Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
JUAN PABLO UGUNA-SOTAMBA
Petitioner,
v. Civ. No. 26-582 JB/GJF
DORA CASTRO, Warden of the Otero County
Processing Center; MARY DE ANDA-YBARRA,
Field Office Director of ICE Enforcement and Removal
Operations, El Paso Field Office;
KRISTI NOEM, Secretary of the
Department of Homeland Security;
PAMELA BONDI, Attorney General,
in their official capacities,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON VERIFIED
PETITION FOR WRIT HABEAS CORPUS (DKT. NO. 1) AND EMERGENCY MOTION
FOR TEMPORARY RESTRAINING ORDER (DKT. NO. 11)1
THIS MATTER is before the Court on the Verified Petition for Writ Habeas Corpus and
Complaint for (Dkt. No. 1) (“Petition”) and the Emergency Motion for Temporary Restraining
Order (Dkt. No. 11) (“TRO Motion”), filed by Petitioner Juan Pablo Uguna-Sotamba (“Petitioner”
or “Mr. Uguna-Sotamba”). Respondents Mary De Anda-Ybarra, Kristi Noem, and Pamela Bondi
(collectively, the “Federal Respondents”) responded to the Petition. Resp., Dkt. No. 8.2
Respondent Dora Castro, Warden of the Otero County Processing Center where Petitioner is being
1 The undersigned files this Proposed Findings and Recommended Disposition (“PFRD”) pursuant to the presiding
judge’s Order of Reference (Dkt. No. 3).
2 When a public officer who is a party in an official capacity ceases to hold office while the case is pending, the
officer’s successor “is automatically substituted as a party.” A court “may order substitution at any time, but the
absence of such an order does not affect the substitution.” Fed. R. Civ. P. 25(d). Kristi Noem and Pamela Bondi are
no longer, respectively, the Secretary of the Department of Homeland Security (“DHS”) or the Attorney General. The
Court hereby orders substitution of current DHS Secretary Markwayne Mullin for Kristi Noem and Acting Attorney
General Todd Blanche for Pamela Bondi.
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held, is separately represented and notified the Court that she takes no positions separate from the
Federal Respondents. See Clerk’s Minutes 2, Dkt. No. 15.3 Petitioner filed a reply. Reply, Dkt.
No. 9. Thereafter, on April 14, 2026, Petitioner filed the TRO Motion, to which Respondents
responded. See TRO Mot., Dkt. No. 11; TRO Resp., Dkt. No. 14 This Court held a hearing on the
TRO Motion on April 16, 2026. Clerk’s Minutes, Dkt. No. 15. The parties agreed that an additional
hearing on the Petition was unnecessary, and the Court could decide the matter on the current
record. This matter is ready for decision.
Having reviewed the Petition, the TRO Motion, the briefs, the evidence, the law, and the
arguments of counsel, the Court recommends that the Petition be granted as to the second and
fourth claims for relief for violation of the Immigration and Nationality Act (“INA”) and
procedural due process and denied as to the first and third claims for relief. The Court also advises
ordering an individualized bond hearing to be held within seven days. Given this recommendation
regarding the merits of the Petition, the Court recommends denying the TRO Motion as moot.
I. INTRODUCTION
This case is one of hundreds of § 2241 habeas cases brought in this District and one of
many thousands brought in districts across the nation stemming from a new interpretation of the
INA, 8 U.S.C. § 1225(b)(2)(A), by DHS. From 1997 to 2025, through five successive presidential
administrations, when United States Immigration and Customs Enforcement (“ICE”) detained
noncitizens4 within the interior of the United States who did not have a pending order of removal,
it did so under 8 U.S.C. § 1226. Buenrostro-Mendez v. Bondi, 166 F.4th 494, 500 (5th Cir. 2026).
On July 8, 2025, however, DHS issued new interim guidance that all noncitizens who enter the
3 Given their alignment, the Court will refer to the respondents collectively as “Respondents” herein.
4 The INA defines an “alien” as “any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3). The
Court uses “alien” and “noncitizen” interchangeably in this PFRD.
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country without being admitted or who arrive without proper documentation are subject to
mandatory detention, regardless of their length of residency in the country, unless they are paroled
under INA § 212(d)(5). See id.
The Board of Immigration Appeals (“BIA”) considered this new policy interpretation in
Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA Sept. 5, 2025). The BIA held that the plain
language of 8 U.S.C. § 1225(b)(2)(A) deprived immigration judges of authority to hear bond
requests or to grant bonds to aliens who are present in the United States without admission. Id. at
225. Yajure Hurtado had crossed into the United States without inspection in 2022, lived in the
United States for years, was granted temporary protected status in 2024 by the United States
Citizenship and Immigration Services (“USCIS”), but was arrested after that status expired. Id. at
216-17. The BIA concluded, “Aliens, like respondent, who surreptitiously cross into the United
States remain applicants for admission until and unless they are lawfully inspected and admitted
by an immigration officer.” Id. at 228. “Remaining in the United States for a lengthy period of time
following entry without inspection, by itself, does not constitute an ‘admission.’” Id.
The BIA considered significant the history and passage of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), which substituted the term “admission” for
“entry” and replaced deportation and exclusion proceedings with removal proceedings. Id. at 222-
23. As the BIA explained, Congress enacted the IIRIRA to remedy the unintended consequence of
having created a statutory scheme where aliens who enter without inspection could take advantage
of greater procedural and substantive rights afforded in deportation proceedings, while aliens who
presented themselves at the border were limited to more summary exclusion proceedings. Id. at
223 (quoting Martinez v. Attorney General of U.S., 693 F.3d 408, 413 n.5 (3d Cir. 2012)).
Consequently, according to the BIA, aliens who enter without inspection or admission remain
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“applicants for admission,” id. at 224, regardless how long they have lived here, until an
immigration officer determines that they are “clearly and beyond a doubt entitled to be admitted,”
id. at 228 (quoting 8 U.S.C. § 1225(b)(2)(A)). In the wake of Yajure Hurtado, immigration judges
have uniformly concluded that they lack jurisdiction to hold bond hearings for detainees held under
§ 1225(b)(2)(A).5
According to Respondents, Petitioner is properly detained under § 1225(b)(2)(A) because,
as an alien present in the United States without being admitted, he remains an applicant for
admission, and his due process rights are limited to the statutory rights provided in the INA. But
Petitioner urges the Court to follow the vast majority of district courts and find that he may be
detained only under § 1226, which entitles him to a bond hearing or release. For the reasons that
follow, the Court recommends concluding that § 1225(b)(2)(A) does not apply to Petitioner, and
that Respondents violated the INA and the Due Process Clause when subjecting him to mandatory
detention for months without a bond hearing, as required by § 1226.
II. FACTUAL BACKGROUND
Juan Pablo Uguna-Sotamba is a 52-year-old Ecuadorian national. Pet. ¶ 1, Dkt. No. 1;
Resp’ts’ Ex. B, Dkt. No. 8-2 at 3 of 5. He entered the United States without inspection in March
2000 in California. Pet. ¶ 1, Dkt. No. 1. He moved to Manhattan, New York, where he lived for
over 20 years working as a carpenter. Id. ¶¶ 3-4. He has no criminal history. Id. ¶ 15; Pet’r’s Ex.
B, Dkt. No. 1-4 at 4 of 4.
