PEREZ YEPEZ v. STAMPER et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVD JOSE PEREZ YEPEZ, 	)
)
Petitioner, 	)
)
v. 	) 	1:26-cv-00113-JAW
)
DERRICK STAMPER, in his 	)
official capacity as Chief Patrol 	)
Agent of Houlton Sector, U.S. Border 	)
Patrol, et al., 	)
)
Respondents. 	)
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
Finding the government’s detention of a noncitizen without a hearing violates
due process, the court grants the noncitizen’s petition for writ of habeas corpus and
orders 	the 	government 	to 	provide 	the 	noncitizen 	a 	bond 	hearing 	before 	an
Immigration Judge within fourteen days of this order.
I. 	BACKGROUND1
David Jose Perez Yepez, a resident of Skowhegan, Maine, is a Venezuelan
citizen who fled to the United States in June 2024 after experiencing violence and
political persecution in his home country. 	Verified Pet. for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 ¶¶ 1, 14-15, 23, 26 (Pet.) (ECF No. 11). 	On June 10,
2024, 	Mr. 	Yepez 	attended a 	U.S. 	Customs 	and Border Protection 	(CBP) 	One
appointment and stated his intention to seek asylum, upon which CBP granted him
1 	For the purposes of Mr. Yepez’s petition and consistent with the parties’ stipulation, the Court
reviews the relevant facts as pleaded in Mr. Yepez’s March 6, 2026 verified petition and accompanying
attachments. Min. Entry (ECF No. 10).
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parole pursuant to 8 U.S.C. § 1182(d)(5)(A). 	Id. ¶¶ 16-18, 21; Attach. 1, Appl. For
Asylum and for Withholding of Removal (Asylum Appl.). 	That same day, CBP
initiated removal proceedings against Mr. Yepez and issued him a notice to appear,
instructing him to appear before an Immigration Judge on October 14, 2025 in
Orlando, Florida. 	Id. ¶ 19-20. 	Mr. Yepez’s October 14, 2025 hearing in Orlando,
Florida was postponed, and he is currently scheduled for a hearing on June 1, 2027.
Id. ¶ 25-26. 	Mr. Yepez maintains his parole set no conditions requiring assurances
he would appear at his hearings. 	Id. ¶ 22. 	Upon entry into the United States, Mr.
Yepez moved to Tampa, Florida before later relocating to Skowhegan, Maine where
his brother-in-law lives. 	Id. ¶ 23. 	On February 10, 2025, Mr. Yepez filed an
application for asylum due to his fear of kidnapping and violence from the Venezuelan
government. Id. ¶ 24; Asylum Appl. On February 25, 2026, CBP agents arrested Mr.
Yepez on his way to work. 	Id. ¶ 29. 	He remains detained in CBP custody at Fort
Fairfield Station in Fort Fairfield, Maine. Id. ¶ 34; Min. Entry (ECF No. 10).
On March 4, 2026, Mr. Yepez filed an unverified petition for writ of habeas
corpus and an emergency motion seeking a temporary restraining order (TRO)
against his removal from the District of Maine and to ensure his access to counsel
pending his habeas proceedings. Unverified Pet. for Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 1); Emer. Mot. for TRO to Stop Transfer Without Prior
Consent (ECF No. 3) (Mot. for TRO). That same day, the Court issued a seventy-two-
hour emergency order, enjoining Respondents from transferring Mr. Yepez outside
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the District of Maine. Emer. Order Concerning Stay or Transfer of Removal (ECF No.
4) (Emer. Order).
At the teleconference of counsel on March 6, 2026, Respondents confirmed Mr.
Yepez was in their custody in Fort Fairfield, Maine when Mr. Yepez filed his petition,
clarifying there were no issues of personal jurisdiction or venue for the Court to
consider. 	Min. Entry. 	The parties also agreed that, for the purposes of this order,
there are no factual disputes for the Court to resolve in this matter and stipulated to
the facts in Mr. Yepez’s petition and its accompanying attachments, provided Mr.
Yepez refiled a verified version of his petition. 	The parties also agreed to forgo an
evidentiary hearing and oral argument, allowing the Court to resolve this matter on
the parties’ briefing only. 	Immediately after the teleconference, Mr. Yepez filed a
verified version of his petition for writ of habeas corpus. See Pet.
