Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VOLODYMYR KHUDYI, )
)
Petitioner, )
)
v. ) Case No. 26-3030-JWL
)
C. CARTER, Warden, FCI-Leavenworth; )
TODD LYONS, Acting Director, ICE; )
KRISTI NOEM, Secretary, )
Department of Homeland Security; and )
PAM BONDI, Attorney General, )
)
Respondents. )
)
_______________________________________)
MEMORANDUM AND ORDER
Petitioner, through counsel, filed a petition for habeas corpus under 28 U.S.C. §
2241, by which he challenges his detention by immigration officials without a bond
hearing. For the reasons set forth below, the Court grants the petition. Respondents are
ordered either to release petitioner or to ensure that petitioner receives a bond hearing
pursuant to 8 U.S.C. § 1226(a) on or before May 4, 2026, and they are further ordered to
provide notice to this Court when such relief has been given.
In 2022, petitioner, a native of Ukraine, was inspected and was paroled into the
United States. On August 15, 2025, petitioner was taken into custody by immigration
officials. In November 2025, an immigration judge denied petitioner’s application for
asylum and ordered his removal; that order is not yet final, however, as petitioner’s appeal
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of that order to the Board of Immigration Appeals (BIA) remains pending. Petitioner
remains in custody in this judicial district. On February 17, 2026, petitioner filed the
instant habeas action; on March 18, 2026, respondents filed an answer to the petition; and
on April 15, 2026, petitioner filed a reply brief, making the matter ripe for ruling.
To obtain habeas corpus relief, petitioner must demonstrate that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. §
2241(c)(3). This Court has habeas corpus jurisdiction to consider the statutory and
constitutional grounds for immigration detention that are unrelated to a final order of
removal. See Demore v. Kim, 538 U.S. 510, 517–18 (2003). Respondents have not argued
that this Court lacks jurisdiction to consider petitioner’s claim.
Petitioner was not recently detained as an alien newly arriving in the United States;
rather, he had been present in the United States for a period of years when he was detained.
Petitioner argues that, for that reason, his detention does not fall within the scope of 8
U.S.C. § 1225(b)(2)(A), which mandates detention pending removal proceedings, and
under which the Government purports to detain petitioner; but instead is governed by 8
U.S.C. § 1226(a), which provides for discretionary release on bond. Petitioner thus claims
that his detention without any consideration of his release on bond violates these statutes.1
In a recent case involving the same issue, this Court rejected the Government’s
interpretation of these statutes in favor of the interpretation adopted by the overwhelming
1 Petitioner also claims that his detention without consideration of release on bond
violates due process. In light of the Court’s conclusion that petitioner is entitled to bond
consideration under the statues, it need not reach that issue.
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majority of courts that have addressed the issue, and the Court ordered relief in the form of
a bond hearing under Section 1226(a). See Galdamez Orellana v. Welsh, 2026 WL 710121
(D. Kan. Mar. 13, 2026) (Lungstrum, J.). The Court specifically adopted the reasoning of
the dissenting judge in a case decided by the Fifth Circuit, summarizing its decision as
follows:
In summary, the Court agrees with the Fifth Circuit dissent that the
text of Section 1225(b)(2)(A) imposes a separate requirement that the alien
be “seeking admission” that is not satisfied in the case of an already-present
alien by the mere fact that the alien is an “applicant for admission” as
statutorily defined; and that such interpretation, consistent with the history
and structure of the statutes, most reasonably reconciles the statutes and
avoids unnecessary redundancies and superfluities. That interpretation is
supported by the legislative history of the statutes, with its specific reference
to preserving the historic distinction between arriving and present aliens with
respect to detention; by the Supreme Court’s seeming understanding of the
statutes as expressed in the Jennings opinion; by the Government’s
contemporaneous understanding of the amended statutes and their practice
consistent with that understanding over the following decades; and
Congress’s implicit endorsement of that understanding through its failure to
clarify the law to the contrary in those decades.
See id. at *3 (citing Buenrostro-Mendez v. Bondi, 166 F.4th 494, 508-21 (5th Cir. 2026)
(Douglas, J., dissenting)). The Court agrees with petitioner that the relevant facts of the
present case are not materially distinguishable from those in Galdamez Orellana. Thus,
for the same reasons set forth in that opinion, see id. at *1-3, the Court concludes in this
case that the Government may not detain petitioner under Section 1225(b)(2)(A), and that
it may therefore detain petitioner pending a final removal decision only under Section
1226(a), which allows for release on bond; and that the Government has therefore violated
these statutes by refusing to allow for consideration of petitioner’s release on bond under
Section 1226(a).
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Respondents argue that the Court should not follow its prior opinion for two reasons.
