ZAMORA NAVA v. WESLING et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
EMELI JULIETH ZAMORA NAVA, 	)
)
Petitioner 	)
)
v. 	) 	No. 1:26-cv-000146-LEW
)
DAVID WESLING, et al., 	)
)
Respondents 	)
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Petitioner Emeli Julieth Zamora Nava’s Petition for Writ of
Habeas Corpus (ECF No. 1) and Motion for Temporary Restraining Order (ECF No. 3).
Petitioner seeks release from immigration detention. Respondents oppose the Petition. For
the following reasons, the Petition and the related Motion for Temporary Restraining Order
are granted in part (release is not ordered).1
BACKGROUND
The following background statement is drawn from the Petition, the Return and
Response, and exhibits introduced in support of those filings.
Petitioner is a national of Venezuela. 	She is 25 years of age. 	According to her
Petition, which is verified, Petitioner “crossed into the United States between ports of entry
1 Neither party has requested a hearing. See also Tijerina v. Thornburgh, 884 F.2d 861, 866 (5th Cir.
1989) (finding that although 28 U.S.C. § 2243 requires the court to “summarily hear and determine
the facts,” the court need not hold an evidentiary hearing “[w]here the [habeas] petitioner raises only
questions of law, or questions regarding the legal implications of undisputed facts”) (collecting cases).
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without status in January 2025. 	On January 10, 2025, the Department of Homeland
Security initiated removal proceedings in the Immigration Court alleging that she was
inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) because she did not possess a valid entry
document. 	The notice to appear (ECF No. 1-1) describes Petitioner as an applicant for
admission with an address in San Antonio, who applied for admission on January 10, 2025.
The initial hearing was set for November 2, 2026, in San Antonio, Texas, and through some
process Petitioner was released from custody.2
On February 25, 2026, U.S. Border Patrol agents detained Petitioner in Skowhegan,
Maine, where she was a passenger in a van whose driver was transporting undocumented
aliens to a work site. 	Petitioner lacks work authorization. 	At some point following her
detention, Petitioner expressed her willingness to voluntarily deport, and on that basis the
Government moved to dismiss her Texas removal proceeding. 	On March 19, 2026, the
Immigration 	Court 	dismissed 	the 	removal 	proceeding 	against 	Petitioner, 	on 	the
Government’s motion, without prejudice. 	Thereafter, Petitioner filed this habeas corpus
petition, informing the Court that she should be released based in part on the fact that there
was then no pending removal proceeding.
The Government has since reinstated a removal proceeding. Its new notice to appear
(ECF 	No. 	11-4) 	alleges 	that 	Petitioner 	is 	inadmissible 	under 	both 	8 	U.S.C. 	§
1182(a)(6)(A)(i) and § 1182(a)(7)(A)(i)(I). The notice provides a hearing date on October
2 Petitioner states in her Reply that she has been detained since November 17, 2025. Reply at 11. Her
Petition does not support this representation. 	To the contrary, Petitioner was detained on February 25,
2026. 	The record does not contain any parole documentation. 	Quite possibly, Petitioner was simply
released to settle inside the United States pending a removal proceeding.
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8, 2026, in Chelmsford, Massachusetts. 	Respondents also issued an arrest warrant and
made 	the 	initial 	custody 	determination 	to 	detain 	Petitioner 	pending 	her 	removal
proceeding. Petitioner is currently detained in Van Buren.
Petitioner asserts that ongoing detention without an opportunity for release on bond
violates the Immigration and Nationality Act as well as the Due Process Clause.3 She says
that because she does not have a criminal record that requires pre-removal detention, she
is entitled to a detention hearing before an immigration judge under 8 U.S.C. § 1226.
Although Petitioner has not been in the United States for two years, she argues that she is
not subject to expedited removal because the Government previously released her and
placed her in removal proceedings. Petitioner relies in part on past practices of immigration
officials who indicated by rule that noncitizens illegally present in the United States who
first entered without parole “will be eligible for bond and bond redetermination.” 62 Fed.
Reg. 10312-01, 10323 (U.S. Dep’t of Justice, Mar. 6, 1997).
