1:25-cv-02098•Case Name in Immigration Case - Unavailable
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RIAZ KHAN, : 1:25-CV-02098 : Petitioner : (Judge Saporito) : v. : (Magistrate Judge Schwab) : : GRAIG LOWE, et al., : : Respondents : REPORT AND RECOMMENDATION I. Introduction. Petitioner Riaz Khan, an alien in immigration custody, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his continued detention without a bond hearing. The question is whether Khan is detained under 8 U.S.C. § 1225(b)(2) or whether he is detained under 8 U.S.C. § 1226(a). If he is detained under § 1225(b)(2), he is not entitled to a bond hearing. But if he is detained under § 1226(a), he is entitled to a bond hearing. Khan requests, among other things, that the court declare that his detention violates the Immigration and Nationality Act, the Administrative Procedure Act, and/or the Due Process Clause of the Fifth Amendment. And he seeks, among other things, immediate release from custody unless he receives a bond hearing before an Immigration Judge Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 1 of 29
2 within ten days, or, in the alternative, immediate release from custody. For the following reasons, we conclude the Khan is detained under 8 U.S.C. § 1226(a). Accordingly, we recommend that the court grant Khan’s petition for a writ of habeas corpus to the extent the court orders the respondents to provide Khan with a bond hearing before an Immigration Judge pursuant to 8 U.S.C. § 1226(a). II. Background and Procedural History. Khan, who is a native and citizen of Pakistan, entered the United States on June 10, 2024. See doc. 1 at ¶¶ 1, 2, 26, 27. Border Patrol agents encountered him on that date near the Port of Entry in Lukeville, Arizona. See doc. 7-2 at 4–6. He was apprehended within a group of 64 individuals. Id. at 5. A Border Patrol agent determined that Khan had unlawfully entered the United States at a time and place other than as designated by the Secretary of Homeland Security. Id. Khan was arrested and transported to a facility in Tucson for further processing. Id. According to immigration records, there Khan stated that he was a citizen and national of Pakistan without the necessary legal documents to enter, pass through, or remain in the United States. Id. And he admitted to illegally crossing the border on June 10, 2024, without being inspected by an immigration officer at a designed port of entry. Id. at 5–6. Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 2 of 29
3 Further, Khan’s immigration record indicates that he “exhibited NO manifestation of fear or expressed an intention to apply for asylum or related protection while in Border Patrol custody.” Id. at 6. The record states that Khan was being held in “custody pending removal proceedings as an Expedited Removal as per [8 U.S.C. § 1225(b)(1)(A)(iii)].” Id. at 6.1 It further states that he was “apprehended within fourteen days of his last entry into the United States and within 100 air miles from the United States/Mexico international boundary.” Id. at 1 The document cites to Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act (“INA”), which is codified as 8 U.S.C. § 1225(b)(1)(A)(iii). For ease of reference and consistency, here and elsewhere, when we refer to a section of the INA or when an immigration document refers to a section of the INA, we cite to the actual section of the United States Code. 8 U.S.C. § 1225(b) provides for two types of removal proceedings for applicants for admission: expedited removal proceedings under § 1225(b)(1) and regular removal proceedings under § 1225(b)(2). Although the record cited here refers to expedited removal per 8 U.S.C. § 1225(b)(1), it does not appear that Khan was put in expedited removal proceedings—at least not for long—because as set forth below, a Notice to Appear was issued in August 2024, indicating that Khan was in removal proceedings pursuant to 8 U.S.C. § 1229a, which are regular removal proceedings. Neither party here contends that Khan is subject to § 1225(b)(1). Rather, as discussed below, the respondents contend that Khan is in custody under § 1225(b)(2)(A), and Khan argues that he is not subject to § 1225(b)(2)(A), but instead he is subject to § 1226(a). Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 3 of 29