That same day, the Court ordered Respondents to show cause why Mr. Yepez’s
petition should not be granted, O.S.C. (ECF No. 12), and issued a TRO enjoining
Respondents from removing Mr. Yepez from the District of Maine until the Court
issues 	its 	ruling 	on 	the 	pending 	order 	to 	show 	cause 	and 	further 	ordering
Respondents to provide Mr. Yepez reasonable access to counsel during his period of
detention. Order on Mot. for TRO (ECF No. 13) (TRO).
On March 9, 2026, Respondents filed their response to the order to show cause,
opposing Mr. Yepez’s petition. Return and Resp. to O.S.C. in Opp’n to Pet. for Writ of
Habeas Corpus (ECF No. 15) (Resp’ts’ Opp’n). 	On March 11, 2026, Mr. Yepez filed
his reply. Reply to Gov’t’s Return and Resp. to O.S.C. (ECF No. 16) (Pet’r’s Reply).
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II. 	THE PARTIES’ POSITIONS
Mr. Yepez alleges his detention violates the Immigration Nationality Act (INA)
and his due process rights under the Fifth Amendment of the United States
Constitution. 	Id. ¶¶ 39-77. 	Mr. Yepez maintains he is illegally categorized as a
mandatory detainee pursuant to 8 U.S.C. § 1225(b), rather than a discretionary
detainee under § 1226(a) who is entitled to a bond hearing before an Immigration
Judge. 	Id. ¶¶ 39-51. 	He argues Respondents’ failure to conduct an initial custody
determination and issue a warrant within forty-eight hours of his detention violates
the INA and associated regulations, id. ¶¶ 39-42, and that his denial of a bond
hearing violates his Fifth Amendment due process rights. 	Id. ¶¶ 52-77. 	He seeks,
among other remedies, a writ of habeas corpus ordering his immediate release, or in
the alternative, an order requiring an Immigration Judge to provide him a bond
hearing as soon as possible. Id. 15-16.
In their opposition, Respondents maintain Mr. Yepez is properly categorized
as a mandatory detainee under § 1225(b)(2), as dictated by controlling agency
precedent. 	Resp’ts’ Opp’n at 1-2. 	However, Respondents acknowledge that “the
caselaw 	from 	this 	Court 	[has] 	uniformly 	sustain[ed] 	challenges 	to 	DHS’s
interpretation of § 1225” and they concede Mr. Yepez’s petition is not substantially
distinguishable from that line of caselaw. Id.
In his reply, Mr. Yepez argues that Respondents have failed to show cause why
his petition should not be granted. Pet’r’s Reply. Consistent with the body of caselaw
within this District, combined with Respondents’ concession that Mr. Yepez’s petition
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is not substantially distinguishable from that line of cases and their failure to produce
the warrant authorizing his arrest, Mr. Yepez urges the Court to order him released.
Id. at 3-13. Should the Court not order his immediate release, he maintains, in the
alternative, he is still entitled to a bond hearing before an Immigration Judge. Id. at
13-14.
III. 	DISCUSSION
A. 	Jurisdiction
As an initial matter, the Court concludes that it retains jurisdiction over Mr.
Yepez’s habeas petition. “District courts are limited to granting habeas relief ‘within
their respective jurisdictions,’” Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (quoting
28 U.S.C. § 2241(a)), and “with respect to habeas petitions ‘designed to relieve an
individual from oppressive confinement,’ the traditional rule has always been that
the Great Writ is ‘issuable only in the district of confinement.’” Id. (quoting Carbo v.
United 	States, 	364 	U.S. 	611, 	618 	(1961)). 	Furthermore, 	under 	habeas 	law,
jurisdiction in a particular district is established when a petitioner is physically
present in the district at the same moment a petition is filed there on his behalf.
Rumsfeld, 542 U.S. at 435 (2004); United States v. Hayman, 342 U.S. 205, 213 (1952);
Ahrens v. Clark, 335 U.S. 188, 190 (1948). Here, the Court retains jurisdiction over
this matter, because Mr. Yepez filed his habeas petition when he was in custody in
the District of Maine.
B. 	The Merits
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Consistent with the mass of recent caselaw addressing this question on similar
facts, the Court concludes that § 1225(b)(2) is inapplicable to Mr. Yepez, and he is
therefore subject to discretionary detention under § 1226(a) and entitled to an initial
custody determination and, if denied release, a bond hearing before an Immigration
Judge to review that initial custody determination.