On March 20, 2026, the Court issued an Order to Show Cause (ECF No. 7) that
directed the Respondents to address the merits of the Petition. See 28 U.S.C. § 2243. In
their Response (ECF No. 11), Respondents maintain that Petitioner is subject to mandatory
detention pending the completion of reinstated removal proceedings, under what they call
the “catchall” provision of 8 U.S.C. § 1225(b)(2), rather than the expedited removal
provision in § 1225(b)(1). However, they argue in the alternative that if 8 U.S.C. § 1226
applies to the exclusion of § 1225(b)(2), then the exercise of discretion to detain is
3 Petitioner also alleges a violation of the Administrative Procedures Act. However, she has not made any
effort to develop that claim based on law or precedent.
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appropriate in Petitioner’s case and was timely in relation to Petitioner’s sudden filing of a
habeas corpus petition after agreeing to removal and securing the dismissal of her removal
proceedings.
DISCUSSION
The lawfulness of immigration detention is subject to review by, and unlawful
detention is subject to remedy in, a United States District Court under 28 U.S.C. § 2241.
The exercise of jurisdiction over this matter is proper because it presents a challenge to the
lawfulness 	of 	detention 	and 	does 	not 	otherwise 	challenge 	the 	underlying 	removal
proceedings. See Demore v. Kim, 538 U.S. 510, 516-17 (2003); Kong v. United States, 62
F.4th 608, 614 (1st Cir. 2023) (quoting Aguilar, 510 F.3d at 11); Hernandez-Lara v. Lyons,
10 F.4th 19, 33 (1st Cir. 2021). The petitioner must prove illegal detention by a
preponderance of the evidence. See Aditya W.H. v. Trump, 2025 WL 1420131, at *7 (D.
Minn. 2025) (collecting authority).
The Immigration and Nationality Act addresses the need for and parameters
governing alien detention in two primary places, 8 U.S.C. § 1225 and 8 U.S.C. § 1226.
Section 1225 is entitled “Inspection by immigration officers; expedited removal of
inadmissible arriving aliens; referral for hearing.” 	Under subsection (a), “Inspection,”
“[a]n alien present in the United States who has not been admitted or who arrives in the
United States . . . shall be deemed for purposes of [INA Chapter 12] an applicant for
admission.” 	8 U.S.C. § 1225(a)(1). 	All such aliens “shall be inspected by immigration
officers.” Id. § 1225(a)(3). Under subsection (b), “Inspection of applicants for admission,”
aliens arriving in the United States are subject to expedited removal without a hearing, if
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they are determined to be inadmissible under certain INA sections and lack a proper basis
to seek asylum in the United States. Id. § 1225(b)(1)(A), (B). The remainder, those who
are “not clearly and beyond a doubt entitled to be admitted,” are subject to removal and
ongoing detention pending their removal proceedings. Id. § 1225(b)(2)(A).
In contrast to section 1225, section 1226 is entitled “Apprehension and detention of
aliens.” 8 U.S.C. § 1226. It states 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.” Id. § 1226(a). Some aliens subject to section 1226 will have been
admitted following inspection under section 1225, while others will have entered the
United States surreptitiously, without inspection. 	Unlike section 1225, section 1226
anticipates a situation in which the Attorney General arrests and detains a noncitizen at
liberty in the United States and it authorizes an exercise of discretion in terms of whether
the noncitizen will be detained during the pendency of removal proceedings or released on
bond or conditional release. 	Id. 	§ 1226(a)(2). 	The Attorney General’s exercise of
discretion under § 1226(a)(2) is not subject to judicial review, id. § 1226(e), but a refusal
to exercise the discretion by not holding a hearing to evaluate a bond or conditional release
request is. Brito v. Garland, 22 F.4th 240, 244 (1st Cir. 2021); Hernandez-Lara v. Lyons,
10 F.4th 19 (1st Cir. 2021); see also 8 C.F.R. § 236.1(c)(8), (d)(1) (2025) (factors are
whether the noncitizen poses a danger to property or persons and whether the noncitizen is
likely to appear for any future proceeding).
