Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
___________________________
CARLOS ALFREDO GUAMBUGUETE CORREGIDOR,
Petitioner,
v. 	Case No. 1:26-cv-00193-KWR-KRS
PAMELA BONDI, Attorney General,
DAREN K. MARGOLIN, Director for
Executive Office for Immigration Review,
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
KRISTI NOEM, Secretary, U.S. Department of
Homeland Security, Department of Homeland Security,
TODD M. LYONS, Acting Director of
Immigration and Customs Enforcement,
Immigration and Customs Enforcement,
MARY DE ANDA-YBARRA, Director, El Paso
Field Office Field Office, Immigration and Customs Enforcement, and
GEORGE DEDOS, Warden of Torrance County Detention Facility,
Respondents.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1). Having reviewed the parties’ pleadings and the relevant law, the Court finds that
the Petition is well-taken and therefore is GRANTED in part. The Court orders Respondents to
hold an individualized bond hearing for Petitioner within seven (7) days of the entry of this order.
BACKGROUND
Petitioner Carlos Alfredo Guambuguete Corregidor is a citizen of Ecuador who entered the
United States in December 2023. Doc. 1 ¶¶ 27–28. Petitioner applied for asylum and complied
with the government’s instructions. Id. ¶ 32. In January 2026, Petitioner was arrested and detained
in Minnesota without a warrant. Id. ¶¶ 29–30. 	He was transferred to New Mexico where he is
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 1 of 19

2
currently detained at the Torrance County Detention Facility. Id. ¶ 40. Petitioner does not have
any criminal history and states that Respondents have no cause to believe that he was a flight risk.
Id. ¶¶ 32, 36.
Since his detention, Respondents have not provided Petitioner with a bond hearing,
asserting that the immigration court lacks jurisdiction to determine whether he is eligible for bond
pursuant to 8 U.S.C. § 1226(a). Id. ¶ 38. On September 5, 2025, the Board of Immigration Appeals
issued a decision holding that immigration judges lacked authority or jurisdiction to consider bond
requests for any person who entered the United States without admission. Matter of Yajure
Hurtado, 29 I & N Dec. 216, 225 (BIA 2025) (“Immigration Judges lack authority to hear bond
requests or to grant bond to aliens who are present in the United States without admission.”).
As of the date of the Petition, Petitioner is still detained at the Torrance County Detention
Center without a bond hearing. Doc. 1 ¶¶ 48, 60. Petitioner requests that the Court issue a writ of
habeas corpus requiring Respondents to (1) release Petitioner or (2) conduct an individualized
bond hearing.
Respondents filed a response to the Petition in which they incorporated the arguments they
raised in a prior case before the Court, Munoz Teran. See Doc. 6 at 4 (citing Munoz Teran v. Bondi,
2:25-cv-1218 KWR/SCY, 2026 WL 161527 (D.N.M. Jan. 21, 2026). In response to a Court order,
Respondents supplemented their pleading to address constitutional claims not raised in Munoz
Teran. 	Doc. 	9. 	The 	Respondents’ 	response 	in Munoz 	Teran did 	not 	raise 	administrative
exhaustion. Therefore, the Court declines to sua sponte raise administrative exhaustion. Similarly,
Respondents do not argue that Petitioner is detained under the expedited removal provisions
of § 1225(b)(1). Rather, the sole issues are whether §§ 1225(b)(2)(A) or 1226(a) applies to
Petitioner, whether Petitioner’s detention without a hearing violates his right to due process under
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 2 of 19

3
the Fifth Amendment, and whether Petitioner’s warrantless arrest violated § 1226(a) and his Fourth
Amendment rights.
LEGAL STANDARD
The Constitution guarantees that the writ of habeas corpus is “available to every individual
detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S.
Const., art. I, § 9, cl. 2). A federal court may grant a writ of habeas corpus to a petitioner who
demonstrates that he is in custody in violation of the Constitution or federal law. 28 U.S.C. §
2241(c)(3). “Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S.
678, 687–88 (2001)).
DISCUSSION
Petitioner asserts he is “in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). He asserts several arguments: (1) that he is improperly
detained pursuant to 8 U.S.C. § 1225(b)(2)(A); (2) that his detention is governed by 8 U.S.C. §
1226(a), which entitles him to release or a bond hearing; (3) that his warrantless arrest violates the
INA and his Fourth Amendment right to unreasonable seizure; and (4) that his continued detention
without a bond hearing violates his Fifth Amendment right to due process.
As explained below, Petitioner, who has lived in the United States for years, is subject to
the discretionary detention provisions of § 1226(a) and is therefore entitled to a bond hearing
before an immigration judge.
I. 	The Court has jurisdiction over Petitioner’s challenge to the legality of his detention.
It is undisputed that the Court has jurisdiction over the narrow issues in the Petition.
“[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so
must be clear.” Demore v. Kim, 538 U.S. 510, 517 (2003). And Congress must be “particularly
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 3 of 19

