Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
JHON KEVIN SARMIENTO GUERRERO,
Petitioner,
-against-
KRISTI NOEM, Secretary, U.S.
Department of Homeland Security, et
al.,
Respondents.
------------------------------------x
MEMORANDUM & ORDER
25-CV-5881 (EK)
ERIC KOMITEE, United States District Judge:
Petitioner Jhon Kevin Sarmiento Guerrero entered the
United States illegally in December 2022. 	He was apprehended
shortly thereafter. 	Officials released him with instructions to
appear at an Immigration and Customs Enforcement office within
sixty days, and he has been in administrative proceedings since.
In June, the government detained him at a scheduled
appearance in Manhattan. 	Then, the government took the position
that Sarmiento Guerrero’s detention is required by statute, and
prevailed on this argument before the Board of Immigration
Appeals. 	Sarmiento Guerrero contends that he is statutorily
eligible for bond pending the outcome of his removal
proceedings. 	He seeks a writ of habeas corpus ordering his
release pending that outcome. 	His petition — part of a
veritable cascade of similar petitions filed across the country
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over the last several months — turns primarily on whether the
Immigration and Naturalization Act makes Sarmiento Guerrero’s
detention mandatory or discretionary.
For the reasons that follow, Sarmiento Guerero’s
motion for a preliminary injunction is granted.
Background
“In deciding a motion for preliminary injunction, a
court may consider the entire record including affidavits and
other hearsay evidence.” 	Real Est. Bd. of N.Y., Inc. v. City of
New York, 786 F. Supp. 3d 788, 815 (S.D.N.Y. 2025).1 	All facts
discussed herein are undisputed unless otherwise noted. 	See
Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir. 1998)
(party seeking preliminary injunction “is not entitled to have
the court accept its untested representations as true if they
are disputed”).
A. 	Petitioner’s Arrest, Release, and Rearrest
Sarmiento Guerrero is a native of Colombia. 	Pet. ¶ 2,
ECF No. 1. 	He was encountered and arrested by United States
Customs and Border Patrol (“CBP”) on December 29, 2022, “near”
the United States-Mexico border. 	Finnie Decl. ¶ 3, ECF No. 15-
1. 	CBP determined that he lacked valid entry documents. 	Id.
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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Officers transported Sarmiento Guerrero to a border patrol
station. 	Id. ¶ 5.
Following processing at that border patrol station,
Sarmiento Guerrero was released into the country with
instructions to appear before an Immigration and Customs
Enforcement (“ICE”) Deportation Officer in New York. 	Id. ¶¶ 5-
6. 	As discussed below, the parties dispute whether this release
constituted “parole.”
Sarmiento Guerrero has since lived in New York, Pet.
¶ 30; obtained work authorization pursuant to 8 C.F.R.
§ 274a.12(c)(8), ECF No. 1-12; and worked in a grocery store.
Pet. ¶ 31. 	He has applied for asylum, id. ¶ 29, and has no
“history of evading legal processes in the United States,”
though the parties have expressed different views on whether he
has made all required appearances. 	Mem. Order 5 (“IJ Order”),
ECF No. 1-3; Pet. ¶ 3; Finnie Decl. ¶¶ 7-8.2 	Sarmiento Guerrero
has no criminal record. 	ECF No. 1-13.
B. 	Immigration and Customs Enforcement Proceedings
On June 9, Sarmiento Guerrero appeared at an ICE
check-in and was detained. 	Pet. ¶ 4. 	Two weeks later, the
government served Sarmiento Guerrero with a Notice to Appear at
a removal proceeding, alleging that he is “an alien present in
2 Page numbers in citations to record documents other than briefs refer
to ECF pagination.
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the United States who has not been admitted or paroled.” 	ECF
No. 1-14, at 2.
