Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WISTIN ABRAHAM GALVAN LOPEZ,
Petitioner,
v. 	No. 2:25-cv-1288 JB/DLM
KRISTI NOEM, et al.,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Wistin Abraham Galvan Lopez’s
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Galvan Lopez brings
a claim for unlawful detention under the Immigration and Nationality Act (INA) and for a violation
of his due process rights under the Fifth Amendment. He also filed a Motion for Temporary
Restraining Order and Preliminary Injunction (TRO). (Doc. 4.) Having reviewed the record and
relevant law, the undersigned recommends that the Petition be GRANTED and his Motion for
Temporary Restraining Order and Preliminary Injunction be DENIED AS MOOT.1
I. 	Factual and Procedural Background
Petitioner Galvan Lopez is a 22-year-old citizen and national of Guatemala. (Doc. 1 ¶ 13.)
He entered the United States without inspection near Roma, Texas on August 10, 2019, when he
was approximately 16 years old. (See id. ¶ 20; see also Doc. 4-6 at 2.) United States Border Patrol
agents encountered him the same day and took him into custody after they determined he had
entered unlawfully. (Doc. 4‑6 at 2.) Because he was an unaccompanied minor, Border Patrol
1 On December 29, 2025, United States District Judge James O. Browning entered an Order of Reference referring
this case to the undersigned Magistrate Judge “to conduct hearings, if warranted, including evidentiary hearings, and
to perform any legal analysis required to recommend to the Court an ultimate disposition of the case.” (Doc. 2.)
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processed him as an Unaccompanied Alien Child (UAC) and transferred him to the custody of the
Office of Refugee Resettlement (ORR) pursuant to 6 U.S.C. § 279 and 8 U.S.C. § 1232. (Doc. 1 ¶
20; see also Doc. 4-6 at 2.) ORR later released him “to the care of loved ones in the United States.”
(Doc. 1 ¶ 20.)
After his release, Petitioner lived primarily in the Rochester, New York area, where he
attended high school and later worked in construction. (Id. ¶ 22.) Petitioner has no criminal history.
(Id. ¶ 21.)
On March 24, 2025—more than five years after his initial release from Department of
Homeland Security (DHS) custody—Immigration and Customs Enforcement (ICE) agents
detained Petitioner in Rochester as “collateral” during an enforcement operation targeting another
individual. (Id. ¶¶ 1, 21.) ICE subsequently transferred him to the Otero County Processing Center
(OCPC) in Chaparral, New Mexico and initiated removal proceedings on the basis that he was
“present in the United States without being admitted or paroled, or . . . arrived in the United States
at any time or place other than as designated by the Attorney General[]’” pursuant to INA §
212(a)(6)(A)(i), codified at 8 U.S.C. § 1182(a)(6)(A)(i). (Id. ¶¶ 6, 13; see also Docs. 4-1 at 1; 4-6
at 2.)
Petitioner sought a custody redetermination under 8 U.S.C. § 1226(a). (See Doc. 1 ¶ 23.)
On August 12, 2025, an Immigration Judge (IJ) found that he was detained under § 1226(a),
determined that he was neither a danger to the community nor a flight risk, and granted bond in
the amount of $5,000. (See id.; see also Doc. 4-3) “The same day, ICE filed a Form EOIR-43,
unilaterally staying the IJ’s [bond] order” pending appeal. (Doc. 1 ¶ 24 (citing 8 C.F.R. §
1003.19(i)(2)); see also Doc. 4-4.)
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On October 23, 2025, the Board of Immigration Appeals (BIA) reversed the IJ’s decision,
concluding that Petitioner is subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A). (Doc.
1 ¶ 25; see also Doc. 4 at 2.) Petitioner has now been detained for more than nine months. (See
Doc. 4 at 2.)
On December 22, 2025, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2241, asserting two claims arising from his continued detention: (1) violation of the INA and (2)
violation of due process under the Fifth Amendment. (See Doc. 1.) He asks the Court to: (i) assume
jurisdiction over this matter; (ii) issue a Writ of Habeas Corpus ordering Respondents to
immediately release him from custody pending these proceedings; (iii) in the event that he is not
released, order Respondents to Show Cause why the petition should not be granted; (iv) enjoin
Respondents from transferring him away from the jurisdiction of this District pending these
proceedings; (v) declare that his detention violates the Due process Clause of the Fifth
Amendment; (vi) award reasonable attorney’s fees and costs; and (vii) “[g]rant any further relief
this Court deems just and proper.” (Id. at 7.)
