Typical Day in Fiscal Year 2024,
CVP . . ., (“2024 CBP Statistics”), https://www.cbp.gov/newsroom/stats/typical-day-fy2024 (last
visited Jan. 8, 2025)(stating that CBP processes “1,150,387 passengers and pedestrians” on a
typical day).10 That figure encompasses “4,267 nationwide enforcement encounters between ports
of entry” each day and “3,682 nationwide enforcement encounters at ports of entry” each day.
9 	Other 	notable 	United 	States 	territories 	include 	the 	American 	Samoa 	and 	the
Commonwealth of the Norther Mariana Islands. See U.S. Department of the Interior, Insular Areas
of the United States and Freely Associated States://www.doi.gov/library/internet/insular (last
visited Jan. 1, 2026), https.
10 The CBP does not just process individuals. On a typical day, CBP processes “3.8 million
de minimis shipments”; “88,582 truck, rail, and sea containers”; and “270,800 incoming privately
owned vehicle.” 2024 CBP Statistics. De minimis shipments are articles free of duty and of any
tax imposed on or by reason of importation, because the retail value in the country of shipment
does not exceed $800.00. 	See U.S. Custom and Boarder Protection, Section 321 Programs, the
Trade 	Facilitation 	and 	Trade 	Enforcement 	Act, 	Trade, 	https://www.cbp.gov/trade/trade-
enforcement/tftea/section-321-programs (last visited Jan. 28, 2026)(citing 19 U.S.C. § 1321).
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2024 CBP Statistics.11 Extrapolating these numbers mean that, in 2024, CBP encounters over 400
million passengers and pedestrians, and, of those, there are almost three million enforcement
“encounters,” or 0.69% of the arriving people, where the individual is not a citizen or does not
have a lawful reason for entering the country.
In contrast to the CBP, which conducts screening at a scale involving hundreds of millions
of arriving individuals, the Enforcement and Removal Operations (“ERO”), within the United
States Immigration and Customs Enforcement (“ICE”), operates in an enforcement environment
with lower volume.12 	In 2024, ICE makes approximately 179,282 arrests, of which the ERO
makes “113,431” administrative arrests, including “33,243” “at-large” arrests. 2024 ICE Report
at 2-3.13 The difference in volume drives the practical reality between inspections and removal
determinations. 	The scale and immediacy of inspection and admission determinations justify
rapid, on-the-spot judgments that may be based on incomplete information. Mandatory removal
11 “Enforcement encounters” include U.S. Border Patrol (“USBP”) Title 8 Apprehensions,
Office of Field Operations (“OFO”) Title 8 Inadmissibles, and Title 42 Expulsions, and this pharse
does not include citizens and individuals CBP admit through other lawful means. 	See CBP,
Nationwide 	Encounters 	Fiscal 	Year 	2025, 	https://www.cbp.gov/newsroom/stats/nationwide-
encounters-fy2025 (last visited Jan. 9, 2025).
12 The Homeland Security Act of 2002 “created ICE by merging the investigative and
interior enforcement elements of the former U.S. Customs Service and the Immigration and
Naturalization Service.” ICE, Annual Report Fiscal Year 2024, at 8 (2024)(“2024 ICE Report”).
Within ICE, the ERO’s mission is to protect “the homeland by arresting and removing noncitizens
who undermine the safety of U.S. communities and the integrity of U.S. immigration laws . . . .
[A]nd its primary areas of focus are interior enforcement operations, management of the agency’s
detained and non-detained populations, and removal efforts.” 2024 ICE Report at 9.
13 Administrative arrests occur when the ERO arrests an alien for a violation of the INA
with or without a criminal history. See 2024 ICE Report at 15. At-large arrests, which are a subset
of administrative arrests, occur when the ERO arrests an alien “within the community.” 2024 ICE
Report at 15. 	In contrast to at-large arrests, “custodial arrests” occur when law enforcement
transfers custody of an alien in jail or prison to the ERO. 2024 ICE Report at 15.
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and deportation decisions, by contrast, carry greater consequence, and therefore lack the same
justification for summary determinations.
Courts often are quick to criticize Congress -- the most important political branch in our
democratic government -- for the way it writes laws. Given the magnitude of writing a statute that
governs the inspection of every citizen and alien’s entry into the United States, the Court
approaches 	the 	task 	of 	interpreting 	Congress’ work 	with 	an 	appreciation 	for 	the 	task’s
extraordinary complexity. 	Congress does not write §§ 1225 and 1226 against a small or static
backdrop. 	They reflect Congress’ effort to regulate admission decisions across vast borders,
innumerable entry points, and an enormous volume of daily inspections.
1. 	History of 8 U.S.C. § 1225.
In 1996, Congress passes the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, 110 Stat. 3009-546 (“IIRIRA”), which amends the Immigration and Nationality Act,
66 Stat. 166 (“INA”). Reno, 525 U.S. at 473. The legislative history indicates that, in enacting
IIRIRA, Congress seeks to “strengthen and tighten” immigration laws, addressing two interrelated
concerns. Arevalo v. Ashcroft, 344 F.3d 1, 4 (1st Cir. 2003). First, Congress identifies a structural
inequity in the pre-1996 regime where aliens who avoid ports of entry and enter the United States
unlawfully receive more extensive procedural protections in deportation proceedings than those
who present themselves for inspection through lawful channels. See Hing Sum v. Holder, 602 F.3d
1092, 1100 (9th Cir. 2010)(“Hing Sum”)(discussing that the IIRIRA eliminates the “‘entry
doctrine’” where aliens who enter the United States “without inspection could take advantage of
the greater procedural and substantive rights affording in deportation proceedings, while aliens
who presented themselves at a port of entry for inspection are subject to more summary exclusion
proceeding”). Second, Congress confronts a problem of administrative scale. See Am. Immigr.
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Laws. Ass’n v. Reno, 199 F.3d 1352, 1354 (D.C. Cir. 2000)(“ Am. Immigr. Laws. Ass’n”). 	By
1996, immigration officers are conducting inspections in the tens of millions annually, yet existing
law permits broad opportunities to contest admissibility determinations through hearings,
producing delay and strain on limited adjudicatory resources. See Am. Immigr. Laws. Ass’n, 199
F.3d at 1354-55.14 Congress enacts the IIRIRA to correct both the inequity in procedural treatment
and the practical burden that the inspection system imposes by amending the INA to eliminate its
definition of “entry” and by adding to § 1225 expedited removal proceedings.
a. 	Applicants for Admission.
The IIRIRA eliminates a distinction between aliens who are applicants for admission and
aliens 	present 	in 	the 	United 	States. 	See 	Succar 	v. 	Ashcroft, 	394 	F.3d 	8, 	12 	(1st
Cir. 2005)(“Succar”)(stating that aliens are either “(a) applicants for admission and (b) non-
14 The INA defines an immigration officer as “any employee or class of employees of the
Service or of the United States designated by the Attorney General, individually or by regulation,
to perform the functions of an immigration officer specified by this chapter or any section of this
title.” 8 U.S.C. §1101(a)(18). The Code of Federal Regulations defines an “immigration officer”
as:
[E]mployees of the Department of Homeland Security, including senior or
supervisory officers of such employees, designated as immigration officers
authorized to exercise the powers and duties of such officer as specified by the Act
and this chapter I: aircraft pilot, airplane pilot, asylum officer, refugee corps officer,
Border 	Patrol 	agent, 	contact 	representative, 	deportation 	officer, 	detention
enforcement officer, detention officer, fingerprint specialist, forensic document
analyst, general attorney (except with respect to CBP, only to the extent that the
attorney is performing any immigration function), helicopter pilot, immigration
agent (investigations), immigration enforcement agent, immigration information
officer, immigration inspector, immigration officer, immigration services officer,
investigator, intelligence agent, intelligence officer, investigative assistant, special
agent, other officer or employee of the Department of Homeland Security or of the
United States as designated by the Secretary of Homeland Security as provided in
8 C.F.R. § 2.1.
8 C.F.R. § 1.2
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citizens present in the United States who had previously made an entry into the country either with,
or without, an inspection”). For admission and removal, lawful admission -- not entry -- is now
the defining concept. 	See 1 Ira J. Kurzban, Immigration Law Sourcebook 73 (18th ed.
2022)(“Kurzban”). 	Entry is less important with Congress’ enactment of the IIRIRA, in which
Congress strikes the definition for “entry” from the INA and replaces entry with a definition of
who is an applicant for admission. Kurzban, supra, at 73. By eliminating the definition of “entry,”
and replacing “entry” with the terms “admission” and “admitted,” Congress “re-characterize[s]
aliens who are present in the United States, but who have not been inspected and admitted” as
“applicants for admission.” Succar, 394 F.3d at 13. Congress defines admission as the “lawful
entry of the alien into the United States after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13)(A).
The re-characterization is important, because, before the IIRIRA, only “applicants for
admission” are subject to “exclusion proceedings,” but aliens present in the country without an
inspection are subject to “deportation proceedings.” 	Succar, 394 F.3d at 12-13. 	See Landon v.
Plasencia, 459 U.S. 21, 25 (1982)(“The deportation hearing is the usual means of proceeding
against an alien already physically in the United States, and the exclusion hearing is the usual
means of proceeding against an alien outside the United States seeking admission.”). 	Aliens
subject to deportation proceedings are given more procedural protections than those subject to
exclusion proceedings. See, e.g., Landon v. Plasencia, 459 U.S. 21, 25-26 (1982)(discussing the
differences in the two proceedings, including the right of appeal for deportation proceedings but
not in exclusion proceeding). Specifically, deportable aliens are “entitled [to] a hearing before a
special inquiry officer in which the individual had the right to be represented, to examine the
government’s evidence, and to present evidence on his or her behalf.” Make The Rd. New York
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v. Wolf, 962 F.3d 612, 618 (D.C. Cir. 2020)(“Make the Road”). The distinction that immigration
law historically draws between “deportation proceedings,” which concern the removal of aliens
already within the United States, and “exclusion proceedings,” which concern the prevention of
entry, reflect the long-recognized principle that “the Due Process Clause applies to all ‘persons’
within the United States, including aliens, regardless of whether their presence is lawful, unlawful,
temporary, or permanent.” Zadvydas, 533 U.S. at 693 (quoting U.S. Const. amend. XIV, § 1, and
citing Plyler v. Doe, 457 U.S. 202, 210 (1982)); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Kwong
Hai Chew v. Colding, 344 U.S. 590, 596-598, and n.5 (1953); Yick Wo v. Hopkins, 118 U.S. 356,
369 (1886)). With IIRIRA’s enactment, Congress eliminates the dual system of deportation and
exclusion proceedings, and replaces the dual system with the universal “removal proceedings,”
under which immigration officers process all aliens who are applicants for admission. Succar, 394
F.3d at 13.
Within the removal proceedings’ current umbrella, Congress designates certain aliens as
subject to “expedited” removal and other aliens subject to removal under § 1229a, “the usual
removal process.” 	Thuraissigiam, 591 U.S. at 108-09. 	Similar to the previous “deportation
proceedings,” “[t]he usual removal process involves an evidentiary hearing before an immigration
judge, and at that hearing an alien may attempt to show that he or she should not be removed.”
Thuraissigiam, 591 U.S. at 108. 	Under IIRIRA’s expedited removal provision, immigration
officers “shall order the alien removed” if the immigration officer determines that the alien is
inadmissible, “because she does not have a valid entry document or other suitable travel document,
or because she has obtained a visa through misrepresentation.” Make the Road, 962 F.3d at 619
(citing 8 U.S.C. § 1225(b)(1)(A)(i)). Under the expedited removal processes, there is no hearing
and no opportunity for the alien to present evidence. See Make the Road, 962 F.3d at 619 (stating
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that, after the immigration officers’ determination, “all that stands between that individual and
removal is a paper review by the officer’s supervisor”). 	Aliens applying for asylum or claim a
fear of prosecution are an exception to expedited removal proceedings. See Thuraissigiam, 591
U.S. at 109 (“If an applicant ‘indicates either an intention to apply for asylum’ or ‘a fear of
persecution,’ the immigration officer ‘shall refer the alien for an interview by an asylum
officer.’”)(quoting 	8 	U.S.C. 	§§ 1225(b)(1)(A)(i)-(ii)). 	Based 	on 	the 	asylum 	officer’s
determination, an arriving alien either receives “‘full consideration of his asylum claim in a
standard removal hearing,” Thuraissigiam, 591 U.S. at 110 (quoting 8 C.F.R. § 208.30(f)); see 8
U.S.C. § 1225(b)(1)(B)(ii)); or the expedited removal proceedings of 8 U.S.C. § 1225(b)(1)), see
Thuraissigiam, 591 U.S. at 110 (stating that “all that an alien must show to avoid expedited removal
is a ‘credible fear’”)(quoting 8 U.S.C. § 1158(b)(1)(A)).
b. 	Expedited Removal
Thus, with IIRIRA’s passage, Congress closes the procedural anomaly of the “entry
doctrine,” Hing Sum, 602 F.3d at1100, and gives immigration officers the tools to process the
“million[s of] primary inspections” occurring at the border, Am. Immigr. Laws. Ass’n, 199 F.3d at
1355. Congress passes the IIRIRA with the expedited removal provisions to address the practical
reality that large volumes of “arriving” aliens are overwhelming the usual removal processes. Am.
Immigr. Laws. Ass’n, 199 F.3d at 1355. 	Congress therefore empowers immigration officers to
resolve straightforward inadmissibility determinations quickly where the alien “indisputably” has
no authorization to be admitted into the United States. 	H.R. Conf. Rep. No.. 104–828, at 209
(1996)(“House Report”)(stating that the “purpose of the provisions [paragraph (b)(1)] is to
expedite the removal from the United States of aliens who indisputably have no authorization to
be admitted to the United States . . . .”).
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Furthermore, “[n]ew paragraph (b)(2) provides that an alien determined to be inadmissible
by an immigration officer (other than an alien subject to removal under paragraph (b)(1), or an
alien crewman or stowaway) shall be referred for a hearing before an immigration judge under
new section 240.” 	House Report at 209. The language “other than an alien subject to removal
under paragraph (b)(1)” in § 1225(b)(2)(A) is significant. 	House Report at 209. 	Section
1225(b)(1) authorizes immigration officers to conduct expedited removal for specified categories
of arriving aliens whom the officer determines to be inadmissible for reasons including fraud or
misrepresentation, see 8 U.S.C. § 1182(a)(6)(C), or a lack of valid entry documents, see 8 U.S.C.
§ 1182(a)(7). Where the immigration officer makes such a determination, the immigration officer
may order removal without further hearing or review, and impose the attendant statutory
consequences, including a bar on reentry. See 8 U.S.C. § 1182(a)(9)(A)(i) (stating that any “alien
who has been ordered removed under section 1225(b)(1) of this title . . . who again seeks admission
within 5 years of the date of such removal . . . is inadmissible”).
2. 	Structure of 8 U.S.C. § 1225.
In interpreting a Congressional statute, the plain language that Congress writes is the most
important, but the statute’s structure can help the Court interpret the statute’s words. 	Congress
titles § 1225: “Inspection by immigration officers; expedited removal of inadmissible arriving
aliens; referral for hearing.” 8 U.S. C. § 1225.15 Thus, from the title, the reader can surmise that
15 The United States Code contains titles Congress codifies as “positive law,” which
Congress enacts as a whole, and titles Congress does not codify, which the Office of the Law
Revision Counsel of the House of Representatives of the United States compiles from various
congressional enactments. See United States v. DeLeon, 406 F. Supp. 3d 1129, 1170 n.17 (D.N.M.
2019)(Browning, J.)(“DeLeon”)(citing 1 U.S.C. § 204(a); 2 U.S.C. §§ 285, 285b). 	The term
positive law has both a general meaning and a specialized meaning in the context of the United
States Code. See Office of the Law Revision Counsel United States Code, The Term “Positive
Law,” in Positive Law Codification, (“Positive Law”) https://uscode.house.gov/codification
/term_positive_law.htm (last visited Jan. 28, 2026). In the United States Code context positive law
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they are about: (i) inspection; (ii) expedited removal of arriving aliens; and (iii) referral for
hearings. The Court should be slow to read a lot more into § 1225 that what the title details.
Section 1225 has four subparts: (i) “Inspection,” 8 U.S.C. § 1225(a); (ii) “Inspection of
applicants for admission,” 8 U.S.C. § 1225(b); (iii) “Removal of aliens inadmissible on security
and related grounds,” 8 U.S.C. § 1225(c); and (iv) “Authority related to inspections,” 8 U.S.C.
§ 1225(d). 	The Court views § 1225’s organization as reflecting a statutory design to address
immigration officer’s inspections, the expedited removal process, and the process of removing an
alien after a hearing. 	Each subpart addresses a discrete component of the inspection process,
moving from examination to summary removal determinations and then to the ancillary powers
necessary to carry out those functions.
refers specifically to Code titles that Congress enacts as complete statutory titles through the of a
codification bill that repeals prior enactments and restates them in organized form. See Positive
Law. 	Titles Congress enacts piece by piece are non-positive-law titles, which are editorial
compilations of statutes assembled by the Office of the Law Revision Counsel. See Positive Law.
Although Congress does not enact non-positive-law titles themselves, Congress does enact the
underlying statutes they contain. 	See Positive Law. 	Thus, all provisions in the U.S. Code are
positive law in the general sense, but only some titles are positive law in the technical codification
sense. Titles Congress codifies are authoritative expositions of the law whereas uncodified titles
are prima facie evidence of the law. See DeLeon, 406 F. Supp. 3d at 1170 n.7 (citing 1 U.S.C.
§ 204(a)).
