# TENESACA LEMA v. SCOTT

> District Court, D. Maine · September 21, 2025

URL: https://www.frixlaw.com/law-library/cases/11141693

## Case

- **Court:** District Court, D. Maine
- **Decided:** September 21, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11141693

## How later opinions describe it (automated extraction)

- discussing what constitutes sufficient notice
- holding the government bears the burden at a bond hearing of proving “by clear and convincing evidence that [the noncitizen] poses a danger to the community” or “by a preponderance of the evidence that [the noncitizen] poses a flight risk”
- noting that “unnecessary detention” of noncitizens “imposes substantial societal costs”

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

FLAVIO BLADAMIR )
CHOGLLO CHAFLA, )
)
Petitioner, )
)
v. ) 2:25-cv-00437-SDN
)
RODNEY S. SCOTT, )
Commissioner of Customs and )
Border Protection, et al., )
)
Respondents. )

LUIS GERMAN LEMA TAMAY, )
)
Petitioner, )
)
V. ) 2:25-cv-00438-SDN
)
RODNEY S. SCOTT, )
Commissioner of Customs and )
Border Protection, et al., )
)
Respondents. )
)

VICTOR MANUEL TENESACA LEMA, )
)
Petitioner, )
)
v. )
) 2:25-cv-00439-SDN
RODNEY S. SCOTT, )
Commissioner of Customs and )
Border Protection, et al., )
)
Respondents. )
)
ORDER ON PETITIONS FOR WRITS OF HABEAS CORPUS
On September 2 and 3, 2025, Petitioners Flavio Bladamir Chogllo Chafla, Luis
German Lema Tamay, and Victor Manuel Tenesaca Lema (collectively, the “Petitioners”)
filed verified petitions for writs of habeas corpus with this Court. Dkt. No. 25-cv-00437,
ECF No. 7 (“Chogllo Chafla Pet.”); Dkt. No. 25-cv-00438, ECF No. 9 (“Lema Tamay Pet.”);

Dkt. No. 25-cv-00439, ECF No. 9 (“Tenesaca Lema Pet.”). On September 2, 2025, the
Court ordered the Government to show cause regarding the basis of the Petitioners’
detentions. Dkt. No. 25-cv-00437, ECF No. 8; Dkt. No. 25-cv-00438, ECF No. 6; Dkt. No.
25-cv-00439, ECF No. 5. The Government filed its responses to the show cause orders on
September 12, 2025. Dkt. No. 25-cv-00437, ECF No. 17; Dkt. No. 25-cv-00438, ECF No.
15; Dkt. No. 25-cv-00439, ECF No. 14 (collectively, the “Gov’t Resp.”). The Petitioners
responded on September 16, 2025. Dkt. No. 25-cv-00437, ECF No. 18; Dkt. No. 25-cv-
00438, ECF No. 16; Dkt. No. 25-cv-00439, ECF No. 15 (collectively, the “Pets.’ Reply”).
The Court held a hearing on Petitioners’ motions on September 18, 2025. I ordered
supplemental briefing from both parties on Petitioners’ entitlements to immediate release
pending a future bond hearing, which the parties submitted on September 19, 2025. Dkt.

No. 25-cv-00437, ECF Nos. 24, 25; Dkt. No. 25-cv-00438, ECF Nos. 22, 23; Dkt. No. 25-
cv-00439, ECF Nos. 19, 20 (the “Supp. Brs.”).1
Because the Petitioners’ and the Government’s arguments are functionally
identical for all three petitions and the parties themselves address them together, I will
do the same.

1 The Government’s responses to the show cause orders and its supplemental briefing are identical in all
three cases. The Petitioners’ reply briefs and supplemental briefs are identical in all three cases, but the
exhibits attached in each case are specific to the individual petitioners.
I. Background2
A. Facts
On August 23, 2025, the Maine State Police initiated a traffic stop near
Bowdoinham, Maine. Gov’t Resp. Ex. 1 at ¶ 5. The police officer who conducted the stop
discovered that some of the occupants of the vehicle were unable to communicate