4
clear” that it intends for a provision to preclude habeas review. Id. As here, “[c]hallenges to
immigration detention are properly brought directly through habeas.” Soberanes v. Comfort, 388
F.3d at 1310 (citing Zadvydas, 533 U.S. at 687–88). Accordingly, the Court has jurisdiction over
the narrow detention issue in the Petition, i.e., determining whether mandatory detention under §
1225(b)(2)(A) applies or discretionary detention under § 1226(a) applies pending a decision on
Petitioner’s removal.
Additionally, the Court finds that § 1252(g) does not bar Petitioner’s challenge to his arrest
without a warrant. The Supreme Court requires § 1252(g) be read narrowly and applied to just “the
decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute
removal orders.” Jennings v. Rodriguez, 583 U.S. 281, 294 (2018); see also Reno v. American-
Arab Anti-Discrimination Comm., 525 U.S. 471, 482–83 (1999). 	Petitioner asks the Court to
answer a legal question: whether his arrest without a warrant violated the INA and Constitution.
He does not ask the Court to second-guess Respondents’ discretionary decision to commence
removal proceedings against him. Section 1252(g) does not bar this action.
II. 	Whether mandatory detention under § 1225(b)(2)(A) or discretionary detention
under § 1226(a) applies.
At issue is whether § 1225(b)(2)(A) or § 1226(a) governs Petitioner’s detention while a
decision on his removal is pending. Mandatory detention under § 1225(b)(2)(A) applies to
noncitizens “seeking admission” into the United States. Petitioner asserts that he is entitled to a
bond hearing or immediate release pursuant to § 1226(a), as he has been residing in the United
States and is not “seeking admission” into the United States. Despite this statutory language,
Respondents argue that the mandatory detention provision under § 1225(b)(2)(A) applies, as that
provision covers not only those who present themselves at the border, but any noncitizen who is
present in the United States without admission, pending a decision on removal. See, e.g., Matter
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 4 of 19

5
of Yajure Hurtado, 29 I & N Dec. at 225 (“Immigration Judges lack authority to hear bond requests
or to grant bond to aliens who are present in the United States without admission.”). As explained
below, the statutory phrase “seeking admission” cannot be interpreted to apply to Petitioner, who
has been living in the United States since his initial 2024 release pursuant to § 1226. Therefore,
Petitioner is entitled to a bond hearing under § 1226(a).
In construing the statute at issue, the Court begins with its plain text. See Chickasaw Nation
v. United States, 208 F.3d 871, 876 (10th Cir. 2000). “If the terms of the statute are clear and
unambiguous, they are controlling absent rare and exceptional circumstances.” Id. In ascertaining
the meaning of the text, the Court considers the “language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997); see also Conrad v. Phone Directories Co., 585 F.3d 1376, 1381 (10th
Cir. 2009) (“We also take into account the broader context of the statute as a whole when
ascertaining the meaning of a particular provision.”). The Court also considers traditional canons
of statutory interpretation. Conrad, 585 F.3d at 1381; Ramah Navajo Chapter v. Salazar, 644 F.3d
1054, 1062 (10th Cir. 2011). Generally, the Court only considers non-textual evidence bearing on
Congress’s intent or purpose, such as legislative history, if statutory language is ambiguous. See,
e.g., United States v. Husted, 545 F.3d 1240, 1247 (10th Cir. 2008).
The INA generally contemplates two detention regimes for noncitizens pending a decision
on removal. See Jennings v. Rodriguez, 583 U.S. 281, 289 (2018). The first detention regime
provides that when “an applicant for admission” is “seeking admission” and “not clearly and
beyond a doubt entitled to be admitted,” the noncitizen “shall be detained” for removal
proceedings. 8 U.S.C. § 1225(b)(2)(A). This provision mandates detention and does not expressly
afford a bond hearing. Id. Section 1225 has exceptions to mandatory detention, which are not
relevant here. The second detention regime authorizes the arrest and detention “on a warrant issued
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 5 of 19