Congress codifies § 1225’s heading -- including subheadings -- in September, 1996. See
Omnibus Consolidated Appropriations Act of 1997, PL 104-208, September 30, 1996, 110 Stat
3009. 	Congress, thus, enacts 8 U.S.C. § 1225’s heading, which is a permissible guide when
construing ambiguous statutory text. 	See Immigration & Naturalization Serv. v. Nat’l Ctr. for
Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991)(“[W]e have stated that the title of a statute or
section can aid in resolving an ambiguity in the legislation’s text.”); Mead Corp. v. Tilley, 490
U.S. 714, 723 (1989)(resolving ambiguity of 29 U.S.C.§ 1344 by looking at its title); Brotherhood
of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29 (1947)(“[H]eadings and titles
are not meant to take the place of the detailed provisions of the text. . . . For interpretive purposes,
they are of use only when they shed light on some ambiguous word or phrase. They are but tools
available for the resolution of a doubt.”); S. Furniture Leasing, Inc. v. YRC, Inc., 989 F.3d 1141,
1150 (10th Cir. 2021)(“To be sure, ‘the title of a statute or section can aid in resolving an ambiguity
in the legislation’s text.’”)(quoting Immigration & Naturalization Serv. v. Nat’l Ctr. for
Immigrants’ Rights, Inc., 502 U.S. at 189).
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a. 	8 U.S.C. § 1225(a): Inspection.
As the title of § 1225 promises, Congress labels the first section “Inspection.” 8 U.S.C.
§ 1225(a). 	The Court does not quickly move past the word “Inspection.” 	8 U.S.C. § 1225(a).
“Inspection” denotes the “act of inspection,” or “a checking or testing of an individual against
established 	standards,” 	Inspection, 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster,
https://www.merriam-webster.com/dictionary/inspection. (last visited on Jan. 17, 2026), and to
“inspect” means “to view closely in critical appraisal: look over” or “to examine officially,”
Inspecting, 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/inspecting. (last visited on Jan. 17, 2026). Inspection’s ordinary meaning
implies an individualized encounter between an immigration officer and a single alien -- often an
officer face-to-face with an alien for evaluation purposes. The word “inspection” is difficult to
reconcile with mass or abstract enforcement. In addition to focusing on the words that the statute
uses, it is also important to note what words § 1225 does not use. Section 1225 does not speak in
terms of “arrest” or “apprehension.” Those concepts are present in the INA, but their absence from
§ 1225’s title and text indicates that Congress places those powers elsewhere, and § 1225 is in a
distinct procedural posture -- often face-to-face inspection and examination at the threshold of
entry.
Section 1225(a) gives the definition for five inspection terms that the statute uses. Section
1225(a)(1)’s opening clause is foundational to the statute’s operation, and Congress emphasizes its
breadth through deliberate phrasing. Section 1225(a)(1) defines aliens who are “treated as
applicant[s] for admission.” 	8 U.S.C. § 1225(a)(1). 	For purposes of this chapter, immigration
officers treat aliens as applicants for admission if they are:
An 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
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including an alien who is brought to the United States after having been interdicted
in international or United States waters) shall be deemed for purposes of this
chapter an applicant for admission.
8 U.S.C. § 1225(a)(1). Notably, an alien is an “applicant for admission” if the alien is “present in
the United States” and is “not admitted.” 8 U.S.C. § 1225(a)(1). The definition also covers aliens
“who arrive[] in the United States” regardless whether they arrive at a designated port of entry. 8
U.S.C. § 1225(a)(1). With this scope, Congress indicates that § 1225 treats almost all aliens are
as “applicants for admission.” It is hard to image how Congress could have written § 1225(a)(1)
more broadly.
In § 1225(a)(1), the United States is passive. 	The United States does not have to do
anything -- such as effecting a stop -- to impose the status of “applicant for admission” upon an
alien. 8 U.S.C. § 1225(a)(1). An alien “present” in the United States who has not been admitted
or who arrives in the United States is, by law, an applicant for admission. 	At the same time,
§ 1225(a) indicates that the aliens whom the United States treats as “applicants for admission” has
subgroups. 8 U.S.C. § 1225(a)(2). For stowaways, who are aliens “present in the United States
who [have] not been admitted” or who are aliens “who arrive[] in the United States,” and thus an
applicant for admission, the statutes quickly states they are “not eligible to apply for admission or
to be admitted.” 8 U.S.C. § 1225(a)(2) (brackets added). Moreover, § 1225(a)(2) states “[i]n no
case may a stowaway be considered an applicant for admission or [be considered] eligible for a
hearing under section 1229a.” 	8 U.S.C. § 1225(a)(2). 	Section 1225(a)(3), titled “Inspection,”
states all “aliens (including alien crewmen) who are applicants for admission or otherwise seeking
admission or readmission to or transit through the United States shall be inspected by immigration
officers.” 8 U.S.C. § 1225(a)(3). The statute use’s of “or otherwise seeking admission” suggests
that aliens who are treated as applicant for admission are not coterminous with aliens who are
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“seeking admission.” 8 U.S.C. § 1225(a)(3). Thus, § 1225(a) suggest that not all applicants for
admission can apply for admission or are seeking admission. 	The Court notes that § 1225(a)
continues by defining “Withdrawal of application for admission” and “Statements.” 8 U.S.C.
§§ 1225(a)(4)-(5).16 	Although 	§ 1225 	does 	not 	define 	“admission” 	or 	“admitted,”
§ 1101(a)(13)(A) defines those terms as, “with respect to an alien, the lawful entry of the alien into
the United States after inspection and authorization by an immigration officer.” 	8 U.S.C.
§ 1101(a)(13)(A).
Section 1225(a) frames § 1225’s scope by situating the section within an inspection-based
posture. Congress specifies which aliens are subject to inspection -- those seeking admission or
readmission -- and identifies those who are not, including stowaways. 	The provision further
contemplates that an applicant for admission may withdraw the application and “depart
immediately” from the United States, underscoring the section’s focus on entry-stage judgments.
8 U.S.C. § 1225(a)(4). 	By anchoring § 1225 in inspection concepts that Congress defines, it
signals that an inspection at the threshold of entry triggers the powers and procedures that follow.
Section 1225(a) thus presupposes an alien whom the United States has not admitted, but is
applying for admission, free to abandon the inspection process and depart without restraint.
b. 	8 U.S.C. § 1225(b): Inspection of Applicants for Admission.
Congress titles § 1225(b): “Inspection of applicants for admission.” 8 U.S.C. § 1225(b).
17 In providing the process for inspecting “applicants for admission,” Congress begins with
16 Section 1225 defines the withdrawal of application for admission by stating an “alien
applying for admission may, in the discretion of the Attorney General and at any time, be permitted
to withdraw the application for admission and depart immediately from the United States.” 	8
U.S.C. § 1225(a)(4).
17 Federal law makes entering the United States without inspection a misdemeanor. See 8
U.S.C. § 1325. See United States v. Vencomo-Reyes, No. CR 11-2563 JB, 2011 WL 6013546,
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subparagraph (b)(1), which governs the inspection of “aliens arriving in the United States and
certain other aliens who have not been admitted or paroled.” 	8 U.S.C. § 1225(b)(1). 	Section
1225(b)(1) is the process for the “expedited” removal that Congress mentions in the title, even
though the word “expedited” appears nowhere in subparagraph (b)(1). 	Congress allows
§ 1225(b)(1) to apply to “certain other aliens,” and subparagraph § 1225(b)(2) governs the
inspection of “other aliens.” 8 U.S.C. § 1225(b)(2). As the Court discusses below, all aliens are
run through § 1225 (b)(1) first, and if an alien is an “arriving alien” or a “certain other alien” in
§ 1225(b)(1)(A)(iii), the alien never becomes an “other alien” in § 1225(b)(2). 	8 U.S.C.
§ 1225(b)(2)(ii) (“Subsection (A) shall not apply to an alien -- (ii) to whom paragraph (1) applies
. . . .”). Section 1225(b)’s remaining provisions establish enforcement and review mechanisms,
including authorization for State attorneys general to bring civil actions for harms arising from
detention or removal under subparagraphs (b)(1) and (b)(2), see 8 U.S.C. § 1225(b)(3), as well as
procedures 	for 	challenging 	determinations 	that 	immigration 	officers 	make, 	see 	8 	U.S.C.
§ 1225(b)(4). The heart of this dispute, in part, concerns the relationship between § 1225(b)(1)
and § 1225(b)(2), and, given its significance, the Court describes these provisions in greater detail.
Section 1225(b)(1)’s title, “Inspection of aliens arriving in the United States and certain
other aliens who have not been admitted or paroled,” indicates Congress intends that immigration
officers apply the following provision to two groups of aliens. 8 U.S.C. § 1225(b)(1). The two
groups of aliens are “aliens arriving in the United States”18 and “certain other aliens.” 8 U.S.C.
*10 n.8 (D.N.M. Nov. 28, 2011)(Browning, J.)(stating that under “federal immigration law, it is
not a felony to be in the United States illegally. Although it is a misdemeanor the first time an
individual enters the Unted States without inspection” (citing 8 U.S.C. § 1325(a))).
18 The Department of Homeland Security defines an “arriving alien” as:
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§ 1225(b)(1). 	Congress, after 	defining the class of 	applicants for admission subject 	to
§ 1225(b)(1), establishes a framework for the “screening” of arriving aliens, including procedures
for asylum interviews and limitations on judicial review. 8 U.S.C. §§ 1225(b)(1)(A)-(C). Again,
language is important.
i. 	Screening of Arriving Aliens.
Congress says “screening” -- not arrest, not apprehension, and not custody. 	8 U.S.C.
§ 1225(b)(1)(A). Merriam-Webster defines “screen” to mean “to examine methodically in order
to separate into different groups,” “to select or eliminate by a screening process,” or “to test or
examine for the presence of something,” reinforcing that § 1225(b)(1)’s use primarily is at a port
of entry, at the border, or at an immigration office where an immigration officer must methodically
separate inadmissible aliens from individuals whom Congress permits lawful entry. 	Screen,
Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/screen. (last visited on Jan. 18, 2026). 	See Jennings, 583 U.S. at 285
(“Every day, immigration officials must determine whether to admit or remove the many aliens
who have arrived at an official ‘port of entry’ . . . or who have been apprehended trying to enter
the country at an unauthorized location.”). The process is about screening -- inspection driven --
and not about the arrest or apprehension of aliens. 	Furthermore, screening suggests that
immigration officers often begins the screening and inspection process in the presence of the alien,
after the alien presents to the immigration officer to verify entry documents.
Arriving alien means an applicant for admission coming or attempting to
come into the United States at a port-of-entry, or an alien seeking transit through
the United States at a port-of-entry, or an alien interdicted in international or United
States waters and brought into the United States by any means, whether or not to a
designated port-of-entry, and regardless of the means of transport.
8 C.F.R. § 1.2.
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ii. 	“Arriving Aliens” are the Default Group.
As the Court observes above, § 1225(b)(1) applies to two groups of aliens, and
§ 1225(b)(1)(A) further divides the groups into subgroups. See 8 U.S.C. § 1225(b)(1)(A). Section
1225(b)(1)(A)(i) states: “If an immigration officer determines that an alien . . . who is arriving in
the United States or [] [certain other aliens] in clause (iii) is inadmissible under 1182(a)(6)(C) or
1182(a)(7) of this title . . . the officer shall order the alien removed from the United States without
further hearing or review . . . .” 8 U.S.C. § 1225(b)(1)(A)(i). Certain other aliens include:
An alien . . . who has not been admitted or paroled into the United States,
and who has not affirmatively shown, to the satisfaction of an immigration officer,
that the alien has been physically present in the United States continuously for the
2-year period immediately prior to the date of the determination of inadmissibility
under this subparagraph.
8 U.S.C. § 1225(b)(1)(A)(iii)(II). Taken together, these provisions identify the universe of aliens
subject to expedited removal following inspection, characterized by removal “without further
hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i).
Section 1225(b)(1)(A)(i) is the general rule, applying to aliens “arriving in the United
States,” but also to “certain other aliens” that Congress describes in “clause (iii).” 	8 U.S.C.
§ 1225(b)(1)(A)(i). Although Congress applies expedited removal to all aliens arriving or to whom
clause (iii) is applicable, Congress pauses expedited proceedings for aliens claiming asylum until
an 	asylum 	officer 	can 	make 	a 	determination 	under 	subparagraph 	(B). 	See 	8 	U.S.C.
§ 1225(b)(1)(A)(i)-(ii). The final provision, or the “Designation Provision,” allows the Attorney
General, now the Secretary of Homeland Security, Awe v. Napolitano, 494 F. App’x 860, 863 (10th
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Cir. 2012),19 to make the general rule for arriving aliens, of expedited removal, applicable to other
groups, see Make the Road, 962 F.3d at 619.
(I). 	Certain Other Aliens: Designation Groups.
Section 1225(b)(1)(A)(i) applies to aliens inadmissible for fraud or misrepresentation, or
lack of documentation. 	See 8 U.S.C. § 1225(b)(1)(A)(i) (referencing inadmissibility under
§§ 1182(a)(6)(C) or 1182(a)(7)). Fraud, misrepresentation, and lack of documentation constitute
only two of several inadmissibility grounds, however. 	In § 1182(a) Congress enumerates other
grounds, which include, among others, health-related grounds, criminal grounds, and security-
related grounds. 	See 8 U.S.C. § 1182(a)(1)-(10). 	Read in this context, the Court reads
§ 1225(b)(2) as broader than § 1225(b)(1); § 1225(b)(2) governs the inspection and processing of
applicants for admission who fall outside the narrow subset subject to expedited removal under
§ 1225(b)(1), which includes those inadmissible on grounds other than fraud or lack of
documentation. See 8 U.S.C. § 1225(b)(2) (governing the inspection of “other aliens”).
(II). 	Certain Other Aliens: Physical Presence.
Section 1225(b)(1) removes from expedited removal a second category of aliens. See 8
U.S.C. 	§ 1225(b)(1)(A)(iii)(II). 	Section 	1225(b)(1)(A)(iii)(II) 	limits 	immigration 	officers’
application of expedited removal to “certain other aliens,” whom the United States has not
admitted or paroled into the United States, and who does not show continuous physical presence
in the country for the two-year period immediately preceding the inadmissibility determination. 8
19 The statute’s reference to the Attorney General reflects prior administrative structure.
See Awe v. Napolitano, 494 F. App’x 863 n.3. Congress transfers authority to commence removal
proceedings and adjudicate naturalization applications to the Secretary of Homeland Security in
2002, effective March 1, 2003. 	See Ajlani v. Chertoff, 545 F.3d 229, 231 n.2 (2d Cir. 2008);
Batalova v. Ashcroft, 355 F.3d 1246, 1248 n.1 (10th Cir. 2004). Accordingly, references to the
“Attorney General” in § 1225 now means the Secretary of Homeland Security.
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U.S.C. § 1225(b)(1)(A)(iii)(II). 	By negative implication, Congress excludes from expedited
removal admitted aliens, paroled aliens, and aliens who can demonstrate two years of continuous
physical presence, even if they remain classified as applicants for admission under § 1225(a)(1).
See 8 U.S.C. § 1225(b)(1)(A)(iii)(II). 	The physical-presence limitation thus gives operative
content to Congress’ decision to treat certain non-admitted aliens present inside the United States
as applicants for admission for inspection purposes. 	See 8 U.S.C. § 1225(a)(1) (treating as an
applicant for admission both an arriving alien and an “alien present in the United States who has
not been admitted”).
Reading § 1225 to encompass a subset of aliens present in the United States accords not
only with the statute’s text, but also with Supreme Court guidance. 	In Jennings, the Court
implicitly recognizes this structure. 	See 583 U.S. at 297. 	Justice Alito describes § 1225(b) as
applying “primarily to aliens seeking entry into the United States.” Jennings, 583 U.S. at 297. The
modifier “primarily” implies that § 1225(b) also reaches some aliens who are not seeking entry.
Aliens physically present within our borders, whom the United States has not admitted, are not
“seeking entry,” but instead are “seeking admission.” 8 U.S.C. § 1225(b)(2)(A) (referring to an
“alien seeking admission”). Justice Alito’s further statement that “§ 1226 applies to aliens already
present in the United States” creates no tension; both propositions coexist comfortably under the
Court’s reading of § 1225(b), which recognizes overlapping statutory categories rather than
mutually exclusive ones.
The aliens whom § 1225(b)(1)(A)(iii)(II) covers 	includes, for example, aliens whose
inspection at a port of entry is “deferred” by an immigration officer, and whom the officer
temporarily permits the alien to enter the United States pending further inspection, see 8 C.F.R.
§ 235.2 (“Parole for deferred inspection.”), as well as certain previously admitted aliens whose
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status reverts to that of an applicant for admission upon the commission of specified offenses, see
8 U.S.C. § 1101(a)(13)(C) (stating that a lawfully admitted alien “shall not be regarded as seeking
an admission . . . unless the alien. . . . has committed an offense identified in section 1182(a)(2)).
Congress authorizes expedited removal only where the applicant for admission cannot demonstrate
two years of continuous physical presence. See 8 U.S.C. § 1225(b)(1)(A)(iii)(II). If an alien can
demonstrate two years of physical presence, they are then subject to the usual removal proceedings
under § 1229a, however, the alien remains an applicant for admission. See 8 U.S.C. § 1225(b)(2)
(stating that an applicant for admission “shall be detained for a proceeding under section 1229a”).
(III). 	Certain Other Aliens: Paroled.
At the same time, Congress distinguishes “parole into the United States,” under 8 U.S.C.