effectively in English and could not “provide any identification documents.” Id. The
officer contacted U.S. Border Patrol (“USBP”), and Border Patrol Agent-Resident Agent
Derek Wilcox was dispatched to the scene. Id. at ¶ 1. Mr. Wilcox, who speaks Spanish,
spoke to the occupants of the vehicle and asked for their citizenship and immigration
status. Id. at ¶ 7. Petitioners, all three of whom were passengers in the vehicle, each told
Mr. Wilcox that they were citizens of Ecuador and did not have any immigration
documents allowing them to be legally present in the United States. Id. Mr. Lema Tamay
provided a government-issued ID to establish his identity, but Mr. Wilcox was “unable to
definitively identify three of the four passengers of the vehicle.” Id. at ¶ 10. Mr. Wilcox
was concerned that the men would “abscond,” so he placed all three Petitioners under
arrest and transported them to the Area Port of Portland, where they were taken into

USBP custody. Id.
On August 28, 2025, USBP contacted Immigration and Customs Enforcement–
Enforcement and Removal Operations (“ICE ERO”) to determine whether any ICE ERO
facilities had bedspace to hold the Petitioners during the pendency of their detention.
Gov’t Resp. Ex. 2 at ¶ 7. ICE ERO determined that there was no space available in Maine
or Massachusetts, id. at ¶ 8, but that it anticipated bedspace opening at ICE ERO’s Port

2 I draw these facts from the Petitioners’ verified petitions and the parties’ filings.
Isabel Detention Facility in Los Fresnos, Texas, id. at ¶ 9. USBP scheduled Petitioners to
leave on a flight to Texas that was set to depart the morning of September 3, 2025. Id. at
¶ 10.
On September 2, 2025, the Petitioners filed unverified petitions for writs of habeas
corpus with this Court. Dkt. No. 25-cv-00437, ECF No. 1; Dkt. No. 25-cv-00438, ECF No.

1; Dkt. No. 25-cv-00439, ECF No. 1.3 All three petitions sought temporary restraining
orders from the Court prohibiting the Government from transferring the Petitioners
outside the District of Maine. Dkt. No. 25-cv-00437, ECF No. 1 at 5; Dkt. No. 25-cv-
00438, ECF No. 1 at 5; Dkt. No. 25-cv-00439, ECF No. 1 at 5. The Court enjoined the
Government from removing the Petitioners from Maine pending further order from the
Court and set $100 bond in each case. Dkt. No. 25-cv-00437, ECF No. 10; Dkt. No. 25-cv-
00438, ECF No. 5; Dkt. No. 25-cv-00439, ECF No. 5. Upon notification of the Court’s
orders, ICE ERO did not place the Petitioners on the scheduled flight to Texas. Gov’t Resp.
Ex. 2 at ¶ 10. On September 5, 2025, this Court granted the Government permission to
transfer the Petitioners to the custody of ICE ERO in Massachusetts, where they are
currently detained. Dkt. No. 25-cv-00437, ECF No. 16; Dkt. No. 25-cv-00438, ECF No.

13; Dkt. No. 25-cv-00439, ECF No. 12.
All three Petitioners filed motions for bond with the Chelmsford Immigration
Court in Massachusetts. See Pets.’ Reply at 3. Mr. Chogllo Chafla and Mr. Lema Tamay
received notification from the Immigration Court that their bond hearing requests were
denied because they are subject to mandatory detention under the Board of Immigration
Appeals’ (“BIA”) interpretation of 8 U.S.C. § 1225. Dkt. No. 25-cv-00437, ECF No. 21; Dkt.

3 Mr. Chogllo Chafla filed a verified petition later in the day on September 2, 2025. Dkt. No. 25-cv-00437,
ECF No. 7. Mr. Lema Tamay and Mr. Tenesaca Lema filed verified petitions on September 3, 2025. Dkt. No.
25-cv-00438, ECF No. 9; Dkt. No. 25-cv-00439, ECF No. 9.
No. 25-cv-00438, ECF No. 19. Mr. Tenesaca Lema’s bond re-determination hearing is
scheduled for September 24, 2025. Dkt. No. 25-cv-00439, ECF No. 15-2 at 1.
B. The Petitioners
Mr. Lema Tamay is a young man of Indigenous descent from Chunchi, Ecuador.
Dkt. No. 25-cv-00438, ECF No. 16-1 at 6. He originally entered the country undetected in