6
by the Attorney General” of noncitizens “pending a decision on whether [they are] to be removed.”
8 U.S.C. § 1226(a). Section 1226(a) expressly authorizes the Attorney General to detain the
arrested noncitizen, or release them on bond or conditional parole. Id. Section 1226(c) has certain
exceptions which mandate detention. For example, mandatory detention under § 1226(c) applies
to a noncitizen who is (1) “present in the United States without being admitted or paroled, or who
arrives in the United States at any time or place other than as designated by the Attorney General”
and (2) “charged with, is arrested for, is convicted of, [or] admits having committed” certain
criminal acts. § 1226(c)(1)(E).
Put another way, “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).” Jennings, 583 U.S. at 289 (emphasis added), quoted in
Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (concluding
that § 1226(a) applied to noncitizens already present in country who were not admitted).
Thus, for § 1225(b)(2)(A)’s mandatory detention proceedings to apply, the Court must find
as follows: (1) the noncitizen is “an applicant for admission,” (2) who is “seeking admission,” and
(3) “not clearly and beyond a doubt entitled to be admitted.”
Respondents argue that Petitioner is an applicant for admission and the § 1225(b)(2)(A)
mandatory detention provisions apply. Petitioner is likely an applicant for admission under the
statute. Here, an “applicant for admission” is defined as “an alien present in the United States who
has not been admitted or who arrives in the United States.” § 1225(a)(1). “The terms ‘admission’
and ‘admitted’ mean, 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). Because
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 6 of 19

7
Petitioner is present in the United States and has not been admitted, he may be deemed by the
statute to be an “applicant for admission,” satisfying the first criteria of § 1225(b)(2)(A).
But the detention provision under § 1225(b)(2)(A) applies only to noncitizens “seeking
admission.” § 1225(b)(2)(A). As explained below, under the plain meaning of the statute,
Petitioner, who has been living in the United States, is not “seeking admission.” Id. “Admission”
is defined as “the lawful entry of the noncitizen into the United States after inspection and
authorization by an immigration officer.” Id. § 1101(a)(13)(A). The term “entry” is undefined in
the statute. And Respondents do not argue that “entry” has any technical meaning in the statutory
provisions at issue. 	Assuming it has no technical meaning, it can be given its “ordinary,
contemporary, common meaning.” Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405, 414
(2017) (internal quotation marks omitted); United States v. Santos, 553 U.S. 507, 511 (2008)
(“When a term is undefined, we give it its ordinary meaning.”).
“Entry” most commonly means “[t]he action or an act of entering a place, area, building,
etc.” 	Entry, 	Oxford 	English 	Dictionary 	(2018); 	Merriam-Webster 	Dictionary 	Online,
https://www.merriam-webster.com/dictionary/entry (last visited Jan. 21, 2026) (“the act of
entering”); Entry, Black’s Law Dictionary (12th ed. 2024) (“Immigration. Any entrance of an alien
into the United States, whether voluntary or involuntary.”). “Seeking” in this context most
naturally means trying to obtain something or trying to bring about or effect. Seek, Oxford English
Dictionary Online (2018). “Seeking” is also in the present participle form, which expresses present
action. 	Present 	Participle, 	Merriam 	Webster 	Dictionary, 	https://www.merriam-
webster.com/dictionary/present%20participle (last visited Jan. 21, 2026); see also Lopez-Campos
v. Raycraft, 797 F. Supp. 3d 771, 781 (E.D. Mich. Aug. 29, 2025) (The use of the present participle
in § 1225(b)(2)(A) “implies action – something that is currently occurring, and in this instance,
would most logically occur at the border upon inspection.”). Taken together, the “seeking
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 7 of 19