5 Yajure Hurtado is called a “precedential” opinion, which in this context means a decision identified by the BIA as
binding authority on U.S. immigration courts. The Supreme Court recently directed district courts to “exercise
independent judgment in determining the meaning of statutory provisions.” Loper Bright Enterprises v. Raimondo,
603 U.S. 369, 394 (2024). Courts “may not defer to an agency interpretation of the law simply because a statute is
ambiguous.” Id. at 413. Consequently, while binding on immigration courts, Yajure Hurtado is not binding on this
Court.
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On or about December 22, 2024, Petitioner’s previous employer filed an I-140 application
on his behalf. Pet. ¶ 4, Dkt. No. 1. An I-140 is an “Immigrant Petition for Alien Worker” that
proves that the worker qualifies for an employment-based green card and reserves a priority date
for a future green card. Id. The Form I-140 was approved. See Pet’r’s Ex. B, Dkt. No. 1-4 at 3 of
4.6
On November 13, 2025, ICE-ERO deportation officers were conducting a targeted
surveillance operation to locate and arrest a non-citizen, who was not Petitioner, pursuant to a
Warrant for Arrest (Form I-200). See Pet. ¶ 5, Dkt. No. 1; Pet’r’s Ex. B at 3, Dkt. No. 1-4 at 3 of
4. Two officers approached Petitioner when he was returning to his building. See Pet. ¶ 6, Dkt. No.
1; Pet’r’s Ex. B, Dkt. No. 1-4 at 3 of 4. The officers asked him if he was the person they were
looking for, and when he responded negatively, they continued to ask him questions about what
country he was from. See Pet. ¶¶ 6-7, Dkt. No. 1; Pet’r’s Ex. B, Dkt. No. 1-4 at 3 of 4. After ICE
officers learned his name, a record check revealed that he entered the United States without
inspection and did not have valid immigration documentation authorizing his presence in the
country. See Pet’r’s Ex. B, Dkt. No. 1-4 at 3 of 4.7
6 With respect to the Form I-140, Congress set forth a three-step process for an alien to become a lawful permanent
resident (“LPR”) through an employment-based immigrant visa. See Elim Church of God v. Harris, 722 F.3d 1137,
1139 (9th Cir. 2013); Alva Decking, Inc. v. Holder, No. 1:12-cv-2330-JLK-AP, 2013 WL 1609983, at *2 (D. Colo.
Apr. 15, 2013). First, the employer petitions for an Alien Labor Certification with the Department of Labor and must
show that there are insufficient U.S. workers available who are willing and able to perform the work at the prevailing
wage for the occupation in the area of intended employment. Alva Decking, 2013 WL 1609983, at *2 (citing 8 U.S.C.
§ 1182(a)(5)). Second, the employer files a Form I-140 petition to the USCIS on behalf of the beneficiary alien and
must demonstrate the employer has an approved labor certification and the employee meets the minimum requirements
of the position. See Elim, 722 F.3d at 1139; Alva, 2013 WL 1609983, at *2 (citing 8 U.S.C. § 1153(b)(3)(A)(iii); 8
C.F.R. § 204; 8 U.S.C. § 1154(a)). Third and finally, after approval of the Form I-140 petition, the alien must apply
for adjustment of status, which is adjudicated by the USCIS or by the immigration court if the alien is in removal
proceedings. Alva, 2013 WL 1609983, at *2 (citing 8 U.S.C. § 1255(a)).
7 The parties dispute how ICE officers learned Petitioner’s identity. Petitioner asserts that, when he refused to sign a
document presented to him, the officers began harassing him and pressuring him to sign it, but he refused and declined
to provide personal information. Pet. ¶ 7, Dkt. No. 1. Relying on the Form I-213, Respondents contend that the ICE
officers’ encounter with Petitioner was consensual, and he freely gave them his name and admitted he was from
Ecuador. Pet’r’s Ex. B, Dkt. No. 1-4 at 3 of 4. The documents before the Court establish that ICE officers learned his
identity that evening, as they included his name in the Form I-200 Warrant and Notice to Appear that they prepared
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At 6:12 p.m., four ICE officers arrested Petitioner. See id.; Pet. ¶ 7, Dkt. No. 1. An
immigration officer served him with a Warrant for Arrest of Alien (Form I-200) in Petitioner’s
name and dated 11/13/2025. See Resp’ts’ Ex. A, Dkt. No. 8-1 at 6 of 6. The same evening, an ICE
officer served Petitioner with a Notice to Appear (“NTA”) dated November 13, 2025, but
Petitioner refused to sign it. See Resp’ts’ Ex. A, Dkt. No. 8-1 at 2-3 of 6. The NTA charged
Petitioner as an alien present in the United States who has not been admitted or paroled and who
is subject to removal under Section 212(a)(6)(A)(i) of the INA. Id. DHS transferred him to the
Otero County Processing Center on December 13, 2025. See id. at 1 of 6.
On January 7, 2026, Petitioner filed for asylum. Pet. ¶ 15, Dkt. No. 1. He also filed a bond
redetermination request. Id. On January 8, 2026, the immigration court sent Petitioner notice of an
individual hearing in his case. See Resp’ts’ Ex. B, Dkt. No. 8-2 at 1 of 5. The immigration judge
denied bond on January 30, 2026, based on Yajure Hurtado. See Pet. ¶ 15, Dkt. No. 1; Order of
Immigration Judge, Dkt. No. 17 (denying request for change in custody status because “Matter of
Hurtado; Flight Risk due to form of relief is speculative (pending motion to pretermit)”). On
February 19, 2026, the immigration court found Petitioner removable and inadmissible under
Section 212(a)(6)(A)(i) of the INA and denied his application for asylum, for Withholding of
Removal under INA § 241(b)(3), and for Withholding of Removal under the Convention Against
Torture. Resp’t’s Ex. C, Dkt. No. 8-3 at 1. The immigration judge ordered him removed to
Ecuador. Id. at 3. The order noted his appeal was due March 23, 2026. Id. at 4.
on the night of Nov. 13, 2025. See Gov.’s Ex. A, Dkt. No. 8-1 at 3-6 of 6. For the reasons described infra, the Court
need not resolve this factual dispute, as the Petition should be resolved based on the statutory grounds for his current
custody. That question does not rely on the manner of his arrest.
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Petitioner filed a notice of appeal with the BIA on April 9, 2026. See TRO Mot. n.1, Dkt.
No. 11 at 4 of 6. The BIA accepted his belatedly filed appeal, and the appeal is now pending. TRO
Resp. 1, Dkt. No. 14.
III. PROCEDURAL HISTORY
On February 26, 2026, Petitioner filed his Petition under 28 U.S.C. § 2241, the Declaratory
Judgment Act, 28 U.S.C. § 2201 et seq., and the All Writs Act, 28 U.S.C. § 1651. See Pet. ¶¶ 19-
20, Dkt. No. 1. The Petition contains four claims: (1) violation of the INA for failing to issue
Petitioner a warrant prior to his arrest; (2) violation of procedural due process for failing to provide
n individualized determination of flight risk and dangerousness before detaining him; (3) violation
of substantive due process based on prolonged and continued detention; and (4) violation of 8
U.S.C. § 1226(a) based on improperly detaining him under § 1225(b). Id. ¶¶ 69-80. For remedies,
Petitioner requests that the Court: (i) assume jurisdiction; (ii) enjoin his transfer outside the United
States; (iii) direct Respondents to show cause within three days why the Petition should not be
granted; (iv) order his immediate release pending resolution of this matter; (v) declare his detention
unlawful under the Due Process Clause of the Fifth Amendment; (vi) issue a writ of habeas corpus
directing his release; and (vii) award reasonable attorney’s fees and costs. Id. at 20.
This Court entered an Order to Show Cause directing Respondents to respond to the
Petition within 14 days and show cause why the requested relief should not be granted. Order, Dkt.