On January 11, 2026, Petitioner filed a Motion for Temporary Restraining Order and
Preliminary Injunction seeking immediate release pending resolution of his habeas petition. (See
Doc. 4.)
The Federal Respondents filed their response in opposition to the TRO and the Habeas
Petition on January 21, 2026. (Doc. 14.) On January 23, 2026, Respondent Dora Castro, Warden
of the Otero County Processing Center, filed a notice joining the position taken by the federal
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Respondents. (Doc. 18.) That same day, Petitioner filed his Reply. (Doc. 19.) The matter is now
fully briefed and ready for disposition.2
II. 	Legal Standard
Federal courts possess longstanding authority to review the legality of executive detention
through the writ of habeas corpus. 28 U.S.C. § 2241 expressly authorizes courts to issue a writ of
habeas corpus when a person is “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). The Tenth Circuit has recognized that “[c]hallenges
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)).
The fundamental purpose of a § 2241 habeas corpus proceeding is to allow a detainee to
challenge the legality of his custody and to secure release from unlawful detention. See
Palma‑Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). Because Petitioner challenges the
legality of his continued detention, his claim falls squarely within the scope of § 2241.
III. 	Discussion
Petitioner contends that his continued detention is unlawful because DHS is detaining him
under the wrong statutory provision in violation of the INA, and because his redetention without
an individualized bond hearing violates the Due Process Clause. (See Docs. 1 at 6–7; 4 at 3–4.)
Both arguments are well-grounded in the record and consistent with recent decisions scrutinizing
DHS’s evolving detention practices. For the reasons set forth below, the undersigned concludes
that § 1226(a)—not § 1225(b)(2)—governs Petitioner’s custody. Because the BIA applied the
wrong detention provision, habeas relief is warranted.
2 As Respondent Castro has adopted the Federal Respondents’ position, the undersigned will refer to them collectively
as “Respondents” throughout this PFRD.
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No party has identified any factual dispute requiring an evidentiary hearing, and the issues
presented are purely legal and fully briefed. The existing record is sufficient to resolve the habeas
petition, and it also provides an adequate basis to address the TRO to the extent necessary.
A. 	Statutory Claim
The undersigned’s analysis centers on the INA’s statutory provisions governing detention
under § 1225 and eligibility for a bond hearing under § 1226.
8 U.S.C. §§ 1225 and 1226 govern the detention of noncitizens prior to a final order of
removal. See Jennings v. Rodriguez, 583 U.S. 281, 287–89 (2018). The statutory question here is
straightforward: whether a noncitizen who entered the United States years ago, lived openly in the
interior, and was processed under the UAC framework is properly detained under § 1225(b)—a
provision designed for individuals “seeking admission”—or under § 1226(a), which governs the
detention of noncitizens already present in the United States. See id. at 297, 303. The application
of the statutory scheme to the facts, however, is a bit less cooperative and requires some careful
untangling.
Courts confronting similar factual and statutory circumstances have recently examined this
precise issue. It is instructive to examine how other courts have parsed the interaction between
§§ 1225 and 1226 when a noncitizen entered unlawfully years earlier but later sought immigration
relief from within the United States. A recent decision, Singh v. Noem, provides a useful roadmap
of that framework.
In Singh v. Noem, the court addressed the statutory basis for the federal government’s
detention of Singh, a noncitizen who entered the United States unlawfully in September 2023 and
was re-detained in September 2025 while traveling through a United States Border Patrol
checkpoint in New Mexico. Singh v. Noem, No 2:25-cv-1110 JB/KK, 2026 WL 146005, at *35
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(D.N.M. Jan. 20, 2026). The court explained that Singh was never lawfully admitted or paroled
into the United States, and therefore he is deemed an “applicant for admission.” Id. at *14 (citing
8 U.S.C. § 1225(a)(1)). Despite arguments that Singh’s subsequent detention must fall under
§ 1226(a), entitling him to a bond hearing, the court concluded that Singh’s detention was governed
by § 1225(b)(2), which mandates detention and does not require a bond hearing. See id. at *33.