8
admission” phrase in § 1225(b)(2)(A) applies to noncitizens who are trying to lawfully and
physically enter the country. It does not apply to noncitizens who have lived in the United States
for years and are not seeking lawful entry into the United States.1
Respondents appear to suggest that all “applicants for admission” are deemed to be
“seeking admission.” Respondents essentially interpret “seeking admission” as coterminous with
“applicants for admission.” Respondents’ construction “would render § 1225(b)(2)(A)’s use of the
phrase 	‘seeking 	admission’ superfluous, 	violating 	one 	of 	the 	cardinal 	rules 	of 	statutory
construction.” Castanon-Nava, 161 F.4th at 1061 (citing United States ex rel. Polansky v. Exec.
Health Res., Inc., 599 U.S. 419, 432 (2023)) (“[E]very clause and word of a statute should have
meaning.”). “If an interpretation of one provision ‘would render another provision superfluous,’
courts presume that interpretation is incorrect.” Castanon-Nava, 161 F.4th at 1061 (quoting in part
Bilski v. Kappos, 561 U.S. 593, 607–08 (2010)). “And this presumption is ‘strongest when an
interpretation would render superfluous another part of the same statutory scheme,’ as would be
the case here.” Castanon-Nava, 161 F.4th at 1061 (quoting in part Marx v. Gen. Revenue Corp.,
568 U.S. 371, 386 (2013)). Therefore, the Court declines to interpret “seeking admission” in a
manner wholly synonymous with “applicant for admission.”
1 The Court’s understanding of the plain, ordinary meaning of the word “entry” in this statute, i.e.,
that entry means the physical entry into the country, accords with how it is understood and used
by the United States Supreme Court in the immigration context. The word “entry” has long been
used to refer to physically going into the country, regardless of whether the entrant is legally in the
United States. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“[O]ur immigration
laws have long made a distinction between those aliens who have come to our shores seeking
admission . . . and those who are within the United States after an entry, irrespective of its
legality.”); Zadvydas, 533 U.S. at 693 (“The distinction between an alien who has effected an entry
into the United States and one who has never entered runs throughout immigration law.”).
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 8 of 19

9
Rather than the two phrases being synonymous, the statutory language elsewhere in § 1225
appears to distinguish the phrase “applicants for admission” from the phrase “seeking admission,”
suggesting that these phrases have separate meanings. Section § 1225(a)(3) provides that “All
aliens . . . who are applicants for admission or otherwise seeking admission or readmission to or
transit through the United States shall be inspected by immigration officers.” Id. (emphasis added).
The word “or” in its “ordinary use is almost always disjunctive, that is, the words it connects are
to be given separate meanings.” Loughrin v. United States, 573 U.S. 351, 357 (2014) (quoting
United States v. Woods, 571 U.S. 31, 45 (2013)). Taken together, “or otherwise” is “used to refer
to something that is different from something already mentioned.” Or otherwise, Merriam Webster
Online, 	https://www.merriam-webster.com/dictionary/or%20otherwise 	(last 	visited 	Jan. 	12,
2026). If “applicant for admission” had the same meaning as “seeking admission,” there would be
no need to repeat the phrase “seeking admission” or use the phrase “or otherwise.” Thus, it is clear
that the phrases “applicants for admission” and “seeking admission” do not have the same
meaning.
Respondents’ interpretation would also render superfluous recent amendments to §
1226(c). Section 1226(c)(1)(E) mandates detention for certain noncitizens who are implicated in
certain crimes. Section 1226(c)(1)(E), which was added to the statute in 2025 by the Laken Riley
Act, mandates detention for any noncitizen (1) who is inadmissible under § 1182(a)(6)(A)(i) as an
“alien present in the United States without being admitted or paroled,” and (2) who “is charged
with, arrested for, convicted of, or admits” to committing certain crimes. 8 U.S.C. § 1226(c)(1)(E).
Under Respondents’ interpretation, all noncitizens who are present in the country without being
admitted or paroled must already be mandatorily detained under § 1225(b)(2)(A), rendering the
recent amendment superfluous. Generally, courts “do not lightly” find that Congress adopted “two
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 9 of 19