Sarmiento Guerrero sought a bond redetermination from
an immigration judge (“IJ”). 	The IJ held a hearing and granted
his request. 	See Order, ECF No. 1-4. 	There, the government
argued that Sarmiento Guerrero was mandatorily detained pursuant
to 8 U.S.C. § 1225(b)(2), and thus not eligible for bond. 	IJ
Order 3. 	Rejecting this argument, the IJ concluded that Section
1225(b)(2) did not apply to Sarmiento Guerrero, who had resided
in the United States for two years and was no longer “seeking
admission,” as that statute requires. 	Id. 	The government
immediately appealed to the Board of Immigration Appeals
(“BIA”), maintaining that Sarmiento Guerrero was subject to
mandatory detention under Section 1225(b)(2), and argued for the
first time that he was a flight risk. 	ECF No. 1-17. 	The
government “automatically stay[ed]” the IJ’s decision, pending a
decision by the BIA. 	See 8 C.F.R. § 1003.19(i)(2); ECF No. 1-9.
Sarmiento Guerrero therefore remained detained. 	ECF No. 1-15.
While this appeal was pending, the BIA issued a
precedential decision adopting the government’s statutory
position. 	Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA
2025). 	Weeks later, the BIA sustained the government’s appeal
of Sarmiento Guerrero’s release in a two-page order, concluding
that he is subject to mandatory detention and that the IJ had no
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jurisdiction over Sarmiento Guerrero’s bond request. 	Decision
4-5, ECF No. 1-19.
Sarmiento Guerrero filed this petition on October 21,
also moving for a temporary restraining order and a preliminary
injunction releasing him. 	That day, the Honorable Nina R.
Morrison entered a TRO requiring Respondents to release
Sarmiento Guerrero. 	ECF No. 6. 	This Court held oral argument
on November 7, and on consent of the parties, extended the
temporary restraining order. 	Tr. of Proceedings on Nov. 7, at
46:1-5 (“Hr’g Tr.”), ECF No. 18.
In his petition, Sarmiento Guerrero brings several
claims. 	First, he argues that Section 1225(b)(2) does not
apply, and that he is instead subject to the discretionary
detention provisions of Section 1226(a). 	Second, he brings
procedural and substantive due process claims challenging the
automatic stay and his continued detention without a bond
hearing. 	Finally, he argues that the automatic stay
impermissibly delegates the Department of Justice’s authority to
the Department of Homeland Security. 	Respondents maintain that
he must be detained pursuant to Section 1225(b)(2).
Discussion
A petitioner seeking a preliminary injunction must
establish (1) a likelihood of success on the merits; (2) a
likelihood of irreparable harm absent relief; (3) that the
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balance of equities supports an injunction; and (4) that the
public interest favors an injunction. 	Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). 	When the government is a
party to a lawsuit, the final two factors merge. 	New York v.
U.S. Dep’t of Homeland Sec., 969 F.3d 42, 58-59 (2d Cir. 2020).
A. 	Sarmiento Guerrero Is Likely to Succeed on the Merits
of His Statutory Argument
The parties dispute which provision applies to
Sarmiento Guerrero’s detention: Section 1225(b)(2), which
requires mandatory detention, or Section 1226(a), which provides
for discretionary detention (and bond). 	Sarmiento Guerrero
argues that Section 1225(b) applies only to those detained at or
near the border, and that Section 1226(a) applies here.
Respondents argue that Section 1225(b)(2) applies. 	As discussed
below, Sarmiento Guerrero has articulated the better reading.
1. 	The Statutory Text
Section 1225 is titled “Inspection by immigration
officers; expedited removal of inadmissible arriving aliens;
referral for hearing.” 	The subsection at issue here — Section
1225(b)(2)(A) — reads as follows. 	We add the bold type for the
phrases on which this interpretive dispute turns:
Subject to subparagraphs (B) and (C), in the case of
an alien who is an applicant for admission, if the
examining immigration officer determines that an alien
seeking admission is not clearly and beyond a doubt
entitled to be admitted, the alien shall be detained
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for a proceeding under section 1229a of this title.