4 6.2 It also provides that Khan “will be removed at a time, place and in a manner consistent with removal proceedings for a citizen of their respective nation.” Id. 2 In addition to arriving aliens described in 8 U.S.C. § 1225(b)(1)(A)(i), pursuant to 8 U.S.C. § 1225(b)(1)(A)(iii), the Attorney General may designate that the expedited removal proceedings set forth in § 1225(b)(1) apply to certain other aliens. With the exception of “an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry,” the Attorney General may designate as subject to expedited removal proceedings any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 8 U.S.C. § 1225(b)(1)(A)(iii), (F). Although the statute provides that the Attorney General has the discretion to make a designation under § 1225(b)(1)(A)(iii), the Attorney General “has since delegated this authority to the [Department of Homeland Security] Secretary[.]” Coalition for Humane Immigrant Rts. v. Noem, No. 25-CV-872 (JMC), 2025 WL 2192986, at *5 (D.D.C. Aug. 1, 2025), appeal docketed, No. 25-2589 (D.C. Cir. Aug. 11, 2025). In 2024, at the time Khan entered the United States, the Secretary of the Department of Homeland Security had designated that the expedited removal proceedings of § 1225(b)(1) apply to aliens “who are physically present in the U.S. without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, who are encountered by an immigration officer within 100 air miles of any U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior to the date of encounter.” Id. (quoting Designating Aliens For Expedited Removal, 69 Fed. Reg. 48877, 48880 (Aug. 11, 2004), and explaining how the designations under § 1225(b)(1)(A)(iii) have changed over the years including that the 2004 designation quoted above was changed in 2019, that the 2019 change was rescinded in 2022, and that “as of January 21, 2025, DHS asserts the authority to Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 4 of 29
5 On August 14, 2024, by a Notice to Appear, the United States Department of Homeland Security charged Khan with being subject to removal from the United States pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) of the INA because he is “an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.” Doc. 7-3 at 2. This Notice to Appear ordered Khan to appear before an Immigration Judge in Philadelphia on July 14, 2026, to show cause why he should not be removed from the United States. Id. On August 23, 2024, United States Immigration and Customs Enforcement (“ICE”) issued an “Interim Notice Authorizing Parole” to Khan informing him that it decided to parole him from its custody pursuant to 8 U.S.C. § 1182(d)(5)(A).3 apply expedited removal to all noncitizens described in the Designation Provision” of § 1225(b)(1)(A)(iii)). 3 That provision provides: The Secretary of Homeland Security may, except as provided in subparagraph (B) [which deals with refugees] or in section 1184(f) of this title [which deals with nonimmigrant crewmember status], in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 5 of 29
6 Doc. 7-4 at 2. The Notice provides, among other things, that the “parole authorization is valid for one year beginning on the date on this notice and will automatically terminate upon your departure or removal from the United States or at the end of the one-year period unless ICE provides you with an extension at its discretion.” Id. The Notice also provides that the parole “is not an admission in lawful status.” Id. On November 11, 2024, Khan filed an Application for Asylum and for Withholding of Removal. Doc. 1-5. In this document, in addition to explaining why he is applying for asylum and withholding of removal, Khan states that he “crossed the border from Mexico into the United States without authorization and was detained for three months upon entry.” Id. at 9. Khan’s one-year parole ended on or about August 22, 2025. Khan was detained by ICE on September 19, 2025. Doc. 1-6. He was detained while regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 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 to the United States. 8 U.S.C.A. § 1182(d)(5)(A). Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 6 of 29
7 reporting to a scheduled check-in with ICE in Philadelphia. Doc. 1 ¶ 5. He was initially detained at the Moshannon Valley Processing Center in Philipsburg, Pennsylvania. Id. But on September 27, 2025, he was transferred to the Pike County Correctional Facility. Doc. 1-7 at 2. On September 29, 2025, the Department of Homeland Security lodged an additional charge of inadmissibility against Khan. Doc. 7-6. More specifically, it charged Khan with being inadmissible pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) “as an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under” 8 U.S.C. § 1181(a). Id. at 2. On October 27, 2025, the Immigration Court issued a “Notice of In-Person Hearing” for January 9, 2026, in Elizabeth, New Jersey. Doc. 7-7 at 2. That hearing was subsequently continued until March 17, 2026. Doc. 9 at 1. On November 5, 2025, Khan began this action by filing a petition for a writ of habeas corpus. Doc. 1. The respondents filed a response to the petition and related documents. Doc. 7. Khan then filed a reply. Doc.8. Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 7 of 29