1. 	Statutory Framework
a. 	Mandatory Detention under Section 1225(b)(2)
Section 1225 applies to “applicants for admission,” defined as a noncitizen
“present in the United States who has not been admitted” or “who arrives in the
United States.” 8 U.S.C. § 1225(a)(1). Applicants for admission “fall into one of two
categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).” Jennings
v. 	Rodriguez, 	583 	U.S. 	281, 	287 	(2018) (plurality 	opinion). 	Relevant 	here 	is
§ 1225(b)(2).2 	Under § 1225(b)(2) “in the case of an alien who is an applicant for
admission, if the examining immigration officer determines that [the] alien seeking
admission is not clearly and beyond a doubt entitled to be admitted, the alien shall
be detained” for the duration of removal proceedings. 8 U.S.C. § 1225(b)(2)(A). Thus,
§ 1225(b)(2) creates a mandatory detention scheme. 	See Jennings, 583 U.S. at 297
(2018) (“[N]either § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond
2 	Section 1225(b)(1) subjects arriving noncitizens and “certain other” noncitizens “initially
determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation” to
expediated removal proceedings. 	Jennings, 583 U.S. at 287; 8 U.S.C. § 1225(b)(1)(A)(i), (iii).
Noncitizens subject to expedited removal can avoid removal with successful asylum claims. However,
if a noncitizen detained under § 1225 does not indicate an intent to apply for asylum, express a fear of
persecution, or is “found not to have such a fear,” he is detained until removed. Id. §§ 1225(b)(1)(A)(i),
(B)(iii)(IV). Mr. Yepez is an asylum applicant, and Respondents assert only that Mr. Yepez is subject
to mandatory detention under § 1225(b)(2), not § 1225(b)(1).
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hearings”). 	As other courts have recognized, this language requires that “several
conditions must be met” to impose mandatory detention under § 1225(b)(2). 	Lopez
Benitez v. Francis, 795 F. Supp. 3d 475, 487 (S.D.N.Y. 2025). 	Specifically, the
noncitizen must be: “(1) an applicant for admission; (2) seeking admission; and (3) not
clearly and beyond a doubt entitled to be admitted.” Id.; Martinez v. Hyde, 792 F.
Supp. 3d 211, 214 (D. Mass. 2025).
b. 	Discretionary Detention under Section 1226(a)
By contrast, § 1226 governs the “usual removal process” with an evidentiary
hearing before an immigration judge. Dept. of Homeland Sec. v. Thuraissigiam, 591
U.S. 103, 108 (2020). 	Section 1226(a) gives immigration authorities power to issue
an administrative warrant and either continue detention for removal proceedings or
release the noncitizen on “bond . . . or conditional parole.” 	8 U.S.C. § 1226(a)(1)-(2).
Section 	1226(a) 	thus 	“establishes 	a 	discretionary 	detention 	framework 	for
noncitizens.” 	Gomes v. Hyde, 804 F. Supp. 3d 265, 268 (D. Mass. 2025). 	However,
§ 1226’s discretionary detention regime has one exception: immigration authorities
“shall take into custody” any noncitizen involved in certain enumerated criminal
activities. 8 U.S.C. § 1226(c)(1). None of those criminal activities is at issue here.
Once 	arrested 	under 	§ 1226(a), 	immigration 	authorities 	make 	an
individualized initial custody determination after which they have discretion to
release a noncitizen if the noncitizen can “demonstrate to the satisfaction of the officer
that such release would not pose a danger to property or persons, and that the alien
is likely to appear for any future proceeding.” 	8 C.F.R. § 236.1(c)(8) (2025). 	If the
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immigration officer opts for continued detention, the noncitizen may seek review of
that decision at a bond hearing before an immigration judge. 	8 C.F.R. § 236.1(d)(1)
(2025). At a bond hearing, the government bears the burden of proving “by clear and
convincing evidence that [the noncitizen] poses a danger to the community” or “by
preponderance of the evidence that [the noncitizen] poses a flight risk.” Hernandez-
Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021). 	An immigration judge’s decision to
continue detaining a noncitizen may be appealed to the BIA. 8 C.F.R. § 236.1(d)(3).
In Jennings, the Supreme Court provided guidance on the difference between
the statutes, explaining that § 1225(b)(2) “authorizes the Government to detain
certain aliens seeking admission into the country under,” while § 1226(a) “authorizes
the Government to detain certain aliens already in the country pending the outcome
of removal proceedings.” Jennings, 583 U.S. at 289 (emphasis supplied); see also id.
at 288 (explaining that, “once inside the United States” a noncitizen “present in the
country may still be removed” under “Section 1226”) (emphasis supplied)).
c. 	Parole Pursuant to Section 1182(d)(5)(A)
“Parole 	pursuant 	to 	Section 	1182(d)(5)(A) 	serves 	a 	unique 	function.”
