Ramirez Rojas v. Noem et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RUBELIO GILBERTO
RAMIREZ ROJAS,
Petitioner,
v.
KRISTI NOEM et al.,
Respondents.
)
)
)
)
)
)
)
)
)
)
Case No. CIV-25-1236-HE
REPORT AND RECOMMENDATION
Petitioner Rubelio Gilberto Ramirez Rojas, a noncitizen1, seeks a writ of
habeas corpus under 28 U.S.C. § 2241. Doc. 1. United States District Judge Joe
Heaton referred the case to the undersigned Magistrate Judge for initial
proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.2 The United States
responded, Doc. 8, and Petitioner replied, Doc 9. So the matter is at issue.
For the reasons below, the undersigned recommends the Court grant
Petitioner’s habeas petition, in part, and order Respondents to bring Petitioner
before an immigration judge (IJ) for a bond hearing under 8 U.S.C. § 1226(a)
1 	This 	Report 	and 	Recommendation 	“uses 	the 	term 	‘noncitizen’ 	as
equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578
n.2 (2020) (citing 8 U.S.C. 1101(a)(3)).
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 1 of 21

2
within seven business days or otherwise release Petitioner if he has not
received a lawful bond hearing within that period.
I. 	Factual background and procedural history.
Petitioner is a citizen of Guatemala who has lived in the United States
since approximately 2006. Doc. 1, at 14. He has resided in Oklahoma City for
more than ten years. Id. at 15. He is married and has three children who are
United States citizens. Id. He has no criminal history. Id.
On 	September 	4, 	2025, 	officers 	with 	Immigration 	and 	Customs
Enforcement (ICE) arrested Petitioner during a traffic stop, and are detaining
him 	without 	bond 	at 	the 	Cimarron 	Correctional 	Facility 	in 	Cushing,
Oklahoma. Id. at 14.
ICE issued a notice to appear (NTA) to Petitioner, charging him as
inadmissible under 8 U.S.C. § 1182(a)(6)(A). Id. at 14-15; Doc. 8, Att. 2; see
§ 1182(a)(6)(A)(i) 	(“An 	alien 	present 	in 	the 	United 	States 	without 	being
admitted or paroled, or who arrives in the United States at any time or place
other than as designated by the Attorney General, is inadmissible.”). Petitioner
moved for a bond hearing. Doc. 1, at 15-16. On October 6, 2025, the IJ
determined she lacked jurisdiction to consider Petitioner’s bond request based
on the Board of Immigration Appeals’ (BIA) decision in Matter of Yajure
Hurtado, 29 I. & N. Dec. 216 (BIA 2025). Id. at 17 & Att. 2.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 2 of 21

3
II. 	Petitioner’s claims.
Petitioner raises two grounds for relief:
Ground 	One: 	Respondents’ 	“application 	of 	§ 	1225(b)(2) 	to
Petitioner 	unlawfully 	mandates 	his 	continued 	detention 	and
violates the [Immigration and Nationality Act] INA.”
Ground Two: Respondents’ “detention of Petitioner without a bond
redetermination hearing to determine whether he is a flight risk
or danger to others violates his right to due process.”
Id. at 17-18.
Petitioner asks the Court to issue a writ of habeas corpus “requiring that
Respondents release Petitioner or, in the alternative, provide Petitioner with
a bond hearing pursuant to [] § 1226(a) within seven days” and declare his
detention unlawful. Id. at 19. He also seeks an award of attorney’s fees and
costs under the Equal Access to Justice Act (EAJA). Id.
III. 	Standard of review.
An application for a writ of habeas corpus “is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.
475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “is in
custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). “Challenges to immigration detention are
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 3 of 21

4
properly brought directly through habeas.” Soberanes v. Comfort, 388 F.3d
1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687
(2001)).
“When called on to resolve a dispute over a statute’s meaning,” the Court
should “seek[] to afford the [statute’s] terms their ordinary meaning at the time
Congress adopted them” and to “exhaust all the textual and structural clues
bearing on the meaning.” Niz-Chavez v. Garland, 593 U.S. 155, 162 (2021)
(internal quotation marks omitted). This Court’s “‘sole function’ is to apply the
law as [the Court] finds it, . . . not defer to some conflicting reading the
government might advance.” Id. (internal citation omitted); see also Oklahoma
v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11 (10th Cir.
2024) (stating that the court “must independently interpret the statutory
phrase irrespective of the parties’ positions”), judgment vacated on other
grounds, 145 S. Ct. 2837 (2025).
IV. 	Discussion.
A. 	The Court has jurisdiction to consider the petition.
Respondents contend that 8 U.S.C. §§ 1252(a)(5), (b)(9), and 1252(g) bar
the Court from hearing Petitioner’s claims related to his detention. Doc. 8, at
17-20. The undersigned disagrees.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 4 of 21