The Singh court began by analyzing whether § 1225(b)(1), the expedited removal
provision, applies to Singh. Id. at *35. Although Singh had been present in the United States for
less than two years at the time of his re-detention and had not been admitted or paroled, the court
found 	that 	§ 1225(b)(1) 	did 	not 	apply 	because 	immigration 	officers 	charged 	him 	under
§ 1182(a)(6)(A)(i), rather than the specific inadmissibility grounds, §§ 1182(a)(6)(C) or (a)(7),
required for expedited removal. Id. The court noted that DHS’s choice of inadmissibility ground
appeared intentional and that, regardless of Singh’s factual eligibility, the statutory prerequisites
for § 1225(b)(1) were not satisfied. Id.
Having determined that § 1225(b)(1) did not apply, the court turned to § 1225(b)(2), which
functions as a catchall provision for applicants for admission not covered by § 1225(b)(1). See id.
at *18, *34. The court emphasized that § 1225(b)(2) applies only to aliens who are both “applicants
for admission” and “seeking admission,” and it rejected the government’s argument that these
terms are synonymous. Id. at *35. The court also rejected the contention that “seeking admission”
applies only to arriving aliens at the border. Id. Instead, the court interpreted “seeking admission”
as an active process that can occur inside the United States when an alien who has not been
admitted seeks lawful status—“an alien must request admission into the United States.” Id.
Applying that interpretation, the court concluded that Singh was “seeking admission”
because he filed an asylum application after entering the United States unlawfully. Id. After
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entering unlawfully on September 15, 2023—but before his second and operative detainment on
September 4, 2025—Singh submitted an application for asylum, withholding of removal, and
protection under the Convention Against Torture. Id. at *36. The court further observed that
Singh’s pending asylum proceedings demonstrated that he had been found to have a credible fear
of persecution, which placed him squarely within the detention framework of § 1225(b). Id. The
court relied on 8 C.F.R. § 235.3(c)(2), which provides that asylum applicants who have been found
to have credible fear “shall be detained” under § 1225(b). Id. The court thus concluded that Singh’s
asylum application did not shift him into § 1226(a) detention, but instead reinforced the conclusion
that § 1225(b)(2) governed his custody. Id.
The court also noted that immigration officers determined Singh was not “clearly and
beyond a doubt . . . entitled to be admitted,” a statutory requirement for detention under
§ 1225(b)(2). Id. at *35 (citing 8 U.S.C. § 1225(b)(2)). The court further explained that Singh
admitted to unlawful entry, had a pending removal case, and sought relief from removal; thus, the
court concluded that he could not possibly meet the “clearly and beyond a doubt” standard. Id.
Ultimately, the court held that Singh was properly detained under § 1225(b)(2), not § 1226(a). Id.
Because § 1225(b)(2) mandates detention without the possibility of a bond hearing, the court
denied Singh’s request for release or a bond hearing. Id. at *33.
To begin, Petitioner in this case, as in Singh, entered without inspection and was never
admitted or paroled. (See Doc. 1 ¶ 20.) He is therefore an “applicant for admission” under
§ 1225(a)(1). See Singh, 2026 WL 146005, at *14 (discussing 8 U.S.C. § 1225(a)(1)).
Second, § 1225(b)(1) does not apply here. Petitioner is currently detained based on his
March 24, 2025 arrest in Rochester, New York. (Docs. 1 ¶¶ 1, 21; 4 at 1; 4-6 at 2; 14 at 2.) By
that time, he had been in the United States for more than five years, placing him outside the
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two‑year statutory window during which DHS may designate certain noncitizens for expedited
removal under § 1225(b)(1)(A)(iii). See 8 U.S.C. § 1225(b)(1)(A)(iii). Moreover, on both
occasions—his initial 2019 encounter and his 2025 re‑detention—DHS charged him under
§ 1182(a)(6)(A)(i), like in Singh, rather than charging him under § 1182(a)(6)(C) or § 1182(a)(7),
the only inadmissibility grounds that trigger § 1225(b)(1). (See Doc. 4‑6 at 2.) Thus, the statutory
prerequisites for § 1225(b)(1) are not met.