Both sides agree that Sarmiento Guerrero is an “alien who is an
applicant for admission.” 	Hr’g. Tr. 3:22-24; id. at 20:15-19.
They dispute whether Sarmiento Guerrero is “an alien seeking
admission.” 	The Immigration and Naturalization Act (“INA”) does
not define the phrase “seeking admission.”
Sarmiento Guerrero argues that seeking admission
“refers to those who are presenting themselves at the border or
who are recently apprehended after entering.” 	Id. at 4:12-14.
That reading is consistent with the conclusion reached in
several recent district court cases, including in this circuit.3
Respondents’ reading, in contrast, would subsume every
“applicant for admission” within the larger category of aliens
“seeking admission.” 	Id. at 21:7-8. 	A smaller number of cases
have adopted the government’s position.4
That reading has two problems. 	First, it would mean
that Congress used two different phrases to mean the same thing
3 See, e.g., Alvarez Ortiz v. Freden, No. 25-CV-960, 2025 WL 3085032, at
*7 (W.D.N.Y. Nov. 4, 2025) (reading “seeking admission” to “refer to seeking
physical entry at the border, not the legal right to enter” (emphasis
added)); J.G.O. v. Francis, No. 25-CV-7233, 2025 WL 3040142, at *3 (S.D.N.Y.
Oct. 28, 2025) (reading “seeking admission” to “require[] an alien to
continue to want to go into the country”); Jimenez v. FCI Berlin, Warden, No.
25-CV-326, 2025 WL 2639390, at *8 (D.N.H. Sep. 8, 2025) (concluding that
Section 1225(b)(2)(A) cannot apply to those “who ha[ve] already entered the
country and ha[ve] been residing here for over two years”).
4 See Mejia Olalde v. Noem, No. 25-CV-168, 2025 WL 3131942, at *5 (E.D.
Mo. Nov. 10, 2025); Rojas v. Olson, No. 25-CV-1437, 2025 WL 3033967, at *8-9
(E.D. Wis. Oct. 30, 2025); Vargas Lopez v. Trump, No. 25-CV-526, 2025 WL
2780351, at *9 (D. Neb. Sep. 30, 2025); Chavez v. Noem, No. 25-CV-2325, 2025
WL 2730228, at *4-5 (S.D. Cal. Sep. 24, 2025).
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in the same provision. 	But “[i]n a given statute, . . .
different terms usually have different meanings.” 	Pulsifer v.
United States, 601 U.S. 124, 149 (2024). 	Secondly, respondents
introduce surplus language into the statute. 	On their reading,
Congress could have replaced “an alien seeking admission” with
“the alien” or even “he or she” — much clearer expression, with
(ostensibly) no change in meaning.
The government’s position is thus “at odds with one of
the most basic interpretive canons, that a statute should be
construed so that effect is given to all its provisions, so that
no part will be inoperative or superfluous.” 	Corley v. United
States, 556 U.S. 303, 314 (2009). 	While it can be overcome in
many circumstances, the superfluity canon is at its “strongest
when an interpretation would render superfluous another part of
the same statutory scheme.” 	Marx v. Gen. Revenue Corp., 568
U.S. 371, 386 (2013). 	And here, “not only are the two terms in
the same statutory scheme, they are in the same sub-paragraph
and in the same single sentence, and only seven words separate
the two terms.” 	Guartazaca Sumba v. Crowley, No. 25-CV-13034,
2025 WL 3126512, at *4 (N.D. Ill. Nov. 9, 2025). 	Thus, they
“must mean something different.” 	Id.
2. 	The Statute’s Context
The “context” and “overall statutory scheme” support
Petitioner’s reading, as well. 	Gundy v. United States, 588 U.S.
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128, 141 (2019). 	“Every part of [Section] 1225 suggests that it
applies to aliens who are arriving in the country.” 	J.G.O. v.