§ 1182(d)(5)(A), from “conditional parole” under § 1226(a), which authorizes release from
immigration custody pending removal proceedings, 8 U.S.C. § 1226(a)(2)(B). Conditional parole
does not confer entry, does not alter an alien’s status as an applicant for admission, and does not
suspend the United States’ pursuit of removal; conditional parole is similar to bail in the criminal
context. See Cruz-Miguel v. Holder, 650 F.3d 189 (2d Cir. 2011)(stating that “akin to bail release
in criminal cases, conditional parole merely permits an alien to remain at liberty based upon a
determination 	that 	he 	poses 	no 	risk 	of 	danger 	or 	flight 	while 	his 	removal 	is 	actively
sought”)(emphasis in the original). The distinction between parole and conditional parole carries
concrete statutory consequences. 	Aliens “paroled into the United States” are not subject to
expedited removal under § 1225(b)(1). 	See 8 U.S.C. § 1225(b)(1)(A)(iii)(II).20 They may also
seek adjustment of their immigration status under § 1255(a). See 8 U.S.C. § 1255(a) (stating that
20 The Court notes that persons who enter without inspection and are applicants for
admission can qualify for parole under § 1182, see U.S.C. § 1182(d)(5)(A), or conditional parole
under § 1226(a), see 8 U.S.C. § 1226(a)(2)(B).
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“[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may
be adjusted by the Attorney General, in his discretion and under such regulations as he may
prescribe”). 	Legislative history confirms the distinction between parole and conditional parole.
See Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th Cir. 2007)(discussing the 1960 amendment
to 1255(a)). In the 1960s, when Congress amends § 1255(a) to extend eligibility for adjustment
of immigration status to paroled aliens, it did so with reference to parole granted under 8 U.S.C.
§ 1182(d), not to aliens who had entered without inspection and were later released from custody
under the statutory precursor to § 1226(a). 	S.Rep. No. 86–1651 (1960), as reprinted in 1960
U.S.C.C.A.N. 3124, 3124-25, 3137 (extending § 1255 to “aliens paroled into the United States,”
but excluding those who “entered the United States surreptitiously”). This history indicates that
Congress does not understand conditional parole for aliens who entered without inspection to be
the same form of parole contemplated in § 1255 or in § 1225(b)’s exclusion from expedited
removal.
Section 1225(b)(1), though textually narrower than § 1225(b)(2), performs the operational
work within § 1225’s inspection framework. 	§ 1225(b)(1) governs the inspection of “arriving”
aliens and “certain other aliens,” including aliens present in the United States who have not been
admitted or paroled, and who cannot demonstrate two years of continuous physical presence. 8
U.S.C. § 1225(b)(1)(A)(i)-(iii). By contrast, § 1225(b)(2) applies to the residual category of “other
aliens” who are applicants for admission but fall outside the expedited-removal criteria and are
therefore placed into the usual removal proceedings under § 1229a. 8 U.S.C. § 1225(b)(2). The
scale of these provisions illustrates their functional roles. In 2024, CBP conducts over 416 million
inspections at the border, see 2024 CBP Statistic, while approximately 255,000 aliens file I-485
applications, from within the United States, to adjust status to lawful permeant residence, see
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Number of I-485 Applications to Register Permanent Residence or Adjust Status By Category,
Case Status, and USCIS Field Office or Service Center Location January 1, 2024 - March 31, 2024,
https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.uscis.gov%2Fsites%
2Fdefault%2Ffiles%2Fdocument%2Fdata%2Fi485_performancedata_fy2025_q1.xlsx&wdOrigi
n=BROWSELINK (last visited Jan. 16, 2025).21 	Roughly, these figures indicate that the
overwhelming majority of admissibility determination occur in § 1225(b)(1)’s inspection context
-- over ninety-nine percent -- while only a small fraction of applicants for admission proceed
through the more cumbersome pathway in § 1225(b)(2). 	In theory, § 1225(b)(2) covers more
categories of aliens; in practical operation, however, the United States processes most aliens
through § 1225(b)(1), and § 1225(b)(2) functions as a narrow backstop. 	This structure reflects
Congress’ intentional division between summary inspection-based determinations near the point
of entry and interior inspections where the reliability of rapid admissibility determinations is
suspect.
iii. 	“Arriving” Aliens in § 1225(b)(1).
Congress’ words are important. Section 1225 repeatedly focuses the reader on the word
“arrive” -- “arriving aliens” in the title; aliens who “arrive” in applicants for admission; and
“certain other aliens” immigration officers are to treat as if they are arriving. Merriam-Webster
defines “arrive” as an intransitive verb meaning “to reach a destination” or “to make an
appearance: to come up on the scene.” 	Arrive, Merriam-Webster.com Dictionary, Merriam-
Webster, https://www.merriam-webster.com/dictionary/arrive. 	(last visited on Jan. 18, 2026).
21 A foreign national, who is already present in the United States, generally fills out Form
I-485 to attain lawful permanent resident status. See Alicia Ward, United States Lawful Permanent
Residents: 2023, United States Department of Homeland Security at 2 (Sep. 9, 2024)(“LPR
Statistics”). Foreign nationals who live abroad or seek to enter the United States through a port of
entry do not use Form I-485. See LPR Statistics at 2.
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Congress envisions § 1225(b)(1) as generally applying to aliens who present at a port of entry upon
reaching their destination -- the United States. See 8 U.S.C. § 1225(b)(1)(A)(i) (stating the general
rule of inspection). These provisions are about applicants for admission who are seeking lawful
entry, and that can occur at the border or on the interior when an alien arrives at an immigration
office for deferred inspection or when an alien files Form I-485 to change their immigration status.
That Congress allows the Attorney General to extend this framework to “certain other aliens”
present in the United States does not change Congress’ intent that § 1225 is primarily about
inspection for lawful entry; the extension confirms it. 8 U.S.C. § 1225(b)(1)(A)(iii). Removing
any doubt, Congress repeatedly employs the present participle “arriving.”
Congress’ use of the present participle “arriving” as an adjective modifying the noun
“alien” is significant, because, in traditional grammatical terms, the present participle signals an
imperfect or continuous aspect rather than a completed action. See P. Peters, The Cambridge Guide
to English Usage 409 (2004)(explaining particles “create different aspects for the verb” either
“imperfect” or “perfect”). 	Unlike the past participle, which ordinarily conveys a completed or
passive state, the present participle is active and describes an action that is ongoing or in progress.
See P. Peters, The Cambridge Guide to English Usage 409. By choosing the active, imperfect form
“arriving alien,” Congress signals that § 1225(b)(1) applies to aliens who are in the process of
inspection and arrival, and not to those whose entry is completed long ago and whose presence in
the United States is no longer properly understood as “arriving.”
The textual distinction between “arriving” aliens and aliens present in the interior of the
country reflects a longstanding principle of immigration law’s relationship with the Due Process
Clause. See Zadvydas, 533 U.S. 695 (“The distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.”). As
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Justice Scalia explains, the Due Process distinction “makes perfect sense: with regard to the
question of what procedures are necessary to prevent entry, as opposed to what procedures are
necessary to eject a person already in the United States.” Zadvydas, 533 U.S. at 704 (Scalia, J.,
dissenting). 	That procedural observation applies with full force here, as the statutory language
reflects our nation’s understanding of immigration law. Applicants for admission, by presenting
themselves for inspection, subject themselves to the United States immigration system. An alien
who does not seek admission through inspection is in a different procedural posture than an alien
who has started the process of lawful entry. 	That Congress makes stowaways, who attempt to
enter without submitting to lawful inspection, not eligible to apply for admission under § 1225 is
confirmation enough of the difference in procedural posture.
iv. 	Section 1225(b)(2): “Other Aliens”.
After § 1225(b)(1) carries all of that water -- dividing applicants for admission into
subgroups, specifying who is subject to expedited removal, and describing how certain aliens can
seek asylum -- it is only then that § 1225(b)(2) comes over the horizon for consideration. Section
1225(b)(2) “serves as a catchall provision that applies to all applicants for admission not covered
by § 1225(b)(1).” Jennings, 583 U.S. at 287. Congress entitles this provision “Inspection of other
aliens” and labels § 1225(b)(2)(A) the rule “In general.” Like § 1225(b)(1), it applies only to
applicants for admission, but it governs a broader universe of aliens. See Jennings, 583 U.S. at
287 (“Section 1225(b)(2) is broader.”). 	Section 1225(b)(2) addresses the inspection of “other
aliens” that § 1225(b)(1) does not cover. 8 U.S.C. § 1225(b)(2). Congress is mindful, however,
to distinguish this group of “other aliens” in § 1225(b)(2) from the “certain other aliens” in
§ 1225(b)(1)(A)(iii).
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“In general . . . an alien who is an applicant for admission, if the examining immigration
officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for proceedings under section 1229a of this title.” 8 U.S.C.
§ 1225(b)(2)(A).22 Section 1225(b) establishes two removal pathways that operate following an
22 Section 1229 is titled “Initiation of removal proceedings” and sets forth the regular
removal process of § 1229a. 	8 U.S.C. § 1229. 	Under §§ 1229 and 1229a, the United States
charges an alien with removability, serves the alien with a notice to appear, brings the alien before
an immigration judge, permits the alien to present evidence and argument, and affords the alien
Board of Immigration Appeals review and, ultimately, allows Courts of Appeals review. 	See
United States v. Gonzalez-Fierro, 949 F.3d 512, 519 (10th Cir. 2020). Section 1229a provides for
“usual removal proceedings,” Thuraissigiam, 591 U.S. at 108-09 (discussing the usual removal
proceedings from the expedited proceedings), which differ from the expedited removal process
that § 1225(b)(1) describes. 	See 8 U.S.C. § 1229(a)(b)(4) (discussing the alien’s “rights in the
proceeding” compared with the immigration officers’ determination without further hearings).
Section 1229a is the “sole and exclusive procedure for determining whether an alien may
be admitted to the United States or, if the alien has been so admitted, removed from the United
States,” unless “otherwise specified in this chapter,” including the “Expedited removal of aliens
convicted of committing aggravated felonies,” under 8 U.S.C. § 1228. 	8 U.S.C. § 1229a(a)(3).
Although 1229a is the exclusive procedure for removal proceedings, § 1229a does not mention
“detention. 8 U.S.C. § 1229a. Section 1229 presupposes detention. See 8 U.S.C. § 1229(a)(2)(B)
(stating that “[i]n the case of an alien not in detention, a written notice shall not be required under
this paragraph if the alien has failed to provide the address required under paragraph (1)(F)”).
Accordingly, the power to detain aliens during those removal proceedings must come from outside
those sections. Indeed, the Supreme Court, in Jennings, all but confirms the authority to detain
aliens civil during these proceedings comes from §§ 1225 and 1226. See 583 U.S. 289 (“In sum,
U.S. immigration law authorizes the Government to detain certain aliens seeking admission into
the country under §§ 1225(b)(1) and (b)(2). It also authorizes the Government to detain certain
aliens already in the country pending the outcome of removal proceedings under §§ 1226(a) and
(c).”).
The United States’ power to detain aliens that covers arriving aliens and “certain other
aliens” is in § 1231, which is titled “Detention and removal of aliens ordered removed.” 8 U.S.C.
§ 1231. Section 1225(b)(1) provides for “expedited removal.” 8 U.S.C. § 1225(b)(1). When an
“the officer [] order[s] the alien removed from the United States,” 8 U.S.C. § 1225(b)(1)(A), a
“removal period” starts in § 1231. 	8 U.S.C. § 1231(a)(1)(B)(i). 	Section 1231(a)(1) states that,
“when an alien is ordered removed, the Attorney General shall remove the alien from the United
States within a period of 90 days (in this section referred to as the “removal period”).” 8 U.S.C.
§ 1231(a)(1)(A). Section 1231(a)(2) then discusses “Detention” and states, “In general, [d]uring
the removal period, the Attorney General shall detain the alien.” 8 U.S.C. § 1231(a)(2)(A).
As the Court discusses later, § 1226 governs apprehension and detentions of aliens.
Section 1226 authorizes arrest upon warrant, and permits release on bond or conditional parole
unless mandatory detention applies. See 8 U.S.C. § 1226(a), (c). By regulation, when the United
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immigration officer’s inspection of an applicant for admission and which apply to three classes of
aliens. The first pathway, in § 1225(b)(1), provides that, if an immigration officer determines that
an alien “arriving in the United States” or “certain other aliens” present in the country are
inadmissible, 	the 	officer 	orders 	removal 	without 	further 	hearing 	or 	review. 	8 	U.S.C.
§ 1225(b)(1)(A)(i). 	The second pathway, in § 1225(b)(2), provides that immigration officers
detain and remove “other aliens” under § 1229a’s ordinary procedures. 8 U.S.C. § 1225(b)(2)(A).
Within this framework, § 1225(b) contemplates four classes of aliens or noncitizens: arriving
aliens, see 8 U.S.C. § 1225(b)(1)(A)(i); applicants for admission present in the United States but
for less than two years, see 8 U.S.C. § 1225(b)(1)(A)(iii); applicants for admission present in the
United States for longer than two years but are seeking admission, see 8 U.S.C. § 1225(b)(2)(A),
and a residual category of other aliens, including crewmen and stowaways, whom are not eligible
to apply for admission, see 8 U.S.C. § 1225(b)(2)(B).
The statute’s language reflects an inspection-centered posture. An immigration officer’s
inspection of an alien in the posture of seeking admission triggers both § 1225(b)’s removal
pathways -- expedited removal under § 1225(b)(1) and the usual removal under § 1225(b)(2) --
and the pathways operate as alternative outcomes of the inspection process. Further confirming
the inspection posture, § 1225(a)(2) specifies that stowaways are not eligible to apply for
States detains an alien under § 1226(a), the alien receives an initial bond hearing before an
immigration judge. See 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1). The removal proceedings that the
alien receives, however, are pursuant to § 1229a.
Section 1225(b), by contrast, establishes expedited removal. Aliens subject to § 1225(b)(1)
may be ordered removed “without further hearing or review,” save for the limited credible-fear
process. 8 U.S.C. § 1225(b)(1)(A). Under § 1225(b)(2), aliens the United States detains “for a
removal proceeding” proceed under § 1229a just like those that the United States detains under
§ 1226. 	A key difference between the United States detaining an alien under § 1225(b)(2) and
§ 1226 is not the ultimate process the alien receives during their § 1229a proceedings, but the
initial bond hearing that applies only to § 1226 by regulation.
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admission, and § 1225(b)(2)(B)(iii) correspondingly excludes stowaways from detention for non-
expedited removal proceedings. 	From this statutory pairing, i.e. the relationship between
§ 1225(b)(1) and § 1225(b)(2), the Court sees Congress’ intent as tying the concept of an
“applicant for admission” to inspection rather than to a freestanding status untethered from the
inspection context.
That understanding aligns with §1101’s statutory definition of “admission,” which defines
the term as “lawful entry . . . after inspection and authorization by an immigration officer.” 	8
U.S.C. § 1101(a)(13)(A). 	The relationship between “applicant for admission” and lawful
inspection also accords with § 1225(a)’s provision permitting an applicant for admission to
withdraw an application for admission and depart immediately from the United States, reflecting
Congress’ expectation that the inspection process occurs at the threshold of entry and that aliens
who do not wish to submit to that process may simply leave. 8 U.S.C. § 1225(a)(4). Outside of
that inspection framework, § 1225 provides no independent scheme for detaining aliens; it instead
contemplates either inspection leading to admission or removal, or immediate departure in lieu of
inspection. The remaining § 1225 sections serve to reinforce that Congress is concerned with the
inspection of applicants for admission at the border.
v. 	Section 1225(b)(2)(A): An Alien Seeking Admission.
Congress’ words matter. Section 1225 establishes an inspection-based regime governing
the treatment of arriving aliens and aliens present in the country. 	See 8 U.S.C. § 1225(a)(1).
Within that framework, § 1225(b)(2) operates as an exception to the “expedited” removal under
§ 1225(b)(1), providing aliens the usual removal proceeding, under § 1229a, only when three
conditions are met: (i) the alien is an applicant for admission; (ii) the alien is “seeking admission”;
and (iii) the examining immigration officer determines that the alien is not clearly and beyond
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doubt entitled to be admitted. 	8 U.S.C. § 1225(b)(2)(A). 	Section 1225(b)(2)(A) distinguishes
between the legal status of being an applicant for admission and the act of seeking admission.
Congress uses the phrase “seeking admission” only sparingly in § 1225 and always with
precision. 	Cf., 8 U.S.C. § 1225(a)(2) (providing that stowaways are not “eligible to apply for
admission or to be admitted”). 	The phrase first appears in the inspection clause: “All aliens
(including alien crewmen) who are applicants for admission or otherwise seeking admission or
readmission to or transit through the United States shall be inspected by immigration officers.” 8
U.S.C. § 1225(a)(3). 	The phrase appears again in the statements provision: “An applicant for
admission may be required to state under oath any information sought by an immigration officer
regarding the purposes and intentions of the applicant in seeking admission to the United States.”
8 U.S.C. § 1225(a)(5). And it appears a third time in § 1225(b)(2)(A). That the phrase is absent
from the section otherwise is no coincidence. 	In the inspection clause, Congress’ use of “or”
confirms that being an applicant for admission is not coterminous with seeking admission; the
section treats them as related but distinct concepts. 8 U.S.C. § 1225(a)(3). In the statement clause,
Congress uses “seeking admission” to describe purposeful acts by the applicant for admission,
linking the phrase to conduct rather than status. 	8 U.S.C. § 1225(a)(5). 	When Congress then
employs the same phrase again in § 1225(b)(2)(A), it again does so such that the phrase helps
readers understand applicants for admission. 	The Court sees no reason to treat the insertion as
accidental or redundant.