Third, because Petitioner has not taken any action that constitutes “seeking admission,”
§ 1225(b)(2) does not apply. As explained in Singh, “seeking admission” requires an active request
for lawful admission—“an alien must request admission into the United States.” Singh, 2026 WL
146005, at *35. Petitioner has made no such request. Unlike in Singh, the record contains no fact
or allegation that Petitioner has filed an asylum application, a visa application, or any other
affirmative request for lawful admission. He is defending against removal, but he is not
affirmatively seeking admission. The government’s position—that all non‑admitted noncitizens
are “seeking admission”—is the precise interpretation Singh rejected. (See Doc. 14 at 10–11.) See
also Singh, 2026 WL 146005, at *35 (Noting that this “argument improperly equates the term
‘applicant for admission’ and ‘alien seeking admission.’”).
Because neither § 1225(b)(1) nor § 1225(b)(2) applies, detention defaults to § 1226(a). This
is the statutory structure Singh adopts: § 1226(a) governs detention of noncitizens who are not
subject to either § 1225(b)(1) or § 1225(b)(2). Id. at *33–36; see also Jennings, 583 U.S. at 287–
89 (explaining that §§ 1225(b) and 1226 create separate detention tracks and that § 1226(a) governs
when § 1225(b) does not apply).
Under the framework articulated in Singh, Petitioner’s detention is governed by § 1226(a),
not § 1225(b)(2). Petitioner is therefore entitled to an individualized bond hearing before a neutral
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decisionmaker. Because the BIA’s reversal of the IJ’s bond order rested entirely on the conclusion
that § 1225(b)(2) applies, his continued detention is unlawful under the INA and warrants habeas
relief.
Similarly, in Cortez‑Gonzalez v. Noem, where a noncitizen had lived in the United States
for nearly her entire life with no criminal history and was later arrested in the interior and charged
under § 1182(a)(6)(A)(i), the court rejected DHS’s attempt to classify her detention under
§ 1225(b)(2)(A). See Cortez-Gonzalez v. Noem, --- F. Supp. 3d ---, No. 2:25-cv-0985 MLG/KK,
2025 WL 3485771, at *3–5 (D.N.M. Dec. 4, 2025). The court explained that § 1225(b)(2) applies
only when a noncitizen is both an “applicant for admission” and “seeking admission,” and that
long‑term residents who have taken no affirmative steps to request lawful admission are not
“seeking admission” within the meaning of the statute. Id. at *4–5. Because the statutory
prerequisites for § 1225(b)(2) were not met, the court held that detention defaulted to § 1226(a).
Id. at *5. The same reasoning applies here: Petitioner has lived in the United States for years, was
charged under § 1182(a)(6)(A)(i), and has made no affirmative request for admission. As in
Cortez‑Gonzalez, DHS’s reliance on § 1225(b)(2) is inconsistent with the statutory text, and
§ 1226(a) governs his detention.
Government’s Argument
Respondents argue that Petitioner is properly detained under § 1225(b)(2)(A) because he
entered without inspection, has never been admitted, and therefore remains an “applicant for
admission” under § 1225(a)(1). (See Doc. 14 at 11–12.) Relying on Matter of Yajure Hurtado, 29
I. & N. Dec. 216 (BIA 2025), Respondents contend that all noncitizens who entered unlawfully
are necessarily “seeking admission” for purposes of § 1225(b)(2), regardless of how long they have
lived in the interior or whether they have made any affirmative request for lawful admission. (See
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id. at 10–11, 13–15.) Under this view, § 1225(b)(2) applies automatically to any noncitizen who
has not been lawfully admitted, and § 1226(a) applies only to admitted noncitizens.
Respondents further argue that Jennings does not support Petitioner’s position because the
Supreme Court’s reference to “aliens already in the country” refers only to admitted noncitizens
removable under § 1227(a). (Id. at 13 (citing Jennings, 583 U.S. at 288–89).) They also emphasize
that DHS’s prior practice of treating interior arrests as § 1226(a) cases cannot override the statute’s
plain text. (Id. at 12–13.)