April 2019. Id. Since his arrival, he has been gainfully employed as a roofer in the
Portland, Maine, area, and has one son—who is a U.S. citizen—with his long-term partner.
Id. In letters of support provided alongside his petition, Mr. Lema Tamay’s friends and
colleagues spoke highly of his professionalism and integrity and reiterated that he is an
upstanding and productive member of the local community. See id. at 21–30. In 2024, he
was cited for driving without a license; the charge was later dismissed. Id. at 39. He has
no other criminal record. Id. On his I-589 Application for Asylum form filed with the
Immigration Court, he stated that he fears he would be tortured and killed if he returned
to Ecuador because of organized crime and violence targeted against Indigenous
Ecuadorians. Id. at 37.
Mr. Tenesaca Lema is also of Indigenous descent and from Chunchi, Ecuador. Dkt.

No. 25-cv-00439, ECF No. 15-1 at 5. As with Mr. Lema Tamay, Mr. Tenesaca Lema’s
friends and coworkers spoke highly of his responsibility, integrity, and work ethic. Id. at
17–31. He has lived in Portland, Maine, and worked in the roofing industry since his
uninspected arrival in the United States in March 2021. Tenesaca Lema Pet. at 1. He has
one daughter, born in 2022, who is a U.S. citizen. Id. On June 17, 2021, the Department
of Homeland Security (“DHS”) commenced removal proceedings against him. Id. The
case was administratively closed on February 21, 2024, due to his failure to attend a
hearing.4 Gov’t Resp. Ex. 5 at 1. Since his detention on August 23, 2025, his removal
proceedings have been reopened and he is scheduled for a custody re-determination
hearing on September 24, 2025. Dkt. No. 25-cv-00439, ECF No. 15-2 at 1.
In his I-589 form, Mr. Tenesaca Lema explained that he had to leave Ecuador
because he had been falsely accused, threatened, and persecuted within the Indigenous

justice system, and that “Indigenous communities use violence and torture against those
accused of violating community rules.” Id. at 37. He also expressed fear that he would be
targeted by criminal groups for his Indigenous status. Id. In 2021, he was arrested for a
driving offense in Maine, but the charge was later dismissed. Id. at 40. He has no other
criminal history. Id.
Mr. Chogllo Chafla entered the country without inspection in February 2019. Pets.’
Reply at 3. He also is of Indigenous descent and from Chunchi, Ecuador. Dkt. No. 25-cv-
00437, ECF No. 18-2 at 5. He suffers from epilepsy and takes prescription medication to
treat his condition. Id. He established a company in partnership with Mr. Lema Tamay,
has lived and worked continuously in the Portland, Maine, community since his arrival,
and has filed federal and state taxes for several years. Id. at 22, 26. As with the other two

Petitioners, his friends and neighbors spoke highly of his moral character and personality.
See id. at 16–25. In his I-589 form, he described how he had been attacked by a criminal
gang in Ecuador who threatened to kill him if he did not join their organization. Id. at 64.
He fears further torture, attacks, and potentially death if he were to return to Ecuador
because of his Indigenous race. Id. He has no criminal history. Id. at 67.

4 Mr. Tenesaca Lema says that his case was administratively closed because he did not receive sufficient
notice of the date and time of his master calendar hearing. See Gov’t Resp. Ex. 5 at 1; Pets.’ Supp. Br. at 9;
Matter of Laparra-Deleon, 28 I. & N. Dec. 425, 430 (B.I.A. 2022) (discussing what constitutes sufficient
notice).
II. Discussion
A. Procedural Posture
Petitioners filed verified petitions for writs of habeas corpus pursuant to 28 U.S.C.
§ 2241. In their petitions, they challenged their detentions as unlawful, and specifically
contended that they would be subjected to “expedited removal” under 8 U.S.C.