Ordinary meaning confirms the point. “Seek” means “to go in search of,” “to ask for,” or
“to request.” Seek, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/seek. 	(last visited on Jan. 19, 2026). 	“Seek” denotes action directed
toward a goal, and not a static label. “Admission” or “admitted” means “the lawful entry of the
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alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A). With those definitions in mind, “seeking admission” naturally refers to the act
of “asking for” or “requesting” lawful entry through inspection or authorization. 	The phrase
therefore narrows the broader universe of “applicants for admission,” which encompasses
everyone present in the United States, who has not been admitted, and arriving aliens. 8 U.S.C.
§ 1225(a)(1). 	Although the phrase “seeking admission” narrows the class of aliens to whom
§ 1225(b)(2) applies, it would be mistaken to read the provision as limited exclusively to physical
border encounters. An alien may seek lawful entry at a port of entry, but an alien may also seek
lawful admission from within the United States through statutory mechanisms such as an
application for adjustment of status on Form I-485 or other congressionally authorized procedures
for obtaining lawful admission.
Congress’ drafting is methodical. 	Section 1225(b)(1) governs arriving aliens and
designated “certain other aliens.” 	8 U.S.C. § 1225(b)(1). 	The use of “certain other aliens” in
§§ 1225(b)(1) and 1225(b)(1)(A)(iii) is careful craftsmanship by Congress to aid readers in not
confusing those aliens with the “other aliens” it describes in § 1225(b)(2). 	Congress is careful,
because it does not want applicants for admission receiving removal proceedings under § 1229a
when expedited proceeding are appropriate. 	Reading “seeking admission” to do real work
preserves that purpose and the section’s structure. 	Reading the phrase as surplusage would
collapse it. See Castañon-Nava, 2025 WL 3552514 *9 (stating the presumption against reading a
phrase as superfluous is ‘strongest when an interpretation would render superfluous another part
of the same statutory scheme’)(quoting Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013)).
The structure of § 1225 confirms this reading. Section 1225(b)(1) sets forth the general
rule governing inspections of applicants for admission. 	See 8 U.S.C. § 1225(b)(1)(A). 	Section
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1225(b)(2) then appears on the horizon as a residual provision, applying only to “other” applicants
for admission that § 1225(b)(1) does not cover. 	See Jennings, 583 U.S. at 287 (describing
§ 1225(b)(2) as the “catchall provision that applies to all applicants for admission not covered by
§ 1225(b)(1)”). This sequencing reflects a familiar statutory pattern. Congress states the general
rule first and then follows it with the exceptions to the general rule. 	Reading § 1225(b)(2) to
govern all applicants for admission, without qualification, inverts the statutory pattern, allowing
the residual provision to swallow the general rule. Statutory interpretation does not permit such
an inversion.
c. 	8 U.S.C. § 1225(c).
Section 1225(c) covers the removal of inadmissible aliens based on security and related
grounds, including removal without further hearing, the Attorney General’s review of a removal
order, and submission of a statement and information for the attorney general to consider. See 8
U.S.C. §§ 1225(c)(1)-(3). Subparagraph (c)(1) states that, if an immigration officer “suspects that
an arriving alien may be inadmissible under . . . section 1182(a)(3) of this title,” the immigration
officer shall “order the alien removed.” 8 U.S.C. § 1225(c)(1). The specific subparagraphs that
§ 1225(c)(1) contemplates are subparagraphs §§ 1182(a)(3)(A)-(C). See 8 U.S.C. § 1225(c)(1).
Section 1182(a)(3) covers the class of aliens who are “ineligible for visas or admission”
for security related reasons. 8 U.S. C. § 1182(a)(3). Subparagraph 1182(a)(3)(A) is the general
rule that applies to any alien who “seeks to enter” the United States for nefarious purposes,
including espionage and attempting to overthrow the government. 	8 U.S. C. § 1182(a)(3)(A).
Similarly, subparagraph 1182(a)(3)(B), which applies to terrorist activities, contemplates an alien
engaging in terrorist activity “after entry” into the United States. 8 U.S.C.§ 1182(a)(3)(B)(i)(II).
Finally, subparagraph 1182(a)(3)(C) applies generally to aliens “whose entry or proposed activities
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in the United States . . . would have potentially serious adverse foreign policy consequences.” 8
U.S.C. § 1182(a)(3)(C)(i).
d. 	8 U.S.C. § 1225(d).
Section 1225(d) provides immigration officers with “[a]uthority relation to inspection.” 8
U.S.C. § 1225(d). The authority that Congress gives is the authority to search conveyances, or
vehicles,23 order detention and delivery of arriving aliens, administer oaths and consider evidence,
and to issue subpoenas. See 8 U.S.C. § 1225(d)(1)-(4). The authority to search vehicles allows
immigration officers to “board and search any vessel, aircraft, railway car, or other conveyance or
vehicle in which they believe aliens are being brought into the United States.” 	8 U.S.C.
§ 1225(d)(1). The authority to detain allows immigration officers to order anyone “bringing an
alien . . . to the United States” to detain the alien “on the vessel or at the airport of arrival, and to
deliver the alien to an immigration officer for inspection or to a medical officer examination.” 8
U.S.C. § 1225(d)(2)(A)-(B). 	Section 1225(d)(3) relates to immigration officers’ ability to
administer oaths and take evidence “touching the privilege of any alien . . . to enter, reenter, transit
through, or reside in the United States.” 8 U.S.C. § 1225(d)(3). Finally, the subpoena authority
allows immigration officers to require “the attendance and testimony of witnesses . . . and the
production of books, papers, and documents relating to the privilege of any person to enter, reenter,
reside in, or pass through the United States or concerning any matter which is material and relevant
to the enforcement of this chapter.” 8 U.S.C. § 1225(d)(4).
23 The Merriam-Webster Dictionary defines “conveyance” as “a means or way of
conveying: such as . . . a means of transport: vehicle.” 	Conveyance, Merriam-Webster.com
Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/conveyance. 	(last
visited on Jan. 14, 2026).
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Section 1225(d) reinforces that § 1225’s scheme operates in an inspection-based posture.
Congress entitles this subsection “Authority relating to inspection,” and Congress frames the
powers it confers around identifying, examining, and processing individuals at or near the point of
entry. 8 U.S.C. §§ 1225(d)(1)-(4). The authority to board and search vessels, aircraft, and other
conveyances reflects a focus on intercepting and examining aliens who are arriving or are at the
threshold of entry. See 8 U.S.C. § 1225(d)(1). Further reinforcing the threshold character of the
statute, §§ 1225(d)(2)(A)-(B) limits the immigration officers’ authority to direct carriers to detain
aliens on vessels or at airports of arrival, and to deliver those aliens for inspection, underscoring
that the provision operates in the context of entry screening. See 8 U.S.C. §§ 1225(d)(2)(A)-(B).
The remaining inspection authorities follow a similar theme. 	Congress authorizes
immigration officers to administer oaths and to take evidence concerning an alien’s privilege to
enter, to reenter, to transit through, or to reside in the United States, and to issue subpoenas for
testimony and documents relating to that privilege. 	See 8 U.S.C. § 1225(d)(3)(4). 	These
provisions contemplate fact finding and adjudicative functions tied to determining admissibility
and entry status, and not generalized deportation or removal functions. Read in context, § 1225(d)
supplies the operational tools necessary for immigration officials to conduct inspections and to
make entry determinations, further confirming that Congress does not envision § 1225’s detention
and removal mechanisms apart from the inspection of an arriving applicant for admission inspect.
By contrast, § 1226 speaks in remarkably different terms. 	Section 1226 governs the
“Apprehension and detention of aliens.” 	8 U.S.C. § 1226. 	This section employs language
associated with warrants, see 8 U.S.C. § 1226(a); work authorization, see 8 U.S.C. § 1226(a)(3);
and the prior convictions, see 8 U.S.C. § 1226(c)(E)(ii). In the Court’s view, the contrast between
the inspection-focused terminology of § 1225 and the more ordinary, post-entry language of
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§ 1226 reflects Congress’ considered judgment that different procedures are appropriate for
preventing entry than for removing individuals who have already entered and established presence.
Thuraissigiam, 591 U.S. at 103 (discussing the “century-old rule regarding the due process rights
of an alien seeking initial entry” and an alien who has “‘effected an entry’”)(quoting Zadvydas,
533 U.S. at 693).
Looking at existing case law reflects that different courts have taken different approaches
to the interpretation of § 1225. 	The Seventh Circuit in Castanon-Nava, addresses whether the
United States is likely to succeed on the merits in its argument that § 1225(b)(2)(A) allows the
detention of any noncitizen who is unlawfully present in the interior of the United States. 	161
F.4th at 1060. Looking to § 1225(b)(2)(A)’s language, the Seventh Circuit contemplates what it
means to be “seeking admission.” 1 61 F.4th at 1061. Despite the United States’ argument that an
“applicant for admission” is synonymous with a person “seeking admission,” the Seventh Circuit
holds that unlawful noncitizens are only seeking admission when they are at the border. 161 F.4th
at 1061. The Seventh Circuit offer two main arguments to support that conclusion.
First, the Seventh Circuit believes that if the United States’ interpretation of seeking
admission is adopted, it would render § 1225(b)(2)(A)’s use of the phrase “seeking admission”
superfluous. 161 F.4th at 1061. Second, the Seventh Circuit notes that “the difference in treatment
between a noncitizen at the border and one already in the United States fits within the broader
context of our immigration law. Indeed, ‘the distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.’” 161 F.4th
at 1061-62 (citing Zadvydas,, 533 U.S. at 693). The Seventh Circuit therefore concludes that the
United States is not likely to succeed on the merits of their arguments that those individuals, whom
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ICE arrests without a warrant on the interior of the country, are subject to mandatory detention
under § 1225(b)(2)(A). 161 F.4th at 1062.
By contrast, in Singh v. Noem, No. CIV 25-1110 JB/KK, 2026 WL 146005 (D.N.M. Jan.
20, 2026)(“Singh”) the Court begins by looking at § 1225 as a whole. 	See Singh, 2026 WL
146005, at * 33. 	Section 1225(b)(1) applies to “applicants for admission” who “arrive” in the
United States, or who have been in the United States continuously for less than two years, whereas
Section 1225(b)(2) applies to “other aliens” that are applicants for admission seeking admission.
Singh, 2026 WL 146005, at * 33. The Court understands § 1225(b)(1) to be the default provision
for § 1225, and that the majority of aliens whom the United States properly holds under § 1225
will fall within its scope; “that is, aliens qualifying as applicants for admission who either arrive
at the border, and are inadmissible because of fraud, misrepresentation, or lack of valid
documentation, or aliens who are present in the country continuously for less than two years
immediately before the date of the determination of inadmissibility, and are inadmissible because
of fraud, misrepresentation, or lack of valid documentation.” Singh, 2026 WL 146005, at * 34.
Turning then to § 1225(b)(2), the Court concludes that this provision is a “catchall provision.”
Singh, 2026 WL 146005, at * 34 (citing Jennings, 583 U.S. at 287). 	Section 1225(b)(2) is not,
however, a catchall such that it covers every applicant for admission; instead it only covers
applicants for admission who seek admission, such as applying to achieve some legal status. See
Singh, 2026 WL 146005, at * 34. In reaching this conclusion, the Court rejects the United States’
argument that all applicants for admission are seeking admission, because “[t]reating these phrases
synonymously is contrary to the presumption that Congress intends different words or phrases to
be accorded different meanings.” 	Singh, 2026 WL 146005, at *35. 	The Court also rejects,
however, the argument that “seeking admission” must only apply to aliens arriving at the border,
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because this conclusion equates the phrase “seeking admission” with an “arriving alien,” which is
also contrary to the presumption that Congress intends different words or phrases to be accorded
different meanings. Singh, 2026 WL 146005, at *35. The Court therefore reads § 1225(b)(2) to
afford meaning to both the phrase “applicant for admission” and “seeking admission” by
concluding that seeking admission requires some affirmative action on the part of the applicant for
admission. See Singh, 2026 WL 146005, at *35.
Finally, the Fifth Circuit in Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL 323330,
at 	*1 	(5th 	Cir. February 	6, 	2026)(“Buenrostro”), 	contemplates 	what 	the 	phrase 	“seeking
admission” means in § 1225(b)(2)(A). 2026 WL 323330, at *1. 	In Buenrostro, both petitioners
are citizens of Mexico who enter the United States illegally. See 2026 WL 323330, at *3. DHS
encounters each petitioner in 2025, and, upon inspection, immigration officers determine that each
petitioner in inadmissible as an alien present in the United States without having been admitted or
paroled. See 2026 WL 323330, at *3. 	DHS commences removal proceedings under § 1229a
against both petitioners, directing that the United States detain them under § 1225(b)(2)(A) for the
duration of the proceedings. See 2026 WL 323330, at *3. Both petitioners seek bond hearings
before an immigration judge, but both immigration judges conclude that the petitioners are
ineligible for a bond hearing under § 1225(b)(2). See 2026 WL 323330, at *3. As a result of the
immigration judge’s ruling, the petitioners file habeas petitions seeking release from detention or
a bond hearing under § 1226(a). The district court judges in both cases grant the habeas petitions
and order a bond hearing. See 2026 WL 323330, at *3.
In a two to one decision, the Fifth Circuit holds that neither petitioner is entitled a bond
hearing and are instead properly detained under § 1225(b)(2)(A). See 2026 WL 323330, at *10.
Although the petitioners argue that they are not subject to § 1225(b)(2)(A) detention, because
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“seeking admission” refers only to those aliens who are submitting themselves for inspection by
an immigration officer, and the United States detained the petitioners in the United States’ interior,
the Fifth Circuit rejects this argument by concluding that those aliens who are applicants for
admission are always seeking admission. 2026 WL 323330, at *4. The Fifth Circuit offers several
reasons to support that conclusion.
First, the Fifth Circuit holds that the ordinary meaning of the language in § 1225(b)(2)(A)
supports its conclusion that applicants for admission are seeking admission. See 2026 WL 323330,
at *4. The Fifth Circuit asserts that there is no material disjunction -- by terms of the statute of the
English language -- between the concept of applying for something and seeking something. See
2026 WL 323330, at *4. “When a person applies for something, they are necessarily seeking it.”
2026 WL 323330, at *4. “Just as an applicant to a college seeks admission, an applicant for
admission to the United States is ‘seeking admission’ to the same, regardless whether the person
actively engages in further affirmative acts to gain admission.” 2026 WL 323330, at *4. The Fifth
Circuit therefore holds that the everyday meaning of § 1225(b)(2)(A)’s terms confirms that an
applicant for admission is not independent from seeking admission. See 2026 WL 323330, at *4.
Second, the Fifth Circuit points to § 1225(a)(3) which specifies that “[a]ll aliens (including
crewman) who are applicants for admission or otherwise seeking admission or readmission to or
transit through the United States shall be inspected by immigration officers.” See 2026 WL
323330, at *5. “The use of ‘or otherwise’ suggests that ‘applicants for admission’ are a subset of
those ‘seeking admission.’” See 2026 WL 323330, at *5. As another textual hook, the Fifth Circuit
points to § 1225(a)(5) as reinforcing the proposition that applicants for admission are seeking
admission. See 2026 WL 323330, at *6. Section 1225(a)(5) states: “An applicant for admission
may be required to state under oath any information sought by an immigration officer regarding
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the purposes and intentions of the applicant in seeking admission to the United States . . . .” 8
U.S.C. § 1225(a)(5). The Fifth Circuit concludes that § 1225(a)(5)’s language “strongly suggests
that those who are applicants for admission are seeking admission.” 2026 WL 323330, at *6.
Third, the Fifth Circuit notes that if Congress had intended an alien seeking admission to
mean an arriving alien, it would have used the word arriving alien. See 2026 WL 323330, at *6.
Congress did not hesitate to use the arriving alien language elsewhere in §§ 1225(a)(2), (c)(1), and
(d)(2). See 2026 WL 323330, at *6.
Fourth, the Fifth Circuit cites Jennings as support for its conclusion that those who are
applicants for admission are seeking admission. 	See Buenrostro, 2026 WL 323330, at *8. In
Jennings, according to the Fifth Circuit, the Supreme Court explains that Ҥ 1225(b) applies to
aliens seeking entry into the United States (‘applicants for admission’ in the language of the
statute).” 2026 WL 323330, at *6 (citing Jennings, 583 U.S. at 297). The Fifth Circuit states:
That language supports the government’s contention that ‘applicants for
admission’ are according to the statute seeking entry or admission. And it suggests
that when the Supreme Court described § 1225 as applying to aliens ‘seeking
admission,’ it understood that to mean aliens who, like the petitioners here, are
present in the United States without admission.
2026 WL 323330, at *8. Accordingly, the Fifth Circuit in Buenrostro holds that applicants for
admission are seeking admission.
3. 	Due Process.
The courts cannot interpret the INA and the role § 1225 plays in its statutory scheme apart
from the Constitutional principles that historically govern the relationship between due process
and the sovereign authority to admit or exclude noncitizens. See Thuraissigiam, 591 U.S. at 139-
140. The Court is mindful, however, to differentiate between due process the statute requires and
Constitutional Due Process. See Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018)(stating that the
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Supreme Court, in Jennings, “chose to answer only the question whether the statutory text itself
included a limit on prolonged detention or a requirement of individual bond hearings . . . . The
Court then remanded the constitutional issues to our court”). 	Below, the Court details the law
regarding: (i) Constitutional Due Process, (ii) immigration law and due process, and (iii) how those
bodies of law shape courts’ statutory interpretations of the INA.
a. 	The Due Process Clause.