Rodriguez-Acurio v. Almodovar, No. 2:25-cv-6065 (NJC), 2025 U.S. Dist. LEXIS
233224, at *34 (E.D.N.Y. Nov. 28, 2025). 	Although § 1182(d)(5)(A) does not grant
admission to the United States, it allows the Secretary of Homeland Security to
permit certain noncitizens “on a case-by-case basis” to enter or remain in this country
only for “urgent humanitarian reasons or significant public benefit.” 	8 U.S.C.
§ 1182(d)(5)(A); 	Jennings, 	583 	U.S. 	at 	288. 	For 	example, 	§ 1182(d)(5)(A) 	is
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simultaneously the only method of parole for those subject to mandatory detention
under § 1225(b), but it also covers asylum applicants who obtain advance parole to
travel into and out of the United States. Caiza v. Scott, No. 1:25-cv-00500-JAW, 2025
U.S. Dist. LEXIS 211907, at *16 (D. Me. Oct. 28, 2025) (citing 8 C.F.R. § 212.5(f)).
However, parole is “not [to] be regarded as an admission of the alien[,] and
when the purposes of such parole . . . have been served,” § 1182(d)(5)(A) mandates
that “the alien shall forthwith return or be returned to the custody from which he
was paroled.” Id. Thereafter the parolee’s case “shall continue to be dealt with in the
same manner as that of any other applicant for admission to the United States.” Id.
In other words, parole under § 1182(d)(5)(A) “employs a legal fiction whereby non-
citizens are physically permitted to enter the country but are nonetheless ‘treated,’
for legal purposes, ‘as if stopped at the border.’” 	Martinez, 792 F. Supp. 3d at 216
(quoting Thuraissigiam, 591 U.S. at 139).
2. 	Applicable Statutory Basis for Detention
The parties agree Mr. Yepez was paroled into the United States pursuant to
§ 1182(d)(5)(A), and neither party disputes that Mr. Yepez is “an applicant for
admission” or that he is “not clearly and beyond a doubt entitled to be admitted.”
Instead, the question here, as with so many immigration habeas cases to reach the
district courts in recent months, is whether Mr. Yepez is “seeking admission” such
that he is subject to mandatory detention under Section 1225(b)(2)(A).
As Respondents concede, recent decisions from district courts within the First
Circuit and elsewhere have consistently rejected Respondents’ interpretation of
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§ 1225(b)(2)’s mandatory detention scheme under similar factual circumstances. See
Mercado v. Francis, No.25-cv-6582 (LAK), 2025 U.S. Dist. LEXIS 232876, at *9-10,
n.22 (S.D.N.Y. Nov. 26, 2025) (explaining that similarly situated petitioners “have
prevailed, either on a preliminary or final basis, in 350 [out of 362] cases decided by
over 160 different judges sitting in about fifty different courts spread across the
United States”) (collecting cases); Lopez v. Trump, No. 2:25-cv-863, 2025 U.S. Dist.
LEXIS 233128, at *6 (D. Vt. Nov. 17, 2025) (rejecting DHS’s application of § 1225(b)
mandatory detention to re-detain noncitizen originally released under § 1226(a));
Caiza, 2025 U.S. Dist. LEXIS 195270, at *7-8 (collecting cases).3
The phrase “‘seeking admission’ is undefined in the statute but necessarily
implies some sort of present-tense action.” Martinez, 792 F. Supp. 3d at 218. As other
courts to reach this issue have explained, ‘seeking admission’ “contemplates that
those arriving, i.e. those who appear at the border or a port of entry, [who] must be
inspected.” Qasemi v. Francis, No. 25-cv-10029 (LJL), 2025 U.S. Dist. LEXIS 261199,
at *18 (S.D.N.Y. Dec. 17, 2025); see also Wazilada v. Trump, No. 2:25-cv-00768, 2025
2025 U.S. Dist. LEXIS 256630, at *11 (D. Vt. Dec. 11, 2025) (same); Rodriguez-Acurio,
3 	Most often, though not applicable here, this Court and other district courts have held that a
noncitizen continuously residing in the United States for more than two years cannot be considered
actively seeking admission and are therefore not subject to mandatory detention under § 1225(b)(2)
See, e.g., Chogllo Chafla v. Scott, 804 F. Supp. 3d 247 (D. Me. 2025). Rather, a noncitizen “already in
the country pending the outcome of removal proceedings” is subject to discretionary detention under
§ 1226(a), Jennings, 583 U.S. at 289, and is therefore entitled to a bond hearing before an Immigration
Judge. 	See Hernandez-Lara, 10 F.4th at 41. 	This limitation comes from language in 8 U.S.C. §
1225(b)(1), which courts across the country have consistently read to extend to § 1225(b)(2), too. See
Moraes v. Joyce, No. 2:25-cv-00583-JAW, U.S. Dist. LEXIS 234386, at *9-10 (D. Me. Dec. 2, 2025). Mr.