§ 1225(b)(1) in violation of their Fifth Amendment right to due process. Chogllo Chafla
Pet. at 4–5; Lema Tamay Pet. at 4–5; Tenesaca Lema Pet. at 5–6. Because all three
Petitioners assert that they have been in the country continuously for more than two
years, Chogllo Chafla Pet. at 1; Lema Tamay Pet. at 1; Tenesaca Lema Pet. at 1, they argued
that the expedited removal statute does not apply to them and that they are entitled to
hearings before the Immigration Court regarding any removal decisions, see 8 U.S.C.
§ 1225(b)(1)(iii)(II) (permitting expedited removal of noncitizens who, inter alia, “ha[ve]
not affirmatively shown, to the satisfaction of an immigration officer, that the
[noncitizens have] been physically present in the United States continuously for the 2-
year period immediately prior to the date of the determination of inadmissibility”
(emphasis added)).5 This Court found that they met the criteria for a temporary

restraining order preventing their removal, on the ground that expedited removal would
likely violate their rights to due process. Dkt. No. 25-cv-00437, ECF No. 10; Dkt. No. 25-
cv-00438, ECF No. 5; Dkt. No. 25-cv-00439, ECF No. 5.

5 While the immigration laws largely use the term “alien,” I follow many other courts in this circuit and use
the term “noncitizen,” which in this context has a nearly identical meaning. See, e.g., Xirum v. Bondi, 141
F.4th 345, 351 (1st Cir. 2025) (using noncitizen and alien interchangeably).
In its response to the show cause order, the Government stipulates that it does not
intend to seek expedited removal against the Petitioners under 8 U.S.C. § 1225(b)(1).6
Gov’t Resp. at 2. Rather, the Government argues Petitioners are subject to mandatory
detention under 8 U.S.C. § 1225(b)(2). Gov’t Resp. at 12. It also submits that even under
1225(b) the “usual removal process” of 8 U.S.C. § 1229a applies to Petitioners’

proceedings, which entitles them to evidentiary hearings in front of an Immigration Judge
on the issue of removal. See 8 U.S.C. § 1225(b)(2) (“[T]he [noncitizen] shall be detained
for a proceeding under section 1229a of this title.”); 8 U.S.C. § 1229a (providing to
noncitizens written notice, the ability to retain counsel, and the right to be heard before
an immigration judge); Gov’t Resp. at 12. In sum, the Government argues that Petitioners
are appropriately held in mandatory detention under § 1225(b)(2), and their detention
comports with the Fifth Amendment. Id. at 13.
In their reply, Petitioners maintain that they are illegally detained, and seek three
alternative forms of relief from this Court: (1) immediate release, (2) the Court conducts
its own bail hearing on Petitioners’ right to release, or (3) “order the Respondents to
conduct bond hearings for each Petitioner at which the Immigration Judge considers the

Petitioner’s eligibility for bond under § 1226(a), and in which the Respondents are
enjoined from denying the Petitioner’s bond eligibility.” Pets.’ Reply at 14.
B. Jurisdiction
Although none of the parties has explicitly raised the issue, “[a] federal court is
under an unflagging duty to ensure that it has jurisdiction over the subject matter of the

6 Because the Government stipulates that it is not pursuing expedited removal under section 1225(b)(1), I
conduct no further analysis of this subsection of the statute.
cases it proposes to adjudicate.” Am. Policyholders Ins. Co. v. Nyacol Prods., Inc., 989
F.2d 1256, 1258 (1st Cir. 1993).
The Immigration and Nationality Act (“INA”) channels immigration claims
through the administrative process and sharply limits judicial review while that process
is ongoing. The relevant provision provides as follows:

Judicial review of all 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 . . . shall be available only in judicial review of a final order under this
section.
8 U.S.C. § 1252(b)(9). This “zipper” clause, Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 483 (1999), squeezes claims relating to removal into the
administrative process, only to release them for judicial review once a final administrative
order is issued. Until that happens, the statute strips federal courts of jurisdiction. 8
U.S.C. § 1252(b)(9) (“[N]o court shall have jurisdiction, by habeas corpus . . . or by any
other provision of law (statutory or nonstatutory), to review such an order or such
questions of law or fact.”).
However, the First Circuit has acknowledged that the claims-channeling provision
does not cover all claims by immigration detainees. Aguilar v. U.S. Immigr. & Customs
Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 10 (1st Cir. 2007) (“With respect to
section 1252(b)(9), these words cannot be read to swallow all claims that might somehow
touch upon, or be traced to, the government’s efforts to remove a[] [noncitizen].”). A
noncitizen can bring independent claims “collateral to” the removal process—such as
those that “cannot effectively be handled through the available administrative process”—
in federal court. Id. at 11. For example, “district courts retain jurisdiction over challenges
to the legality of detention in the immigration context.” Id. Likewise, noncitizens can raise
“constitutional challenges regarding the availability of bail” in court. Id. (citing Demore
v. Kim, 538 U.S. 510, 516 (2003)).
Here, Petitioners’ claims squarely fall within the context of challenging the legality
and constitutionality of their detentions. This is sufficient for the Court to maintain
jurisdiction over this action. See, e.g., Rodrigues De Oliveira v. Joyce, No. 2:25-CV-