5
Section 1252(a)(5) provides that “a petition for review filed with an
appropriate court of appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9)
provides another bar to judicial review, specifically for “questions of law and
fact, including interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to remove an
alien from the United States” “[e]xcept as otherwise provided in this section.”
Id. § 1252(b)(9). Section 1252(b)(9) is a “jurisdiction-stripping ‘zipper clause,’”
which 	“channel[s] 	review 	of 	all 	‘decisions 	and 	actions 	leading 	up 	to 	or
consequent upon final orders of deportation’ in the courts of appeal, following
issuance of an order of removal.” Mukantagara v. DHS, 67 F.4th 1113, 1115
(10th Cir. 2023) (quoting Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471, 482-85 (1999)).
Section 1252(g) provides that “no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders.” 8 	U.S.C. § 	1252(g). 	The 	Court 	reads § 	1252(g)
narrowly, Reno, 525 U.S. at 482, as it does not cover “all claims arising from
deportation proceedings” or impose “a general jurisdictional limitation.” Id.
Instead, it “applies only to three discrete actions that the Attorney General
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 5 of 21

6
may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases,
or execute removal orders.’” Id.
The 	Court 	has 	jurisdiction 	over 	the 	petition 	as 	Petitioner 	is 	only
challenging the way his detention is being conducted — the lack of bond
hearing. See Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (holding
that § 1252(a)(5) does “not eliminate a district court’s jurisdiction to review
habeas petitions challenging an alien’s detention” and affirming district court’s
finding that it had jurisdiction to review a habeas petition challenging “DHS’s
continued detention [of petitioner] without bond or without providing a bond
hearing”).
Likewise, § 1252(b)(9) does not bar this Court’s review. Petitioner is not
asking the Court to review a removal order (which has not been issued), or
Respondents’ decision to detain him or seek his removal. And, by addressing
the petition, the Court is not reviewing any part of the process by which
Respondents 	will 	determine 	his 	eligibility 	for 	removal. 	See 	Jennings 	v.
Rodriguez, 583 U.S. 281, 294-95 (2018) (holding § 1252(b)(9) “does not present
a jurisdictional bar” when “detained aliens” “are not asking for review of an
order of removal; they are not challenging the decision to detain them in the
first place or to seek removal; and they are not . . . challenging any part of the
process by which their removability will be determined”); see also Caballero v.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 6 of 21

7
Baltazar, 2025 WL 2977650, at *4 (D. Colo. Oct. 22, 2025) (finding § 1252(b)(9)
does not present a jurisdictional bar to a noncitizen challenging “the legality of
his continued detention without a bond hearing”); cf. Nielsen v. Preap, 586 U.S.
392, 402 (2019) (holding § 1252(b)(9) did not strip the court of jurisdiction to
address the issue of mandatory detention without bond under § 1226(c)).
Finally, § 1252(g) does not present a jurisdictional bar to this Court’s
review. 	Respondents 	argue 	§ 1252(g)’s 	language 	strips 	this 	Court 	of
jurisdiction 	to 	review 	any 	claim 	arising 	from 	the 	decision 	to 	commence
proceedings against Petitioner—including the “basis on which DHS chooses to
commence removal proceedings.” Doc. 8, at 18. But the Supreme Court finds
this interpretation “implausible” because “the mention of three discrete events
along the road to deportation was [not] a shorthand way of referring to all
claims arising from deportation proceedings.” Reno, 525 U.S. at 482. And, in
Jennings, the Supreme Court reaffirmed this narrow reading, explaining that
Reno “did not interpret [§1252(g)] to sweep in any claim that can technically
be said to ‘arise from’ the three listed actions of the Attorney General.” 583
U.S. at 294. Because Petitioner is only challenging his detention without a
bond hearing and not the commencement of the removal proceeding itself, his
claim falls outside the narrow jurisdictional limitations of § 1252(g). See, e.g.,
Gutierrez v. Baltasar, 2025 WL 2962908, at *3 (D. Colo. Oct. 17, 2025) (finding
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 7 of 21