8 On January 16, 2026, the respondents filed a notice of supplemental authority citing the United States Court of Appeals for the Third Circuit’s January 15, 2026 decision in Khalil v. President, United States, 164 F.4th 259 (3d Cir. 2026). Doc. 10. We then ordered the parties to file supplemental briefs regarding the impact of Khalil. Doc. 13. And the parties have filed such supplemental briefs. Docs. 17, 18. III. The only proper respondent in this case is Warden Lowe. The petition names as respondents: (1) Graig Lowe, the Warden of the Pike County Correctional Facility; (2) David O’Neill, the Acting Philadelphia Field Office Director of Enforcement and Removal Operations of ICE; (3) Todd Lyons, the Acting Director of ICE; (4) Kristi Noem, the Secretary of the Department of Homeland Security; and (5) Pamela Bondi, the United States Attorney General. Doc. 1 at 1 (caption), ¶¶ 12–16. 28 U.S.C. § 2242 provides that a petition for a writ of habeas corpus shall name “the person who has custody over” the petitioner. And pursuant to 28 U.S.C. § 2243, the writ of habeas corpus, or order to show cause, shall be directed to the petitioner’s custodian. “[T]here is generally only one proper respondent to a given prisoner’s habeas petition.” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). And Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 8 of 29
9 that respondent is the petitioner’s immediate custodian, i.e., the ‘“person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.’” Id. at 435 (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885) (emphasis added)). The warden of the prison where the petitioner is held is considered the petitioner’s immediate custodian for purposes of a habeas action. Id. at 435–42. Thus, “[w]henever a§ 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.” Id. at 445. Here, Khan was incarcerated at the Pike County Correctional Facility at the time he filed this petition. Thus, Warden Lowe is his immediate custodian and the proper respondent. O’Neill, Lyons, Noem, and Bondi are not Khan’s immediate custodians for purposes of a petition for a writ of habeas corpus. Thus, we recommend that they be dismissed as respondents. IV. This Court has jurisdiction over Khan’s petition. This court has jurisdiction over Khan’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 1331, and the court may grant a writ of habeas corpus to, among others, an individual who “is in custody in violation of the Constitution or Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 9 of 29
10 laws or treaties of the United States.” 28 U.S.C. §§ 2241(a), (c)(3). In their response to the petition, the respondents asserted, however, that various provisions of 8 U.S.C. § 1252 strips this court of jurisdiction over Khan’s petition. And the respondents filed a notice of supplemental authority pointing to the Third Circuit’s recent decision in Khalil, 164 F.4th 259, and suggesting that that case supports its contention that 8 U.S.C. § 1252(b)(9) strips the court of jurisdiction in this case. Doc. 10. After we ordered supplemental briefing regarding the impact of Khalil, the respondents filed a supplemental brief and notice of withdrawal of argument. Doc. 17. In this document, the respondents concede that the court has jurisdiction over Khan’s petition. Id. Thus, we need not address in detail the jurisdictional arguments previously raised by the respondents. Nevertheless, the court is required to consider sua sponte whether it has subject-matter jurisdiction. Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 548 (2019). The court has subject-matter jurisdiction. Many courts have addressed whether the INA strips the court of jurisdiction in cases where the petitioner is challenging whether he or she is properly detained under 8 U.S.C. § 1225(b)(2)(A), and they have concluded that it does not. See e.g., Viantsko v. Lowe, No. 4:25-CV- 02523, 2026 WL 313473, at *3 (M.D. Pa. Feb. 5, 2026) (8 U.S.C. §§ 1252(a)(2), Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 10 of 29
11 1252(b)(9), and 1252(g)); Gonzalez Centeno v. Lowe, 3:25-CV-2518, 2026 WL 94642, at *2 (M.D. Pa. Jan. 13, 2026) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Vadel v. Lowe, No. 3:25-CV-02452, 2025 WL 3772059, at *2–3 (M.D. Pa. Dec. 31, 2025) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Quispe v. Rose, No. 3:25-CV-02276, 2025 WL 3537279, at *3–4 (M.D. Pa. Dec. 10, 2025) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Samassa v. Lowe, No. 1:25-CV-02197, 2025 WL 3653751, at *1–2 (M.D. Pa. Dec. 17, 2025) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Patel v. O’Neil, No. 3:25-CV-2185, 2025 WL 3516865, at *3 (M.D. Pa. Dec. 8, 2025) (8 U.S.C. §§ 1252(a)(2)(B)(ii), 1252(b)(9), and 1252(g)); Santana-Rivas v. Warden of Clinton Cnty. Corr. Facility, No. 3:25-CV-01896, 2025 WL 3513152, at *2 (M.D. Pa. Dec. 8, 2025) (8 U.S.C. §§ 1252(b)(9), and 1252(g)). We agree with the reasoning in those cases. We also agree with the reasoning in cases where courts have considered the effect of Khalil and have concluded that Khalil is distinguishable, as the respondents now concede, because unlike in Khalil, Khan’s challenge to his detention without a bond hearing is wholly collateral to the removal process and does not raise questions that can be reviewed in connection with a petition for Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 11 of 29