The undersigned notes at the outset that BIA decisions are not binding authority. Loper
Bright Enters. v. Raimondo instructs courts to “exercise independent judgment in determining the
meaning of statutory provisions” and “not defer to an agency interpretation of the law simply
because a statute is ambiguous.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394, 413 (2024);
see also Cortez-Gonzalez, 2025 WL 3485771, at *5 (citations omitted) (noting that the BIA’s
interpretation of statutes is not binding, “particularly when the result lacks sound legal
foundation”). The remaining difficulty with Respondents’ position is that it depends on collapsing
two statutory terms that Singh treats as distinct. Singh expressly rejects the argument that every
“applicant for admission” is necessarily “seeking admission,” holding instead that “seeking
admission” requires an active request for lawful admission, such as filing asylum or a visa
application. Singh, 2026 WL 146005, at *35. Respondents’ reading—drawn from Hurtado—treats
unlawful entry alone as sufficient to satisfy § 1225(b)(2)’s “seeking admission” requirement. (See
Doc. 14 at 10–11.) That interpretation is inconsistent with Singh’s conclusion that § 1225(b)(2)
applies only when the statutory elements are met.
In sum, the statutory framework, as interpreted by courts in this district, contradicts
Respondents’ position. Petitioner is an applicant for admission, but he is not “seeking admission”
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within the meaning of § 1225(b)(2), and DHS’s charging decisions place him outside the ambit of
§ 1225(b)(1). 	Under 	the 	structure 	Congress 	enacted—and 	that 	Jennings, 	Singh, 	and
Cortez‑Gonzalez describe—§ 1226(a) governs by default. Because the BIA applied the wrong
detention provision (see Doc. 4-5 at 3), its decision cannot stand.
Accordingly, the undersigned concludes that § 1226(a) governs Petitioner’s custody and
that the BIA erred in applying § 1225(b)(2). Because Petitioner is detained under the wrong
statutory provision, his continued detention is unlawful under the INA and warrants habeas relief.
B. 	Due Process Claim
Petitioner also argues that his redetention without an individualized bond hearing violates
the Due Process Clause. (See Doc. 4 at 5–7.) As a preliminary matter, the undersigned notes that
“the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether
their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693
(citations omitted).
Courts in this district addressing similar redetention scenarios have repeatedly held that
noncitizens who have been released from immigration custody acquire a protected liberty interest
in remaining free and that the government may not revoke that liberty without constitutionally
adequate procedures.
In Cuya‑Priale v. Castro, the court held that a noncitizen released on bond “acquire[s] a
protectable liberty interest in remaining out of custody[,]” and that redetention without a hearing
violates due process. Cuya‑Priale v. Castro, No. 2:25-cv-1166 KG/DLM, 2025 WL 3564145, at
*2 (D.N.M. Dec. 12, 2025) (citations and quotation marks omitted). The court emphasized that
years of lawful presence, employment, and community ties strengthen the liberty interest at stake.
See id. at *2.
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The same principle guided the court in Danierov v. Noem, where DHS re-detained a
noncitizen who had lived in the United States for years, complied with all conditions of release,
and had no criminal history. Danierov v. Noem, No. 2:25-cv-1215 KG/KRS, 2026 WL 45288
(D.N.M. Jan. 6, 2026). The court held that once a noncitizen has been released under § 1226(a),
due process requires a pre-deprivation bond hearing at which DHS must demonstrate a material
change in circumstances showing danger or flight risk before revoking that release. Id. at *2–3.
Because DHS redetained the noncitizen without any such showing, the court concluded that the
risk of erroneous deprivation was substantial and that detention without a hearing violated the Due
Process Clause. Id. at *2–3.
And in Hernandez‑Parrilla v. De Anda‑Ybarra, the court enjoined DHS from detaining a
noncitizen without a pre‑deprivation bond hearing even where detention was only threatened.
Hernandez‑Parrilla v. De Anda‑Ybarra, No. 2:25-cv-1224 MIS/KK, 2025 WL 3632769, at *4–6
(D.N.M. Dec. 15, 2025). The court explained that years of lawful presence and compliance with
release conditions create a strong liberty interest that cannot be overridden without constitutionally
adequate procedures. Id. at *5.
Petitioner’s circumstances align with these decisions. He lived in the United States for
more than five years, worked, developed community ties, and has no criminal record. (See Doc. 1
¶¶ 20–22, 27; see also Doc. 4-6 at 1.) DHS redetained him without any individualized finding of
danger or flight risk, and without any showing of materially changed circumstances. As in the
cases above, redetention here violates the Due Process Clause.
