Rabaev v. Baltazar et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:26-cv-00811-SBP
SOLTON RABAEV,
Petitioner,
v.
JUAN BALTAZAR et al.,
Respondents.
ORDER OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
Before the Court is Petitioner Solton Rabaev (“Petitioner”)’s Application for Writ of
Habeas Corpus. ECF No. 1 (“Petition”). For the reasons outlined below, the court
respectfully GRANTS the Petition.
I. 	BACKGROUND
The court finds that the relevant facts here are not in dispute and provides a brief
summary of those facts below. In doing so, the court draws heavily on the factual background set
forth in the response to the Court’s March 4, 2026 order, filed at ECF No. 11 (the “Response”).
Petitioner is a citizen of the Kyrgyz Republic, or Kyrgyzstan, who presented himself at a
U.S. port of entry in early 2023. See Petition ¶ 1. Respondents, each sued exclusively in their
official capacities, are Juan Baltazar, the Warden for the Denver Contract Detention Facility;
George Valdez, the acting Denver Field Office Director for Immigration and Customs
Enforcement (“ICE”); Todd M. Lyons, the Acting Director for ICE; Markwayne Mullin, the
Case No. 1:26-cv-00811-SBP Document 12 filed 04/02/26 USDC Colorado pg 1
of 6

2
Secretary of the Department of Homeland Security; and Todd Blanche, the acting Attorney
General of the United States (collectively, “Respondents”).1 See Petition ¶ 15.
On February 13, 2023, Petitioner was issued a notice to appear in removal proceedings
that identified him as “an arriving alien.” ECF No. 1-3 at 1. The Notice to Appear charged him
with being inadmissible, because he was not in possession of a valid unexpired visa or other
entry documents, under 8 U.S.C. § 1182(a)(7)(A)(i)(I). ECF No. 1-3 at 3. However, he was
granted humanitarian parole into the United States under 8 U.S.C. § 1182(d)(5)(A) for a period
that expired in February 2024. Petition ¶¶ 1-2; see ECF No. 1-2 at 1 (“Admit Until Date:
02/12/2024”). Just before his parole expired, he filed a Form I-589 application for asylum.
Petition ¶ 4. ICE did not provide Petitioner with an extension of his parole, and thus, his parole
automatically terminated on February 12, 2024. See id. ¶ 14.
On February 17, 2026, Petitioner was taken into ICE custody after a traffic stop in
Wyoming. Id. ¶ 5. Respondents state that they are detaining Petitioner pursuant to 8 U.S.C. §
1225(b) pending resolution of his removal proceedings. Id. ¶ 7.
In his Petition, Petitioner contends, inter alia, that he should instead be detained pursuant
to 8 U.S.C. § 1226(a) and that accordingly, he is entitled to be “released immediately, or in the
alternative afforded a bond hearing before a neutral Immigration Judge, at which the government
bears the burden to prove by clear and convincing evidence that continued detention is justified
based on danger to the community or risk of flight.” Prayer for Relief ¶ 3.
II. 	ANALYSIS
The court notes as an initial matter that, despite only requesting a bond hearing in the
alternative to his immediate release, Petitioner offers no argument as to why his immediate
release might be justified under the circumstances alleged here. Accordingly, the court denies
Petitioner’s request for immediate release and proceeds directly to consider the issue of whether
Petitioner is entitled to a bond hearing.
1 Pursuant to Federal Rule of Civil Procedure 25(d), Mr. Mullin, the current Secretary of the
Department of Homeland Security, is substituted for former Secretary Kristi Noem, and Mr.
Blanche, the current acting Attorney General of the United States, is substituted for former
Attorney General Pamela Bondi in this action.
Case No. 1:26-cv-00811-SBP Document 12 filed 04/02/26 USDC Colorado pg 2
of 6