Yepez entered the United States in June 2024 on parole, he therefore has not resided continuously
inside the country for more than two years.
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2025 U.S. Dist. LEXIS 233224, at *64-71 (same); Coalition for Humane Immigrant
Rts. v. Noem, 805 F. Supp. 3d 48, 81-94 (D.D.C. 2025) (same).
In the context of § 1182 parole, the D.C. District Court has explained that when
the statute is “[r]ead according to its plain meaning, a noncitizen ‘arriving’ in the
United States would be one who is in the process of reaching his or her destination
(the United States) and making an appearance here,” but “[i]t would not naturally be
read to refer to someone who previously reached the United States via a port of entry,
underwent inspection at that port of entry, and then was paroled into the United
States.” 	Coalition for Humane Immigrant Rts., 805 F. Supp. 3d at 90-91; see also 8
U.S.C. § 1225(b)(2) (providing for “inspection of other aliens”) (emphasis supplied).
Although the expiration of § 1182 parole returns the parolee “to the custody
from which he was paroled,” 8 U.S.C. § 1182(d)(5)(A), district courts across the
country have consistently held that the expiration of § 1182 parole does not require
treating the noncitizen as if they had never been paroled in the first place. 	See
Montiel v. Raycraft, No. 1:25-cv-1610, 2026 U.S. Dist. LEXIS 1726, at *8-9 (W.D.
Mich. Jan. 6, 2026); see also Qasemi, 2025 U.S. Dist. LEXIS 261199, at *30-35
(rejecting the argument that § 1182(d)(5)(A)’s prescription that a noncitizen be
returned to the “custody” from which they were paroled requires a return to the
detention authority to which they would have been subject prior to any grant of
parole); Rodriguez v. Rokosky, No. 25-17419 (CPO), 2025 U.S. Dist. LEXIS 250239,
at *4-6 (D.N.J. Dec. 3, 2025) (same); see also Walizada v. Trump, No. 2:25-cv-00768,
2025 U.S. Dist. LEXIS 256630, at *38-39 (D. Vt. Dec. 11, 2025) (calling absurd the
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idea that the expiry of petitioner’s parole now placed him in the “perpetual status” of
an “arriving alien”); Caiza, 2025 U.S. Dist. LEXIS 211907, at *16 (“However, it does
not necessarily follow that all those paroled under § 1182(d)(5)(A) were detained
under § 1225 in the first instance”); Aviles-Mena v. Kaiser, No. 25-cv-06783-RFL,
2025 U.S. Dist. LEXIS 173976, at *10 (N.D. Cal. Sep. 5, 2025) (“termination of parole
does not generally require treating noncitizens as if they had never been paroled in
the first place”).
Instead, “[s]ection 1182(d)(5)(a) suggests that rather than reverting to any
prior status, a noncitizen whose parole has expired is treated like the vast majority
of undocumented immigrants currently living in this country who are not subjected
to expedited removal” and mandatory detention under § 1225(b). Qasemi, 2025 U.S.
Dist. LEXIS 261199, at *34 (internal quotations and citations omitted); see also
Rodriguez-Acurio, 2025 U.S. Dist. LEXIS 233224, at *52-58 (same); Vasquez-Rosario
v. Noem, No. 25-cv-7427, 2026 U.S. Dist. LEXIS 13849, at *20-21 (E.D. Pa. Jan. 26,
2026) (same); Salgado Bustos v. Raycraft, No. 25-13202, 2025 U.S. Dist. LEXIS
213487, at *14-19 (E.D. Mich. Oct. 29, 2025) (same); Coalition for Humane Immigrant
Rts, 805 F.Supp.3d at 81-94 (same); Harmanpreet Singh v. Albarran, No. 1:25-cv-
01821, 2025 U.S. Dist. LEXIS 260000, at *4-7 (E.D. Cal. Dec. 16, 2025) (same);
Walizada, 2025 U.S. Dist. LEXIS 256630, at *38-39 (same); Rokosky, 2025 U.S. Dist.