00291, 2025 WL 1826118, at *3 (D. Me. July 2, 2025).
C. Statutory Background
The INA gives the Government discretion to detain some noncitizens pending a
decision on whether to remove them from the country, but requires the Government to
detain others. Two relevant statutory provisions control: 8 U.S.C. §§ 1225 and 1226.
8 U.S.C. § 1225 governs the detention and removal of noncitizens who have not
been “admitted” under the INA. An “applicant for admission” is defined by statute as “a[]
[noncitizen] 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 a[] [noncitizen]
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 1225(b)(2)—which the Government

invokes here—creates a mandatory detention scheme by providing that, “in the case of a[]
[noncitizen] who is an applicant for admission, if the examining immigration officer
determines that a[] [noncitizen] seeking admission is not clearly and beyond a doubt
entitled to be admitted, the [noncitizen] shall be detained for a proceeding under section
1229a [full removal proceedings].” 8 U.S.C. § 1225(b)(2)(A). Other than for limited
exceptions not at issue here, detention under section 1225(b)(2) is mandatory, and the
noncitizen is not entitled to a bond hearing. See Jennings v. Rodriguez, 583 U.S. 281, 297
(2018) (plurality opinion) (“[N]either § 1225(b)(1) nor § 1225(b)(2) says anything
whatsoever about bond hearings.”).
By contrast, 8 U.S.C. § 1226 is considered the “usual removal process” and entitles
a noncitizen to a wider range of due process protections. Dep’t of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 108 (2020). Under section 1226, a noncitizen who is

“arrested and detained” faces three potential outcomes during the pendency of their
removal proceedings: the Attorney General “may continue to detain the arrested
[noncitizen]”; the Attorney General “may release the [noncitizen] on bond of at least
$1,500”; or the Attorney General “may release the [noncitizen] on conditional parole.” 8
U.S.C. § 1226(a). Section 1226(a) therefore “establishes a discretionary detention
framework for noncitizens.” Gomes v. Hyde, No. 1:25-CV-11571, 2025 WL 1869299, at *1
(D. Mass. July 7, 2025). The only exception to section 1226’s discretionary detention
regime is that the Attorney General “shall take into custody” any noncitizen involved in
certain enumerated criminal activities. 8 U.S.C. § 1226(c)(1). None of those criminal
activities are at issue here. See id.
The Supreme Court has provided guidance on the difference between the statutes.

It has explained that while “U.S. immigration law authorizes the Government to detain
certain [noncitizens] seeking admission into the country under §§ 1225(b)(1) and (b)(2),”
“[i]t also authorizes the Government to detain certain [noncitizens] already in the
country pending the outcome of removal proceedings under §§ 1226(a) and (c).”
Jennings, 583 U.S. at 288–89 (emphasis added); 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 added)).
Critically, the implementing regulations to section 1226(a) require an immigration
officer to make an individualized initial custody determination, whereby the officer may
release a noncitizen if they determine “that such release would not pose a danger to
property or persons, and that the [noncitizen] is likely to appear for any future
proceeding.” 8 C.F.R. § 236.1(c)(8) (2025). If the noncitizen disagrees with the custody

determination, then section 1226(a) enables them to “request a bond hearing before an
Immigration Judge, at which the government bears the burden to prove that continued
detention is justified.” Gomes, 2025 WL 1869299, at *1; Hernandez-Lara v. Lyons, 10
F.4th 19, 41 (1st Cir. 2021) (holding the government bears the burden at a bond hearing
of proving “by clear and convincing evidence that [the noncitizen] poses a danger to the
community” or “by a preponderance of the evidence that [the noncitizen] poses a flight
risk”). If the government fails to meet its burden, bond must be granted. Gomes, 2025 WL
1869299, at *2.
D. Applicability of 8 U.S.C. § 1226
Because section 1225(b)(2) requires mandatory detention and section 1226 does
not, it is dispositive to the habeas petitions to determine which statute applies to the