10
separate clauses in the same law to perform the same work.” United States v. Taylor, 596 U.S. 845,
857 (2022).
Moreover, the context of the statute surrounding § 1225(b)(2)(A) is clear that it generally
applies to arriving noncitizens, not those already present for years. See King v. Burwell, 576 U.S.
473, 486 (2015) (explaining that courts “must read the words in their context and with a view to
their place in the overall statutory scheme” (citation and internal quotation marks omitted)); see
also Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280,
290, (2010) (“Courts have a ‘duty to construe statutes, not isolated provisions.’” (quoting
Gustafson v. Alloyd Co., 513 U.S. 561, 568, 1 (1995))).
The Court’s interpretation of § 1225(b)(2)(A) is consistent with the decisions of multiple
courts, which have found that a person who has been present in the United States is not “seeking
admission” and therefore not subject to mandatory detention under § 1225(b)(2)(A). See, e.g.,
Castanon-Nava, 161 F.4th at 1061; see also Barco Mercado v. Francis, No. 25-CV-6582 (LAK),
2025 WL 3295903, at *13 (S.D.N.Y. Nov. 26, 2025) (collecting cases in Appendix A); Pu Sacvin
v. 	Ybarra, 	No. 	2:25-CV-1031-KG, 	2025 	WL 	3187432, 	at 	*3 	(D.N.M. 	Nov. 	14, 	2025)
(“Noncitizens seeking admission are those who have not effected an entry into the United States.”)
(quotation marks omitted); Buenrostro-Mendez v. Pamela Bondi, __F.4th _, 2026 WL 323330, at
*10 (5th Cir. 2026) (Douglas, J., dissenting).
The Court’s interpretation is also consistent with the United States Supreme Court’s dicta.
In Jennings, the Supreme Court explained that Section 1225(b) “applies primarily to aliens seeking
entry into the United States (‘applicants for admission’ in the language of the statute).” Jennings,
583 U.S. at 297. In contrast, the Court explained that Section 1226 “applies to aliens already
present in the United States.” Id. at 303. The Court further noted that “Section 1226(a) creates a
default rule for those aliens [present in the United States] by permitting—but not requiring—the
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 10 of 19

11
Attorney General to issue warrants for their arrest and detention pending removal proceedings,”
and also “permits the Attorney General to release those aliens on bond.” Id. The Jennings Court’s
description of the relationship between §§ 1225 and 1226 is consistent with the Court’s conclusion.
Respondents argue that the Court’s interpretation would treat noncitizens unlawfully
present in the United States preferentially to noncitizens who arrive at the border. They imply this
would be unfair or would reward noncitizens who pass the border without inspection. Because the
statutory language is unambiguous, the Court’s task is to ascertain its plain meaning, and it
generally should not address this extra-textual policy consideration. See McGraw v. Barnhart, 450
F.3d 493, 499 (10th Cir. 2006). Alternatively, this seemingly different treatment of those who are
already present in the United States is well-supported in case law. “The distinction between an
alien who has effected an entry into the United States and one who has never entered runs
throughout immigration law.” Zadvydas, 533 U.S. at 693; Leng May Ma v. Barber, 357 U.S. 185,
187 (1958) (“[O]ur immigration laws have long made a distinction between those aliens who have
come to our shores seeking admission ... and those who are within the United States after an entry,
irrespective of its legality.”).
Respondents cite to a decision by the BIA holding that § 1225(b)(2)(A) applies to
noncitizens present in the country who were not inspected at the border. See Matter of Yajure
Hurtado, 29 I & N Dec. 216 (BIA 2025). Hurtado is not binding on this court, and the agency’s
interpretation carries only the “power to persuade.” Loper Bright Enters. v. Raimondo, 603 U.S.
369, 402 (2024). As explained above, the Court does not find Hurtado persuasive.
Here, applying the above statutory interpretation to the facts of this case, it is clear that
Petitioner is not “seeking admission” under § 1225(b)(2)(A). He has been residing in the United
States since DHS released him from custody pursuant to § 1226. And neither the Petition nor the
Answer by Respondents identified any facts to suggest Petitioner was “seeking admission,” i.e.,
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 11 of 19