12 review of a final order of removal. See, e.g., Viantsko, 2026 WL 313473, at *3 (discussing Khalil and concluding that because Viantsko is challenging only his continued detention without a bond hearing, he is bringing a detention-specific claim like the ones the court in Khalil stated may be brought in a § 2241 habeas petition); Giyosov v. Jamison, No. CV 26-0298, 2026 WL 209839, at *1 (E.D. Pa. Jan. 27, 2026) (concluding “that Khalil is distinguishable because Giyosov’s petition does not present legal or factual questions that can be meaningfully reviewed alongside review of a final order of removal”); Kourouma v. Jamison, No. CV 26-0182-KSM, 2026 WL 120208, at *3 (E.D. Pa. Jan. 15, 2026) (“Unlike the challenge to detention in Khalil, Petitioner’s challenge here is not ‘inextricably linked’ to his removal proceedings” given that the “Petitioner does not argue that his confinement is unlawful because the Government’s removal action is itself invalid” and the petitioner is challenging the Government’s authority to detain him without a bond hearing rather than “the Government’s broader authority to detain him pending a final decision on removal”). Having concluded that the court has jurisdiction over Khan’s petition, we turn to the parties’ other arguments. Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 12 of 29
13 V. Exhaustion of administrative remedies is excused because such would be futile. The respondents contend that the court should dismiss Khan’s petition because he failed to exhaust administrative remedies. We disagree. “Under the immigration laws, exhaustion of administrative remedies is statutorily required only on appeals of final orders of removal.” Cox v. Monica, No. CIV.A. 1:07-CV-0534, 2007 WL 1804335, at *3 (M.D. Pa. June 20, 2007). There is also no statutory exhaustion requirement applicable to habeas petitions brought pursuant to 28 U.S.C. § 2241. But the courts have created a rule that “prisoners are ordinarily required to exhaust their administrative remedies before petitioning for a writ of habeas corpus pursuant to § 2241.” Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). The basic rationale for the exhaustion requirement is that judicial review may be facilitated by the agency’s development of a factual record, that judicial time may be conserved if the agency grants the relief sought, and that administrative autonomy requires that an agency be given an opportunity to correct its own errors. Arias v. United States Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981). Exhaustion of administrative remedies in § 2241 habeas cases is not required, however, in every situation. One situation where exhaustion is not Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 13 of 29
14 required is where administrative procedures are unavailable or incompetent to provide adequate redress or where exhaustion would be futile. Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (Roth, J., concurring) (exhaustion is not required when petitioner demonstrates that exhaustion is futile). And here, exhaustion is not required because it would be futile in light of the Board of Immigration Appeals decision in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). In that decision, the Board of Immigration Appeals decided that Immigration Judges do not have the authority to grant bond hearings to applicants for admission. Thus, exhaustion of administrative remedies would be futile. VI. Khan is not properly detained under 8 U.S.C. § 1225(b)(2)(A). Rather, he is subject to detention under 8 U.S.C. § 1226(a). “Federal immigration law contains various provisions authorizing the Government to detain aliens during the removal process.” Johnson v. Guzman Chavez, 594 U.S. 523, 526 (2021). This case, like hundreds of others filed in the past several months across the country,4 requires us to determine whether an 4 See Patel, 2025 WL 3516865, at *4 n.7 (citing more than 50 cases decided by district judges in the Third Circuit); Santana-Rivas v. Warden of Clinton Cnty. Corr. Facility, No. 3:25-CV-01896, 2025 WL 3522932, at *8–9 (M.D. Pa. Nov. 13, 2025) (report and recommendation citing cases decided by district judges Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 14 of 29