8
Ҥ 1252(g) does not deprive the Court of jurisdiction to consider the narrow
legal questions of whether Mr. Gutierrez’s detention under 8 U.S.C. § 1225
violates the INA and whether he is entitled to a bond hearing under § 1226’s
discretionary detention framework” because these “‘purely legal’ questions fit
the exception to § 1252(g)’s jurisdiction-stripping provision, as they can be
decided in the abstract on an undisputed factual record and do not challenge
the Attorney General’s discretionary authority”).
B. 	Section 1226 governs Petitioner’s detention.
Petitioner asserts Respondents have violated the INA by detaining him
under the mandatory detention provisions under § 1225(b)(2). Doc. 1, at 17-18.
He argues this provision does not apply to “noncitizens residing in the United
States . . . who have previously entered the country and have been residing in
the 	United 	States 	prior 	to 	being 	apprehended 	and 	placed 	in 	removal
proceedings.” Id. So, as someone who is not a recent arrival seeking inspection
and admission into the United States, Petitioner asserts his detention is
governed—not by § 1225(b)(2)—but by § 1226(a). Id. at 7-14.3 Respondents
contend § 1226 does not apply to Petitioner because he was never “admitted”
to the country in the first place. Doc. 8, at 14-15. And § 1225 does apply to him
3 	The 	Court 	rejects 	Respondents’ 	contention 	that 	Petitioner 	has 	not
“plainly state[d]” this ground for relief. Doc. 8, at 20-21.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 8 of 21

9
because that section’s mandatory detention provision “does not contain an
‘arriving’ limitation.” Id. at 21 (citing 8 U.S.C. § 1225(b)(2)(A)).
The Court’s inquiry “begins with the statutory text” and ends there if it
“is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004).
“If the statutory language is plain, [the Court] must enforce it according to its
terms.” 	King 	v. 	Burwell, 	576 	U.S. 	473, 	486 	(2015). 	“[O]ftentimes 	the
‘meaning—or ambiguity—of certain words or phrases may only become evident
when placed in context.’” Id. (quoting FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000)). “So when deciding whether the language is
plain, [the Court] must read the words ‘in their context and with a view to their
place in the overall statutory scheme.’” Id. (quoting Brown & Williamson, 529
U.S. at 133).
Section 1225(b)(2)(a) provides that:
[I]n 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 1229(a) of [Title 8].
8 U.S.C. § 1225(b)(2)(a). This section “authorizes the Government to detain
certain aliens seeking admission into the country.” Jennings, 583 U.S. at 289;
see also Pizarro Reyes v. Raycraft, 2025 WL 2609425, at *5 (E.D. Mich. Sept. 9,
2025) (“[Section] 1225 governs removal proceedings for ‘arriving aliens.’”).
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 9 of 21

10
Section 1226(a), on the other hand, “authorizes the Government to
detain certain aliens already in the country pending the outcome of removal
proceedings.” Id. (emphasis added). “Section 1226(a) sets out the default rule:
The Attorney General may issue a warrant for the arrest and detention of an
alien ‘pending a decision on whether the alien is to be removed from the United
States.’” Id. (quoting § 1226(a)).4 “Except as provided in [Section 1226(c)]’, the
Attorney General ‘may release’ an alien detained under § 1226(a) ‘on . . . bond’
or ‘conditional parole.’” Id. (quoting § 1226(a)(1)-(2)). Courts have described
§ 1226(a) as a “catchall” provision which “capture[s] noncitizens who fall
outside of the specified categories” of § 1225. Pizarro Reyes, 2025 WL 2609425,
at *5.
The resolution of Petitioner’s claim turns on whether he is a noncitizen
“seeking admission” as that phrase is used in § 1225, or an arrested and
detained noncitizen who—having never sought to obtain lawful status—falls
4 	The 	Jennings 	Court 	acknowledged 	§ 	1226 	as 	the 	default 	rule 	for
detaining 	and 	removing 	noncitizens 	“already 	present” 	in 	the 	country.
Jennings, 583 U.S. at 303. The Court did not, however, specify whether the
“already present” rule applied only to persons who had once entered the
country lawfully—as Respondents argue—or to all noncitizens present in the
country whether lawfully admitted or not—as Petitioner argues. Because
Jennings is not definitive, the Court continues its analysis.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 10 of 21