Francis, No. 25-CV-7233, 2025 WL 3040142, at *4 (S.D.N.Y. Oct.
28, 2025). 	For example, the aforementioned subparagraph (C)
allows for immediately returning those “arriving on land
(whether or not at a designated port of arrival) from a foreign
territory contiguous to the United States” to that territory
pending proceedings. 8 U.S.C. § 1225(b)(2)(C) (emphasis added).
The statute also includes other “carve-outs” in Subsection
1225(b)(2)(A) involving “various means of arriving in the United
States.” 	Alvarez Ortiz v. Freden, No. 25-CV-960, 2025 WL
3085032, at *8 (W.D.N.Y. Nov. 4, 2025). 	These provisions
suggest that “seeking admission” “refer[s] to those who are
presenting themselves at the border, or who were recently
apprehended just after entering.” 	Hyppolite v. Noem, No. 25-CV-
4304, 2025 WL 2829511, at *9 (E.D.N.Y. Oct. 6, 2025).
At the same time, Section 1226 is “filled with
language that would most clearly apply to people who are already
here.” 	J.G.O., 2025 WL 3040142, at *4. 	For example, Section
1226(d) requires the attorney general to devise a system for
state and local law enforcement officers to determine whether
arrested individuals are aliens. 	8 U.S.C. § 1226(d). 	Section
1226(a) allows for arresting an alien when the Attorney General
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has issued a warrant. 	Id. § 1226(a). 	Both provisions only make
sense for aliens already within the country.
Zooming out, Petitioner’s read is consistent with the
broader statutory scheme — specifically, the INA subchapter on
“Inspection, Apprehension, Examination, Exclusion, and Removal.”
8 U.S.C. ch. 12, subch. II, pt. IV. 	As another district court
recently observed, the first six sections thereof — Section
1221-1225 and 1225a — all address aliens arriving in the United
States (or, in the case of Section 1225a, those inspected at
foreign airports immediately before departing for the United
States).5 	“It would make little sense to sandwich [S]ection 1225
between sections dealing exclusively with arrival or attempted
arrival of noncitizens if it were intended to broadly apply to
all noncitizens present in the United States who have not been
admitted.” 	Alvarez Ortiz, 2025 WL 3085032, at *9.
The operative section headings — a tool “available for
the resolution of a doubt about the meaning of a statute” —
further buttress Petitioner’s reading. 	Cunningham v. Cornell
Univ., 604 U.S. 693, 704 (2025). 	Section 1225 is titled:
“Inspection by immigration officers; expedited removal of
5 See 8 U.S.C. § 1221 (“Lists of alien and citizen passengers arriving
and departing”); id. § 1222 (“Detention of aliens for physical and mental
examination”); id. § 1223 (“Entry through or from foreign territory and
adjacent islands”); id. § 1224 (“Designation of ports of entry for aliens
arriving by aircraft”) id. § 1225 (“Inspection by immigration officers;
expedited removal of inadmissible arriving aliens; referral for hearing”);
id. § 1225a (“Preinspection at foreign airports”); see also Alvarez Ortiz,
2025 WL 3085032, at *9 (making this precise point).
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inadmissible arriving aliens; referral for hearing.” 	8
U.S.C. § 1225 (emphasis added). 	“The added word of ‘arriving’
indicates that the statute governs ‘arriving’ noncitizens, not
those present already.” 	Barrera v. Tindall, No. 25-CV-541, 2025
WL 2690565, at *4 (W.D. Ky. Sep. 19, 2025).
3. 	Precedent
Neither the Supreme Court nor the Second Circuit has
defined the term “seeking admission.” 	Still, the Supreme Court
has offered a number of observations about the operation of
Sections 1225 and 1226, and the INA generally, that support the
petitioner’s reading of the statutes at issue.
The Court has explained that “[t]he distinction
between an alien who has effected an entry into the United
States and one who has never entered runs throughout immigration
law.” 	Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Respondents’ reading would render Section 1225 equally
applicable to both sides of the distinction, calling the Supreme
Court’s dichotomy into some question.