The Fifth Amendment to the United States Constitution states that the government shall
not deprive any person “of life, liberty, or property, without due process of law . . . .” U.S. Const.
amend. V, § 1. 	The Due Process Clause encompasses two distinct forms of protection: (i)
procedural due process, which requires the government to employ fair procedures when depriving
a person of a protected interest; and (ii) substantive due process, which guarantees that the
government cannot deprive a person of a protected interest for certain reasons. See Reid v. Pautler,
36 F. Supp. 3d 1067, 1136 (D.N.M. 2014)(Browning, J.)(citing Cty. of Sacramento v. Lewis, 523
U.S. 833, 845-46 (1998)). 	“Under either form of protection, however, a person must have a
protected interest in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, 2008
WL 5992271, at *6 (D.N.M. Oct. 9, 2008)(Browning, J.).
i. 	Procedural Due Process.
The Tenth Circuit prescribes a two-step inquiry in determining whether the defendant
violates an individual’s procedural due process rights: (i) “[d]id the individual possess a protected
property [or liberty] interest to which due process protection was applicable?”; and (ii) “[w]as the
individual afforded an appropriate level of process?” Camuglia v. City of Albuquerque, 448 F.3d
1214, 1219 (10th Cir. 2006)(quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th
Cir. 1999)). “[T]o determine whether due process requirements apply in the first place, we must
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look not to the ‘weight’ but to the nature of the interest at stake.” Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564, 570-71 (1972). 	“‘Liberty’ and ‘property’ are broad and majestic terms.
They are among the ‘(g)reat (constitutional) concepts . . . purposely left to gather meaning from
experience.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 571 (quoting National Mutual Ins.
Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949)(Frankfurter, J., dissenting)). 	The
Supreme Court requires “due process protection for deprivations of liberty beyond the sort of
formal constraints imposed by the criminal process.” Bd. of Regents of State Colls. v. Roth, 408
U.S. at 571-72. 	“Yet, while the Court has eschewed rigid or formalistic limitations on the
protection of procedural due process, it has at the same time observed certain boundaries,” and
“the words ‘liberty’ and ‘property’ in the Due Process Clause of the Fourteenth Amendment must
be given some meaning.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
Concerning the Fourteenth Amendment’s meaning of “liberty”, the Supreme Court states
the following:
Without doubt, it denotes not merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, to establish a home and bring up
children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness of free men. In a Constitution for a free people, there can be
no doubt that the meaning of ‘liberty’ must be broad indeed.
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 572.
“The Fourteenth Amendment’s procedural protection of property is a safeguard of the
security of interests that a person has already acquired in specific benefits.” 	Bd. of Regents of
State Colls. v. Roth, 408 U.S. at 576. These property interests, as already explained, clearly can
include “real estate, chattels, or money,” but they “may take many forms.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. at 571-76.
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Thus, the Court has held that a person receiving welfare benefits under
statutory and administrative standards defining eligibility for them has an interest
in continued receipt of those benefits that is safeguarded by procedural due process.
Goldberg v. Kelly, 397 U.S. 254 . . . [(1970)]. See Flemming v. Nestor, 363 U.S.
603, 611 . . . [(1960)]. Similarly, in the area of employment, the Court has held that
a public college professor dismissed from an office held under tenure provisions,
Slochower v. Bd. of Education, 350 U.S. 551 . . . [(1956)], and college professors
and staff members dismissed during the terms of their contracts, Wieman v.
Updegraff, 344 U.S. 183 . . . [(1952)], have interests in continued employment that
are safeguarded by due process.
Bd. of Regents of State Colls. v. Roth, 408 U.S. at 576-77.
“To have a property interest in a benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577.
“Such an interest arises not from the Due Process Clause of the Constitution itself, but is created
by independent sources such as a state or federal statute, a municipal charter or ordinance, or an
implied or express contract.” Teigen v. Renfrow, 511 F.3d at 1079. See Paul v. Davis, 424 U.S.
693, 710 (1976)(“[Liberty and property] interests attain . . . constitutional status by virtue of the
fact that they have been initially recognized and protected by state law.”). “Property interests, of
course, are not created by the Constitution. 	Rather they are created, and their dimensions are
defined by existing rules or understandings that stem from an independent source such as state
law-rules or understandings that secure certain benefits and that support claims of entitlement to
those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577. See Farthing v. City of
Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994)(“Rather, property interests, which are the subject
of the present litigation, ‘are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law.’”)(quoting Bd. of Regents
of State Colls. v. Roth, 408 U.S. at 577)).
“[O]nce it is determined that the Due Process Clause applies, the question remains what
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process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)(citing Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)). “An essential principle of due process is that a deprivation
of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the
nature of the case.” 	Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542. 	“[D]ue process is
flexible and calls for such procedural protections as the particular situation demands.” Mathews
v. Eldridge, 424 U.S. at 334. The Supreme Court explains that
the root requirement of the Due Process Clause [is] that an individual be given an
opportunity for a hearing before he is deprived of any significant property interest.
This principle requires some kind of a hearing prior to the discharge of an employee
who has a constitutionally protected property interest in his employment.
. . . .
[T]he pretermination hearing, though necessary, need not be elaborate. We have
pointed out that [t]he formality and procedural requisites for the hearing can vary,
depending upon the importance of the interests involved and the nature of the
subsequent proceedings. In general, something less than a full evidentiary hearing
is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545 (footnote omitted).
The United States Court of Appeals for the Second Circuit states:
The Supreme Court . . . explained that procedural due process is a flexible standard
that can vary in different circumstances depending on “‘the private interest that will
be affected by the official action’” as compared to “the Government’s asserted
interest, ‘including the function involved’ and the burdens the Government would
face in providing greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, [529] . . .
(2004)(quoting Mathews v. Eldridge, 424 U.S. at 335). 	A court must carefully
balance 	these 	competing 	concerns, 	analyzing 	“‘the 	risk 	of 	an 	erroneous
deprivation’ of the private interest if the process were reduced and the ‘probable
value, if any, of additional or substitute safeguards.’” 	Id. (quoting Mathews v.
Eldridge, 424 U.S. at 335. . . .).
United States v. Abuhamra, 389 F.3d 309, 318 (2d Cir. 2004). 	See Black v. Decker, 103 F.4th
133, 148 (2d Cir. 2024)(stating that Mathews v. Eldridge ‘remains a flexible test,’ and takes
account of individual circumstances” (quoting Rodriguez Diaz v. Garland, 53 F.4th 1189, 1206
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(9th Cir. 2022))). The required hearing depends on: (i) the private interest at stake; (ii) the risk of
erroneous deprivation given the procedures the government already guarantees, and whether
additional procedural safeguards prove valuable; and (iii) the government’s interest and the
burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335. For
example, “[w]here . . . the state must act quickly, a meaningful post-deprivation hearing is
adequate.” Clark v. City of Draper, 168 F.3d at 1189. See Spielman v. Hildebrand, 873 F.2d 1377,
1385 (10th Cir. 1989)(concluding that removal of a child from parents’ custody requires pre-
deprivation hearing “except for extraordinary situations where some valid governmental interest
is at stake that justifies postponing the hearing until after the event”).
The Court has considered procedural due process violations. 	See, e.g., A.M. through
Youngers v. N.M. Dep’t of Health, No. CIV 13-0692 JB/WPL, 2015 WL 13668431, at *37-43
(D.N.M. Dec. 7, 2015)(Browning, J.)(“Youngers”). 	For example, in Youngers, the Court
concludes that the New Mexico Department of Health violates due process when it affords a
woman with developmental disabilities no process before depriving her of medical care, conditions
of reasonable care, safety, and nonrestrictive confinement, because it affords her no process for
deprivation. 	See Youngers, 2015 WL 13668431, at *37-43. 	The Court also concludes a
municipality does not deny due process to tenured city employee when the city fired him, because
the city affords him a hearing. See Salazar v. City of Albuquerque, 776 F. Supp. 2d 1217, 1239
(D.N.M. 2011)(Browning, J.)(“A citizen is entitled to process and is not necessarily guaranteed a
win.”). See also Duprey v. Twelfth Judicial Dist. Court, 760 F. Supp. 2d at 1215 (denying due
process claims where a State employee “got her opportunity to be heard at a complex grievance
hearing, with an attorney and with an opportunity to question witnesses, and make opening and
closing arguments to a panel of decision-makers”); Camuglia v. City of Albuquerque, 375 F. Supp.
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2d at 1299, aff’d 448 F.3d at 1220-21 (“[I]t cannot be denied that the City, acting through its
inspectors, may close a restaurant to protect the health of patrons and workers without first
providing a hearing to the restaurant owner.”).
ii. 	Substantive Due Process.
There are two substantive due process claims: (i) where the plaintiff alleges that the
government infringes upon a fundamental right, see Washington v. Glucksberg, 521 U.S. 702,
721-22 (1997)(“Glucksberg”); and (ii) where the plaintiff alleges that a government action
deprives arbitrarily the plaintiff of life, liberty, or property, in a manner that shocks the judicial
conscience, see Rochin v. California, 342 U.S. 165, 172 (1952)(concluding that a sheriff’s
application of stomach pumping to force an arrestee to vomit shocked the conscience). The Tenth
Circuit “appl[ies] the fundamental-rights approach when the plaintiff challenges legislative action,
and the shocks-the-conscience approach when the plaintiff seeks relief for tortious executive
action.” 	Halley v. Huckaby, 902 F.3d 1136, 1153 (10th Cir. 2018). 	But see Seegmiller v.
LaVerkin City, 528 F.3d 762, 768 (10th Cir. 2008)(Tymkovich, C.J.)(explaining that “there is no
hard-and-fast rule requiring lower courts to analyze substantive due process cases under only the
fundamental rights or shocks the conscience standards”). 	But see also Dawson v. Bd. of Cty.
Comm’rs, 732 F. App’x 624, 636 (10th Cir. 2018)(Tymkovich, C.J., concurring)(noting that,
“though our circuit has sometimes repeated Seegmiller’s ‘both tests work’ dicta, we do not follow
it. Instead, we follow a simple binary approach” which applies the fundamental rights test to
legislative actions and the shocks-the-conscience test to executive actions)(quoting, see, e.g.,
Leatherwood v. Allbaugh, 861 F.3d 1034, 1046 n.11 (10th Cir. 2017)(explaining both tests could
be used in case about revocation of a defendant’s suspended sentence)).
The fundamental rights approach proceeds in three steps. See Abdi v. Wray, 942 F.3d at
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1028. First, the court must evaluate whether a fundamental right is at issue either: (i) “because the
Supreme Court or the Tenth Circuit has already determined that it exists”; or (ii) “because the right
claimed to have been infringed by the government is one that is objectively among those ‘deeply
rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’ such
that it is ‘fundamental.’” Abdi v. Wray, 942 F.3d at 1028 (quoting Glucksberg, 521 U.S. at 720-
21). 	Second, the court determines whether the right at issue “has been infringed through either
total prohibition or ‘direct and substantial’ interference.” Abdi v. Wray, 942 F.3d at 1028 (quoting
Zablocki v. Redhail, 434 U.S. 374, 387 (1978)). Third, if the right is fundamental, the Court must
determine whether the government action at issue satisfies strict scrutiny. See Abdi v. Wray, 942
F.3d at 1028 (noting that the government must “me[e]t its burden to show that the law . . . is
narrowly tailored to achieve a compelling governmental purpose”). If the right is not fundamental,
however, the Court applies rational basis review. 	See Reno v. Flores, 507 U.S. 292, 305
(1993)(explaining that strict scrutiny is requires “only when fundamental rights are involved”).
“Whether 	the 	conduct 	shocks 	the 	conscience 	is 	an 	objective 	test, 	based 	on 	the
circumstances, rather than a subjective test based on the government actor’s knowledge.” Pena v.
Greffet, 922 F. Supp. 2d at 1227 (citing James v. Chavez, 830 F. Supp. 2d 1208, 1276 (D.N.M.
2011)(Browning, J.)(concluding that the use of deadly force does not shock the conscience even
if the suspect does not have an intent to harm the officer, because the officer “had sufficient facts
before him to conclude that there was a threat of serious physical harm” and the “courts must
evaluate 	a 	[government 	actor’s] 	conduct 	objectively”), 	aff’d, 	511 	F. 	App’x 	742 	(10th
Cir. 2013)(unpublished)). For Executive action to shock the conscience, that action must be more
than mere negligence. E.g., Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)(“Moore”).
Indeed, even a reckless official’s or the action of one bent on injuring a person do not necessarily
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shock the judicial conscience. 	Moore, 438 F.3d at 1040. 	“‘Conduct that shocks the judicial
conscience’ is ‘deliberate government action that is arbitrary and unrestrained by the established
principles of private right and distributive justice.’” Hernandez v. Ridley, 734 F.3d 1254, 1261
(10th Cir.2013)(“Hernandez”)(quoting Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th
Cir.2008)). 	“To show a defendant’s conduct is conscience shocking, a plaintiff must prove a
government actor arbitrarily abused his authority or ‘employed it as an instrument of oppression.’”
Hernandez, 734 F.3d at 1261 (quoting Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir.2008)).
“The behavior complained of must be egregious and outrageous.” Hernandez, 734 F.3d at 1261.
See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)(stating that Rochin v. California, 342
U.S. 165 (1952) set the “benchmark” of executive abuse of power at “conduct ‘that shocks the
conscience’ and violates the ‘decencies of civilized conduct’”)(quoting Rochin v. California, 342
U.S. at 172-173); Breithaupt v. Abram, 352 U.S. 432, 435 (1957)(“We set aside the conviction
because such conduct ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not
comport with traditional ideas of fair play and decency.”)(quoting Rochin v. California, 342 U.S.
at 174).
b. 	Due Process and Immigration Law.
“[T]he power to admit or exclude aliens is a sovereign prerogative.” Landon, 459 U.S. at
32 (citing as examples United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), and
Nishimura Ekiu v. United States, 142 U.S. 651, 659-60 (1892)). See Thuraissigiam, 591 U.S. at
139 (stating the sovereign’s prerogative is a “fundamental proposition”). 	The United States’
plenary power to admit or exclude aliens is no longer plenary once an alien enters the country, see
Landon, 459 U.S. at 32 (“Once an alien gains admission to our country and begins to develop the
ties that go with permanent residence his constitutional status changes accordingly.”), because the
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Due Process Clause applies to “all persons,” Zadvydas, 533 U.S. at 693. In 1886, the Supreme
Court says:
The fourteenth amendment to the constitution is not confined to the protection of
citizens. It says: “Nor shall any state deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” These provisions are universal in their application, to all
persons within the territorial jurisdiction, without regard to any differences of race,
of color, or of nationality; and the equal protection of the laws is a pledge of the
protection of equal laws.
Yick Wo v. Hopkins, 118 U.S. at 369 (quoting U.S. Const. amend. XIV, § 1). Yick Wo v. Hopkins
deals with California detaining Chinese aliens without due process of law. 118 U.S. at 368-369.
Accordingly, whether an alien is “within” the United States is a determination with Constitutional
significance. See Leng May Ma v. Barber, 357 U.S. 185, 188 (1958)(“Leng May Ma”)(stating that
the Court recognizes “additional rights and privileges” for alien “within the United States after an
entry, irrespective of its legality”). 	Immigration law balances the United States’ prerogative to
admit or exclude with the constraints the Due Process Clauses places on United States by
distinguishing between aliens who are “on the threshold of initial entry,” Mezei, 345 U.S. at 212,
and those who gain a “foothold” or effect entry in the United States, see Kaplan v. Tod, 267 U.S.
228, 258 (1925)(“Kaplan”). Congress legislates against this settled Constitutional background of
aliens at the threshold of entry and those who effect an entry.
i. 	On the Threshold of Entry.
“The entry-doctrine fiction has always determined when and under what circumstances due
process applies in proceedings.” Kurzban, supra, chapter 3, § 1.H, at 80. Although IIRIRA ends
the traditional distinction between exclusion and deportation proceedings, the entry doctrine
endures regarding whether someone has Constitutional rights if they are in the United States, even
if the United States has not admitted the alien. See Kurzban, supra, chapter 3, § 1.H, at 80. For
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more than a century, the Supreme Court recognizes that an alien seeking entry “requests a
privilege,” Landon, 459 U.S. at 32, and possesses only those procedural protections which
Congress chooses to provide, because the power to admit or exclude aliens is a core sovereign
prerogative, see Knauff, 338 U.S. at 544 (“Whatever the procedure authorized by Congress is, it
is due process as far as an alien denied entry is concerned.”). The United States’ power over aliens
on the “threshold of entry” does not change because an alien sets foot on United States’ soil.
Thuraissigiam, 591 U.S at 140 (stating that, even if the alien makes his way “25 yards into U.S.
territory,” he is treated as an applicant for admission “‘on the threshold’” of entry)(quoting Mezei,
345 U.S. at 212). Nor does the power change because an alien is “paroled elsewhere in the country
for years pending removal”; they, too, are “‘treated for due process purposes ‘as if stopped at the
border.’” Thuraissigiam, 591 U.S at 139 (quoting Mezei, 345 U.S. at 215). Thus, the sovereign’s
prerogative endures for any alien stopped at the border or “detained shortly after unlawful entry”
despite circumstances that might suggest the alien effects an entry. Kaplan, 267 U.S. at 257-58
(stating that, “in theory of law,” an alien is inadmissible, but immigration officers permit the aliens
to reside in the United States for nine years, nonetheless remains “at the boundary line” and for
purposes of due process has “gained no foothold in the United States” for purposes of due process).
See Leng May Ma 357 U.S. at 188-90 (1958)(stating that an alien “paroled” into the United States
pending admissibility has not effected an “entry”). Aliens, whom the United States treats as “at
the boundary line,” receive less Constitutional Due Process protections than an alien who effects
an entry without first encountering the United States.
ii. 	Effected Entry.