15 applicant for admission who has already entered the country is properly detained under 8 U.S.C. § 1225(b)(2)(A), or whether that alien is subject to detention under 8 U.S.C. § 1226(a). Here, the respondents contend that Khan is properly detained under § 1225(b)(2)(A), which provides for mandatory detention, and thus, he is not entitled to a bond hearing. On the other hand, Khan contends that he is subject to detention under § 1226(a), which is discretionary, and under which he may be released on bond. A. 8 U.S.C. § 1225; 8 U.S.C. 1226; and DHS’s recent change in detention policy. 8 U.S.C. § 1225 is titled “Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing.” Subsection (a) of § 1225, titled “Inspection,” specifies which aliens are treated as applicants for admission: An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in across the country as well as district judges in the Third Circuit), report and recommendation adopted in part and rejected in part, 2025 WL 3513152, at *1 (M.D. Pa. Dec. 8, 2025). Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 15 of 29
16 international or United States waters) shall be deemed for purposes of this chapter an applicant for admission. 8 U.S.C.A. § 1225(a)(1). And § 1225(a)(3) provides that “[a]ll 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). Subsection (b) of § 1225, titled “Inspection of applicants for admission,” provides for two types of removal proceedings for applicants for admission: expedited removal proceedings under § 1225(b)(1) and regular removal proceedings under § 1225(b)(2). 8 U.S.C. § 1225(b). Sections 1225(b)(1) and 1225(b)(2) both provide for detention of the applicants for admission to which those subsections apply. Id. 8 U.S.C. § 1226, which is titled “Apprehension and detention of aliens,” “distinguishes between two different categories of aliens”—those detained under § 1226(a) and those detained under § 1226(c). Jennings v. Rodriguez, 583 U.S. 281, 288 (2018).5 Subsection (a), titled “Arrest, detention, and release,” provides 5 “Section 1226(c) . . . carves out a statutory category of aliens who may not be released under§ 1226(a).” Jennings, 583 U.S. at 289. “Under § 1226(c), the ‘Attorney General shall take into custody any alien’ who falls into one of several enumerated categories involving criminal offenses and terrorist activities.” Id. (quoting § 1226(c)(1)). “The Attorney General may release aliens in those categories ‘only if the Attorney General decides . . . that release of the alien from Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 16 of 29
17 that “[o]n 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). It continues, in relevant part, that “[e]xcept as provided in subsection (c) and pending such decision, the Attorney General—(1) may continue to detain the arrested alien; and (2) may release the alien on—(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General, or (B) conditional parole.” Id. The reason why the issue of whether applicants for admission who have already entered the country are subject to detention under § 1225(b)(2)(A) or § 1226(a) is being raised in so many cases nationwide now is that the Department of Homeland Security recently changed its position on the issue. See Maldonado Vazquez v. Feeley, No. 2:25-CV-01542-RFB-EJY, 2025 WL 2676082, at *5 (D. Nev. Sept. 17, 2025) (discussing the July 8, 2025 policy change by the Department of Homeland Security). And on September 5, 2025, in Matter of Yajure Hurtado, the Board of Immigration Appeals held that immigration judges “have no authority custody is necessary’ for witness-protection purposes and ‘the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.’” Id. (quoting § 1226(c)(2)). The respondents do not contend that § 1226(c) applies to Khan. Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 17 of 29
18 to redetermine the custody conditions of an alien who crossed the border unlawfully without inspection, even if that alien has avoided apprehension for more than 2 years.” 29 I. & N. Dec. at 228. In Matter of Yajure Hurtado, the Board of Immigration Appeals “acknowledged that for years Immigration Judges have conducted bond hearings for aliens who entered the United States without inspection,” but it noted that the issue had not been presented to it before. Id. at 225 n.6. And it further noted that “the supplemental information for the 1997 Interim Rule titled ‘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), reflects that the Immigration and Naturalization Service took the position at that time that ‘[d]espite 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.’” Id. Nevertheless, although acknowledging this history, the Board of Immigration Appeals rejected Hurtado’s argument that the Department of Homeland Security’s prior practice of treating aliens who are arrested after having lived in the United States for more than 2 years as detained Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 18 of 29