In summary, the INA “authorizes the Government to detain certain aliens seeking
admission into the country under §§ 1225(b)(1) and (b)(2) [and] also authorizes the
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Government to detain certain aliens already in the country pending the outcome of removal
proceedings under §§ 1226(a) and (c).” Jennings, 583 U.S. at 289.4 Upon detention, non-
criminal noncitizens who are illegally present in the United States but effectuated their
entry without ever being inspected by an immigration official are subject to arrest and
detention when discovered, but they also have the right to a bond/conditional release
hearing before an immigration judge if the Government intends to detain them throughout
the pendency of removal proceedings. Brito, 22 F.4th at 244. On the other hand, “arriving”
noncitizens who are inspected and found inadmissible at the border or an official point of
entry are statutorily subject to ongoing detention without a hearing pending expedited
removal. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 138 (2020).
In many cases, the proper application of the INA is a matter of determining whether
the noncitizen in question is subject to either mandatory or discretionary detention based
on exclusive application of either § 1225 or § 1226, respectively. 	However, it is also
possible for both provisions to apply to a given individual. For example, § 1225 states that
it is applicable both to “aliens arriving in the United States” and to “certain other aliens
who have not been admitted or paroled.” 8 U.S.C. § 1225(b)(1). A “certain other alien”
is one “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.” 	Id. § 1225(b)(1)(A)(iii)(II). 	This
4 Detention is mandatory for certain “criminal aliens.” 8 U.S.C. § 1226(c).
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language is significant because traditionally (not currently, according to Respondents) a
noncitizen who evades inspection and enters the United States but is later apprehended is
considered to fall under § 1226, but that same noncitizen may fall under § 1225 if the
noncitizen has not been at liberty in the United States for two years. Under § 1225(b)(1),
such a noncitizen may be subjected to detention pending expedited removal without a
hearing if the Attorney General so elects.5
For a noncitizen like Petitioner, who is by all appearances inadmissible and who has
not been in the United States for two years, and who therefore could be detained and
subjected to expedited removal, the INA is a questionable authority for a petition seeking
immediate release from detention. 	Why Petitioner would perceive an entitlement to
immediate release or an expedited hearing in front of an immigration judge, on statutory
grounds, really is not at all clear from a review of the language of the INA.
Despite the foregoing, Respondents are not performing an expedited removal
without a hearing under section 1225(b)(1), for reasons they have not articulated. Instead,
they have twice scheduled Petitioner for a removal hearing. They now say that they have
exercised arrest authority, but not based on the section 1226(a) factors, only based on their
“catchall” mandatory detention interpretation of section 1225(b)(2). 	Reliance on section
1225(b)(2) opens up the “seeking admission” controversy that has divided courts around
the country. See id. § 1225(b)(2)(A) (“[I]f the examining immigration officer determines
that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted,
5 The INA also states that a “certain other alien” is not someone previously “admitted or paroled.” 8 U.S.C.
§ 1225(b)(1). There is no evidence that Petitioner was ever admitted or paroled.
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the alien shall be detained for a proceeding under section 1229a of this title.”) (emphasis
added). 	For my own part, I have previously, consistent with my District of Maine
colleagues, concurred with that group of district court judges who conclude that noncitizens
who have either evasively entered the United States or whom immigration authorities have
released into the United States and who have gone about their lives here without pursuing
an admitted status are, ordinarily, not proper candidates for mandatory detention for
“seeking admission.” 	See Amorim Campos v. Stamper, No. 1:26-cv-00140-LEW, 2026
WL 810619, at *2 & n.3 (D. Me. Mar. 24, 2026) (non-seeking petitioner); De Los Santos-
Baez v. Stamper, No. 2:26-cv-00022-LEW, 2026 WL 183841, at *2 (D. Me. Jan. 23, 2026)
(questioning 	whether 	petitioner’s 	wife’s 	I-130 	application 	amounted 	to 	seeking
admission); Guaman v. Hladik, No. 2:25-cv-623-LEW, 2025 WL 3707005, at *2 (D. Me.