11
under § 1226 and may be released on conditional parole or bond pending the
outcome of his removal proceeding.
As Petitioner notes, his “mandatory” detention arises out of a novel
interpretation 	of §§ 1225 	and 	1226, 	which has ensnared other similarly
positioned petitioners around the country. Doc. 1, at 10-12; see, e.g., Savane v.
Francis, 2025 WL 2774452, at *1 (S.D.N.Y. Sep. 28, 2025) (explaining that
“[t]his is another case in a recent line of cases concerning the scope of the
government’s authority to detain noncitizens during the pendency of removal
proceedings”); see also Escarcega v. Olson, No. CIV-25-1129-J, Doc. 14, at 18-
19 (W.D. Okla. Oct. 28. 2025) (collecting cases), adopted, 2025 WL 3243438
(W.D. Okla. Nov. 20, 2025).
Under ICE’s new internal guidance:
An ‘applicant for admission’ is 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. Effective
immediately, it [sic] the position of DHS that such aliens are
subject 	to 	detention 	under 	[§ 	1225(b)(2)(A)] 	and 	may 	not 	be
released from ICE custody except by [§ 1182] parole. . . . For
custody purposes, these aliens are now treated in the same manner
that ‘arriving aliens’ have historically been treated. The only aliens
eligible for a custody determination and release on recognizance,
bond, 	or 	other 	conditions 	under 	[§ 	1226(a)] 	during 	removal
proceed[ings] are aliens admitted to the United States . . . with the
exception 	of 	those 	subject 	to 	mandatory 	detention 	under
[§ 1226(c)].
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 11 of 21

12
Savane, 2025 WL 2774452, at *5-6 (quoting ICE Memo: Interim Guidance
Regarding Detention Authority for Applications for Admission).
The Court begins with § 1225’s title. “[T]he title of a statute and the
heading of a section are tools available for the resolution of a doubt about the
meaning of a statute.” Dubin v. United States, 599 U.S. 110, 121 (2023)
(internal quotation marks omitted). And “a title is especially valuable where it
reinforces 	what 	the 	text’s 	nouns 	and 	verbs 	independently 	suggest.” 	Id.
(internal quotation marks and alteration omitted).
Section 1225 is titled: “Inspection by immigration officers; expedited
removal 	of 	inadmissible 	arriving 	aliens; 	referral 	for 	hearing.” 	(emphasis
added). Use of the term “arriving” to describe noncitizens clarifies that the
section governs the entrance of noncitizens to the United States. Section 1225
is 	also 	located 	between 	two 	other 	sections 	dealing 	with 	the 	arrival 	of
noncitizens: § 1224, “Designation of ports of entry for aliens arriving by
aircraft,” and § 1225a, “Preinspection at foreign airports.”
This interpretation is bolstered by § 1225’s overall inspection scheme for
allowing noncitizens into the country and the section’s subheadings all related
to “arriving” noncitizens. See, e.g., § 1225(b)(1) (labeled “Inspection of aliens
arriving in the United States and certain other aliens who have not been
admitted or paroled” and describing their immediate removal “without further
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 12 of 21

13
hearing or review” unless there is a claim for asylum or a fear of persecution);
§ 1225(b)(2) (labeled “Inspection of other aliens” and describing detention of
noncitizens “seeking admission”); § 1225(d) (labeled “Authority Relating to
Inspections” and describing the powers of immigration officers to search and
detain vessels and “arriving aliens”).
Next, the Court looks to the INA’s statutory definitions. See BP Am.
Prod. Co. v. Haaland, 87 F.4th 1226, 1235 (10th Cir. 2023) (analyzing statute
by leaning “on related statutory definitions in the Royalty Management Act.”).
Section 1225(a)(1) defines an “applicant for admissions” as:
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 international or United
States waters)[.]
8 U.S.C. § 1225(a)(1).
Section 1101(13)(A) provides that “[t]he terms ‘admission’ and ‘admitted’
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(13)(A).
Respondent contends that Petitioner is technically an applicant for
admission 	under 	§ 	1225(a)(1) 	because 	he 	entered 	the 	country 	without
inspection. Doc. 8, at 14-15. While the undersigned may agree with that
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 13 of 21