Petitioners. The question, then, is whether section 1225(b)(2) applies to noncitizens, such
as the Petitioners, who already have entered and been residing in the interior of the
United States for several years. The Government contends that it does. Gov’t Resp.
at 13–14. Petitioners argue to the contrary that section 1226(a) “governs their detention
because they have resided in the United States for years prior to their arrests.” Pets.’ Reply
at 2. For the reasons that follow, I conclude section 1226(a) governs.
In addition to a recent opinion of this Court by Chief Judge Walker, Rodrigues De
Oliveira, 2025 WL 1826118, nearly all district courts that have considered this issue have,
after conducting persuasive, well-reasoned analyses of the statutory language and
legislative history, rejected the Government’s broad interpretation of section 1225(b)(2).
See, e.g., Salcedo Aceros v. Kaiser, No. 25-cv-06924, 2025 WL 2637503 (N.D. Cal. Sept.
12, 2025); Jimenez v. FCI Berlin, Warden, No. 25-cv-00326, ECF No. 16 (D.N.H. Sept. 8,
2025); Martinez v. Hyde, No. CV 25-11613, 2025 WL 2084238 (D. Mass. July 24, 2025);

Gomes, 2025 WL 1869299; Lopez Benitez v. Francis, No. 25 CIV. 5937, 2025 WL 2371588
(S.D.N.Y. Aug. 13, 2025); Rosado v. Figueroa, No. CV 25-02157, 2025 WL 2337099 (D.
Ariz. Aug. 11, 2025), R&R adopted sub nom. Rocha Rosado v. Figueroa, No. CV-25-
02157, 2025 WL 2349133 (D. Ariz. Aug. 13, 2025); Rodriguez v. Bostock, 779 F. Supp. 3d
1239, 1256 (W.D. Wash. 2025); Sampiao v. Hyde, No. 1:25-CV-11981, 2025 WL 2607924
(D. Mass. Sept. 9, 2025); Francisco T. v. Bondi, No. 25-CV-03219, 2025 WL 2629839 (D.
Minn. Aug. 29, 2025); Maldonado v. Olson, No. 25-CV-3142, 2025 WL 2374411 (D. Minn.
Aug. 15, 2025); Lopez-Campos v. Raycraft, No. 2:25-CV-12486, 2025 WL 2496379 (E.D.
Mich. Aug. 29, 2025); Diaz Diaz v. Mattivelo, No. 1:25-CV-12226, 2025 WL 2457610 (D.
Mass. Aug. 27, 2025).
The plain language of the statutes themselves largely compels the conclusion that

section 1226(a) applies to petitioners and like individuals. See United States v. Abbas,
100 F.4th 267, 283 (1st Cir. 2024) (“We begin, as always, with the text of the statute and
read it according to its plain meaning at the time of enactment.” (quotation modified)).
In relevant part, section 1225 reads as follows:
[I]n the case of a[] [noncitizen] who is an applicant for admission, if the
examining immigration officer determines that a[] [noncitizen] seeking
admission is not clearly and beyond a doubt entitled to be admitted, the
[noncitizen] shall be detained for a proceeding under section 1229a of this
title.
8 U.S.C. § 1225(b)(2)(A) (emphasis added).
The term “seeking admission” in the statute is written in the present tense and
indicates the use of a present-tense action. See United States v. Wilson, 503 U.S. 329, 333
(1992) (“Congress’ use of a verb tense is significant in construing statutes.”); Martinez,
2025 WL 2084238, at *6 (“[T]he phrase ‘seeking admission’ is undefined in the statute
but necessarily implies some sort of present-tense action.”). In the context of an

“applicant for admission,” the active language implies that the noncitizen is actively
engaged in the exercise of being admitted to the United States, rather than currently
residing here and seeking to stay. Such an interpretation comports with other
immigration regulations, which define an “[a]rriving [noncitizen]” as “an applicant for
admission coming or attempting to come into the United States.” 8 C.F.R. § 1.2 (2025)
(emphasis added). This interpretation aligns also with Petitioners’ Notices to Appear
(“NTA”), as issued by DHS, which do not check the box to designate the Petitioners as
“arriving [noncitizens].” Gov’t Resp. Ex. 3 at 1, Ex. 4 at 1. Rather, the NTAs check the box
describing each Petitioner as “a[] [noncitizen] present in the United States who has not
been admitted or paroled.” Id. By DHS’s own paperwork, the Petitioners are not
considered to be “arriving” at a border.