LEXIS 250239, at *4-6 (same); E.V. v. Raycraft, No. 4:25-cv-2069, 2025 U.S. Dist.
LEXIS 204373, at *20-21 (N.D. Ohio Oct. 16, 2025) (same); Aviles-Mena, 2025 U.S.
Dist. LEXIS 173976, at *10 (same).
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This logic applies neatly to the facts in Mr. Yepez’s case, who, having
previously been paroled by CBP, is already present in the United States with a
pending asylum application. 	Pet. ¶¶ 1, 18, 24-26; Pet’r’s Reply at 3. 	The expiration
of his parole does not renew the requirement to return to a port of entry and undergo
a new inspection or screening. See Walizada, 2025 U.S. Dist. LEXIS 256630, at *26-
28; Qasemi, 2025 U.S. Dist. LEXIS 261199, at *18-19, 30-35 (same). 	Neither do
Respondents argue that Mr. Yepez is required to undergo a new “credible fear”
interview upon the termination of his parole. Qasemi, 2025 U.S. Dist. LEXIS 261199,
at *18-19; see also Caiza, 2025 U.S. Dist. LEXIS 211907, at *14-19 (looking to the
circumstances of the initial grant of parole to determine whether § 1226(a) and
1225(b) applied to an expired § 1182 parolee).
Furthermore, Mr. Yepez pursued a lawful pathway to asylum. He applied for
and attended his CBP One application appointment before entering the United
States, upon which CBP granted him parole. 	Pet. ¶¶ 18, 24-26; Asylum Appl. 	He
lodged his asylum application before his parole expired. Pet. ¶ 24; Asylum Appl. He
also maintains that his parole set no conditions requiring assurances he would appear
at hearings and Respondents do not dispute or argue any violations of his parole
conditions, and, although his parole has expired, Mr. Yepez continues to pursue his
asylum application. 	Pet. ¶¶ 18-28. 	Furthermore, the facts of Mr. Yepez’s case are
readily distinguishable from Caiza, in which this Court held that the “circumstances
of [an expired § 1182 parolee’s] initial encounters with immigration authorities”
indicated he was subject to mandatory detention under § 1225(b)(2), in part because
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the government paroled him due to detention capacity, rather than to parole him in
advance of filing an asylum application. Caiza, 2025 U.S. Dist. LEXIS 211907, at *15
(“[P]arole under § 1182 does not by itself demonstrate that he was initially detained
under § 1225(b)(2)”).
Therefore, any determination as to Mr. Yepez’s detention must be conducted
under the discretionary detention framework of Section 1226(a), which “governs the
process of arresting and detaining noncitizens who have already entered the United
States pending their removal,” including expired parolees within the United States
pending the adjudication of their asylum claim. 	Tumba v. Francis, No. 25-cv-8110
(LJL), 2025 U.S. Dist. LEXIS 219101, at *7 (S.D.N.Y. Nov. 4, 2025) (quoting Jennings,
583 U.S. at 288).
3. 	Detention without a Warrant
Mr. 	Yepez’s 	petition 	also 	challenges 	his 	detention 	on 	the 	grounds 	that
Respondents’ failure to conduct an initial custody determination and issue a warrant
authorizing his arrest violates the INA. Pet. ¶¶ 39-42. He maintains that his ongoing
detention is unlawful and, because Respondents never performed an initial custody
determination or ever produced a warrant authorizing his ongoing detention, there
is no custody determination for an Immigration Judge to review at a subsequent bond
hearing and immediate release is therefore warranted. Pet’r’s Reply at 4. Mr. Yepez
argues that Respondents cannot remedy this violation by retroactively issuing a
custody determination more than two weeks after his unlawful detention. Id. at 7-8.
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Discretionary detention under § 1226(a) requires a warrant. See Jennings, 583
U.S. at 302; see also Chogllo Chafla v. Scott, 804 F. Supp. 3d 247, 256-61 (D. Me.
2025) (“[A]bsent a warrant a noncitizen may not be . . . detained under [§] 1226(a)”).