No. 4. The Court found good cause to allow Respondents more than three days to respond. Id.
Given the Court’s Order and that Respondents filed a timely response to the Petition, Petitioner’s
request for an order to show cause is now moot, and it should be denied.
In their response, Respondents argue that Petitioner’s arrest-based theories do not entitle
him to release because his present custody arises from the INA and ensuing immigration
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proceedings, not the initial encounter. According to Respondents, the Due Process Clause does not
require a pre-deprivation individualized custody hearing before immigration officers take a
removable noncitizen into administrative custody. As for Petitioner’s current detention,
Respondents contend it is lawful under § 1225(b)(2)(A) because Petitioner is a noncitizen present
in the United States without having been admitted and Petitioner’s due process rights are limited
to those set forth in the INA. Should the Court find relief warranted, Respondents urge the Court
to provide only a bond hearing, not immediate release or broad prospective injunctive relief.
Petitioner submitted a reply largely reiterating his prior arguments in support of his
Petition. See Reply, Dkt. No. 9. He also subsequently filed an Emergency Motion for Temporary
Restraining Order (Dkt. No. 11), seeking the issuance of a temporary restraining order (“TRO”)
prohibiting the Government from removing him from the United States. Petitioner asserts that ICE
officers told him they intend to remove him, notwithstanding his pending appeal. Id., Dkt. No. 11
at 3 of 6. For their part, Respondents contend that Petitioner cannot show emergency injunctive
relief is necessary to preserve the status quo, because the BIA has accepted his late-filed appeal,
the appeal is pending, and 8 C.F.R. § 1003.6(a) prevents the immigration judge’s order from being
executed while that appeal remains pending before the BIA. Resp. 1, Dkt. No. 14. The Court held
a hearing on the TRO Motion on April 16, 2026, at which Respondents reiterated that Petitioner
will remain in the United States and will not be removed until the appeal is resolved and the order
of removal becomes final. See Clerk’s Minutes 2, Dkt. No. 15.
IV. LEGAL OVERVIEW
An immigration judge conducts proceedings to decide the inadmissibility or deportability
of an alien. 8 U.S.C. § 1229a(1)(1). Aliens placed in removal proceedings may be charged with an
applicable ground of inadmissibility under § 1182(a) or of deportability under § 1227(a).
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Inadmissible aliens are “ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a). “[A]ny
immigrant at the time of application for admission” who does not possess “a valid unexpired
immigrant visa, reentry permit, border crossing identification card, or other valid entry document
required by this chapter, and a valid unexpired passport, or other suitable travel document, or
document of identity and nationality if such document is required under the regulations issued by
the Attorney General under section 1181(a) of this title” is “inadmissible.” Id. §
1182(a)(7)(A)(i)(I).
Proceedings under § 1229a, unless otherwise specified, “shall be 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.” Id. § 1229a(a)(3). In removal proceedings,
a “notice to appear” must be given to the alien either personally or served through the mail. Id. §
1229(a)(1). The notice to appear includes, among other things, the nature of the proceedings and
legal authority for them, the alleged violation of law, and the charges. Id.
The statutory provisions at issue in this case are those governing mandatory detention in 8
U.S.C. § 1225, and the “Apprehension and detention of aliens” in 8 U.S.C. § 1226.8 After
8 The parties agreed at the hearing that, for statutory analysis purposes, the Court must decide whether Section 1225
or 1226 applies, because Section 1231 is not yet applicable. Section 1231 provides that “when an alien is ordered
removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. §
1231(a)(1)(A). The 90-day removal period starts
on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the
alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien
is released from detention or confinement.
Id. § 1231(a)(1)(B). “During the removal period, the Attorney General shall detain the alien.” Id. § 1231(a)(2)(A).
However, as relevant here, the decision from which an appeal to the Board may be taken shall not be executed “while
an appeal is pending.” 8 C.F.R. § 1003.6(a). Petitioner’s BIA appeal is currently pending, so the removal period has
not yet begun. Detention thus has not shifted to § 1231, so the habeas Petition remains ripe for decision.
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discussing these INA provisions and implementing regulations in more detail, the Court will turn
to an overview of due process law in the immigration context before analyzing how the law applies
to Petitioner’s detention.
A. Overview of Sections 1225 and 1226
“Congress has authorized immigration officials to detain some classes of aliens during the
course of certain immigration proceedings” to give “immigration officials time to determine an
alien's status without running the risk of the alien's either absconding or engaging in criminal
activity before a final decision can be made.” Jennings v. Rodriguez, 583 U.S. 281, 286 (2018).
Sections 1225 and 1226 govern the detention of noncitizens prior to a final order of removal. See
id. at 287-89. “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)” and “to detain certain aliens
already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c).” Id.
at 289.
Generally, a non-citizen “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 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). The implementing regulations define an “arriving alien” as “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. § 1001.1(q). An alien who is caught
trying to enter at a place other than a port of entry is treated as an arriving alien. Department of
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Homeland Security v. Thuraissigiam, 591 U.S. 103, 108 (2020) (citing 8 U.S.C. §§ 1225(a)(1),
(3)). 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.” 8 U.S.C. §
1225(a)(3) (emphasis added). “Admission” or “admitted” means “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) also provides for the “Withdrawal of application for admission”: “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). “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, including the applicant's intended length of
stay and whether the applicant intends to remain permanently or become a United States citizen,
and whether the applicant is inadmissible.” Id. § 1225(a)(5) (emphasis added).
Section 1225(b)(1) sets forth the procedures for 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). An immigration officer may order expedited removal of an arriving alien without
further hearing or review if the officer determines that the alien is inadmissible under §
1182(a)(6)(C) or 1182(a)(7), provisions governing inadmissibility due to fraud, misrepresentation,
or lack of valid documentation. 8 U.S.C. § 1225(b)(1)(A)(i); Jennings, 583 U.S. at 287 (citing 8
U.S.C. § 1225(b)(1)(A)(i) (in turn citing §§ 1182(a)(6)(C), (a)(7))).
“Applicants can avoid expedited removal by claiming asylum.” Thuraissigiam, 591 U.S.
at 109. “If an applicant ‘indicates either an intention to apply for asylum’ or ‘a fear of persecution,’
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the immigration officer ‘shall refer the alien for an interview by an asylum officer.’” Id. (quoting
§§ 1225(b)(1)(A)(i)-(ii)). “If the asylum officer finds an applicant's asserted fear to be credible,
the applicant will receive ‘full consideration’ of his asylum claim in a standard removal hearing.”
Id. at 110 (citing 8 C.F.R. § 208.30(f)) (internal footnote omitted). Applicants who raise an asylum
claim are nevertheless “detained pending a final determination of credible fear of persecution and,
if found not to have such a fear, until removed.” Id. at 111 (quoting § 1225(b)(1)(B)(iii)(IV)). If an
alien is found to have a credible fear, he may be detained pending further consideration of the
asylum application. Id. See also 8 U.S.C. § 1225(b)(1)(B)(ii) (“If the [asylum] officer determines
at the time of the interview that an alien has a credible fear of persecution …, the alien shall be
detained for further consideration of the application for asylum.”).
Section 1225(b)(2) governs “Inspection of other aliens.” 8 U.S.C. § 1225(b)(2). “Section
1225(b)(2) is broader” than § 1225(b)(1) and “serves as a catchall provision that applies to all
applicants for admission not covered by § 1225(b)(1) (with specific exceptions not relevant here).”