12
lawful physical entry into the country, at the time of his arrest. Therefore, it is clear that the
detention provision under § 1225(b)(2)(A) does not apply to Petitioner.
Instead, § 1226(a), the default, more general detention provision pending a decision on
removal, governs Petitioner’s detention. “Section 1226 generally governs the process of arresting
and detaining that group of aliens pending their removal.” Jennings, 583 U.S. at 288. Beyond the
reasons discussed above, Respondents do not provide any support to justify why Petitioner’s
detention is no longer governed by § 1226. Thus, the Court grants in part the Petition.
III. 	The Court finds that a bond hearing, rather than immediate release, is the
appropriate remedy for his mandatory detention in violation of the INA.
Petitioner requests immediate release or a bond hearing, with 72-hours advance notice
before any removal attempt is made, before the immigration court. 	Doc. 1 at 28–29. However,
Petitioner does not carry his burden that he should be immediately released or that the Court is
required to release him rather than order a bond hearing. He also does not argue or that the Court
should shift the burden at any bond hearing to the Government. As explained below, relying in
part on the burden of proof and principles of party presentation, the Court declines to immediately
release Petitioner. Therefore, exercising its discretion under § 2241, the Court will order an
individualized bond hearing.
Petitioner bears the burden of proof to demonstrate that he is entitled to relief or a remedy,
including whether the burden should be placed on the Respondents to justify his detention at a
bond hearing. See § 2241; see Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (“[I]t
was error for the District Court to effectively impose on the Government the burden of proving
that [petitioner] was not ‘in custody in violation of the Constitution or laws or treaties of the United
States.’” (citing § 2241(c)(3)). Petitioner also bears the burden to demonstrate a “deprivation of
rights leading to unlawful detention” under § 2241. Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir.
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 12 of 19

13
2009); see also Smith v. Workman, 550 F.3d 1258, 1273 (10th Cir. 2008) (noting that, in the
context of a Brady violation, the petitioner “bears the burden of showing that the prosecution
suppressed material evidence favorable” to the petitioner).
Section 1226(a) affords Respondents discretion to detain, release on bond, or parole a
noncitizen. Notably, this section does not expressly provide a statutory right to immediate release.
Generally, the release or bond decision is discretionary. § 1226(e) (“The Attorney General’s
discretionary judgment regarding the application of this section shall not be subject to review. No
court may set aside any action or decision by the Attorney General under this section regarding
the detention of any alien or the revocation or denial of bond or parole.”). Discretionary bond
decisions are generally not reviewable. Mwangi v. Terry, 465 F. App’x 784, 786–87 (10th Cir.
2012) (“Therefore, to the extent Mr. Mwangi challenges the agency’s discretionary bond decision,
the magistrate judge was correct that the court lacked jurisdiction.”); Jennings, 583 U.S. at 295
(explaining that § 1226(e) bars a challenge to a discretionary judgment or decision by the Attorney
General, but does not preclude challenges to the statutory framework).
To be sure, federal district courts have broad equitable powers in ordering habeas relief.
Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992). A federal court is vested with “the largest
power to control and direct the form of judgment to be entered in cases brought up before it on
habeas corpus.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (citation omitted). In issuing a writ
of habeas corpus, a federal court has the power and authority to dispose of habeas corpus matters
“as law and justice require.” 28 U.S.C. § 2243. Although Section 1226(e) may restrict some court
review, it does not expressly prohibit habeas review of detention decisions. Assuming the Court
has authority to order Petitioner’s immediate release, the Court in its discretion would order a bond
hearing, as a bond hearing would provide Petitioner with the process he is due under the statute.
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 13 of 19

14
See § 1226(a) (providing that the Attorney General may continue to detain a noncitizens pending
a decision on removal or may release the noncitizen on bond or parole).
Petitioner also does not argue or demonstrate in his Petition that any due process or
constitutional violation for his mandatory detention requires his release. In fact, he points to a
bond hearing as the appropriate remedy for the due process violation resulting from his mandatory
detention. See Doc. 1. ¶¶ 94–95; Doc. 10 at 2 (Reply). Although he cites Mathews v. Eldridge, 424
U.S. 319 (1976), for the Court to apply in deciding whether a due process violation occurred, he
does not articulate how the Mathews test applies to the facts of this case to warrant his immediate
release. See Doc. 1 ¶ 95; Doc. 10 at 2–3. The Court therefore declines to sua sponte analyze
whether his constitutional claim requires his release over a bond hearing, as this issue was not
properly argued or presented to the Court. See United States v. Davis, 622 F. App’x 758, 759 (10th
Cir. 2015) (“[I]t is not this court’s duty, after all, to make arguments for a litigant that he has not
made for himself.”); Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir.
2001) (observing that a court has no obligation to make arguments or perform research on behalf
of litigants) (quoting Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir. 1990) (“A
litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is
sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point.
[The court] will not do his research for him.”). The principle of party presentation is particularly
appropriate here, where this district court is overwhelmed with habeas petitions, and petitioners
request that the Court rule immediately. If the Court were to act as Petitioner’s counsel and make
arguments or do research on his behalf, it would prejudice other petitioners by delaying a ruling
on their petitions. Therefore, Petitioner has not properly placed before the Court the issue of
whether he must be immediately released, or he has not carried his burden.
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 14 of 19