To read the statute pursuant to the Government’s interpretation would not only
contravene the plain language of the phrase “seeking admission,” which is written in the
present tense, but would render the phrase mere surplusage. The canon against
surplusage “urges courts to give each word meaning.” Ardente v. Standard Fire Ins. Co.,
744 F.3d 815, 819 (1st Cir. 2014). Under the Government’s interpretation, all noncitizens
within the United States—regardless of whether they have been lawfully “admitted”—are
considered in the process of “seeking admission.” Under that logic, section 1225(b)(2)(A)
would read as follows: “[I]n the case of a[] [noncitizen] who is an applicant for admission,
if the examining immigration officer determines that a[] [noncitizen] seeking admission
is not clearly and beyond a doubt entitled to be admitted, the [noncitizen] shall be
detained . . . .” See Lopez Benitez, 2025 WL 2371588, at *6 (conducting a surplusage
analysis of section 1225(b)(2)(A)).
Similarly, the Government’s construction of the statute does not align with the

definition of “entry” within the INA. The INA defines “admission” and “admitted” to
mean, “with respect to a[] [noncitizen], the lawful entry of the [noncitizen] into the
United States after inspection and authorization by an immigration officer.” 8 U.S.C.
§ 1101(a)(13)(A) (emphasis added). While it is true that the Petitioners were never
“admitted” to the country, “it does not follow that [they] continue[] to be actively ‘seeking’
such lawful entry at this time.” Lopez Benitez, 2025 WL 2371588, at *6. Rather, “one
would say that they had entered unlawfully but now seek a lawful means of remaining
there.” Id. at *7 (emphasis added). Construing section 1225(b)(2) to apply to noncitizens
already residing in the country would read the word “entry” out of the definitions of
“admitted” and “admission.” See 8 U.S.C. § 1101(a)(13)(A).
The Government’s interpretation also would obviate the language of a newly-

passed amendment to the INA, the Laken Riley Act, Pub. L. No. 119-1, 139 Stat. 3 (2025).
Less than a year ago, in January 2025, Congress passed an amendment to section 1226(c)
which mandates detention for a noncitizen who (i) is inadmissible because he is present
in the United States without being admitted or paroled, 8 U.S.C. § 1182(a)(6)(A), obtained
documents or admission through misrepresentation or fraud, id. § 1182(a)(6)(C), or lacks
valid documentation, id. § 1182(a)(7); and (ii) “is charged with, is arrested for, is
convicted of, admits having committed, or admits committing acts which constitute the
essential elements of any burglary, theft, larceny, shoplifting, or assault of a law
enforcement officer offense, or any crime that results in death or serious bodily injury to
another person,” 8 U.S.C. §§ 1226(c)(1)(E)(i)–(ii).
If section 1225(b)(2) mandated detention for all noncitizens—regardless of any
alleged criminal acts—then that portion of the Laken Riley Act would be redundant.
“When Congress acts to amend a statute, we presume it intends its amendment to have

real and substantial effect.” Stone v. I.N.S., 514 U.S. 386, 397 (1995); see also Reiter v.
Sonotone Corp., 442 U.S. 330, 339 (1979) (“In construing a statute we are obliged to give
effect, if possible, to every word Congress used.”). It is therefore safe to presume that
Congress’s amendment to section 1226(c)—which created a mandatory detention
structure for certain noncitizens accused of crimes who were already within the country—
was necessary because the existing provisions of the INA did not subject those same
noncitizens to mandatory detention. See Francisco T., 2025 WL 2629839, at *3
(“[I]nterpreting section 1225(b)(2) as applying to noncitizens who have already entered
the country and are not currently seeking admission into the country, as Respondents
urge, would render meaningless a recent amendment to section 1226 by the Laken Riley
Act (LRA).”).