Taken together, the statutory and constitutional authorities establish that Petitioner’s
continued detention is unlawful.
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C. 	Disposition of the Habeas
Because 	an 	Immigration 	Judge 	has 	already 	conducted 	an 	individualized 	custody
determination under § 1226(a) and found Petitioner neither a danger nor a flight risk, the
government has already received the process that § 1226(a) requires. (See Docs. 1 ¶¶ 3, 23; 4 at 2;
14 at 2.) Respondents offered no evidence suggesting that Petitioner poses any danger to the
community or risk of flight. The only reason Petitioner remains detained is that the BIA vacated
the IJ’s bond order based on its conclusion that § 1225(b)(2) applies. (See Docs. 1 ¶ 25; 4-5; 14 at
2.) 	As explained above, that conclusion is incorrect. Thus, the IJ’s prior bond determination
becomes operative unless DHS can demonstrate materially changed circumstances warranting
redetention. See Cuya-Priale, 2025 WL 2564145, at *2 (citations omitted) (noting that “[a]lthough
DHS may revoke release ‘at any time’ [under] 8 U.S.C. § 1226(b), courts require ‘a material
change in circumstances as to whether the noncitizen poses a danger to the community or an
unreasonable risk of flight’ before such revocation”).
Accordingly, I recommend that the Court order that the IJ’s prior bond determination be
reinstated and that Petitioner be released. DHS may seek redetention only if it can demonstrate
materially changed circumstances.
D. 	Disposition of Petitioner’s TRO
In Petitioner’s Motion for Temporary Restraining Order and Preliminary Injunction, he
seeks to enjoin the Respondents from continuing his detainment and his immediate release pending
the adjudication of his habeas petition. (See Doc. 4 at 2, 7.) Because the relief he seeks in the TRO
is duplicative of the relief he seeks in the Petition, granting the Petition will moot the TRO.
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E. 	Attorney’s Fees
The Petition includes a one‑sentence request for “[r]easonable attorney’s fees and costs.”
(Doc. 1 at 7.) The Equal Access to Justice Act (EAJA) authorizes an award of fees to a prevailing
party in a civil action against the United States unless the government’s position was substantially
justified or special circumstances would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The
Tenth Circuit has confirmed that the EAJA applies to habeas actions challenging immigration
detention. See Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir. 2025).
Here, however, neither party has developed the issue. The petition contains no argument
addressing the EAJA’s statutory requirements, and Respondents have not addressed fees at all.
Accordingly, I recommend that Petitioner’s request for attorney’s fees be denied without
prejudice.
IV. 	Conclusion
For the reasons stated above, the undersigned RECOMMENDS the following:
1. 	The Petition for Writ of Habeas Corpus (Doc. 1) should be GRANTED on the
grounds that Respondents violated the INA and Petitioner’s procedural due‑process
rights under the Fifth Amendment.
2. 	Petitioner’s Motion for Temporary Restraining Order and Preliminary Injunction
(Doc. 4) should be DENIED AS MOOT in light of the full relief recommended on
the habeas petition.
3. 	The Court should declare that Petitioner’s continued detention—more than ten
months in total, including five months after an Immigration Judge granted bond—
violates the INA and the Due Process Clause.
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4. 	The Court should order reinstatement of the IJ’s bond determination and release.
Because an Immigration Judge has already conducted a full § 1226(a) custody
hearing and found Petitioner neither a danger nor a flight risk, the Court should
order that Petitioner be released under the same conditions that existed before the
BIA erroneously sustained DHS’s appeal. No further bond hearing should be
required unless DHS demonstrates materially changed circumstances.
5. 	The 	Court 	should 	enjoin 	Respondents 	from 	re‑detaining 	Petitioner—absent
evidence that Petitioner has committed a crime or absconded in his immigration
proceedings—without first providing notice and a pre‑deprivation hearing before a
neutral decisionmaker at which the government bears the burden, by clear and
convincing evidence, of justifying re‑detention.
6. 	The Court should retain jurisdiction to consider any future motion for attorney’s
fees and costs under the Equal Access to Justice Act.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the 14-day period if that party wants
to have appellate review of the proposed findings and recommended disposition. If no
objections are filed, no appellate review will be allowed.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
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