15
Moreover, Petitioner does not request that the Court should shift the burden to Respondents
on the issues of flight and dangerousness at the bond hearing, and the Court declines to sua
sponte raise this issue.
In sum, because Petitioner does not argue that his mandatory detention requires release
over a bond hearing, the Court orders a bond hearing pursuant to § 1226(a) and orders that
Petitioner shall not be denied parole or bond on the basis of § 1225. Respondents must hold a bond
hearing within seven (7) days of the entry of this order.
IV. 	This opinion and the judgment should not be construed as addressing detention under
§ 1231, if that provision becomes applicable.
The Petition presented the Court with a narrow issue, whether Petitioner’s detention
pending a decision on removal is governed by § 1225 or § 1226. Once an order of removal has
become final, the authority governing a noncitizen’s detention shifts to another statutory provision,
8 U.S.C. § 1231(a)(2). See Johnson v. Arteaga-Martinez, 596 U.S. 573, 574 (2022) (“After the
entry of a final order of removal against a noncitizen, the Government generally must secure the
noncitizen’s removal during a 90-day removal period, during which the Government “shall” detain
the noncitizen.”) (citing 8 U.S.C. § 1231(a)(1), (2)).
Section 1231 governs the detention of noncitizens “during” and “beyond” the “removal
period.” 8 U.S.C. § 1231(a)(2)–(6). In general, when a noncitizen is ordered removed, the Attorney
General shall remove them within 90 days, known as the “removal period.” § 1231(a)(1)(A). The
“removal period” begins once a noncitizen’s removal order “becomes administratively final,” §
1231(a)(1)(B), meaning the order has been affirmed by the BIA or the time for seeking review has
expired, 8 U.S.C. § 1101(a)(47)(B). Riley v. Bondi, 606 U.S. 259, 267 (2025) (“An order of
removal becomes final at the earlier of two points: (1) ‘a determination by the [BIA] affirming
such order,’ or (2) ‘the expiration of the period in which the alien is permitted to” petition the BIA
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 15 of 19

16
for review of the order.’) (citation omitted). During the removal period, detention is mandatory. §
1231(a)(2).
Here, no party has asserted that the Petition is moot or that the Court lacks jurisdiction to
rule on the Petition because § 1231 applies. At issue in the Petition was whether §§ 1225 or 1226
applied to Petitioner’s detention pending a decision on removal. No party has alleged that any
removal proceedings have become final. Therefore, as of the entry of this order, it appears that the
Court retains the ability to order the relief requested in the Petition, i.e., to determine whether §§
1225 or 1226 applies to his detention pending a decision on removal. The Court’s order and
judgment should not be construed to opine on whether or when in the future Petitioner may be
detained under § 1231.
V. 	The Court need not rule on Petitioner’s remaining claims.
Petitioner also asserted that his warrantless arrest violated the INA and the Fourth
Amendment. Yet, despite the lack of an express statutory right to release, Petitioner fails to point
to any authority to support why his warrantless arrest justifies his release under § 1226. See id. ¶
82. As to his Fourth Amendment claim, Petitioner again does not cite any authority to support that
release is the appropriate remedy for an unreasonable seizure, beyond the general rule that release
is an available remedy under habeas corpus. See id. ¶¶ 70–72; Doc. 10 at 1 (citing district court
cases where petitioner did not seek immediate release under the Fourth Amendment). 	And as
Respondents point out, Doc. 9 at 3–4, the remedy for a Fourth Amendment violation is the
suppression of evidence that is the “fruit” of an unreasonable seizure, see INS v. Lopez-Mendoza,
468 U.S. 1032, 1039–40 (1984); see also United States v. Olivares-Rangel, 458 F.3d 1104 (10th
Cir. 2006) (interpreting Lopez-Mendoza to reference the longstanding rule that “illegal police
activity affects only the admissibility of evidence; it does not affect the jurisdiction of the trial
court or otherwise serve as a basis for dismissing the prosecution”); Yanez-Marquez v. Lynch, 789
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 16 of 19