Jennings, 583 U.S. at 287. Under § 1225(b)(2), “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 [removal]
proceeding….” 8 U.S.C. § 1225(b)(2)(A) (bold added); Jennings, 583 U.S. at 288. Detention under
§ 1225(b) is mandatory until immigration officers decide either the application for asylum or until
removal proceedings conclude. Jennings, 583 U.S. at 299-300. Except for temporary parole under
8 U.S.C. § 1182(d)(5)(A) for urgent humanitarian reasons or significant public benefit, “there are
no other circumstances under which aliens detained under § 1225(b) may be released.” Id. at 300.
Section 1226(a) establishes the process of arresting and detaining noncitizens “already
present in the United States.” Jennings, 583 U.S. at 303. As the Supreme Court explained, “Section
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1226(a) creates a default rule for those aliens by permitting—but not requiring—the Attorney
General to issue warrants for their arrest and detention pending removal proceedings.” Id. Section
1226(a) provides: “On a warrant issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be removed from the United States.” 8
U.S.C. § 1226(a). As a matter of federal regulation, noncitizens detained under § 1226(a) generally
“receive bond hearings at the outset of detention.” Jennings, 583 U.S. at 306 (citing 8 C.F.R. §§
236.1(d)(1), 1236.1(d)(1)).
According to the federal regulations pertaining to “Apprehension, custody, and detention,”
at the time of issuance of the notice to appear, or anytime afterwards and until removal proceedings
are concluded, the noncitizen “may be arrested and taken into custody under the authority of Form
I–200, Warrant of Arrest.” 8 C.F.R. § 236.1(b)(1). The regulations designate which immigration
officers may issue an arrest warrant and which may serve it. Id. Section 236.1(d)(1) provides:
After an initial custody determination by the district director, including the setting
of a bond, the respondent may, at any time before an order under 8 CFR part 1240
becomes final, request amelioration of the conditions under which he or she may
be released. Prior to such final order, … the immigration judge is authorized to
exercise the authority in section 236 of the Act … to detain the alien in custody,
release the alien, and determine the amount of bond, if any, under which the
respondent may be released….
8 C.F.R. § 236.1(d)(1).
Section 1357 provides that an immigration officer has authority to interrogate any person
he believes to be an alien as to his right to be in the United States. 8 U.S.C. § 1357(a)(1). That
section also gives an immigration officer the “power without warrant” to
arrest any alien in the United States, if he has reason to believe that the alien so
arrested is in the United States in violation of any such law or regulation and is
likely to escape before a warrant can be obtained for his arrest, but the alien arrested
shall be taken without unnecessary delay for examination before an officer of the
Service having authority to examine aliens as to their right to enter or remain in the
United States.
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8 U.S.C. § 1357(a)(2). Federal regulations require that an alien subject to a warrantless arrest be
examined by an officer, and if the examining officer is satisfied there is prima facie evidence the
noncitizen is present in the United States in violation of immigration laws, the examining officer
will refer the case to an immigration judge for further inquiry. See 8 C.F.R. § 287.3(a)-(b). “[A]
determination will be made within 48 hours of the arrest, except in the event of an emergency or
other extraordinary circumstance in which case a determination will be made within an additional
reasonable period of time, whether the alien will be continued in custody or released on bond or
recognizance and whether a notice to appear and warrant of arrest as prescribed in 8 CFR parts
236 and 239 will be issued.” 8 C.F.R. § 287.3(d). Officers authorized to issue an arrest warrant
may release a noncitizen if the noncitizen shows “that such release would not pose a danger to
property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. §
236.1(c)(8).
The Attorney General “may release the alien” on bond or conditional parole, unless the
alien has committed certain criminal offenses or terrorist activities listed in § 1226(c), in which
case detention is mandatory. See 8 U.S.C. § 1226(a)(2)(A)–(B), (c); Jennings, 583 U.S. at 288-89,
303. “The Attorney General at any time may revoke a bond or parole authorized under subsection
(a), rearrest the alien under the original warrant, and detain the alien.” 8 U.S.C. § 1226(b). In 2025,
Congress passed the Laken Riley Act, which added additional crimes triggering § 1226(c)’s
custodial provisions. See Pub. L. No. 119-1, § 2, 139 Stat. 3 (2025) (codified as amended at §
1226(c)(1)(E)).9 The Amendment mandated custody for aliens inadmissible under paragraph
(6)(A), (6)(C), or (7) of section 1182(a) who are charged, arrested, or convicted of burglary, theft,
9 Section 1226(c) does not apply here because it is undisputed Petitioner has no criminal history.
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larceny, shoplifting, assault of a law enforcement officer, or any crime resulting in death or serious
bodily injury to another person. 8 U.S.C. § 1226(E)(i)-(ii).
B. Overview of Due Process in the Immigration Context
The Fifth Amendment's Due Process Clause prohibits the federal government from
depriving any person of “life, liberty, or property, without due process of law.” U.S. Const. amend.
V. The core concept of due process is protection of the individual against arbitrary government
action. County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998). Due process comes in two
varieties. Substantive due process prevents the government from engaging in conduct that shocks
the conscience or interferes with rights implicit in the idea of ordered liberty. Id. at 847. Procedural
due process, by contrast, requires notice and an opportunity to be heard appropriate to the nature
of the case before depriving an individual of a life, liberty, or property interest. Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
“Freedom from imprisonment—from government custody, detention, or other forms of
physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas
v. Davis, 533 U.S. 678, 690 (2001). Immigration proceedings are civil in nature, and as such, the
Government’s interests are non-punitive, such as ensuring the appearance of an alien at future
immigration proceedings and protecting the community from danger. Id.
The Constitution gives the political branches “plenary authority to decide which aliens to
admit” and the “power to set the procedures to be followed in determining whether an alien should
be admitted.” Thuraissigiam, 591 U.S. at 139. An alien seeking initial entry to the United States is
only entitled to the process authorized by Congress. Id. at 138-39. “While aliens who have
established connections in this country have due process rights in deportation proceedings, the
Court long ago held that Congress is entitled to set the conditions for an alien's lawful entry into
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this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater
rights under the Due Process Clause.” Id. at 107 (holding that alien detained near border shortly
after unlawful entry did not “effect an entry” and only has those rights regarding admission that
Congress provided by statute). “But once an alien enters the country, the legal circumstance
changes, for 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.
V. ANALYSIS
A. Petition should be granted in part and denied in part.
1. Detention for months without bond hearing at which immigration judge
considers whether government has valid interest in detaining Petitioner
violates INA.
Petitioner argues that § 1226 governs the detention of aliens like himself who were already
present in the interior of the United States, while § 1225 applies to people who recently crossed
the border or are arriving at ports of entry. He relies on the plain text of the statutes, longstanding
practice, Jennings, and the reasoning of the majority of district courts to have considered the issue.
See Petition ¶¶ 52-60, Dkt. No. 1; Reply 4, Dkt. No. 9. For their part, Respondents assert that, as
an undocumented alien who entered without inspection and parole and is without lawful status,
Petitioner is subject to mandatory detention under § 1225(b)(2)(A). Resp. 9, Dkt. No. 8.