Although the INA provides limited exceptions for warrantless interrogations and
arrests, in order to continue to detain a noncitizen under § 1226, federal law,
applicable 	agency 	regulation, 	and 	caselaw 	from 	this 	District 	Court 	require
immigration authorities to conduct an initial custody determination and obtain a
post-hoc warrant within forty-eight hours of initially detaining the noncitizen. 	See,
Makuiza v. Wesling, No. 2:26-cv-00044-LEW, 2026 U.S. Dist. LEXIS 18216, at *3-12
(citing 8 U.S.C. §§ 1226(a), 1357(a); 8 C.F.R. §§ 236.1(c)(8), 287.3(d)). In other words,
“when arrests are made without a warrant, a custody determination must ordinarily
be made within 48 hours, accompanied by a notice to appear, and in the case of
continued custody a warrant will be issued post hoc.” Id. at *5-6, *7-13 (citing 8 C.F.R.
§ 287.3(d)) (ordering § 1226(a) immigration detainee released after authorities failed
to conduct an initial custody determination and obtain a post-hoc warrant justifying
continued detention within forty-eight hours of warrantless arrest).
The Court agrees with Mr. Yepez that because he is subject to discretionary
detention under § 1226(a), Respondents are required by law to conduct an initial
custody determination within forty-eight hours of his detention, accompanied by a
post-hoc warrant. 	However, the Court does not agree that this conclusion requires
his immediate release. 	Instead, the Court concludes that the 48-hour clock for
Respondents to conduct an initial custody determination begins at the date and time
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of this order. 	Unlike in Makuiza, in which the Government initially detained the
noncitizen pursuant to § 1226(a) but “neglected to” “justify[ ] its arrest decision[ ],”
id. at *3-4, 11, in this case, Respondents do not concede Mr. Yepez is subject to
§ 1226(a) but rather maintain, consistent with controlling agency precedent, he is
subject to mandatory detention under § 1225(b)(2), which does not require an initial
custody determination or warrant. 	Resp’ts’ Opp’n at 1-2 (citing Matter of Yajure
Hurtado, 29 I&N Dec. 216 (BIA Sep. 5, 2025)). Moreover, to retroactively apply the
Court’s § 1226(a) determination in this matter would place Respondents in the
untenable position in future cases 	presenting similar circumstances, in which
Respondents 	must 	decide 	whether 	to 	deliberately 	violate 	controlling 	agency
precedent in anticipation of a possible objection a detainee may or may not raise in a
future habeas petition not yet before this Court, and then further guess how this
Court might rule.
Rather, in this case, given that Respondents have maintained since his arrest,
that Mr. Yepez is that subject to mandatory detention under § 1225(b)(2), the forty-
eight-hour custody determination clock begins to run at the time of this Court’s
determination that Mr. Yepez is subject to § 1226(a). 	Accordingly, the Court will
order Respondents to conduct an initial custody determination of Mr. Yepez pursuant
to § 1226(a), at which point they may either release him or continue to detain him. If
Respondents continue his detention, they must obtain an authorizing warrant and,
as the Court concludes below, later provide Mr. Yepez a bond hearing before an
Immigration Judge.
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4. 	Bond Hearing
Because Mr. Yepez is currently in the United States, he is “entitled to the full
procedural safeguards of the Due Process Clause of the Fifth Amendment,” Sampiao
v. Hyde, 799 F. Supp. 3d 14, 31 (D. Mass. 2025), which provides that he will not be
“deprived of life, liberty, or property, without due process of law.” U.S. CONST . amend.
V; see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (explaining “once an alien
enters the country, the legal circumstance changes, for the Due Process Clause
applies to all ‘persons’ within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent”). 	As the petitioner,
however, Mr. Yepez bears the burden of demonstrating by a preponderance of the
evidence that his detention violates the Due Process Clause of the Fifth Amendment.
See De Oliveira v. Joyce, 2:25-cv-00291-LEW, 2025 U.S. Dist. LEXIS 125776, at *8
(D. Me. July 2, 2025) (citing Aditya W.H. v. Trump, 782 F. Supp. 3d 691, 703 (D. Minn.
2025) (collecting authority)).