More specifically, the Supreme Court has touched on
the relationship between Sections 1225 and 1226. 	In Jennings v.
Rodriguez, the Court explained that Section 1225 authorizes “the
Government to detain certain aliens seeking admission into the
country,” while Section 1226 “authorizes the Government to
detain certain aliens already in the country pending the outcome
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of removal proceedings.” 	583 U.S. 281, 289 (2018) (emphasis
added); see also id. at 288 (Section 1226 “generally governs the
process of arresting and detaining” aliens “once inside the
United States”). 	That reading is in tension, at the very least,
with Respondents’ broad understanding of Section 1225(b)(2).
Finally, in Thuraissigiam, the Supreme Court held that
the protections of the writ of habeas corpus did not extend to
an individual detained twenty-five yards into the United States.
Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 119-20
(2020). 	In doing so, it explained that even if released, the
petitioner “would remain subject to arrest, detention, and
removal,” citing Section 1226(a). 	Id. at 119; see also id. at
106-07 (describing detention and expedited removal proceedings
for certain asylum seekers “apprehended at or near the border”).
We add one note in response to the Respondents’
contention that Sarmiento Guerrero was “paroled” into the
country and thus may be treated via the “entry fiction” as
detained at the border. 	Hr’g. Tr. 27:2-4 (“They remain at the
border for purposes of immigration law and are treated as
applicants for admission into the country.”); Opp’n 18, ECF No.
15. 	The so-called entry fiction is that “aliens who have been
denied admission to the United States yet are present within its
borders are treated, for constitutional purposes, as if stopped
at the border.” 	Poonjani v. Shanahan, 319 F. Supp. 3d 644, 648
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(S.D.N.Y. 2018); see also 8 U.S.C. § 1182(d)(5)(A) (describing
discretionary parole for applicants for admission and explaining
that “when the purposes of such parole shall, in the opinion of
the [Secretary], have been served the alien shall forthwith
return or be returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt with in the
same manner as that of any other applicant for admission”).
“[E]ven assuming that the entry fiction would apply to
[Sarmiento Guerrero], it wouldn’t affect this statutory
analysis.” 	J.G.O., 2025 WL 3040142, at *4. 	Parole allows
aliens to physically enter the country but without “admission.”
18 U.S.C. § 1182(d)(5)(A). 	The caselaw cited by Respondents
thus stands for the uncontested proposition that Sarmiento
Guerrero remains an “applicant for admission,” despite his
alleged parole. 	Opp’n 18-19 (citing, for example, United States
v. Balde, 943 F.3d 73, 84 (2d Cir. 2019) (“Parole does not
change parolees’ immigration status: they remain ‘at the border’
for the purposes of immigration law and are treated as
applicants for admission into the country.”)).
But parole status speaks only to whether Sarmiento
Guerrero has been admitted, not whether he was seeking admission
at the time of his detention in June, as that term is used in
Section 1225(b)(2)(A). 	Respondents’ reference to the entry
fiction thus conflates Section 1225(b)(2)(A)’s distinct
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requirements that an alien be an applicant for admission, and
that he be seeking admission. 	See id. at 19 (“Petitioner is
therefore an applicant for admission.”). 	It does not undo the
Court’s conclusion above that the “procedure Congress
authorized” is that of Section 1226(a). 	J.G.O., 2025 WL
3040142, at *4.
Sarmiento Guerrero has thus established a likelihood
of success on the merits on his statutory claim. 	Because
“resolution of [this] statutory argument” resolves this Winter
factor, “the Court need not discuss the merits of his
constitutional claim about due process” or the legality of the
automatic stay. 	Guartazaca Sumba, 2025 WL 3126512, at *5; see
also Three Affiliated Tribes of Fort Berthold Rsrv. v. Wold
Eng’g, P.C., 467 U.S. 138, 157 (1984) (“It is a fundamental rule
of judicial restraint . . . that this Court will not reach
constitutional questions in advance of the necessity of deciding
them.”).