By contrast, once an alien effects entry and develops a presence within the United States,
removal implicates greater Constitutional protections. 	See Landon, 459 U.S. at 34 (“Our cases
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have frequently suggested that a continuously present resident alien is entitled to a fair hearing
when threatened with deportation.”). Whether an alien effects entry is not purely a question of
presence in the country or temporal conditions; the question goes to the connection and the
relationship between the United States and the alien. See United States v. Verdugo–Urquidez, 494
U.S. 259, 271 (1990)(stating in dicta that “aliens receive constitutional protections when they have
come within the territory of the United States and developed substantial connections with this
country”); Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5, (1953)(“The Bill of Rights is a
futile authority for the alien seeking admission for the first time to these shores. But once an alien
lawfully enters and resides in this country he becomes invested with the rights guaranteed by the
Constitution to all people within our borders.”); Yamataya v. Fisher, 189 U.S. 86, 100-01
(1903)(withholding judgment on question “whether an alien can rightfully invoke the due process
clause of the Constitution who has entered the country clandestinely, and who has been here for
too brief a period to have become, in any real sense, a part of our population, before his right to
remain is disputed”).
For example, in Osorio-Martinez v. Attorney General of the United States, 893 F.3d 153
(3d Cir. 2018)(“Osorio-Martinez”), the United States Court of Appeals for the Third Circuit
considers two classes of aliens subject to expedited removal under § 1225(b) and the related
jurisdiction-stripping provision in § 1252. 	See Osorio-Martinez, 893 F.3d at 162-63. 	The first
class consists of aliens “apprehended within hours of entering the country,” Osorio-Martinez, 893
F.3d at 166, while the second class consists of aliens physically present in the United States who
qualify for Special Immigrant Juvenile status under 8 U.S.C. § 1101(a)(27)(J). 	See Osorio-
Martinez, 893 F.3d at 163. 	In Castro v. Department of Homeland Security, 835 F.3d 422 (3d
Cir. 2016)(“Castro”), the Third Circuit addresses the first class and holds that § 1225 does not
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violate the Constitution, reasoning that the petitioners’ claims are “based on physical presence
alone,” and the claims arise in the context of aliens seeking initial entry or whom are apprehended
immediately after entry. Osorio-Martinez, 893 F.3d at 166 (citing Castro, 835 F.3d at 448). See
Castro, 835 F.3d at 448 (stating that “most of the cases cited above did not involve aliens who were
seeking initial entry to the country or who were apprehended immediately after entry.”). 	By
contrast, in Osorio-Martinez, the Third Circuit holds that § 1252’s jurisdiction-stripping clause is
unconstitutional as applied to the second class of aliens, concluding that those aliens have
“significant ties to this country” sufficient to trigger greater constitutional protection. 	Osorio-
Martinez, 893 F.3d at 167. The Third Circuit thus reaffirms the longstanding distinction between
aliens at or near the threshold of entry, and those who have effected entry, and establish presence
within the United States for purposes of due process analysis.
Because the Constitution distinguishes between aliens who effect an entry and those who
remain at the threshold of entry, an alien who enters the United States may, in certain
circumstances, receive greater procedural protections than an alien seeking initial admission. The
Supreme Court has repeatedly explained that, for aliens at the threshold of entry, the Constitution
requires no procedural process beyond that which Congress has provided by statute to govern their
application. See Mezei, 345 U.S. at 212 (“‘Whatever the procedure authorized by Congress is, it
is due process as far as an alien denied entry is concerned.’”)(quoting Knauff, 338 U.S. at 544).24
24 While the Supreme Court has said that Constitutional Due Process aliens is all the
process that Congress gives, that does not seem like sound Constitutional analysis for several
reasons. First, the Constitution exists before any immigration statute, so the Constitution provided
some protection to aliens before Congress passes the first immigration statute in 1798. See 1 Stat.
570, 1 Stat. 577, and 1 Stat. 596. The question is what Due Process required before the first statute.
Presumably there was some protections for aliens before that statute. 	It seems better to decide
what the Constitution provided then and provides now then just refer to a statute.
Second, the Court is uncomfortable with the idea that every violation of the statute is a
Constitutional violation. Normally, the Constitution is a floor, and Congress must provide process
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The Court undertakes this due process analysis in Singh, and concludes that the Due
Process Clause does not afford Singh any greater procedural due process rights than the statute
affords, because Singh is an alien subject to the entry-fiction doctrine. 	See Singh, 2026 WL
146005, at * 39. Further, looking to § 1225(b)(2), the Court determines that the statute does not
afford Singh the right to any process beyond an initial inspection to determine that the “alien
seeking admission is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C.
§ 1225(b)(2). This does not mean, however, that Singh does not have any due process protections
at all, because the Court determines that all aliens, whether subject to the entry-fiction doctrine or
territorial standing, have substantive due process rights beyond what the statute affords. See Singh,
2026 WL 146005, at * 39. Continued detention without process may violate “an alien subject to
the entry fiction’s substantive due process rights if immigration detention becomes punitive.”
above the floor to be Constitutional. By describing Due Process to be what the Legislature say it
so, the Court is concerned that the Supreme Court is not giving Congress or the lower courts
guidance what Due Process is. In other words, saying that that the rule is that whatever Congress
gives is Constitutional Due Process is no guidance at all.
Third, ever since Marbury v. Madison, the Court has insisted that it is the arbitrator of what
the Constitution means. See 5 U.S. 137 (1803). In the immigration area, the Supreme Court gives
this power to Congress. When the lower courts desperately need guidance, the Supreme Court is
not to be found.
Fourth, when Congress changes the law, the Constitution changes. Congress decides what
the Constitution means and protects. Thus, what can happen is that Constitutional protections can
go and down. For the nation and for the federal judiciary; that Constitutional protections can go
down is odd.
It seems that the best approach would be for the Supreme Court to decide this whatever
Congress says at decide what it does in other areas where the Constitution requires. In other words,
the Supreme Court needs to do what Chief Judge Marshal in Marbury v. Madison claims as its
own job. See 5 U.S. at 177-78. The Supreme Court needs to decide what the Constitution protects.
Procedural Due Process requires notice and the opportunity to be heard. Notice probably
is not the issue if the United States is detaining the alien; the issue is the hearing. 	Likely, the
United States is detaining the alien or about to detain the alien. The issue probably is removal or
not removal, and detention if removal. That probably all the Due Process gives. It does not require
a bond hearing, any partial burden of proof, or any burden of proof on the United States. It seems
that fleshing out what the Constitution minimally requires actually is makes more sense than
referring to the statute for Constitutional analysis.
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Singh, 2026 WL 146005, at * 39. The Court concludes, however, that Singh’s detention to date,
approximately four months, is not so long as to qualify as punitive and therefore is not a violation
of his due process rights. See Singh, 2026 WL 146005, at * 39.
iii. 	Paroled and Conditional Parole.
Consistent with the “effected entry” framework, Congress has long exercised the power to
permit an alien’s physical presence within the United States while treating that individual, as a
matter of law, as remaining at the threshold of entry -- a legal fiction most clearly embodied in the
parole doctrine. “[A] deferred inspection necessarily involves parole into the United States under
INA § 212(d)(5),” 8 U.S.C. § 1182(d)(5). 	Charles Grodan, Stanley Madman, Yale-Loser,
Immigration Law and Procedure, § 8.05 [2][d], at 8-17 (“Gordan”). 	Parole permits physical
ingress to the United States without formal admission; “conceptually, a person remains on the
border, lacking the rights that accompany admission.” Gordan, supra, § 8.05[2][d], at 8-17. Stated
another way, parole is not an admission -- either at the border or out of detention. See Leng May
Ma v. Barber, 357 U.S. at 190; 8 U.S.C. § 1282(d)(5).
Congress’ parole provisions reinforce the distinction between physical presence and legal
entry that runs throughout immigration law. See Kaplan, 267 U.S. at 257-58. 	Section 1182(d)
authorizes the Secretary of Homeland Security to “parole into the United States” an alien applying
for admission for “urgent humanitarian” or “significant public benefit” reasons, while expressly
providing that such parole “shall not be regarded as an admission.” 	8 U.S.C. § 1182(d)(5)(A).
Parole therefore permits an applicant for admission to reside temporarily within the United States
while remaining, in theory of law, at the threshold of entry. See Kaplan, 267 U.S. at 257-58. The
parole framework, thus, allows the political branches to accommodate humanitarian and
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administrative needs without conferring the constitutional and statutory protections that attach to
aliens the United States admits or those who establish a presence within the country.
c. 	Statutory Due Process.
In balancing the sovereign’s prerogative to admit or exclude with the Due Process Clause’s
protections of all persons within the United States borders, the Supreme Court issues several
opinions, in Zadyvdas, Jennings, and Thuraissigiam, interpreting the INA touching on the issues
of due process. Although the legal questions that the Supreme Court confronts in each of the cases
is not the same, the legal discussion is instructive on how to navigate the intersection of
immigration law and due process.
i. 	Supreme Court Guidance.
In Zadvydas, the Supreme Court considers whether the immigration detention statute
governing post-removal-order custody, see 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V), authorizes
the indefinite detention of aliens whom the United States cannot deport. See Zadvydas, 533 U.S.
at 682. Both petitioners are lawful permanent residents whom the United States determines are
removable based on their criminal convictions. See 533 U.S. at 684-86. After the statutory ninety-
day removal period expires, the United States can repatriate neither petitioner because no country
will accept them. 	See 533 U.S. at 684-86. 	The United States nevertheless continues to detain
them under the post-removal detention statue, despite the ninety-day timeframe that Congress
places in §1231(a)(6). See 533 U.S. at 682. The petitioners file habeas petitions, under 28 U.S.C.
§ 2241, arguing that permanent confinement is contrary to the Constitution. See Zadyvdas, 533
U.S. at 685.
The Supreme Court begins by stating a “statute permitting indefinite detention of an alien
would raise a serious constitutional problem.” 	See Zadyvdas, 533 U.S. at 690. 	“The Fifth
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Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any ‘person . . . of . . .
liberty . . . without due process of law.’ Freedom from imprisonment -- from government custody,
detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects.”
Zadyvdas, 533 U.S. at 690 (quoting the U.S. Const. amend. V, § 1)(alterations in the original).
Continuing with its analysis, the Supreme Court states that only a sufficiently strong governmental
interest, accompanied by adequate procedural safeguards, can justify civil detention. 	See
Zadyvdas, 533 U.S. at 690. 	Preventing flight and protecting the community can justify limited
detention, but the Supreme Court states that indefinite detention without a realistic prospect of
removal cannot be Constitutional. 	See Zadyvdas, 533 U.S. at 692. 	Importantly, the Supreme
Court rejects the United States reliance on Mezei, explaining that, once an alien enters the United
States, “the legal circumstances change[],” because the Due Process Clause applies to all persons
within the United States, regardless of the legality of their presence. Zadyvdas, 533 U.S. at 693.
To avoid the Constitutional problem, the Supreme Court construes 8 U.S.C. § 1231(a)(6)
(1994 ed., Supp. V), to contain an implicit temporal limitation that the statute authorizes detention
only for “a period reasonably necessary” to accomplish removal. Zadyvdas, 533 U.S. at 689. The
Supreme Court adopts a “presumptively reasonable” six-month detention period. Zadyvdas, 533
U.S. at 700-01. After six months, if the alien can show that removal is not reasonably foreseeable,
continued detention becomes unauthorized unless the United States rebuts that showing. 	See
Zadyvdas, 533 U.S. at 701. 	The Supreme Court thus reaffirms that, while Congress possesses
broad authority over immigration, this authority remains subject to Constitutional limits once an
alien effects an entry and establishes a presence in the United States.25
25 In Zadvydas, the Supreme Court addresses post-removal-order detention as applied to
lawful permanent residents who had effected entry into the United States and later lost their
admitted status. See 533 U.S. at 682. The Court emphasizes that its Due Process analysis rested
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In Jennings, the Supreme Court considers whether 8 U.S.C. §§ 1225(b), 1226(a), and
1226(c) implicitly requires periodic bond hearings or impose a temporal limitation on detention.
See Jennings, 583 U.S. at 289. 	Respondent Alejandro Rodriguez, in Jennings, is a lawful
permanent resident whom the United States detains under § 1226, because he has several criminal
convictions. See Jennings, 583 U.S. at 289-90. The United States Court of Appeals for the Ninth
Circuit certifies a class of aliens that the United States detains under 8 U.S.C. § 1225(b), 1226(a),
and 1226(c) for longer than six months without providing a hearing justifying the detention, and
names Rodriguez as the class representative. See Jennings, 583 U.S. at 290-91. The Ninth Circuit
concludes those provision mandate a bond hearing every six months, invoking the Constitutional
avoidance 	canon, 	because 	“prolonged 	detention 	without 	adequate 	procedural 	protections’
authorized by the provisions ‘would raise serious constitutional concerns.’” Jennings, 583 U.S. at
289 (quoting Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), rev’d sub nom. Jennings, 583
U.S. 281). 	Justice Alito rejects the Ninth Circuit’s use of the Constitutional avoidance canon,
holding that the statutory text unambiguously authorizes detention until immigration officers finish
considering asylum applications under § 1225(b)(1)(B)(ii) or until removal proceedings conclude
under § 1225(b)(2)(A). See Jennings, 583 U.S. at 283. Section 1225(b)(1) and (b)(2) state that
on the petitioners’ prior entry and presence in the United States, noting that “[o]nce an alien enters
the country, the legal circumstance changes,” because the Due Process Clause applies to all persons
within the United States. Zadvydas, 533 U.S. at 693. The Court acknowledges that “[a]liens who
have not yet gained initial admission to this country would present a very different question.”
Zadvydas, 533 U.S. at 682.
The Supreme Court confronts that unaddressed question in Clark v. Martinez, 543 U.S.
371 (2005)(“Clark”). 	In Clark, the Supreme Court applies Zadvydas’ statutory construction to
inadmissible aliens whom the United States had never admitted. Clark, 543 U.S. at 373. Writing
for the Court, Justice Scalia declines to rest the decision on Constitutional Due Process grounds.
See Clark, 543 U.S. at 378. Instead, he reasoned to “give these same words a different meaning
for each category [of removable aliens] would be to invent a statute rather than interpret one.”
Clark, 543 U.S. at 378. Thus, Zadvydas’ temporal limitation applies to inadmissible aliens as a
matter of statutory interpretation, not because the Due Process Clause independently requires it.
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applicants 	for 	admission 	“shall 	be 	detained” 	pending 	asylum 	consideration 	or 	removal
proceedings, and § 1226(c) similarly provides that the United States “shall” take into custody
certain criminal aliens and release them from custody “only if” narrow statutory conditions are
met. Jennings, 583 U.S. at 283. Because these provisions specify definite termination points and
employ mandatory language, the Supreme Court concludes that the statutes are not susceptible to
a reading that implicitly imposes periodic bond hearings. See 583 U.S. at 311-12.
In Jennings, the Supreme Court distinguishes Zadvydas, where the Supreme Court
previously reads a reasonableness time limit into 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V), to
avoid a Constitutional problem. See Jennings, 583 U.S. at 289-99. Justice Alito focuses on the
discretionary language “may be detained” in § 1231(a), and the statute containing no explicit
endpoint, creating ambiguity. Jennings, 583 U.S. at 299. By contrast, the detention provisions in
§ 1225 and § 1226 contain clear commands, and, with defined stopping points, leave no
comparable textual uncertainty for the avoidance cannon to resolve. 	See Jennings, 583 U.S. at
300-01. 	Accordingly, the Supreme Court reverses the Ninth Circuit’s judgment, and disagrees
with the Ninth Circuit’s statutory interpretation and remands the case for consideration of the
detainee’s Constitutional claims in the first instance, expressly declining to decide whether
prolonged detention under these provisions violates the Due Process Clause. Jennings, 583 U.S.
at 312.
The third recent Supreme Court cases analyzing due process and the INA is Thuraissigiam.
In Thurissigiam, the Supreme Court considers whether 8 U.S.C. § 1252(e)(2)’s limits on review
by federal courts of writ of habeas corpus violates either the Suspension Clause or the Due Process
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Clause. See Thuraissigiam, 591 U.S. at 104.26 Respondent Vijayakumar Thuraissigiam is a Sri
Lankan national that crosses the United States’ border “without inspection or an entry document,”
and Border Patrol stops him “within 25 yards of the border.” Thuraissigiam, 591 U.S. at 114. The
United States detains him and places him in expedited removal proceedings under § 1225(b)(1).
See Thuraissigiam, 591 U.S. at 114. Thuraissigiam asserts a fear of returning to Sri Lanka and
seeks asylum under § 1225(b)(1)(A)(ii). See Thuraissigiam, 591 U.S. at 114. The United States
determines Thuraissigiam does not have a credible fear, and an immigration law judge affirms this
determination, placing Thuraissigiam back into removal proceeding. See Thuraissigiam, 591 U.S.
at 114.
Thuraissigiam files a petition of a writ of habeas corpus challenging the credible fear
determination, but the district court dismisses the petition, because § 1252(a)(2) and (e)(2) remove
credible fear determinations from federal courts’ jurisdiction under habeas petitions. 	See
Thuraissigiam, 591 U.S. at 115. The Ninth Circuit reverses the district court, because the Ninth
Circuit concludes that “§ 1252(e)(2) violates the Suspension Clause.” Thuraissigiam, 591 U.S. at
115. The Ninth Circuit states “that respondent ‘has procedural due process rights,’ specifically the
right ‘to expedited removal proceedings that conformed to the dictates of due process.’”