19 under § 1226 reflected that Congress did not intend § 1225(b)(2)(A) to apply to those aliens. 29 I. & N. Dec. at 225–26. B. Khan does not fall within the scope of 8 U.S.C. § 1225(b)(2)(A) because he is not an alien seeking admission. The dispute here centers on the language of § 1225(b)(2)(A), which provides: Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title. 8 U.S.C.A. § 1225(b)(2)(A).6 The respondents contend that § 1225(b)(2)(A) applies to all applicants for admission except those who fall within one of its exceptions. But the majority of courts to have considered the issue have rejected 6 Subparagraph (B) of § 1225(b)(2) provides that subparagraph (A) does not apply to aliens who are crewmen, aliens to whom § 1225(b)(1) applies, or aliens who are stowaways. 8 U.S.C. § 1225(b)(2)(B). And Subparagraph (C) of § 1225(b)(2) provides that “[i]n the case of alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(C). Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 19 of 29
20 that contention, and they have construed the phrase “alien seeking admission,” as not synonymous with applicant for admission. The majority of courts construe the phrase “alien seeking admission,” which is not defined in the INA, as describing “active and ongoing conduct, such as physically attempting to come into the United States at a border or port of entry.” Vadel, 2025 WL 3772059 at *4 (citing cases). Although the INA does not define the phrase “alien seeking admission,” it does define the terms “admission” and “admitted” to “mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). And the majority of courts have concluded that the phrase “alien seeking admission” does not describe aliens “who have resided in the United States for years.” Patel, 2025 WL 3516865, at *5 (footnote omitted). Those aliens have already entered the country; they are “no longer seeking to enter the United States (lawfully or otherwise).” Jimenez v. FCI Berlin, Warden, 799 F. Supp. 3d 59, 71 (D.N.H. 2025). “As thoroughly reviewed in these decisions, for Section 1225(b)(2)(A) to apply and subject a noncitizen to mandatory detention: ‘(1) there must be an “examining immigration officer” who determines; (2) that an “applicant for admission”; (3) is “seeking admission”; and (4) “not clearly and Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 20 of 29
21 beyond a doubt entitled to be admitted.”’” Gonzalez Centeno, 2026 WL 94642, at *3 (quoting Bethancourt Soto v. Soto, No. 25-CV-16200, 2025 WL 2976572, at *5 (D.N.J. Oct. 22, 2025) (quoting § 1225(b)(2)(A)).7 The majority of courts reason that “to adopt the government’s position would violate the rule against surplusage, negate the plain meaning of the text, and render the mandatory detention of ‘criminal aliens’ under Section 1226(c) (as expanded last year by the Laken Riley Act) as arising from a redundant statutory provision.” Id. To be fair, some courts have accepted the government’s position.8 Those courts, however, are a small minority compared the large number of courts that 7 Sometimes, courts set forth the requirements of § 1225(b)(2)(A) as containing three, rather than four, elements. See e.g. Vadel, 2025 WL 3772059 at *4 (“To trigger § 1225(b)(2)(A), an examining immigration officer must determine that an individual is (1) an applicant for admission, (2) seeking admission, and (3) not clearly and beyond doubt entitled to be admitted.” ). There is no material difference, however, between these expositions of § 1225(b)(2)(A). And the important point here is that however described, these courts conclude that § 1225(b)(2)(A) requires both that the alien be an “applicant for admission” and an alien “seeking admission.” 8 See, e.g., Lopez v. Director of Enforcement and Removal Operations, No. 3:25-CV-1313-JEP-SJH, 2026 WL 261938 (M.D. Fla. Jan. 26, 2026); Goyo Martinez v. Villegas, No. 1:25-CV-256-H, 2026 WL 114418, at *1 (N.D. Tex. Jan. 15, 2026); Cutiopala, v. Noem, No. 1:25-CV-00211-MAL, 2026 WL 113567, at *1 (E.D. Mo. Jan. 15, 2026); Chen v. Almodovar, No. 25 CIV. 9670 (JPC), 2026 WL 100761, at *1 (S.D.N.Y. Jan. 14, 2026); Singh v. Noem, No. 2:25-CV-00157-SCM, 2026 WL 74558, at *1 (E.D. Ky. Jan. 9, 2026); Gutierrez Sosa v. Holt, No. CIV- Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 21 of 29