14
technical interpretation, that does not mean Petitioner is subject to mandatory
detention under § 1225(b)(2)(A). Escarcega, 2025 WL 3243438, at *2 (“[I]f all
‘applicants for admission’ are also ‘seeking admission,’ then § 1225(b)(2)(A)’s
inclusion of the phrase ‘seeking admission’ would be redundant and courts
should avoid statutory interpretations that ‘make[] any part [of the statute]
superfluous.’” (quoting Fuller v. Norton, 86 F.3d 1016, 1024 (10th Cir. 1996)).
Section 1225(b)(2)(A) introduces a different phrase: “an alien seeking
admission.” It provides that:
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. § 1225(b)(2)(A). Courts interpreting this narrowing language have
thus concluded § 1225 primarily “applies to noncitizens who ‘[are] presently
and actively seeking lawful entry into the United States . . . at the border.’”
Escarcega, 2025 WL 3243438, at *2 (quoting Loa Caballero v. Baltazar, 2025
WL 2977650, at *4 (D. Colo. Oct. 22, 2015)); see also Jennings, 583 U.S. at 297
(“[Section] 1225(b) applies primarily to aliens seeking entry into the United
States (‘applicants for admission’ in the language of the statute).” (emphasis
added)).
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 14 of 21

15
As noted, the INA defines “admission” as “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). “Seeking,” however, is undefined. “When a
term is undefined in a statute, [the Court] must look to its ordinary meaning.”
Rocky 	Mountain 	Wild 	v. 	Dallas, 	98 	F.4th 	1263, 	1291 	(10th 	Cir. 	2024).
“‘Dictionary definitions are useful touchstones to determine the ‘ordinary
meaning’ of an undefined statutory term.’” Id. (quoting In re Mallo, 774 F.3d
1313, 1321 (10th Cir. 2014)).
“Seeking” is the present participle of “seek,” which Merriam-Webster
defines as “to resort to,” “go to,” “to go in search of,” “look for,” “to try and
discover,” “to ask for,” “request,” “to try to acquire or gain,” “aim at,” “to make
an 	attempt,” 	or 	“try.” 	Seek, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/seeking#dictionary-entry-1 (last visited Nov. 21, 2025).
So the use of “seeking” “denotes an active and present effort.” Valverde v.
Olson, 2025 WL 3022700, at *3 (E.D. Wis. Oct. 29, 2025); see also Caballero,
2025 WL 2977650, at *6 (“The plain meaning of the phrase ‘seeking admission’
requires that the applicant must be presently and actively seeking lawful entry
into the United States. The use [of] the present participle in § 1225(b)(2)(A)
‘implies action – something that is currently occurring, and in this instance,
would most logically occur at the border upon inspection.’” (quoting Lopez-
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 15 of 21

16
Campos v. Raycraft, 2025 WL 2496379, at *6 (E.D. Mich. Aug. 29, 2025))). As
a result, a noncitizen seeking admission is a person who, at the time of his or
her detention, is actively and presently pursuing lawful admission into the
United States. See Hernandez v. Baltazar, 2025 WL 2996643, at *5 (D. Colo.
Oct. 24, 2025) (“Courts have found that ‘[n]oncitizens who are just ‘present’ in
the country . . ., who have been here for years upon years and never proceeded
to obtain any form of citizenship[,] . . . are not ‘seeking’ admission” under
§ 1225(b)(2)(A).” (quoting Lopez-Campos, 2025 WL 2496379, at *6)).
Section 1225’s placement in the overall statutory scheme strengthens
this conclusion. See, e.g., King, 576 U.S. at 486 (holding that courts are meant
“to 	construe 	statutes, 	not 	isolated 	provisions” 	(internal 	quotation 	marks
omitted)). Congress separated the removal of arriving aliens from its more
general section for “Apprehension and detention of aliens” in § 1226. This
implies Congress’s enactment of § 1225 was for a specific, limited purpose,
which the Supreme Court underscored in Jennings. See id. 583 U.S. at 289
(noting that §§ 1225(b)(1) and (b)(2) “authorize[] the Government to detain
certain aliens seeking admission into the country” and that §§ 1226(a) and (c)
“authorize[] the Government to detain certain aliens already in the country
pending the outcome of removal proceedings”); see also Zadvydas, 533 U.S. at
693 (“The distinction between an alien who has effected entry into the United
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 16 of 21