26 “The Suspension Clause provides that ‘[t]he Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
it.’” 	Thuraissigiam, 591 U.S. at 116 (quoting U. S. Const., Art. I, § 9, cl. 2). 	Because section
1252(e)(2) restricts judicial review in habeas proceedings to whether a petition is an alien, whether
the United States orders the petitioner removed, or whether the petitioner can prove they some
type of lawful permanent residence status, see 8 U.S.C. § 1252(e)(2)(A)-(C), the Ninth Circuit
finds the provision violates Thuraissigiam’s Constitutional rights. See Thuraissigiam v. U.S. Dep’t
of Homeland Sec., 917 F.3d at 1111, n.15. 	The Supreme Court reverses the Ninth Circuit’s
decision, because respondent attempts use of the writ outside its historic role, which in this case is
to have the United States make another credible fear determination. See Thuraissigiam, 591 U.S.
at 118.
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Thuraissigiam, 591 U.S. at 115 (quoting Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d
1097 (9th Cir. 2019), rev’d and remanded sub nom. Thuraissigiam, 591 U.S. 103).
Justice Alito, writing for the Court, reverses the Ninth Circuit. 	See Thuraissigiam, 591
U.S. at 140. 	He first holds that § 1252(e)(2)’s limits on habeas review do not violate the
Suspension Clause because the writ, as historically understood at the time of the Founding, does
not extend to providing merits review of exclusion decisions. See Thuraissigiam, 591 U.S. at 118.
Turning to due process, the Supreme Court explains that longstanding precedent draws a sharp
distinction between aliens who have effected entry and those who seek initial admission. 	See
Thuraissigiam, 591 U.S. at 138-39. The Supreme Court reiterates that the Constitution treats an
alien whom the United States has not admitted -- whether the United States physically stops them
at a port of entry, apprehends them shortly after unlawful entry, or paroles the alien into the country
for years -- is, “for due process purposes, as if stopped at the border.” Thuraissigiam, 591 U.S. a
139. 	In that posture, the alien “has only those rights regarding admission that Congress has
provided by statute.” Thuraissigiam, 591 U.S. at 140. Because Congress specifies the procedures
governing credible-fear screening and judicial review of those determinations, the Due Process
Clause requires nothing more regarding Thuraissigiam’s admission. See Thuraissigiam, 591 U.S.
at 140. 	The Supreme Court also emphasizes the structural consequences of adopting the Ninth
Circuit’s approach. 	See Thuraissigiam, 591 U.S. at 139 (stating the rule concerning the United
States’ plenary power to admit or exclude aliens “would be meaningless if it became inoperative
as soon as an arriving alien set foot on U.S. soil”). 	The Supreme Court thus reaffirms that the
political branches retain plenary authority to define the procedures governing admission
determinations and that courts may not Constitutionalize additional procedural entitlements in the
statue.
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Taken together, these cases delineate the Constitutional framework governing immigration
detention and admission. 	Zadvydas establishes that, once an alien effects entry and establishes
presence within the United States, indefinite civil detention raises serious due process concerns
absent a realistic prospect of removal. 	See Zadyvdas, 533 U.S. at 690. 	Jennings clarifies that,
where Congress clearly authorizes detention for defined immigration proceedings, courts may not
rewrite statutes to impose extra-textual temporal limits, leaving the Constitutional questions --
whether the statute violates the Due Process Clause -- to be addressed directly. See Jennings, 583
U.S. at 311-12. Thuraissigiam confirms that aliens whom the United States has not admitted --
whether at the physical border or in the legal posture of as if at the border -- possess only those
procedural rights regarding admission that Congress’ written statutes provide. See Thuraissigiam,
591 U.S. at 139.
The distinction between territorial presence and effected entry doctrines resolves any
tension among these lines of authority. 	Physical presence within the United States generally
confers standing on aliens to invoke Constitutional protections, but the entry fiction permits
Congress to treat certain physically present aliens like those awaiting inspection or paroled for
admission processing as legally remaining at the threshold of entry. 	In that posture, procedural
entitlements flow from statute rather than from the Due Process Clause.
ANALYSIS
The Court carefully reviews the PFRD and the relevant pleadings. In the PFRD, Magistrate
Judge Fashing recommends that: (i) the Court find subject-matter jurisdiction over the Petition,
see PFRD at 10; (ii) the Court find the Petition is not moot until Ochoa’s time to appeal the removal
order expires, or if Ochoa timely appeals, the BIA issues a decision on that appeal, see PFRD at
12; (iii) the Court reject the holding of Matter of Yajure Hurtado, see PFRD at 18; (iv) the Court
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find the ILJ errors when treating Ochoa as an “applicant for admission” under § 1225(b)(2)(A),
PFRD at 19; (v) the Court find that the United States § 1225(b)(2)(A) classification violates
Ochoa’s due process rights, see PFRD at 19; (vi) the Court exercise judicial discretion, finding
that Ochoa does not need to exhaust his administrative remedies before seeking habeas relief, see
PFRD at 23; (vii) the Court order Federal Respondents to provide Ochoa with a bond hearing
pursuant to § 1226(a), see PFRD at 29; (viii) the Court order that the United States bears the burden
at the § 1226(a) bond hearing of proving by clear and convincing evidence that Ochoa is a flight
risk or danger to the community, see PFRD at 29; (ix) the Court order Ochoa’s immediate release
if not given a bond hearing in seven days, see PFRD at 29; and (x) the Court deny Ochoa’s request
that Federal Respondents be enjoyed from moving him outside of the District of New Mexico, see
PFRD at 33.
The Federal Respondents object to the following recommendations: (i) that the Court find
subject-matter jurisdiction over the Petition, see Objections at 2; (ii) that the Court find the Petition
is not moot until Ochoa’s time to appeal the removal order expires, or if Ochoa timely appeals, the
BIA issues a decision on that appeal, see Objections at 7 (iii) that the Court find the ILJ errors
when treating Ochoa as an “applicant for admission” under § 1225(b)(2)(A), Objections at 8; (iv)
that the Court find that the United States § 1225(b)(2)(A) classification violates Ochoa’s due
process rights, see Objections at 8; (v) that the Court exercise judicial discretion, finding that
Ochoa does not need to exhaust his administrative remedies before seeking habeas relief, see
Objections at 8; and (viii) that the Court order that the United States bears the burden at the
§ 1226(a) bond hearing of proving by clear and convincing evidence that Ochoa is a flight risk or
danger to the community, see Objections at 11.
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After conducting a de novo review, the Court concludes that there are sound reasons in the
applicable law and the relevant facts to overrule some and sustain some of the Objections to
Magistrate Judge Fashing’s PFRD. Accordingly the Court adopts the PFRD’s recommendations
to which the Federal Respondents do not object and conclude as following to the Objections: (i)
the Court has subject-matter jurisdiction to hear Ochoa’s habeas petition, where the Federal
Respondents argue § 1252 strips the Court of jurisdiction, because Ochoa challenges his detention
as unlawful without a final order of removal; (ii) the Federal Respondents do not consent to
jurisdiction, where the Federal Respondents make statements “for the sake of argument,” because
the Court independently determines it retains jurisdiction and the Petition is not moot; (iii) the
Federal Respondents may not detain Ochoa under § 1225, where he enters the United States
without inspection two decades ago, because he is not an “arriving alien,” nor is he “seeking
admission”; (iv) the Federal Respondents do not violate Due Process, where the Federal
Respondents do not provide Ochoa a bond hearing while detaining him for removal proceedings,
because the Court determines the Federal Respondents’ conduct is a statutory violation and does
not amount to a Constitutional violation; (v) the Court does not dismiss Ochoa’s habeas petition
for failing to exhaustion his administrative remedies, where the exhaustion requirement is
prudential, because requiring exhaustion goes against sound judicial discretion; and (vi) the Court
does not shift the burden to the Federal Respondents to prove continued detention is appropriate
for Ochoa, because the writ of habeas corpus is for securing a petitioner’s release from unlawful
detention and because Ochoa does not make the showing necessary to extend the writ at this time.
I. 	THE 	COURT 	OVERRULES 	THE 	RESPONDENTS’ 	FIRST 	OBJECTION,
CONCLUDING IT HAS SUBJECT-MATTER JURISDICTION TO DECIDE THE
ISSUES.
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Federal Respondents Object to the PFRD’s conclusion that jurisdiction is proper, because
they assert that §§ 1252(b)(9), 1252(e)(3), and 1252(g) bar the Court’s review of Ochoa’s claims.
The Court maintains subject-matter jurisdiction to decide Ochoa’s claims. First, § 1252(b)(9) does
not apply, because Ochoa does not challenge his order of removal. Second, § 1252(e)(3) applies
only to challenges on the validity of § 1225(b)(2) and not to a habeas petition challenging an
individual’s detainment. Finally, § 1252(g) does not bar review of Ochoa’s claims, because he is
not challenging the Attorney General’s decision or action to commence proceedings against him,
adjudicate his case, or execute an order of removal against him.
A. 	SECTION 1252(b)(9) DOES NOT CHANNEL OCHOA’S PETITION TO
THE TENTH CIRCUIT.
The Federal Respondents argue that § 1252(b)(9) limits judicial review to Courts of
Appeals. See Objections at 4. The Tenth Circuit, however, expressly states that § 1252(b)(9) does
not apply in circumstances where a petitioner challenges his or her detention, and does not seek
the “review of an order of removal.” 	Ochieng v. Mukasey, 520 F.3d at 1115(citing Singh, 499
F.3d at 978). Here, Ochoa challenges his detention’s lawfulness and does not yet have “an order
of removal.” Accordingly, § 1252(b)(9) does not prohibit the Court from reviewing his claims.
Federal Respondents also argue that § 1252(a)(5) and §1252(b)(9) divest the Court of
jurisdiction to review both direct and indirect challenges to removal orders, including decisions to
detain for purposes of removal or for proceedings. See Objections at 6. As support, the Federal
Respondents cite Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011), contending that “jurisdiction
turns on the substance of the relief sought.” Objections at 6. The Federal Respondents argue that,
because Ochoa’s challenge to his detention substantively overlaps with a challenge to his removal,
the detention challenge “arises” from the removal proceedings. Objections at 6. The Court does
not agree with the Federal Respondents. 	See Ozturk v. Hyde, 136 F.4th 382, 400 (2d
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Cir. 2025)(explaining that the United States “mistaken belief” regarding the overlap between
detention and removal challenges “does not make one claim arise out of the other, or necessitate
that one claim controls the outcome of the other”). As the United States Court of Appeals for the
Second Circuit accurately notes, the Federal Respondents arguments lead “to what Jennings called
an ‘absurd’ result.” 	Ozturk v. Hyde, 136 F.4th at 401. 	Moreover, the Federal Respondents’
combined reliance on § 1252(a)(5) and § 1252(b)(9) fails for an additional, independent reason.
See Objections at 6. Ochoa is not subject to a final order of removal. See Ozturk v. Hyde, 136
F.4th at 401 (“Section 1252(a)(5) bars district court review ‘of an order of removal,’ but no order
of removal is at issue here.” (quoting 8 U.S.C. § 1252(a)(5))). Accordingly, the Court concludes
that neither § 1252(b)(9) alone nor in conjunction with § 1252(a)(5) strip the Court of jurisdiction
to hear Ochoa’s petition.
B. 	SECTION 1252(e)(3) DOES NOT BAR REVIEW OF OCHOA’S PETITION.
Section 1252(e)(3) does not bar review of Ochoa’s petition, because he does not bring a
Constitutional challenge to § 1252(b) or to its implementation. See Vaupel v. Ortiz, 244 F. App’x
at 895 (stating that § 1252(e)(3) “sets forth the process for bringing a constitutional challenge to
§ 1225(b) or its implementing regulations”). Section 1252(e)(3) channels to the District Court for
the District of Columbia certain systemic challenges to § 1225(b) “and its implementation,”
including claims that § 1225(b) or an implementing regulation is unconstitutional, or that a written
policy directive implementing § 1225(b) violates the law. Make the Rd. II, 2025 WL 3563313, at
*16 (citing 18 U.S.C. § 1252(e)(3)(A)(i)-(ii)). The Federal Respondents characterize Ochoa’s case
as such a challenge, because he disputes the Department of Justice and DHS’ written guidance
applying § 1225(b) to noncitizens arrested in the interior. 	See Objections at 3 (“Petitioner thus
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seeks judicial review of a written policy or guideline implementing § 1225(b) . . . .”). The Court
reads, however, Ochoa’s petition differently.
Ochoa seeks individual habeas relief from ongoing detention. This individualized relief is
not seeking to redress a written policy or § 1225(b)’s Constitutionality. 	Ochoa’s relief turns on
whether § 1225 or § 1226 governs his custody, and whether his continued detention is lawful. That
request is not one for the programmatic, nationwide review that § 1252(e)(3) channels to the
United States District Courts for the District of Columbia. Moreover, as the Court discusses below,
§ 1225(b) does not govern Ochoa’s detention. Because § 1225(e)(3) concerns judicial review “of
determinations under section 1225(b),” § 1225(e)(3) does not preclude judicial review here. 	8
U.S.C. § 1252(e)(3). Accordingly, § 1252(e)(3) does not bar the Court’s jurisdiction over Ochoa’s
individual § 2241 petition.
C. 	SECTION 1252(g) DOES NOT DIVEST THE COURT OF JURISDICTION
OVER OCHOA’S INDIVIDUAL HABEAS PETITION.
Section 1252(g) does not deprive the Court of jurisdiction over Ochoa’s habeas petition.
Congress narrowly confines § 1252(g) to “three discrete actions that the Attorney General may
take,” namely, the decisions to commence proceedings, adjudicate cases, or execute removal
orders. 	Reno, 525 U.S. at 482. 	The provision therefore does not sweep in all claims that bear
some relationship to commencing proceedings; rather, § 1252(g) targets only those claims that
arise directly from the exercise of prosecutorial discretion in undertaking those specific actions.
The Federal Respondents argue that § 1252(g) “categorically bars jurisdiction over ‘any
cause or claim by or on behalf of an alien arising from the decisions or action by the [Secretary of
Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against
any alien.’” Objections at 3 (quoting 8 U.S.C. § 1252(g) (italics in the Objections)). They contend
that Ochoa’s detention “clearly ‘aris[es] from’ the decision to commence removal proceedings
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against” him. Objections at 3 (alterations in the Objections). This framing, however, reads the
“arising from” language more broadly than the Supreme Court and the Tenth Circuit permit.
As the Tenth Circuit explains, Congress enacted § 1252(g) to address “‘a particular evil:
attempts to impose judicial constraints upon prosecutorial discretion.’” Aguilar-Alvarez v. Holder,
528 F. App’x at 870 (quoting Reno, 525 U.S. at 485 n.9). Consistent with that purpose, the Tenth
Circuit asks whether a claim is “connected directly and immediately” to one of the enumerated
actions; claims that have only a “weak, remote, or tenuous connection” fall outside the statute’s
reach. Humphries, 164 F.3d at 943. Measured against that standard, Ochoa’s claim does not “arise
from” the Attorney General’s decision to commence proceedings against him. 	He does not
challenge the United States’ discretionary decision to commence removal proceedings, nor does
he seek to constrain how the Federal Respondents initiate or pursue those proceedings. Instead,
Ochoa posits a question of statutory interpretation that operates independently of the decision to
initiate removal, challenging the lawfulness of his detention under § 1225. 	Although detention
may occur in the broader context of commencing proceedings, that contextual overlap is
insufficient to bring the claim within § 1252(g)’s narrow scope.
To be sure, a claim that directly contests the Federal Respondents’ ability to initiate the
proceedings could fall within § 1252(g), because that claim would have an immediate connection
to the decision to commence proceedings. 	Ochoa advances no such challenge. 	The claim that
Ochoa pleads in the Petition is tangentially related to that decision and therefore lies outside the
prosecutorial discretion claims which Congress seeks to channel through § 1252(g). Accordingly,
§ 1252(g) does not strip the Court of jurisdiction to adjudicate Ochoa’s habeas petition.
II. 	THE 	COURT 	OVERRULES 	THE 	FEDERAL 	RESPONDENTS’ 	SECOND
OBJECTION, CONCLUDING THAT IT HAS JURISDICTION TO HEAR THE
PETITION.
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The Court retains jurisdiction over Ochoa’s petition irrespective of any purported
“concession” that the Federal Respondents make. Objections at 7. In their second Objection, the
Federal Respondents object “to the implication, if any, that they made a concession about
jurisdiction . . . .” Objections at 7. This Objection responds to the PFRD’s statement that, “[a]t
the November 3 hearing, the parties agreed that the Court would retain jurisdiction over
Petitioner’s challenge until any order of removal becomes final.” 	PFRD at 12. 	As discussed
above, the Court’s subject-matter jurisdiction does not depend on the Federal Respondents’
representations at the November hearing. Even if the Court construes those representations as a
concession, such a concession carries no legal effect. Subject-matter jurisdiction is elemental; it
“cannot be consented to or waived.” Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1022
(10th Cir. 2012). 	Here, Ochoa brings a habeas petition under 28 U.S.C. § 2241 and invokes
federal-question jurisdiction under 28 U.S.C. § 1331. See Petition ¶ 10, at 4. The Court retains
subject-matter jurisdiction until Ochoa receives a final order of removal. See Johnson v. Guzman
Chavez, 594 U.S. 523, 534-35 (2021)(stating that a removal order is not administratively final for
detention purposes until “the BIA has reviewed the order (or the time for seeking the BIA’s review
has expired)”). 	The Court already determines that the Federal Respondents’ arguments under
§ 1252 do not divest it of jurisdiction, and the Petition’s pre-removal detention challenge does not
become moot until Ochoa’s time to appeal the removal order has expired, or if Ochoa timely
appeals, the BIA issues a decision on that appeal. Accordingly, jurisdiction is proper regardless
of the parties’ statements, and the Court overrules the Second Objection.