22 have rejected the government’s arguments. After considering the parties’ arguments and the court cases—both majority and minority—we conclude that the majority’s construction of the statute, which is the construction that the Department of Homeland Security had for many years until recently and which avoids making the phrase “alien seeking admission” surplusage—is the better reading of § 1225(b)(2)(A). Here, applying that construction of § 1225(b)(2)(A), the conclusion that Khan is not properly detained under that section follows. Section 1225(b)(2)(A) requires, among other things, that the alien be both an “applicant for admission” and an “alien seeking admission.” 8 U.S.C. § 1225(b)(2)(A). Because Khan has never been admitted to the United States, he is deemed an “applicant for admission.” See 8 U.S.C. § 1225(a)(1) (“An alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an 25-1257-PRW, 2026 WL 36344, at *1 (W.D. Okla. Jan. 6, 2026); Montoya v. Holt, No. CIV-25-01231-JD, 2025 WL 3733302 (W.D. Okla. Dec. 26, 2025); Liang v. Almodovar, No. 1:25-CV-09322-MKV, 2025 WL 3641512, at *1 (S.D.N.Y. Dec. 15, 2025), appeal docketed, No. 26-96 (2nd Cir. Jan. 15, 2026); Coronado v. Sec’y, Dep’t of Homeland Sec., No. 1:25-CV-831, 2025 WL 3628229, at *1 (S.D. Ohio Dec. 15, 2025); Candido v. Bondi, No. 25-CV-867 (JLS), 2025 WL 3484932, at *1 (W.D.N.Y. Dec. 4, 2025), appeal docketed, No. 25-3159 (2nd Cir. Dec. 17, 2025); Rojas v. Olson, No. 25-CV-1437-BHL, 2025 WL 3033967, at *1 (E.D. Wis. Oct. 30, 2025), appeal docketed, No. 25-3127 (7th Cir. Nov. 25, 2025); Sandoval v. Acuna, No. 6:25-CV-01467, 2025 WL 3048926, at *1 (W.D. La. Oct. 31, 2025). Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 22 of 29
23 applicant for admission”). But Khan, whose current detention is based on an arrest in Philadelphia, Pennsylvania—not at or near the border—and who was arrested after having resided in the United States for over a year (most, but not all, of that time on parole), is not an “alien seeking admission.” Accordingly, § 1225(b)(2)(A) does not apply to him. Rather, 8 U.S.C. § 1226(a) applies, and under that provision and the regulations implementing that provision,9 Khan is entitled to a bond hearing. Thus, we conclude that the respondents are violating the INA by holding him without a bond hearing. VII. The Court need not reach Khan’s constitutional claim or his Administrative Procedure Act claim. In addition to his statutory claim, Khan contends that his detention without a bond hearing violates his right to due process. “A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). Here, because we conclude 9 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings, 583 U.S. at 306. Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 23 of 29
24 that Khan is being held without a bond hearing in violation of the INA, we need not reach the constitutional issue.10 Khan also asserts a claim under the Administrative Procedure Act, 5 U.S.C. § 701 et. seq. Because we recommend that Khan be granted habeas relief, we need not reach that claim. VIII. The Court should order that Khan be given a bond hearing before an Immigration Judge. Having determined that the respondents are violating the INA by holding Khan without a bond hearing, we turn to the issue of the proper remedy. At times, 10 In the event that the district court disagrees with the conclusion that we need not reach the constitutional issue, we note that the majority of courts often also reach the constitutional issue and conclude that in these circumstances detaining an alien who is subject to 1226(a) without a bond hearing violates due process. See, e.g., Viantsko, 2026 WL 313473, at *5–6; Gonzalez Centeno, 2026 WL 94642, at *4; Vadel, 2025 WL 3772059, at *6; Ramirez-Montoya v. Rose, No. 3:25-CV-02411, 2025 WL 3709045, at *5–6 (M.D. Pa. Dec. 22, 2025); Quispe, 2025 WL 3537279, at *7; Patel, 2025 WL 3516865, at *5–6; See also Cunin v. McShane, No. 3:25-CV-1887, 2025 WL 3542999, at *2 (M.D. Pa. Dec. 10, 2025) (concluding in connection with a motion for a temporary restraining order that the petitioner’s “constitutional challenge likely succeeds on the merits”); Hernandez v. Rose, No. 1:25-CV-2221, 2025 WL 3284447, at *2 (M.D. Pa. Nov. 25, 2025) (same). The court in Santana-Rivas also concluded that the petitioner in that case was detained in violation of due process, but the due process analysis in that case was based on the fact that the detention in that case of 15 months had become unconstitutionally prolonged. Santana-Rivas, 2025 WL 3513152, at *3. Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 24 of 29