17
States and one who has never entered runs throughout immigration law. . . .
But 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.”). 	And 	§ 	1225(a)(3), 	to 	which 	Respondents 	make 	a 	fleeting
reference, Doc. 8, at 29-30, further supports this distinction:
All 	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.
Id. (emphasis added); see also United States v. Woods, 571 U.S. 31, 45 (2013)
(noting that “or” “can sometimes introduce an appositive . . . [but] its ordinary
use is almost always disjunctive, that is, the words it connects are to ‘be given
separate meanings.’”).
Congress’s recent amendment of § 1226 through the Laken Riley Act also
supports the Court’s interpretation and renders Respondents’ interpretation of
§ 1225(b)(2)(A) superfluous. This amendment mandates that ICE “shall take
into custody” any noncitizen who is both inadmissible under § 1182(a)(6)(A)(i)
(“present in the United States without being admitted or paroled”) and is
“charged with, [] arrested for, [] convicted of, [or] admits having committed”
certain 	crimes. 	See 	8 	U.S.C. 	§ 1226(c)(1)(E)(i)-(ii). 	“Considering 	that
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 17 of 21

18
§ 1182(a)(6)(A)(i) specifically refers to aliens ‘present in the United States
without being admitted or paroled,’ and that § 1226(c)(1)(E) requires detention
without bond of these individuals if they have also committed a felony, the
recently 	created 	statutory 	exception 	would 	be 	redundant 	if 	§ 	1225(b)(2)
authorized their detention as well. . . . That is, because an alien present in the
United States without admittance would be unlikely to prove that they are
‘clearly and beyond a doubt entitled to be admitted,’ ICE would never need to
rely on § 1226(c)(1)(E) to detain them.” Pizarro Reyes, 2025 WL 2609425, at *5
(quoting Gomes v. Hyde, 2025 WL 1869299, at *7 (D. Mass. July 7, 2025)). As
this interpretation “would largely nullify a statute Congress enacted this very
year,” the Court should reject it. Id. (internal quotation marks omitted); see
also Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against
surplusage is strongest when an interpretation would render superfluous
another part of the same statutory scheme.”).
Petitioner is not “seeking admission” as he has been in the United States
for almost twenty years. See Doc. 1, at 14. And, as far as the Court is aware,
he has never sought a form of citizenship (asylum, permanent residency,
refugee 	status, 	visa 	application, 	etc.). 	See, 	e.g., 	Pizarro 	Reyes, 	2025 	WL
2609425, at *6 (“The Court . . . finds it difficult to square a noncitizen’s
continued presence with the term ‘seeking admission,’ when that noncitizen
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 18 of 21

19
never attempted to obtain lawful status.”). So, when ICE arrested and detained
Petitioner, he was not subject to mandatory detention under § 1225(b)(2)(A).
Instead, Petitioner is subject to § 1226, and “is entitled to an individualized
bond hearing as a 	detainee under [§] 1226(a).” 	See Caballero, 	2025 WL
2977650, at *8 (“The Court joins the numerous courts across the country that
have held that [noncitizens not apprehended at the border, who have been
present in the United States for many years without lawful status] are subject
to the discretionary detention framework of § 1226(a).”).
The 	undersigned 	recommends 	the 	Court 	grant 	Petitioner’s 	habeas
petition in part and order Respondents to provide Petitioner with a bond
hearing under § 1226(a) within seven days of the Court’s adoption of this
Report 	and 	Recommendation 	or 	in 	the 	alternative, 	immediately 	release
Petitioner.
C. 	The 	Court 	should 	decline 	to 	address 	the 	merits 	of
Petitioner’s due process claim.
Given 	the 	undersigned’s 	recommendation 	as 	to 	the 	disposition 	of
Petitioner’s claim for relief under the INA, the undersigned recommends the
Court refrain from addressing the merits of Petitioner’s due process claim, Doc.
1, at 18, as the Court can grant him the relief he seeks under § 1226(a). See
Pizarro Reyes, 2025 WL 2609425, at *8 (“The Court will decline to decide the
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 19 of 21

20
merits of [petitioner’s] due process claim given that the Court will grant the
relief he seeks based on its interpretation of the applicability of § 1226(a).”).
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s habeas application, in part, and order Respondents to
provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within
seven business days or otherwise release Petitioner if he has not
received a lawful bond hearing within that period. The undersigned
further recommends that the Court order Respondents to certify
compliance by filing a status report within ten business days of the
Court’s order.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by December 17,
2025, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72. The undersigned further advises the parties that failure to make timely
objections to this Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein. Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation
disposes of the issues referred to the undersigned Magistrate Judge in the
captioned matter.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 20 of 21

21
ENTERED this 3rd day of December, 2025.
Case 5:25-cv-01236-HE Document 10 Filed 12/03/25 Page 21 of 21