First, respondents argue that, even if this Court has rejected the interpretation (urged by the
Government in cases involving the bond issue under Sections 1225(b)(2)(A) and 1226(a))
that an “applicant for admission” under Section 1225 is necessarily “seeking admission”
for the purpose of Section 1225(b)(2)(A)’s mandatory detention provision, petitioner does
satisfy a separate requirement that he be “seeking admission” because he is presently
pursuing an application for asylum (the denial of which is presently on appeal to the BIA).
The Court rejects such an interpretation of Section 1225(b)(2)(A). In the reasoning adopted
by this Court, as summarized above, the Fifth Circuit dissent interpreted that statute’s
“seeking admission” language to require actively seeking to enter the United States,
meaning that the statute would not cover aliens already present in this country. See
Buenrostro-Mendez, 166 F.4th at 510 (Douglas, J., dissenting). As previously noted by the
Court, that interpretation accords with the text and structure and history of the statutes, the
seeming understanding of the Supreme Court, and the Government’s contemporaneous
understanding of the statutes and its practice for many years following. See Galdamez
Orellana, 2026 WL 710121, *3. Thus, because petitioner was not detained upon entry into
the United States but was instead detained after residing in this country for a period of
years, he is not “seeking admission” and may not be detained under Section 1225(b)(2)(A).
This interpretation is consistent with the statutory definition of “admission” as “lawful
entry” into the United States, see 8 U.S.C. § 1101(a)(13)(A), as an alien already present in
the United States (such as petitioner) is not seeking “entry” into this country under the
ordinary meaning of that word. See Martinez v. Mukasey, 519 F.3d 532, 544 (5th Cir.
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2008) (“Under this statutory definition, ‘admission’ is the lawful entry of an alien after
inspection, something quite different, obviously, from post-entry adjustment of status . . .
.” (emphasis in original)), quoted in Buenrostro-Mendez, 166 F.4th at 511 (Douglas, J.,
dissenting).
Second, respondents argue that because petitioner was initially stopped upon arrival
and then paroled into the United States, he remains an “arriving alien” under governing
regulations, see 8 C.F.R. §§ 1.2, 1001.1(q); and they further argue that this Court has
recognized that “arriving aliens” are treated as if detained at the border. Respondents have
not cited any authority suggesting that an “arriving alien” who has been paroled into the
United States should be deemed to be “seeking admission” for the purpose of applying
Section 1225(b)(2)(A), however. Moreover, in this Court’s opinion cited by respondents,
the Court was merely quoting from another case in addressing a due process claim. See de
la Rosa Espinoza v. Guadian, 2020 WL 3452967, at *6-8 (D. Kan. June 24, 2020)
(Lungstrum, J.). The Court did not address in that case whether a parolee into the United
States should be deemed to be “seeking admission” pursuant to Section 1225(b)(2)(A).
Nor has the Court addressed that issue in any prior case. Respondents have not shown that
the present case may be distinguished from Galdamez Orellana, which was decided solely
under the statutes, in any material way; the Court therefore applies its reasoning from that
case in the present action.
Petitioner seeks his release in the petition, but he has not offered any reason why
requiring a bond hearing would not provide sufficient relief; nor has he addressed this
Court’s discussion of the issue in Galdamez Orellana, other than to argue that the Court
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should follow its opinion in that case. For the reasons stated in that case, see Galdamez
Orellana, 2026 WL 710121, at *3-4, the Court concludes that the most appropriate remedy
for this violation is to require that petitioner be granted a bond hearing as if detained under
Section 1226(a). Accordingly, the Court orders respondents either to release petitioner or
to ensure that petitioner receives a bond hearing pursuant to 8 U.S.C. § 1226(a), at which
petitioner’s suitability for release on bond is considered on its merits, on or before May 4,
2026.2
IT IS THEREFORE ORDERED BY THE COURT THAT the petition for habeas
corpus pursuant to 28 U.S.C. § 2241 is hereby granted. Respondents are ordered either to
release petitioner or to ensure that petitioner receives a bond hearing pursuant to 8 U.S.C.
§ 1226(a) on or before May 4, 2026, and they are further ordered to provide notice to this
Court when such relief has been given.
IT IS SO ORDERED.
Dated this 23rd day of April, 2026, in Kansas City, Kansas.
/s/ John W. Lungstrum
Hon. John W. Lungstrum
United States District Judge
2 Respondents have not argued or provided evidence that a hearing could not be
conducted within this timeframe. Nor have respondents argued that an immigration judge
could not conduct a bond hearing for petitioner on the merits. Although this Court lacks
jurisdiction to review an immigration judge’s denial of release on bond, see Chen v.
Dorneker, 2021 WL 5769354, at *2 (D. Kan. Dec. 6, 2021) (Lungstrum, J.) (citing 8 U.S.C.
§ 1226(e)), it would not be precluded from reviewing an immigration judge’s refusal to
conduct a hearing based the Yajure Hurtado decision by the Board of Immigration Appeals.
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