This Court parts ways with Respondents’ analysis and instead concludes from the text and
structure of § 1225 that “seeking admission” has a meaning independent of “applicant for
admission.” The text of § 1225(b)(2)(A) makes clear that it applies to (1) “an applicant for
admission”, (2) who is “seeking admission,” and (3) “is not clearly and beyond a doubt entitled to
be admitted.” 8 U.S.C. § 1225(b)(2)(A). The provision therefore limits mandatory detention only
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to those applicants for admission who are also seeking admission. See Castanon-Nava v. U.S. Dept.
of Homeland Security, 161 F.4th 1048, 1061 (7th Cir. 2025) (“And while a noncitizen arrested in
the Midwest might qualify as ‘an alien present in the United States who had not been admitted,’ §
1225(a)(1), the mandatory detention provision upon which Defendants rely[] limits its scope to an
‘applicant for admission’ who is ‘seeking admission,’ § 1225(b)(2)(A).”); Singh v. Noem, No. CIV
25-1110 JB/KK, 2026 WL 146005, at *20-21 (D.N.M. Jan. 20, 2026) (explaining that “seeking
admission” has separate meaning and narrows broader universe of “applicants for admission”). To
construe “applicant for admission” to be the same as an alien “seeking admission” would render
the latter phrase surplusage. See Castanon-Nava, 161 F.4th at 1061. Had Congress intended all
applicants for admission to be detained, it could have drafted § 1225(b)(2)(A) far more simply:
“Subject to subparagraphs (B) and (C), if the examining immigration officer determines that an
applicant for admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be
detained….” Instead, Congress limited detention to those applicants for admission who are not
clearly and beyond a doubt entitled to be admitted and who are “seeking admission.” 8 U.S.C. §
1225(b)(2)(A). The statute’s use of the present participle “seeking” demonstrates the need for the
noncitizen to be taking some action at present in attempting to gain admission. This interpretation
also accords with § 1225(a)(3), which suggests the terms are not coterminous: “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) (emphasis added). If the terms had the same meaning, it would be redundant
to use “seeking admission” in § 1225(a)(3).
The Court is well aware that two circuits, in 2-1 decisions, have concluded the opposite.
After the completion of briefing in this case, the Eighth Circuit agreed with the Fifth Circuit’s
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reasoning in Buenrostro-Mendez that the phrase “applicant for admission” and “seeking
admission” mean the same. Avila v. Bondi, 170 F.4th 1128, 1133-34 (2026) (quoting with approval
Buenrostro-Mendez, 166 F.4th at 502). Both circuits held that an alien who entered the United
States many years ago without inspection and lacking legal documents authorizing his admission
may be detained without bond under § 1225(b)(2)(A). Id. at 1132, 1138; Buenrostro-Mendez, 166
F.4th at 498-500. Neither Avila nor Buenrostro-Mendez is binding on this Court, however, and this
Court declines to follow their reasoning.
Having determined that “seeking admission” has its own separate meaning, the Court must
next discern what that meaning is. Guided by the statutory definition of “admission,” the Court
concludes that “seeking admission” is seeking “lawful entry of the alien into the United States
after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13). While the
term “lawful” is not separately defined in the INA, see 8 U.S.C. § 1101, the term lawful entry
refers to the process in which an alien is inspected and granted entry into the United States by an
immigration officer. See Hing Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010) (explaining that
“admission” under § 1101(a)(13)(A) “refers to a procedurally regular admission and not a
substantively lawful admission”); Singh, 2026 WL 146005, at *35 (“Admission requires at
minimum ‘procedural regularity’ with entry procedures.”) (quoting Matter of Quilantan, 25 I. &
N. Dec. 285, 290 (BIA 2010)). The Supreme Court has indicated that § 1225’s framework is
premised on inspection at the border of people who are “seeking admission” to the United States.
See Jennings, 583 U.S. at 289 (“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).”) (Emphasis added).
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The structure and title of § 1225 also support this interpretation. The title of a statutory
section can be a tool “‘for the resolution of a doubt’ about the meaning of a statute.” Dubin v.
United States, 599 U.S. 110, 121 (2023) (quoting Almendarez-Torres v. United States, 523 U.S.
224, 234 (1998)). Section 1225 is titled, “Inspection by immigration officers; expedited removal
of inadmissible arriving aliens; referral for hearing.” 8 U.S.C. § 1225 (emphasis added). Those
terms suggest that § 1225 applies during inspection at the border. The text of § 1225 reinforces
that its scope is focused on the inspection process. See, e.g., 8 U.S.C. § 1225(a)(3). “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.” Singh, 2026 WL 146005, at *14. The
implementing regulations likewise tie such inspections to the border. See 8 C.F.R. § 235.1(a)
(“Application to lawfully enter the United States shall be made in person to an immigration officer
at a U.S. port-of-entry when the port is open for inspection, or as otherwise designated in this
section.”). Consequently, the text and structure of § 1225 suggest that an alien “seeking admission”
is one who does so at the border.
The legislative history accords with this construction. Before passage of the IIRIRA, 8
U.S.C. § 1252(a)(1) provided that noncitizens arrested in the United States pending a
determination of deportability could be released on bond. See 8 U.S.C. § 1252(a)(1) (1996). After
passage of the IIRIRA, § 1226(a) now governs the apprehension and detention of aliens on a
warrant. 8 U.S.C. § 1226(a). When Congress passed the IIRIRA, it noted that the new § 1226(a)
“restates the current provisions in section 242(a)(1) regarding the authority of the Attorney General
to arrest, detain, and release on bond an alien who is not lawfully in the United States.” H.R. Rep.
104-469(I), at 229 (Mar. 4, 1996). The Executive Office for Immigration Review drafted
regulations in 1997 similarly explaining that noncitizens present in the country without having
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been admitted or paroled, despite remaining applicants for admission, were nonetheless eligible
for bond and bond redetermination under § 1226. See Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.
Reg. 10312, 10323 (Mar. 6, 1997) (“Despite being applicants for admission, aliens who are present
without having been admitted or paroled (formerly referred to as aliens who entered without
inspection) will be eligible for bond and bond redetermination.”). Given the longstanding practice
of detaining noncitizens living in the United States on an arrest warrant and with the chance for
bond, the legislative history suggests that Congress did not intend to alter this practice with the
IIRIRA. Moreover, the fact that for decades the Executive Branch also did not interpret the IIRIRA
in the manner urged by Respondents here or to use its purported mandatory detention authority
signifies that “seeking admission” meant seeking lawful entry at the border. Cf. Bankamerica
Corp. v. United States, 462 U.S. 122, 130-32 (1983) (explaining that, although authority granted
by Congress cannot evaporate through lack of administrative exercise, Government’s failure for
over 60 years to exercise power it now claims under statute strongly suggests that statute should
not be interpreted as granting such power).
Further supporting this interpretation is the following statutory history, as set forth by the
Fifth Circuit in Buenrostro-Mendez:
When Congress passed IIRIRA, it estimated that the detention mandate in § 1226(c)
would require the detention of 45,000 new immigrants. See H.R. Rep. No. 104-469,
pt. 1 at 118, 120, 123 (1996). Supposedly because Congress was worried about
insufficient detention capacity, it included a provision that permitted delaying
implementation of § 1226(c) for two years. IIRIRA § 303(b), 110 Stat. 3009-586 to
3009-587. IIRIRA did not include a similar provision for § 1225(b)(2)(A), even
though, under the government's interpretation, § 1225(b)(2)(A) would require the
detention of far more than 45,000 aliens. See H.R. Rep. No. 104-469, pt. 1, at 111
(estimating that about two million aliens who had entered without inspection were
present in the United States around IIRIRA's enactment in 1996).