B. 	Petitioner Faces Irreparable Harm
To demonstrate irreparable harm, a petitioner must
show that “absent a preliminary injunction they will suffer an
injury that is neither remote nor speculative, but actual and
imminent, and one that cannot be remedied if a court waits until
the end of trial to resolve the harm.” 	Grand River Enter. Six
Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007). 	The
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petitioner must also show that there is a “continuing harm which
cannot be adequately redressed by final relief on the merits and
for which money damages cannot provide adequate compensation.”
Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002).
Petitioner’s detention satisfies this requirement.
“[E]very minute that someone is unlawfully denied freedom
results in an injury that really can never be remedied.”
Alvarez Ortiz, 2025 WL 3085032, at *11. 	Respondents argue that
continued detention alone “does not equate to irreparable harm,”
as detention pending removal is constitutionally permissible.
Opp’n 31 (citing Velasco Lopez v. Decker, 978 F.3d 842, 848 (2d
Cir. 2020)). 	It is indeed constitutionally permissible (in the
right circumstance), but detention in violation of the
applicable statutes — as we have identified here — will still
work irreparable harm, almost by definition.
Respondents also argue that Sarmiento Guerrero waited
several months after his detention to file this petition,
weakening his claim of irreparable harm. 	Id. at 32. 	This
argument is unavailing, as Sarmiento Guerrero filed his petition
less than a week after the BIA decided his appeal, and
frequently requested release while it was pending. 	See ECF No.
1-20.
C. 	The Balance of Equities and Public Interest Favor
Relief
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When the government is a party, the balance-of-
equities and public-interest factors merge. 	New York, 969 F.3d
at 58-59. 	This merged factor favors Sarmiento Guerrero.
“[T]here is a substantial public interest in having
governmental agencies abide by the federal laws that govern
their existence and operations.” 	League of Women Voters of U.S.
v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016).
On the other side of the ledger, Respondents maintain
that it is “within the public interest to ensure that aliens
unlawfully present . . . do not abscond while their removal
proceedings are pending.” 	Opp’n 34. 	This is surely true. 	But
in this particular case, the petitioner has a demonstrated track
record of appearance. 	And if — as an immigration judge has
found — Sarmiento Guerrero “is not a danger or a flight risk,
then it is in no one’s interest to detain him.” 	Alvarez Ortiz,
2025 WL 3085032, at *11.
D. 	The Appropriate Remedy Is Release on Bond as Set by
the Immigration Judge
When no bond hearing has been held, “the appropriate
remedy will usually be a bond hearing to consider the merits of
release.” 	Romero v. Hyde, No. 25-CV-11631, 2025 WL 2403827, at
*13 (D. Mass. Aug. 19, 2025); accord Alvarez Ortiz, 2025 WL
3085032, at *11. 	Here, however, Sarmiento Guerrero has already
had a bond hearing at which both sides argued the merits of
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release. 	This remedy is already in effect, given the TRO
previously entered. 	Thus, the appropriate remedy here is simply
to restore this case to the posture it was in following the IJ’s
decision and prior to the action of the BIA.
Conclusion
Petitioner’s motion for a preliminary injunction will
be granted, in part, following a forty-eight hour stay to allow
the government to appeal this order. Barring action by the
Court of Appeals, the Petitioner shall satisfy the terms of the
immigration judge’s release order by November 20. To the extent
the Petitioner does so, the Respondents shall not, pending
further action by this Court or the Court of Appeals, act to
detain Petitioner on the basis of 8 U.S.C. § 1225(b)(2).
By December 16, the Respondents are ordered to show
cause why the petition should not be granted for the reasons
stated in this order. Petitioner’s response shall be due on
January 6, and Respondents shall reply on or before January 16.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	November 18, 2025
Brooklyn, New York
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