Dec. 22, 2025) (lacking evidence of seeking admission or an argument for detention based
on an expedited removal process); and compare A.M. v. Joyce, No. 2:25-cv-00615-LEW,
2025 WL 3706922, at *3 (D. Me. Dec. 22, 2025) (denying habeas relief based on
admission-seeking status).
When I consider Petitioner’s circumstances, the decisive considerations are (1) that
the record does not suggest that Petitioner is seeking admission but rather that she is
attempting to prevent or stall her removal and (2) that Respondents are electing to not
expedite Petitioner’s removal and instead are planning on a six-month or longer detention
proceeding through the standard removal process. Given these circumstances, I conclude
that Petitioner’s detention requires that someone with authority exercise the initial custody
determination and, if appropriate, make an arrest upon a warrant based on the section
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1226(a) factors (danger to property or persons and flight risk) and not based on the section
1225(b)(2) “catchall” theory of mandatory detention. In the event that the initial custody
determination results in an arrest on a warrant, Petitioner would then be entitled to a
redetermination hearing before an immigration judge, on the standard calendar that is
employed for those noncitizens subject to the section 1226(a) process.
Petitioner also argues that ongoing detention pending a redetermination hearing (or
pending removal) would violate the Due Process Clause. The Fifth Amendment provides
that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of
law.” 	U.S. Const. am. V. 	The Fifth Amendment applies to aliens facing removal
proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). In Hernandez-Lara v. Lyons, the
First Circuit held that “due process requires the government to either (1) prove by clear and
convincing evidence that [an alien] poses a danger to the community or (2) prove by the
preponderance of the evidence that she poses a flight risk” in order to impose detention
throughout the generally lengthy period of removal proceedings, including appeals. 10
F.4th 19, 41 (1st Cir. 2021). That conclusion rested on a Mathews v. Eldridge due process
analysis for a non-criminal alien who unlawfully entered the United States without being
processed at the border and who remained an internal resident of the United States for
roughly five years. Id. at 24, 27-35.
Petitioner entered the United States fewer than two years ago. Her ties to the United
States are not well established or persuasively demonstrated in her Petition. There is cause
to anticipate that removal proceedings will be straight forward based on Petitioner’s
inadmissible status. 	Additionally, the Hernandez Lara Court did not discuss timing
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considerations or the appropriateness of detention pending a custody redetermination
hearing. 	I am not persuaded that the Due Process Clause compels immediate release in
this case. Petitioner evidently anticipated the possibility of such an outcome, because she
requested in the alternative “an individualized bond hearing . . . at a time and in a manner
that places Petitioner in the same position [s]he would be [in] if not for the Respondents’
unlawful conduct.” Pet. at 17.
Based on the foregoing, I conclude that Petitioner’s continued detention pending a
section 1226(a) initial custody determination and, if necessary, a custody redetermination
hearing is consistent with the INA and the Due Process Clause.
CONCLUSION
For the foregoing reasons, the Petition (ECF No. 1) for a writ of habeas corpus is
GRANTED IN PART and DENIED IN 	PART. 	It is 	HEREBY ORDERED that
Respondents will promptly exercise, within 48 hours of this order, their initial custody
determination authority, treating Petitioner as a noncitizen detained under 8 U.S.C. §
1226(a) rather than § 1225(b)(2), and either release Petitioner from custody on personal
recognizance, subject to reasonable conditions, or else continue detention pursuant to a
new administrative warrant. 	If detention is continued based on administrative arrest
authority, pursuant to a warrant, Respondents will schedule Petitioner for a custody
redetermination hearing before an immigration judge in due course, at which hearing the
burdens of justifying detention will be placed on Respondents.
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The entry on the Motion for Temporary Restraining Order (ECF No. 3) will be
marked as a GRANT.6
SO ORDERED.
Dated this 27 th day of March, 2026.
/s/ Lance E. Walker
Chief U.S. District Judge
6 Through her TRO Motion, Petitioner requested that the Court enjoin the removal of Petitioner from the
State of Maine “while her Petition is pending.” Mot. at 1, 5 (ECF No. 3). The Court effectively awarded
that relief through its initial orders in this case (see ECF Nos. 4, 7).
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