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166 F.4th at 507. Although the majority in Buenrostro-Mendez declined to speculate on Congress’s
reasons for the deferred implementation of § 1226(c) but not of § 1225(b)(2)(A), that difference is
compelling evidence that Congress did not view the IIRIRA as mandating the detention under §
1225(b)(2)(A) of the estimated two million aliens present in the United States who had not been
admitted. See id. at 516 (J. Douglas, dissenting) (“Congress did not secretly require two million
noncitizens to be detained without bond, when nothing like this had ever been done before, and
the whole history of American immigration law suggested it would not be. We would expect more
than simple statutory silence if, and when, Congress were to intend a major departure.”) (internal
quotations, citation, and footnote omitted). As Judge Douglas noted, construing the statute to
expect the detention of millions of aliens in detention facilities strained by merely 45,000 people
is a proverbially large elephant stuffed in a very small mousehole, and not one Congress envisioned
when it passed the IIRIRA. Id. at 514-17.
The recent enactment of the Laken Riley Act adds weight to this understanding of
Congressional intent. The Laken Riley Act expressly required detention for noncitizens
inadmissible under § 1182(a)(6)(A) – aliens present without being admitted or paroled – if they
commit certain listed crimes. That specification in the Act would not have been necessary if
Congress understood § 1225(b)(2) to require mandatory detention of all inadmissible aliens
already present in the United States. See, e.g., Munoz Teran v. Bondi, Case No. 2:25-cv-01218-
KWR-SCY, 2026 WL 161527, at *4 (D.N.M. Jan. 21, 2026) (Riggs, J.) (explaining that
respondents’ interpretation would render superfluous Laken Riley Act).
Significantly, immigration officers do not detain aliens under § 1225 pursuant to a warrant,
whereas § 1226 expressly provides for the arrest and detention of an alien on a warrant. 8 U.S.C.
§ 1226(a). The regulations implementing § 1226 confirm that the Form I-200 is used for arrests
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pursuant to an immigration officer’s authority under § 1226. See 8 C.F.R. § 236.1(b)(1) (“At the
time of issuance of the notice to appear, or at any time thereafter and up to the time removal
proceedings are completed, the respondent may be arrested and taken into custody under the
authority of Form I–200, Warrant of Arrest.”). Section 1226 also applies to aliens who are charged
as inadmissible, including those who entered without inspection. See 8 U.S.C. § 1226(c)(1)(E)
(explaining that Attorney General shall take into custody any alien who is inadmissible under
paragraph (6)(A), (6)(C), or (7) of section 1182(a) and is charged with certain identified crimes).
The overall structure of §§ 1225 and 1226 demonstrates that detention under § 1225 is done as
part of the inspection process upon arrival at the border before an alien makes entry into the United
States, and that after entry, § 1226 – with its warrant and bond hearing protections – applies to the
apprehension and detention of inadmissible aliens within the interior of the country. See Reyes-
Martinez v. Woosley, Civil Action No. 4:25-cv-150-RGJ, 2025 WL 3680330, at *7 (W.D. Ky. Dec.
18, 2025) (explaining that § 1225 detainees are detained upon arrival as statutory function of
inspection process, not via arrest pursuant to administrative warrant, which supports conclusion
that § 1225 is for individuals seeking admission at the border who do not need to be arrested).
After all, “government intrusions have always been tolerated at the border that would be intolerable
in the interior, for the obvious reason that citizens and noncitizens alike expect to be able to go
about their business without having to show that they are ‘clearly and beyond doubt entitled to be
admitted’ if taken, or mistaken, for an otherwise inadmissible noncitizen.” Buenrostro-Mendez,
166 F.4th at 519 (Douglas, J., dissenting).
Petitioner entered the United States in March 2000 without inspection. He lived in the
United States for over 25 years before his detention. ICE officers apprehended him outside his
home in New York. Petitioner doubtless remains an “applicant for admission,” because he is an
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alien present in the United States without admission. See 8 U.S.C. § 1225(a)(1). But he is not
“seeking admission” within the meaning of 8 U.S.C. § 1225(b)(2)(A). Because § 1225(b)(2)(A)
does not apply, Respondents may detain him only under § 1226(a) and must grant him the process
that statute affords him. Cf. Castillo v. De Andra Ybarra, No. CIV 25-1074 JB/JFR, 2026 WL
370497, at *2, 35-37 (D.N.M. Feb. 10, 2026) (concluding that petitioners, while applicants for
admission, were not seeking admission under § 1225(b)(2) where they arrived in United States
many years prior without inspection and were detained in interior of United States); Garcia Lopez
v. Castro, No. Civ. 25-1144 JB/SCY, 2026 WL 524082, at *34-35 (D.N.M. Feb. 25, 2026)
(holding that, where noncitizen first arrived in United States without inspection about 23 years ago
and has no pending application or has taken no other action indicating he is actively seeking
admission, United States may only detain him in accordance with § 1226(a)’s statutory provisions,
not § 1225(b)(2)).
That Petitioner’s employer applied on his behalf for a Form I-140, which was approved,
does not alter the analysis. Nor does the fact that, after his arrest, Petitioner applied for asylum.
As the Supreme Court has clarified, lawful status and admission “are distinct concepts in
immigration law.” Sanchez v. Mayorkas, 593 U.S. 409, 415 (2021). As the Supreme Court
explained:
On the one hand, a foreign national can be admitted but not in lawful status—think
of someone who legally entered the United States on a student visa, but stayed in
the country long past graduation. On the other hand, a foreign national can be in
lawful status but not admitted—think of someone who entered the country
unlawfully, but then received asylum.
Id. at 415-16 (emphasis added). See also Medina-Rosales v. Holder, 778 F.3d 1140, 1144-45 (10th
Cir. 2015) (explaining that § 1101(a)(13)(A)’s admission definition does not encompass post-entry
adjustment of status because it refers to entry into United States, denoting by its terms passage into
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country from abroad at port of entry) (and cited cases); Matter of V-X-, Respondent, 26 I. & N.
Dec. 147, 147 (“A grant of asylum is not an ‘admission’ to the United States under section
101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2006).”).
Requesting asylum is thus a request for an adjustment of status, not a request for admission.
Because “seeking admission” requires actively requesting admission at the border, neither the
filing of a Form I-140 nor the post-arrest filing of an application for asylum amounts to “seeking
admission” within the meaning of § 1225(b)(2)(A).
Petitioner was detained in the interior of the country pursuant to a Warrant for Arrest, Form
I-200. A Form I-200 is found within Section 1226 implementing regulations, 8 C.F.R. § 236, which
also require a bond hearing. At the time of his detention, Petitioner was not “seeking admission,”
as he had already entered the United States decades prior. He therefore is detained under § 1226
and is entitled to a bond hearing. The immigration judge denied his request for a custody status
change based on Yajure Hurtado, a decision that prevents the immigration court from considering
bond. See Order of Immigration Judge 1, Dkt. No. 17. The immigration judge’s order also noted
he was a flight risk. But because the BIA considers Yajure Hurtado to have stripped the
immigration courts of jurisdiction to consider bond, it is not clear that the immigration judge gave
due consideration to Petitioner’s bond request. The failure to provide him the requisite bond
hearing that evaluates whether Petitioner should be released independent of and without regard to
Yajure Hurtado violates the INA. The Court therefore recommends granting the Petition’s fourth
claim for relief.
2. Petitioner’s detention for months without bond hearing also violates
procedural due process.
Respondents assert that Petitioner is entitled to no more process than that prescribed by
statute. Even assuming that Petitioner is only entitled to the process afforded by Congress,
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Congress authorized noncitizens in Petitioner’s situation a bond hearing under § 1226.
Consequently, Respondents’ detention of Petitioner for months without the requisite bond hearing
violates both his statutory rights and his procedural due process rights. The Court thus recommends
that the Petition be granted on his second claim for relief as well. Consequently, the Court need
not go further and decide whether Petitioner has additional due process rights beyond those
conferred by statute.