25 Khan seeks immediate release from custody. Doc. 1 ¶ 80 (Prayer for Relief); Doc. 8 at 27; Doc. 18 at 2. Some courts have granted such relief. See, e.g., Gonzalez Centeno, 2026 WL 94642, at *4; )); Vadel, 2025 WL 3772059, at *7; Patel, 2025 WL 3516865, at *6. But 28 U.S.C. § 1226(a) “requires only consideration on bond, and a bond hearing is therefore sufficient to correct Respondents’ ongoing violation of the INA.” Cotoc Yac De Yac v. Hermosillo, No. 2:25-CV-02593-DGE- TLF, 2026 WL 124334, at *4 (W.D. Wash. Jan. 16, 2026). Thus, in the usual course, we think that should be the relief provided. And that is often the relief provided in these cases. See, e.g., Viantsko, 2026 WL 313473, at *6 (granting petition for writ of habeas corpus and requiring the government to provide the petitioner a bond hearing or release him from custody if such a hearing is not provided); Cunin v. McShane, No. 3:25-CV-1887, 2025 WL 3542999, at *3 (M.D. Pa. Dec. 10, 2025) (granting the petitioner’s motion for a temporary restraining order in part and denying it in part, and ordering that the “Government must provide [the petitioner] with a bond hearing”); A.D. v. Oddo, No. CV 25-460J, 2026 WL 101476, at *4 (W.D. Pa. Jan. 14, 2026) (concluding that “a hearing before an immigration judge is the proper forum to determine whether bond is appropriate under that statute and the applicable regulations”); Cordova v. Noem, Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 25 of 29
26 No. 3:26-CV-97-K-BN, 2026 WL 218938, at *3 (N.D. Tex. Jan. 28, 2026) (observing that “[m]ost courts, including this Court, confronting the issues here have determined that the appropriate relief is a bond hearing”). It is also the relief that the Third Circuit has ordered be provided in a different immigration context. See German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 214 (3d Cir. 2020) (remanding the case to the district court for the district court to order a bond hearing within 10 days where the petitioner was subject to prolonged detention under 8 U.S.C. § 1226(c)). Accordingly, we will recommend that the court order that Khan be provided with a bond hearing in accordance with 8 U.S.C. § 1226(a) within 10 days, and if the respondents do not provide such a hearing within ten days, he be released. IX. Other Issues. In his petition, Khan requests that the court order that he “remain in the State of Pennsylvania and not be transferred outside the state of Pennsylvania until further order of this Court in order to preserve [his] continued access to counsel.” Doc. 1 ¶ 77 (Prayer for Relief). But apart from the request in his prayer for relief in his petition, Khan has not briefed or made any attempt to show that he is entitled Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 26 of 29
27 to an injunction prohibiting his transfer. Thus, we will not address that issue further. Khan also requests that the court award him fees and costs under the Equal Access to Justice Act (“EAJA”). “The EAJA authorizes an award of attorneys’ fees and costs to the prevailing party ‘in any civil action (other than cases sounding in tort)’ brought by or against the United States if the Government’s position was not ‘substantially justified.’” Michelin v. Warden Moshannon Valley Corr. Ctr., No. 24-2990, 2026 WL 263483, at *13 (3d Cir. Feb. 2, 2026) (quoting 28 U.S.C. § 2412(d)(1)(A)). The Third Circuit recently dispelled any doubts about whether the EAJA applies to petitions for writs of habeas corpus in the immigration context, holding that it does. Id. But apart from a request in his petition, Khan has not briefed whether he is entitled to fees and costs under the EAJA and, if so, the amount of those fees and costs. Thus, at this time, we will not address that issue. Pursuant to 28 U.S.C. § 2412(d)(1)(B), an application for fees and costs under the EAJA shall be submitted within 30 days of the final judgment in the action. X. Recommendations. Accordingly, for the foregoing reasons, we recommend that the court dismiss David O’Neill, Todd Lyons, Kristi Noem, and Pamela Bondi as Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 27 of 29
28 respondents. It is also recommended that the court grant in part and deny in part Khan’s petition. It is recommended that the court deny Khan’s petition to the extent that the court denies Khan’s request for immediate release. It is further recommended that the court grant Khan’s petition to the extent that the court orders the respondents to either provide Khan with a bond hearing pursuant to 8 U.S.C. § 1226(a) within ten days of the Court’s order on this Report and Recommendation or, if they do not provide such a hearing, to release him from custody. Finally, it is recommended that the court close this case. The Parties are further placed on notice that pursuant to Local Rule 72.3: Any party may object to a magistrate judge’s proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 28 of 29
29 developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions. Submitted this 6th day of February, 2026. S/Susan E. Schwab Susan E. Schwab United States Magistrate Judge Case 1:25-cv-02098-JFS Document 19 Filed 02/06/26 Page 29 of 29
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