3
The court finds that this court’s prior opinions in Merchan-Pacheo v. Noem, No. 25-cv-
03860-SBP, 2026 WL 88526 (D. Colo. Jan. 12, 2026), Arenas v. Noem, No. 26-cv-24-SBP, 2026
WL 317562 (D. Colo. Feb. 5, 2026), and Ekenge v. Baltazar, No. 26-cv-00630-SBP, 2026 WL
617341 (D. Colo. Mar. 5, 2026), control here, as the court’s analyses in these cases sufficiently
address the salient points raised by Respondents. Accordingly, the court refers the parties to its
analyses in Arenas, 2026 WL 317562, Merchan-Pacheo, 2026 WL 88526, and Ekenge v.
Baltazar, 2026 WL 617341, as supplemented by the reasoning stated below, finding that the
analyses provided in these cases apply equally in this matter and that accordingly, Petitioner is
entitled to a bond hearing.
The court notes that Respondents cursorily argue that the court’s analysis in Merchan-
Pacheo is not applicable here because “[t]he habeas petitioner in Merchan-Pacheo challenged
the automatic stay of an immigration judge’s custody determination under 8 C.F.R. §
1003.19(i)(2), which is not at issue in this case, and Merchan-Pacheo did not involve the
termination of parole under § 1182(d)(5)(A) or its implications for the petitioner’s status as an
arriving applicant for admission.” Response at 9. Though the court agrees that these points
represent distinctions in the underlying facts, the court disagrees that these points render the
court’s analysis in Merchan-Pacheo inapplicable. Instead, for the following reasons, and except
as addressed below, the court’s analysis in Merchan-Pacheo remains entirely apposite.
First, this court concluded in Merchan-Pacheo that it agreed with the “numerous
decisions holding that § 1225 applies to arriving noncitizens seeking admission, while § 1226
applies to noncitizens like Petitioner who are already present in the United States.” 2026 WL
88526 at *10. Under this court’s analysis in Merchan-Pacheo, even though Petitioner was
initially arrested near the border, Petitioner here is no longer an “arriving” noncitizen, but instead
clearly belongs to the category of noncitizens “who are already present in the United States.”
See, e.g., Hernandez v. Baltazar, No. 25-cv-03094-CNS, 2025 WL 2996643, at *6 (D. Colo. Oct.
24, 2025) (concluding that the fact that “§ 1225(b)(1)(A)(iii)(II)’s language explicitly limit[s]
mandatory detention to noncitizens who have been in the U.S. for less than two years” suggests
that § 1225 is not meant to apply to noncitizens who have been in the U.S. for significantly
longer) (collecting cases); Zumba v. Bondi, No. 25-cv-14626-KSH, 2025 WL 2753496, at *8
Case No. 1:26-cv-00811-SBP Document 12 filed 04/02/26 USDC Colorado pg 3
of 6

4
(D.N.J. Sept. 26, 2025) (concluding that detention authority arising from § 1225 is properly
exercised at or near the port of entry, while detention authority arises from § 1226 when a
noncitizen is arrested in the interior of the United States, in part because “the titles and headings
of § 1225 repeatedly cabin its application to ‘Inspections,’ which, as petitioner convincingly
argues, occur at ports of entry, their functional equivalent, or near the border”).
It is undisputed that Petitioner was most recently detained in February 2026 during a
traffic stop in Wyoming after initially being detained at the border in February 2023, and there is
no indication or argument that he ever left the United States during the intervening period.
Accordingly, Petitioner has been in the United States for significantly longer than two years.
Petitioner’s pending asylum application does not change the court’s conclusion that § 1225 does
not apply to him. The petitioner in Merchan-Pacheo similarly had a pending application for
asylum, but this court nevertheless concluded that the Merchan-Pacheo petitioner was not an
“applicant for admission” under § 1225 because § 1225 applies only to individuals detained at or
near the border. Nor, to be clear, does Petitioner’s release upon parole pursuant to §
1182(d)(5)(A) affect the analysis here, at least given the circumstances at issue; it is undisputed
that Petitioner’s parole expired over two years before he was re-detained, and though
Respondents refer to Petitioner’s former parole as a differentiating factor here, they have not
addressed how the fact of Petitioner’s former release on parole might change the court’s ruling in
this instance, where parole has long since expired.2
The other factor that Respondents argue differentiates the present matter from Merchan-
Pacheo, the relevance of the automatic stay under 8 C.F.R. § 1003.19(i)(2), does not affect the
outcome here either. The court acknowledges that in the process of conducting a due process
analysis in Merchan-Pacheo, this court discussed issues specific to the automatic stay at some
length. See, e.g., 2026 WL 88526 at *13-16. Nonetheless, the court finds the majority of the
2 The court notes that although Respondents cite Depelian v. Baltazar, No. 25-cv-3765-SKC-
TPO (D. Colo. Jan. 20, 2026), ECF No. 18, for the proposition that “after his parole was
terminated, Petitioner returned to his status of ‘applicant for admission’ or ‘arriving alien’
pursuant to statute” (cleaned up), this citation is, at best, misleading under these circumstances;
the petitioner in Depelian was re-detained before his parole was terminated, so there was no
intervening period between his re-detention and termination of his parole.
Case No. 1:26-cv-00811-SBP Document 12 filed 04/02/26 USDC Colorado pg 4
of 6