3. Prompt bond hearing in accordance with § 1226(a) is appropriate remedy
for violation of INA.
Respondents contend that there is no legal authority justifying immediate release. Relying
on § 1226(e), they argue that the Attorney General’s discretionary judgment regarding the
application of § 1226 is not subject to review, and thus, this Court does not have authority to order
immediate release from detention. Section 1226(e) says:
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.
8 U.S.C. § 1226(e).
The Court recommends that the appropriate remedy for the § 1226 violation is a prompt
bond hearing before an immigration judge, not immediate release. See, e.g., Castillo, 2026 WL
370497, at *36 (explaining that, because noncitizen was not seeking admission, United States
could not detain him under § 1225(b)(2), so it must detain him under § 1226(a) and afford him
procedural protections the statute provides). At the hearing, the immigration judge must evaluate
whether Petitioner should be released independent of and without regard to the jurisdictional
holding of Yajure Hurtado. As for the timing of the bond hearing, the Court recommends that the
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bond hearing be held within seven days. If Respondents are unable or decline to follow § 1226’s
statutory requirements, the Court recommends they release him immediately. Id.
Petitioner also requests that the Court enjoin Respondents from transferring Petitioner
outside the United States. Respondents counter that this request should be denied as overbroad.
Under the All Writs Act, courts “may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
The Court recommends the presiding judge grant the request to enjoin Petitioner’s transfer outside
the United States until this habeas petition is finally decided or until Petitioner receives a final
order of removal, whichever comes first, but deny the overly broad request to enjoin his
deportation outside the United States. As the presiding judge explained when resolving a similar
request:
[T]he Court exercises its discretion under the All Writs Act only to enjoin
Petitioners’ unlawful removal from New Mexico while their habeas proceedings
remain pending. The Court does not prevent, however, the United States from
proceeding with the Petitioners’ removal proceedings under § 1229(a) during the
pendency of these habeas proceedings. The Court will not use the All Writs Act to
prevent the United States from using statutory proceedings to obtain a lawful order
of removal. Once the Petitioners receive a final order of removal, the United States
ceases to detain the Petitioners or put them on bond under § 1226(a), but instead
they transfer to § 1231’s statutory authority. At that time, the Court loses
jurisdiction to hear the habeas petitions for release under § 1226(a), because the
habeas petitions will be moot, and, therefore, at that time the All Writs Act is no
longer necessary to prevent the Court from losing jurisdiction which it no longer
has. The All Writs Act, therefore, is incapable of preventing the United States from
carrying out a lawful order of removal on the basis of protecting the Court's
jurisdiction, because the Court will lose jurisdiction for this habeas proceeding once
the United States obtains a lawful final order of removal.
Castillo, 2026 WL 370497, at *44.
Petitioner additionally seeks an award of reasonable attorney’s fees and costs. Pet. 20, ¶ 7,
Dkt. No. 1. Respondents assert that the Court should not award fees or costs because their position
is substantially justified. Resp. 18, Dkt. No. 8. “The Equal Access to Justice Act (EAJA) directs a
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court to award ‘fees and other expenses’ to private parties who prevail in litigation against the
United States if, among other conditions, the position of the United States was not ‘substantially
justified.’” Commissioner, I.N.S. v. Jean, 496 U.S. 154, 155 (1990) (quoting 28 U.S.C. §
2412(d)(1)(A)). Under the EAJA, “a fee award is required if: (1) plaintiff is a ‘prevailing party’;
(2) the position of the United States was not ‘substantially justified’; and (3) there are no special
circumstances that make an award of fees unjust.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th
Cir. 2007). The Court finds this request premature unless and until the presiding judge grants relief
on the Petition. Should the Court rule in Petitioner’s favor on any of the substantive causes of
action, the Court recommends Petitioner be afforded an opportunity after entry of final judgment
to submit a motion for attorney’s fees and expenses, with an affidavit attached justifying requested
fees and costs.
4. The Court need not address Petitioner’s third count for substantive due
process at this time.
Relying on Zadvydas in support of his substantive due process claim, Petitioner argues that,
because there is no evidence he presents a danger or flight risk, the government has no interest in
his continued detention. See Pet. ¶¶ 46-51, 77, Dkt. No. 1. Because the undersigned recommends
the Court grant habeas relief on the second and fourth claims for relief and order a bond hearing
before an immigration judge within seven days, Petitioner will receive an individualized
determination of his flight risk and danger to the community. If the immigration judge finds one
or both of those factors and continues to detain him, then Respondents will have established an
interest in his detention. Alternatively, if he is given bond and ordered released, then he will no
longer face prolonged detention. Consequently, the Court recommends denying Petitioner’s
substantive due process claim in his third claim for relief for lack of ripeness. The Court, however,
recommends dismissal of that claim without prejudice, because should his detention continue, it
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could become prolonged and cross over into punishment and a violation of his due process rights.
Cf. Singh, 2026 WL 146005, at *39 (denying petitioner’s substantive due process claim without
prejudice to give “him the opportunity to refile should his detention extend to a length of time
sufficient to cross over to punishment and violate his substantive due process rights”). At this
point, however, a decision on that claim would be premature.
5. Petition should be denied as to the first claim for relief.
Petitioner asserts that ICE unlawfully arrested him without a valid warrant and before
issuing an NTA, so his detention was unlawful from its inception and cannot be justified by a post
hoc issuance of a warrant. Pet. ¶ 71, Dkt. No. 1; Reply 3, Dkt. No. 9. According to Petitioner,
because ICE did not issue and serve the NTA at or before his arrest, his arrest was unlawful ab
initio and the writ should be granted. Pet. ¶ 64, Dkt. No. 1. He relies on 8 C.F.R. § 1236.1(b),
which provides that at the time the NTA is issued, or anytime thereafter before removal
proceedings are completed, “the respondent may be arrested and taken into custody under the
authority of Form I–200, Warrant of Arrest.” Id. ¶ 61 (quoting 8 C.F.R. § 1236.1(b)).
Respondents counter that, even assuming that there was a defect in the arrest sequence, he
is not entitled to immediate release. They urge the Court to focus on the legal basis for Petitioner’s
current custody, not the circumstances of his initial encounter and arrest. Additionally, they assert
that he was administratively arrested with a Form I-200 warrant after a consensual encounter
revealed that he was an undocumented alien who entered without inspection.
“The writ of habeas corpus shall not extend to a prisoner unless … [h]e is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See
also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“the essence of habeas corpus is an attack by
a person in custody upon the legality of that custody, and that the traditional function of the writ
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is to secure release from illegal custody”). Some district courts have ordered a petitioner’s release
based on an unlawful arrest. See, e.g., Chiliquinga Yumbillo v. Stamper, 2:25-cv-00479-SDN, 2025
WL 278362, at *5 (D. Maine Sept. 30, 2025); J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO
(HC), 2025 WL 3013328, at *8 (E.D. Cal. Oct. 27, 2025).
But others have questioned that approach. See, e.g., Trega v. Bondi, __ F.Supp.3d __, 2026
WL 127617, at *5 (D. Maine Jan. 16, 2016) (“Illegal arrest cannot serve as a basis for habeas
relief…. Similarly, an illegal arrest is not a bar to removal, nor a means of invalidating a
noncitizen's custody status pending those proceedings, where ICE arrested [the noncitizen]
pursuant to a valid Form I-200 Warrant for Arrest of Alien.”). As the Eastern District of Virginia
concluded, illegality of a petitioner’s arrest procedures does not warrant his release from custody.