To determine whether detention violates procedural due process, courts apply
the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). 	See
Hernandez-Lara, 10 F.4th at 27-28; see also Chogllo Chafla, 804 F. Supp. 3d 247 at
261-264 (analyzing procedural due process challenge to the detention of noncitizen
held pursuant § 1226(a) using the Mathews test); Sampiao, 799 F. Supp 3d at 30, 34
(same). 	Under Mathews, a court must weigh the following three factors: (1) “the
private interest that will be affected by the official action”; (2) “the risk of an
erroneous deprivation of such interest through the procedures used, and the probable
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value, if any, of additional or substitute procedural safeguards”; and (3) “the
Government’s 	interest, 	including 	the 	function 	involved 	and 	the 	fiscal 	and
administrative burdens that the additional or substitute procedural requirement
would entail.” Mathews, 424 U.S. at 335.
a. 	Private Interest
In his petition, Mr. Yepez asserts “the most elemental of liberty interests—the
interest in being free from physical detention by [the] government.” 	Hamdi v.
Rumsfeld, 542 U.S. 507, 529 (2004); see also Zadvydas, 533 U.S. at 690 (“Freedom
from imprisonment—from government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that the [Fifth Amendment's Due Process
Clause] protects”). A noncitizen subject detained under § 1226(a) vindicates their due
process rights through a bond hearing before an Immigration Judge who requires the
government either to (1) prove by clear and convincing evidence that a noncitizen
poses a danger to the community or (2) prove by the preponderance of the evidence
that they pose a flight risk in order to detain them throughout the pendency of their
removal proceedings. See Hernandez-Lara, 10 F.4th at 41. In this case, Respondents
have refused Mr. Yepez the bond hearing he is guaranteed under § 1226(a) and have
failed to meet their burden for his continued detention as due process requires. Mr.
Yepez has therefore clearly established the first Mathews factor weighs in his favor.
b. 	Risk of Erroneous Deprivation
The 	second 	Mathews 	factor 	is 	“the 	risk 	of 	an 	erroneous 	deprivation 	of
[Petitioner’s] interest through the procedures used, and the probable value, if any, of
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additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. The risk
of erroneous deprivation is large where, as here, Respondents have made no showing
that Mr. Yepez presents any public safety or flight risk. 	Accordingly, the second
Mathews factor also weighs heavily in his favor.
c. 	Government Interest
Finally, 	the 	third 	Mathews 	factor 	considers 	the 	“Government’s 	interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.” 	Id. 	Respondents do
not raise any governmental interest favoring Mr. Yepez’s 	continued detention
without a bond hearing. 	See Chogllo Chafla, 804 F. Supp. 3d at 263 (identifying
governmental 	interest 	in 	favor 	of 	immigration 	habeas 	petitioners’ 	continued
detention without a hearing as an “across-the-board application of an inapplicable
statute”). In fact, the public interest weighs against detention without a hearing. See
Hernandez-Lara, 10 F.4th at 33 (finding “unnecessary detention” of noncitizens
“imposes substantial societal costs”). Thus, the third Mathews factor weighs against
Respondents and in favor of Mr. Yepez.
The Court concludes that Respondents’ detention of Mr. Yepez without a bond
hearing pursuant to § 1226(a) therefore violates his due process rights.
IV. 	CONCLUSION
The Court GRANTS in part and DENIES in part David Jose Perez Yepez’s
Verified Petition for Writ of Habeas Corpus Pursuant to § 2241 (ECF No. 11) and
DIMISSES as moot Mr. Yepez’s Unverified Petition for Writ of Habeas Corpus
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Pursuant to § 2241 (ECF No. 1). 	The Court ORDERS Respondents to conduct an
initial custody determination of Mr. Yepez pursuant to 8 U.S.C. § 1226(a) and
associated agency regulation within forty-eight hours of the time and date of this
order. If Respondents release Mr. Yepez, the Court ORDERS Respondents to return
any of Mr. Yepez’s personal property in their possession to him at the time of release.
If Respondents continue Mr. Yepez’s detention, the Court ORDERS Respondents to
provide Mr. Yepez a bond hearing in accordance with 8 U.S.C. § 1226(a)(2) within
fourteen days of the date of that custody determination. The Court further ENJOINS
Respondents from denying Mr. Yepez an initial custody determination or a bond
hearing on the basis that 8 U.S.C. § 1225(b)(2) applies to him.
Lastly, the Court ORDERS Respondents to file a status report within twenty-
four 	hours 	of 	conducting 	his 	initial 	custody 	determination, 	stating 	whether
Respondents released or continued detaining Mr. Yepez, accompanied by the grounds
supporting their determination and the warrant authorizing continued detention. If
Respondents continue detaining Mr. Yepez, the Court ORDERS Respondents to file
a status report within five days of Mr. Yepez’s bond hearing, stating whether Mr.
Yepez has been granted bond, and, if his request was denied, the reasons for that
denial.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 18th day of March, 2026
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