5
analysis provided therein to be highly applicable to the present circumstances as well. And
regardless, this court previously rendered a highly similar analysis in a context in which the
automatic stay was not implicated and nonetheless reached a substantively identical conclusion.
See Ekenge v. Baltazar, No. 26-cv-00630-SBP, 2026 WL 617341, at *4 (D. Colo. Mar. 5, 2026)
(analyzing the three-factor test set forth in Mathews v Eldridge, 424 U.S. 319, 335 (1976), where
a petitioner had been re-detained without a hearing after previously being paroled and
concluding that the Mathews factors weighed “heavily” in favor of the petitioner’s release). The
court finds that the analysis of the Mathews factors set forth in Ekenge applies fully to the
present circumstances, and accordingly, refers the parties to the analysis set forth therein while
concluding that the Mathews factors weigh in favor of Petitioner’s release here as well.
As a result, the court concludes that, as Petitioner argues, 8 U.S.C. § 1226(a) applies to
his detention rather than 8 U.S.C. § 1225, and that accordingly, Petitioner is subject to
discretionary rather than mandatory detention and, for the reasons stated in Merchan-Pacheo and
the other cases referenced above, is entitled to a bond hearing. As a result, Respondents’
arguments, which each rely on the premise that mandatory detention pursuant to 1225 applies to
Petitioner rather than 1226, are unavailing.
Finally, Petitioner argues that Respondents should have to carry their burden at the bond
hearing by “clear and convincing” evidence. Noting that Respondents offer no opposition to this
assertion, the court “finds broad support for this proposition across courts nationwide and, in the
absence of any opposition from Respondents, agrees with Petitioner.” Ekenge, 2026 WL 617341
at *8; see also, e.g., Trejo v. Warden of ERO El Paso E. Montana, 807 F. Supp. 3d 697, 712
(W.D. Tex. 2025) (recognizing that “[t]he weight of authority also holds that when ordering a
bond hearing as a habeas remedy, the burden of proof should be on the Government” to prove
their case by clear and convincing evidence); Velasco Lopez v. Decker, 978 F.3d 842, 856 n.14
(2d Cir. 2020) (collecting cases). Accordingly, at the bond hearing, Respondents must carry their
burden by clear and convincing evidence.
Since the court finds that it is able to grant the relief Petitioner requests on the above
grounds, the court need not reach any other arguments for relief raised by Petitioner.
Accordingly, Petitioner’s Petition is granted.
Case No. 1:26-cv-00811-SBP Document 12 filed 04/02/26 USDC Colorado pg 5
of 6

6
III. 	CONCLUSION
For the foregoing reasons, the court respectfully GRANTS Petitioner’s Petition for Writ
of Habeas Corpus, ECF No. 1, and orders Respondents to provide Petitioner with an
individualized bond hearing pursuant to Section 1226(a) no later than seven days from the date
of this Order. Respondents are also ordered to file a status report in order to certify compliance
within ten days of the issuance of this Order. If Petitioner has not been provided with such a
bond hearing at the time this status report is due, he shall be immediately released.
DATED: April 2, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
Case No. 1:26-cv-00811-SBP Document 12 filed 04/02/26 USDC Colorado pg 6
of 6