See Silva v. Noem, 1:26-cv-0072 (RDA/LRV), 2026 WL 560338, at *33 (E.D. Va. Feb. 25, 2026).
The Silva court’s analysis is persuasive:
As the Supreme Court has recognized, “the great and central office of the writ of
habeas corpus is to test the legality of a prisoner's current detention.” Walker v.
Wainwright, 390 U.S. 335, 337 (1968). Thus, it has long been the rule that where a
criminal defendant challenges his pretrial detention and is subsequently convicted,
the habeas petition is mooted. See, e.g., Congo v. Cnty. of Phila., 2019 WL
2635696, at *6 (E.D. Pa. May 6, 2019) (citing cases and finding that a petitioner
“does not retain standing to challenge that pretrial incarceration” following his
conviction). Similarly, in the immigration context, courts have held that habeas
proceedings are moot where the basis for detention changes while the habeas case
is underway. See, e.g., De La Teja v. United States, 321 F.3d 1357, 1363 (11th Cir.
2003) (finding case moot because petitioner was detained pursuant to § 1231 rather
than § 1226). Here, Petitioner is currently detained pursuant to a warrant…; thus,
Petitioner cannot seek his immediate release based on the warrantless nature of his
original arrest.
In any event, courts have also recognized that, pursuant to 8 U.S.C. § 1357,
Respondents may arrest an immigrant and subsequently seek a warrant.… As the
Supreme Court has recognized, “if sufficient ground for [a petitioner's] detention
by the government is shown, he is not [to] be discharged for defects in the original
arrest or commitment.” Ekiu v. United States, 142 U.S. 651, 662 (1892); cf. United
States v. Crews, 445 U.S. 463, 474 (1980) (“An illegal arrest, without more, has
never been viewed as a bar to a subsequent prosecution, nor as a defense to a valid
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conviction.”). The Supreme Court has further agreed that “[t]he mere fact of an
illegal arrest has no bearing on a subsequent deportation proceeding.” INS v. Lopez-
Mendoza, 468 U.S. 1032, 1040 (1984). That is, “an unlawful warrantless arrest isn't
a get-out-of-jail free card if a lawful basis to detain someone is subsequently
established.” Salazar v. Noem, 2026 WL 458304, at *4 (D. Neb. Feb. 18, 2026)[.]
Id.
Petitioner has not convinced the Court that his arrest was not lawful or that immediate
release is the proper remedy based on his first claim for relief. The INA permits an immigration
officer to arrest an alien without a warrant when the officer “has reason to believe that the alien so
arrested is in the United States in violation of any such law or regulation and is likely to escape
before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357. The officer must then take the
alien without delay before another examining officer. Id. The examining officer considers, among
other things, whether there is prima facie evidence the alien is present in the United States in
violation of the immigration laws, and if so, refers the case to an immigration judge. See 8 C.F.R.
§ 287.3(b). Generally, within 48 hours of the arrest, a determination will be made whether the alien
will be continued in custody or released on bond and whether an NTA and arrest warrant will be
issued. Id. § 287.3(d).
An immigration officer issued a Form I-200 in Petitioner’s name and served it on Petitioner
on November 13, 2025, the same day he was arrested. See Resp’ts’ Ex. A, Dkt. No. 8-1 at 6 of 6.
The officer also prepared an NTA with the basis for the removal charge against Petitioner on
November 13, 2025. Id. at 2 of 6. Even if the immigration officer did not prepare the administrative
warrant and NTA until after his detention, § 1357 of the INA authorizes that sequence. The Court
is therefore not persuaded that the manner of Petitioner’s arrest would entitle him to immediate
release under these circumstances. Cf. Silva, 2026 WL 560338, at *3 (“[P]ursuant to 8 U.S.C. §
1357, Respondents may arrest an immigrant and subsequently seek a warrant…. This Court need
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not decide whether a petitioner could be held under Section 1226(a) without a warrant ever issuing
because here a warrant issued following arrest.”); Fernando C. C. v. Bondi, No. 26-cv-1235
(LMP/JFD), 2026 WL 446408, at *2 (D. Minn. Feb. 17, 2026) (“This Alice in Wonderland-like
trail of immigration laws, therefore, authorizes immigration officers to arrest a noncitizen without
a warrant, see 8 U.S.C. § 1357(a)(2), and determine within 48 hours to issue a warrant of arrest
under 8 C.F.R. § 236.1, see 8 C.F.R. § 287.3(d), which subsequently unlocks the door to
discretionary detention under 8 U.S.C. § 1226(a), see 8 C.F.R. § 236.1(c)(8)…. Accordingly, a
warrantless arrest under 8 U.S.C. § 1357(a)(2) is a threshold exception to arrest by warrant and,
after the arrest, detention may proceed under Sections 1225, 1226, and 1231. See 8 C.F.R. §
287.3(d).”). After issuance of the warrant, Petitioner’s detention shifted to § 1226, under which he
is entitled to a bond hearing. The Court recommends ordering the bond hearing to be held within
seven days. Under these circumstances, he is not entitled to immediate release. Therefore, the
Court advises the presiding judge to deny the first claim for relief.
B. TRO Motion should be denied.
Petitioner filed a separate motion for a TRO in which he requests an order prohibiting
Respondents from removing Petitioner from the United States. As explained above, the Court
recommends the Petition be granted on the merits of counts two and four but denied as to counts
one and three. As one of the recommended remedies, the Court advises the presiding judge to grant
the request to enjoin Petitioner’s transfer outside the United States until this habeas petition is
finally decided or until Petitioner receives a final order of removal, whichever comes first, but
deny the broad request to enjoin his deportation outside the United States. The relief requested in
the TRO Motion duplicates the relief requested in the Petition. Moreover, Respondents
acknowledge that Petitioner’s appeal before the BIA is pending, and he is entitled to a stay of
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removal pending the conclusion of the appeal. Respondents confirmed that they will not remove
Petitioner so long as his appeal remains pending and there is no final order of removal. Given the
Court’s recommendations set forth herein on the merits and on the requested remedies in the
Petition, and Respondents’ representations, the Court recommends that the TRO Motion be denied
as moot.
VI. CONCLUSION
For the reasons stated above, the Court RECOMMENDS the Emergency Motion for
Temporary Restraining Order (Dkt. No. 11) should be DENIED as moot and the Verified Petition
for Writ Habeas Corpus and Complaint for (Dkt. No. 1) should be GRANTED IN PART and
DENIED IN PART as follows:
A. The Petition should be GRANTED as to the second and fourth claims for relief.
B. The Petition should be DENIED as to the first and third claims for relief.
C. The following remedies requested in the Petition should be GRANTED:
i. Assume jurisdiction over the Petition;
ii. Issue a writ of habeas corpus ordering an individualized bond hearing
before an immigration judge be held within seven days,
iii. Enter an order enjoining Petitioner’s transfer outside the United States
until this habeas petition is finally decided or until Petitioner receives a
final order of removal, whichever comes first;
iv. Declare Petitioner’s ongoing detention without a bond hearing to be in
violation of the Due Process Clause of the Fifth Amendment.
D. The following remedies requested in the Petition should be DENIED:
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i. The broad request to enjoin his deportation outside the United States,
except as limited herein;
ii. The request for an order to show cause requiring a response within three
days should be denied as moot; and
iii. The request to order Petitioner’s immediate release from custody.
E. The Court should reserve ruling on Petitioner’s request for reasonable attorney’s
fees and costs until the matter becomes ripe and is fully briefed.
SO RECOMMENDED.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy
of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file
any objections with the Clerk of the District Court within the fourteen-day period if
that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.
__________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
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