17
F.3d 434, 449–50 (4th Cir. 2015) (joining other circuits to hold that in civil removal proceedings,
exclusionary rule applies to “egregious” violations of the Fourth Amendment).
Because Petitioner has not demonstrated that these claims can only be remedied by release,
and the Court will grant habeas relief as to his unlawful mandatory detention under § 1226, the
Court need not address these other claims or enter a declaration. See Banks v. Dretke, 540 U.S.
668, 689 n.10 (2004) (finding it unnecessary to address an additional claim in a habeas petition
after granting full relief on one claim because “any relief [petitioner] could obtain on that claim
would be cumulative.”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988)
(stating that “[a] fundamental and longstanding principle of judicial restraint requires that courts
avoid reaching constitutional questions in advance of the necessity of deciding them.”); Scott v.
Mullin, 303 F.3d 1222, 1224 (10th Cir. 2002) (declining to address the remaining claims in a habeas
petition after already granting habeas relief on one claim).
VI. 	Attorney’s Costs and Fees under the EAJA.
Finally, Petitioner requests that the Court award attorney’s fees and costs under the Equal
Access to Justice Act (“EAJA”). Considering recent Tenth Circuit precedent and the relevant
procedure, the Court finds that it may consider Petitioner’s request for attorney’s fees and costs
provided that Petitioner follows proper EAJA procedure.
The EAJA provides for the following procedure:
[A] court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a), incurred
by that party in any civil action . . . brought by or against the United States in any
court having jurisdiction of that action, unless the court finds that the position of
the United States was substantially justified or that special circumstances make an
award unjust.
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 17 of 19

18
28 U.S.C. § 2412(d)(1)(A). The Tenth Circuit recently held that the EAJA “unambiguously
authorize[s] fees in habeas actions challenging immigration detention.” Daley v. Ceja, 158 F.4th
1152, 1159, 1166 (10th Cir. 2025).
A fee award is required if (1) the petitioner prevails, (2) the Government’s position was not
“substantially justified,” and (3) there are no special circumstances rendering an award of fees
unjust. 	Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting § 2412(d)(1)(A)).
While fees are authorized, the EAJA requires that Petitioner, “within thirty days of final judgment
in the action, submit to the court an application for fees and other expenses,” and an allegation
demonstrating 	that 	“the 	position 	of 	the 	United 	States 	was 	not 	substantially 	justified.”
§ 2412(d)(1)(A), (B). Upon filing this application, the Government must justify its position in any
underlying proceedings and district court litigation. See Hackett, 475 F.3d at 1170.
Since the Court grants Petitioner habeas relief, should Petitioner continue to pursue costs
and fees, Petitioner is instructed to file an EAJA application following the appropriate procedure.
CONCLUSION
The Court concludes that Petitioner’s detention pending a decision on whether he should
be removed from the United States is governed by § 1226(a) as opposed to § 1225(b)(2)(A).
Accordingly, the Petition (Doc. 1) is granted in part. Respondents are directed to arrange an
individualized bond hearing pursuant to § 1226(a) for Petitioner before an immigration judge
within seven (7) days of the entry of this order. Respondents shall not deny Petitioner bond on
the basis that § 1225(b) requires mandatory detention. However, the Court makes no
determination whether or when in the future § 1231 applies to his detention, as it was not briefed
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 18 of 19

19
or raised in the Petition or in the Motion to Dismiss. The parties are ordered to file a status report
within seven days of the entry of this order. The Court will enter a separate judgment.2
IT 	IS 	THEREFORE 	ORDERED 	that 	Petitioner’s 	Petition 	(Doc. 	1) 	is 	hereby
GRANTED in part for the reasons described in this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that Respondents shall provide a bond hearing before an
immigration judge for Petitioner pursuant to § 1226(a), as opposed to § 1225(b), within seven (7)
days of the entry of this order, provided that the Court makes no determination whether or when
in the future § 1231 detention provisions may apply.
IT IS FINALLY ORDERED that the parties are directed to file a joint status report within
ten (10) days of the entry of this order.
____/S/_____________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
2 The Court need not delay entry of judgment to wait for Respondents to comply with the Court’s
order. The Court “always retains jurisdiction to enforce its lawful judgments, including habeas
judgments.” Gall v. Scroggy, 603 F.3d 346, 352 (6th Cir. 2010); Burton v. Johnson, 975 F.2d 690,
693 (10th Cir. 1992) (explaining that district court has authority to enforce its habeas judgment).
Case 1:26-cv-00193-KWR-KRS Document 11 Filed 03/06/26 Page 19 of 19