III. 	THE 	COURT 	OVERULES 	THE 	FEDERAL 	RESPONDENTS’ 	THIRD
OBJECTION, 	AND 	CONCLUDES 	THAT 	THE 	GOVERNING 	DETENTION
STATUTE IS § 1226 AND NOT § 1225.
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The Court concludes that § 1225 does not govern Ochoa’s detention. 	The Federal
Respondents Object to the PFRD’s conclusion that the United States improperly detains Ochoa
under § 1225, asserting that “at least three district courts have considered this issue [and] upheld
the application of § 1225 in similar circumstances.” Objections at 8. They further contend that no
due process violation exists, “because the due process clause only prohibits ‘the unduly prolonged
detention of an alien.’” Objections at 8 (quoting Pena v. Hyde, No. CV 25-11983-NMG, 2025 WL
2108913 (D. Mass. July 28, 2025)(Gorton, J)). The Court agrees that no due process violation is
present. It nevertheless concludes that a statutory violation occurs, because the United States lacks
authority to detain Ochoa under § 1225(b).
The dispositive question is whether Ochoa is “‘seeking admission.’” PFRD at 14 (quoting
8 U.S.C. § 1225(b)(2)(A)). 	Section 1225(b) governs the “[i]nspection of applicants for
admission,” 8 U.S.C. § 1225(b), with § 1225(b)(1) generally applying to “arriving” applicants, 8
U.S.C. § 1225(b)(1)(A)(i), and § 1225(b)(2) applying to those applicants § 1225(b)(1) does not
cover, see 8 U.S.C. § 1225(b)(2). The PFRD correctly observes that the Supreme Court “explained
that ‘§ 1225(b) applies primarily to alien seeking entry into the United States (“applicants for
admission” in the language of the statute).’” 	PFRD at 14 (quoting Jennings, 583 U.S. at 303).
Here, Ochoa is not seeking entry when ICE encounters him. 	See Petition ¶ 2, at 2 (stating that
Ochoa is “performing gardening work in a yard of private property in the City of Sylmar, CA,”
when ICE detains him). Rather, Ochoa enters the United States nearly two decades earlier and,
during that period, engages in no conduct consistent with “seeking admission.” Petition ¶ 5, at 2-
3. 	The Federal Respondents rest their argument on the premise that, because Ochoa enters
unlawfully, he “cannot be said to have ‘effected an entry’ and remain[s], similar to an alien detained
at a port of entry, ‘on the threshold’ and subject to § 1225.” MTD at 3-4 (quoting Thuraissigiam,
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591 U.S. at 140)(brackets in MTD). This argument overlooks an important limitation: ICE does
not detain Ochoa “shortly after unlawful entry,” Thuraissigiam, 591 U.S. at 140, and Ochoa is
present in the United States for well over two years, rendering § 1225(b)(1)’s provisions governing
“certain other aliens” inapplicable, 8 U.S.C. § 1225(b)(1)(A)(iii)(II). Section 1225(b)(2) “comes
over the horizon for consideration” only after determining that § 1225(b)(1) does not apply. Singh,
2026 WL 146005, at *18. Having so determined, the Court turns to § 1225(b)(2).
Section 1225(b)(2)(A) provides:
Subject to subparagraphs (B) and (C), in the case of an alien who is an
applicant for admission, if the examining immigration officer determines that an
alien seeking admission is not clearly and beyond a doubt entitled to be admitted,
the alien shall be detained for a proceeding under section 1229a of this title.
8 U.S.C. § 1225(b)(2)(A). “Section 1225(b)(2)(A) distinguishes between the legal status of being
an applicant for admission and the act of seeking admission.” Singh, 2026 WL 146005, at *20.
The Court agrees with the Federal Respondents that Ochoa qualifies as an applicant for admission.
See MTD at 2-3. 	The record does not support, however, the conclusion that he is seeking
admission. 	“The Court disagrees with the Federal Respondents’ [implicit] position that every
applicant for admission is seeking admission and therefore subject to the scope of § 1225(b)(2).”
Singh, 2026 WL 146005, at *35. See MTD at 5-6 (discussing the BIA’s determination that an alien
“‘residing in the interior of the United States for almost 3 years . . . [] cannot be considered as
‘seeking admission’” (quoting Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025))).
Singh illustrates the distinction between legal status and the act of seeking admission.
There, the petitioner enters without inspection, and ICE detains him after more than two years in
the United States. 	See Singh, 2026 WL 146005, at *35. 	Unlike Ochoa, however, Singh
affirmatively applies for asylum, thereby seeking lawful entry. See 2026 WL 146005, at *35. That
application is enough for the Court to conclude Singh is “seeking admission,” bringing him within
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§ 1225(b)(2)(A)’s scope. 	Singh, 2026 WL 146005, at *35. 	Ochoa takes no comparable step.
Accordingly, although Ochoa is an applicant for admission, he is not “seeking admission” within
§ 1225(b)(2)(A)’s meaning. The United States therefore lacks statutory authority to detain him
under § 1225(b), and its continued reliance on that provision constitutes a statutory violation. For
those reasons, the Court overrules the Federal Respondents’ Third Objection.
IV. 	THE 	COURT 	OVERRULES 	THE 	FEDERAL 	RESPONDENTS’ 	FOURTH
OBJECTION, USING SOUND JUDICIAL DISCRETION TO FIND EXHAUSTION
UNNECESSARY UNDER THESE CIRCUMSTANCES.
The Court overrules the Federal Respondents’ Fourth Objection. In these circumstances,
the Court concludes that the prudential exhaustion requirement does not bar Ochoa’s claim. The
question is whether Ochoa’s failure to appeal the ILJ’s denial of his request for a custody
redetermination to the BIA precludes habeas review. 	The PFRD recommends “that the Court
exercise its ‘sound judicial discretion,’ and find that the Petitioner was not required to exhaust his
administrative remedies before seeking habeas relief.” PFRD at 23 (quoting McCarthy, 503 U.S.
at 144). The Federal Respondents object, asserting that the “PFRD minimizes the importance of
the prudential exhaustion requirement.” Objections at 9.
“‘Generally, a habeas petition cannot be used to substitute for direct appeal.’” Soberanes,
388 F.3d at 1309 (quoting Latu, 375 F.3d at 1012). 	However, “[c]ourts have carved out an
exception to the exhaustion requirement for constitutional challenges to the immigration laws,
because the BIA has no jurisdiction to review such claims.” Soberanes, 388 F.3d at 1310 (citing
Akinwunmi, 194 F.3d at 1341). 	“[W]here Congress has not clearly required exhaustion, sound
judicial discretion governs.” McCarthy, 503 U.S. at 144. In the absence of a statutory exhaustion
mandate, courts retain discretion to require or excuse exhaustion based on competing institutional
and individual interests. See McCarthy, 503 U.S. at 144. The Tenth Circuit does not provide a
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framework for evaluating the exhaustion requirement’s competing interests; however, the United
States Court of Appeals for the Second Circuit states:
[I]f an exhaustion requirement is judicially imposed instead of statutorily imposed,
a number of exceptions apply that allow courts to excuse a party’s failure to exhaust
administrative remedies. Specifically, exhaustion of administrative remedies may
not be required when ‘(1) available remedies provide no genuine opportunity for
adequate relief; (2) irreparable injury may occur without immediate judicial relief;
(3) administrative appeal would be futile; and (4) in certain instances a plaintiff has
raised a substantial constitutional question.’”
Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003)(“Beharry”), as amended (July 24,
2003)(quoting Able v. United States, 88 F.3d 1280, 1288 (2d Cir. 1996)). In the Court’s
view, these factors reflect the pragmatic approach that the Supreme Court discusses in
McCarthy. See Bowen v. City of New York, 476 U.S. 467, 484 (1986)(“Finally, application
of the exhaustion doctrine is ‘intensely practical.’” (quoting Mathews v. Eldridge, 424 U.S.,
at 331, n.11)).
Here, 	the 	four 	Beharry 	circumstances 	support 	the 	Court 	waiving 	the 	exhaustion
requirement for Ochoa. First, the BIA has no jurisdiction to review Constitutional challenges to
§ 1225 detention without a final order of removal, giving Ochoa no genuine opportunity for
adequate relief. 	See Soberanes, 388 F.3d at 1310. 	Second, Ochoa suffers irreparable injury,
because, as the Court explains above, § 1226 governs his detention and not § 1225. 	Third, the
Court determines an administrative appeal is futile, because the BIA’s decision in Matter of Yajure
Hurtado categorically denies relief to noncitizens like Ochoa. 	Moreover, DHS’ policy of using
§ 1225 past the boarder began in January, 2025, making Ochoa’s appeal less viable. See Make the
Rd. II, 2025 WL 3563313 (“On January 21, 2025, the Acting Secretary of Homeland Security
extended Expedited Removal nationwide to encompass all persons encountered anywhere in the
United States . . . .”). Finally, Ochoa’s petition raises substantial Constitutional questions, because
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the Federal Respondents position subjects millions of people to detention without bond. 	See
Buenrostro-Mendez v. Bondi, 166 F.4th at 515 (Douglas, J., dissenting)(stating that the Federal
Respondents view “would have required the detention of millions of people”). For these reasons,
the Court concludes Ochoa does not need to exhaust his administrative remedies. Accordingly,
the Court overrules the Federal Respondents’ Fourth Objection.
V. 	THE COURT SUSTAINS THE FEDERAL RESPONDENTS’ FIFTH OBJECTION,
CONCLUDING THAT BURDEN SHIFTING AT THE BOND HEARING IS NOT
AN APPROPRIATE HABEAS RELIEF.
The Court sustains the Federal Respondents’ Fifth Objection. In the Fifth Objection, the
Federal Respondents “object to the recommendation for burden shifting at the bond hearing.”
Objections at 11. The PFRD recommends that the Federal Respondents bear the burden of proof
at the bond hearing, see PFRD at 23, and notes that both the United States Code and implementing
regulations do not specify which party bears the burden, see PFRD at 24. The Federal Respondents
state, however, that, in “an immigration context, under both § 1225 and § 1226, it is generally the
petitioner’s burden to show that he is eligible for release or bond.” 	MTD at 8 (citing 8 C.F.R.
§ 236.1(c)(8)). Moreover, the Federal Respondents object to burden shifting, because they argue
that neither Matthews v. Eldridge nor the more general balancing test from Diaz-Ceja v.
McAleenan, No. CIV 19-00824 NYW, 2019 WL 2774211, at *9 (D. Colo. 2019), warrants burden
shifting. 	See Objections at 11. The Court agrees with the Federal Respondents, not because it
adopts their application of those balancing tests, but because it concludes that neither framework
is appropriate in this context.
Section 1226(a) states that the Attorney General may release an alien on “bond of at least
$1,500 with security approved by, and containing conditions prescribed by, the Attorney General
. . . ,” but does not prescribe anything further about the bond hearing. 8 U.S.C. § 1226(a). Section
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1226(c), which requires the Attorney General to take into custody aliens charged with, arrested
for, or convicted of certain crimes, discusses the release of these aliens if the release is necessary
for certain investigatory or other prosecutorial purposes and the “alien satisfies the Attorney
General that the alien will not pose a danger to the safety of other persons or of property and is
likely to appear for any scheduled proceeding.” 	8 U.S.C. § 1226(c)(4). 	Nothing in the statute
indicates, however, that this requirement that the alien demonstrate he or she are not a danger to
the community or flight risk before release that § 1226(c)(4) describes for criminal aliens applies
to the bond hearing in § 1226(a).
The BIA is responsible for implementing the current structure of the bond hearing under
§ 1226(a). See Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020)(“Decker”). Following
the IIRIRA’s enactment, INS implements new regulations that impose the standard for the initial
post-arrest custody determination that immigration officials make. 8 C.F.R. § 236.1(c)(2)-(8). The
regulations establish a presumption of detention and place on the arrested individual the burden of
demonstrating, to the arresting officer’s satisfaction, that release does not pose a danger to property
or persons, and that the individual likely will appear for any future proceedings. 	See 8 C.F.R.
§ 236.1(c)(8). The regulation applies only to the initial custody determination that the arresting
officer makes and not to immigration judges in bond hearings. See 8 C.F.R. § 236.1(c)(8)(“Any
officer authorized to issue a warrant of arrest may, in the officer’s discretion, release an alien . . .
provided that the alien must demonstrate to the satisfaction of the officer that such release would
not pose a danger to property or persons, and that the alien is likely to appear for any future
proceeding.”). Shortly after INS implements the new regulations, however, the BIA applies the
rule in § 236.1(c)(8) for arresting officers, including the presumption for detention, to bond
hearings that the immigration judges conduct under § 1226(a). See, e.g., In Re Adeniji, 22 I. & N.
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Dec. 1102, 1113 (BIA 1999)(“From the outset, therefore, the regulations under IIRIRA have added
as a requirement for ordinary bond determinations under section 236(a) of the Act [1226(a)] that
the alien must demonstrate that ‘release would not pose a danger to property or persons,’ even
though section 236(a) does not explicitly contain such a requirement.”).
The Court considers whether it has the authority to tell the United States what the bond
hearing must be on a habeas petition. The writ of habeas corpus functions as a judicial mechanism
for testing the lawfulness of detention. See Peyton v. Rowe, 391 U.S. 54, 63 (1968)(“[A] principle
aim of the writ is to provide for swift judicial review of alleged unlawful restraints on liberty.”).
Further, the Supreme Court’s traditional understanding of the writ is that courts generally do not
use habeas to “order relief that neither terminates custody, accelerates the future date of release
from custody, nor reduces the level of custody.” Wilkinson v. Dotson, 544 U.S. at 86 (Scalia, J.,
concurring). 	The Court acknowledges that the writ is an “adaptable remedy,” whose “precise
application and scope changed depending upon the circumstances,” but the Court understands that
the Supreme Court cabins this adaptability within the context of a challenge to illegal confinement.
See Boumediene, 553 U.S. at 779-80. 	See Jones v. Cunningham, 371 U.S. 236, 243
(1963)(explaining that the writ of habeas “now and never has been a static, narrow, formalistic
remedy; its scope has grown to achieve its grand purpose -- the protection of individuals against
erosion of their right to be free from wrongful restraints upon their liberty” when allowing a habeas
challenge to parole conditions which “significantly confine and restrain [petitioner’s] freedom”).
The Court therefore concludes that a challenge to detention without any hearing, which
relegates an alien to mandatory detainment pending removal proceedings, is appropriate under the
writ of habeas. By contrast, however, the Court concludes that a challenge to the burden that an
alien’s § 1226(a) bond hearing imposes -- a challenge to the structure of the available bond hearing
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-- is not appropriate under a habeas petition unless the bond hearing’s existing structure is so
weighed against the alien that the alien has no chance for bond. 	In other words, if the bond
hearing’s structure makes it so that no alien has a meaningful chance of success at achieving
release, this structure is such a denial of liberty that a challenge to this process is not beyond writ
of habeas’ expansive reach, because the challenge is to detention and not directly to process. The
remedy, in that case, is release and not the Court telling the United States how to do hearings. The
Court determines, however, that the § 1226(a) bond hearing’s current structure does not qualify as
a process so detrimental to the alien’s liberty access that an alien may challenge the bond hearing
under the writ of habeas, because the writ, in this case’s circumstances, does not qualify as a
challenge to wrongful detention. The current § 1226(a) bond hearing requires only that an alien
prove that he or she is not a flight risk nor a danger to the community before the United States
releases the alien on bond. This burden does not present an extensive barrier to an alien seeking
release, and, in fact, many aliens receive release on bond during the pendency of their removal
proceedings. Accordingly, the Court determines that it should not decide on a habeas petition what
the § 1226(a) bond hearing’s structure must be, and, as a result, sustains the Federal Respondents’
Fifth Objection to Magistrate Judge Fashing’s conclusion that the United States must carry the
burden by clear-and-convincing evidence that an alien is a flight risk or a danger to the community
before denying bond under § 1226(a).
IT IS ORDERED that: (i) the Respondents’ Objections to the Proposed Findings &
Recommendation Disposition, filed November 21, 2025 (Doc. 22), are sustained in part and
overruled in part; (ii) the Magistrate Judge Proposed Findings and Recommended Disposition,
filed November 7, 2025 (Doc. 21), is adopted in part and rejected in part; (iii) the Verified Petition
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, filed September 11, 2025 (Doc. 1), is
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granted in part, and the Respondents are to provide Petitioner Tomas Alfredo Molina Ochoa with
an individualized bond hearing, pursuant to § 1226(a); (iv) the Petition, is denied in part, and the
Federal Respondents do not bear the burden of proof at the bond hearing of proving Ochoa’s
continued detention is proper; (v) the Respondents must provide the bond hearing within seven
days of this order or release Ochoa immediately from custody; and (vi) the Petition’s request for
an injunction prohibiting Ochoa’s transfer outside of the District of New Mexico during the
pendency of this action is denied.
_________________________________
UNITED STATES DISTIRCT JUDGE
Counsel:
Gina Dennis
NuevoBridges Law
Las Cruces, New Mexico
Attorneys for the Petitioner
Todd Blanche
Acting United States Attorney General
Ryan Ellison
First Assistant United States Attorney
Peter Haynes
Ryan Posey
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for Respondents Kristi Noem, Pamela Bondi, Todd Lyons, Mary De Anda-
Ybarra, and George Dedos
Daniel P. Struck
Jacob B. Lee
Struck Love Acedo, PLC
Chandler, Arizona
Attorneys for Respondent George Dedos
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