Ultimately, if the Government’s interpretation of section 1225(b)(2) were correct,
it would preclude the need for section 1226(a) to exist at all: if section 1225(b)(2) is a
catch-all provision that applies to all noncitizens residing in the country, then there would
be no need for Congress to create a procedure for discretionary detention in section
1226(a). The Government’s argument erodes the foundations of the careful statutory
scheme Congress has created and continues to build upon—something this Court is
disinclined to do.
The Government points to a recently issued precedential opinion from the BIA,
Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (B.I.A. 2025), for further support of its
position. In that case, the BIA held that “Immigration Judges lack authority to hear bond
requests or to grant bond to aliens, like the respondent, who are present in the United
States without admission.” Id. at 225. I find Yajure Hurtado to be unavailing for the

statutory interpretation reasons I have already stated and reasons I will explain in more
detail below.
The Supreme Court has stated that “courts must exercise independent judgment
in determining the meaning of statutory provisions,” and they “may not defer to an agency
interpretation of the law simply because a statute is ambiguous.” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 394, 413 (2024). When deciding whether to give deference to
an agency determination, the “weight of such a judgment [by an agency] in a particular
case will depend upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944); see also Salcedo Aceros, 2025 WL 2637503, at *9 (applying

Skidmore and Loper Bright to analyze the Yajure Hurtado decision).
The BIA’s inconsistency on this issue cautions against deferring to the Yajure
Hurtado reasoning in this case. As recently as October 17, 2023, the BIA held in three
unpublished decisions that Immigration Judges had jurisdiction to review the custody
status of noncitizens residing in the interior of the country. See Martinez, 2025 WL
2084238, at *8 (referencing three such BIA decisions). In explaining its reasoning, one of
the decisions noted that “[t]he Notice to Appear issued by the Department of Homeland
Security (‘DHS’) did not charge the respondent as an arriving [noncitizen], however, but
as a[] ‘[noncitizen] present without permission or parole.’” Martinez v. Hyde et al., Dkt.
No. 25-cv-11613 (D. Mass. July 9, 2025), ECF No. 27-5 at 2 (quotation modified). Here,
too, Petitioners were charged as noncitizens “present without permission or parole.” Gov’t
Resp. Ex. 3 at 1, Ex. 4 at 1.
The BIA’s decision in Yajure Hurtado also is at odds with decades of DHS’s own

practices, which the opinion acknowledges. 29 I. & N. Dec. at 225. For many years, the
Executive Branch applied section 1226 to noncitizens in the interior of the country. In
1997, the Executive Branch agencies tasked with upholding immigration laws wrote:
“Despite being applicants for admission, [noncitizens] who are present without having
been admitted or paroled (formerly referred to as [noncitizens] who entered without
inspection) will be eligible for bond and bond redetermination.” 62 Fed. Reg. 10312,
10323 (Mar. 6, 1997). And in 2022, during Supreme Court oral arguments in Biden v.
Texas, the Solicitor General stated that “DHS’s long-standing interpretation has been that
1226(a) applies to those who have crossed the border between ports of entry and are
shortly thereafter apprehended.” Transcript of Oral Argument at 44:24–45:20, Biden v.
Texas, 597 U.S. 785 (2022) (No. 21-954); see Martinez, 2025 WL 2084238, at *4 n.9

(citing the same).
Although it is a plurality opinion, Justice Alito’s characterization of the
immigration detention statutes in Jennings, particularly in conjunction with the Supreme
Court’s other rulings, is illustrative to this district court in understanding the Supreme
Court’s historical application of the statutes. The plurality opinion defined section 1226(a)
as the “default rule” and stated that it “applies to [noncitizens] already present in the
United States.” Jennings, 583 U.S. at 303 (emphasis added). This aligns with the
Supreme Court’s long-standing recognition of the distinction between those people who
have resided in the country for years and those who are stopped while effecting entry at
the border. In Thuraissigiam, the Court rejected the application of due process rights to
a man who was only twenty-five yards past the border into the country. 591 U.S. at 139.
“[A] [noncitizen] who tries to enter the country illegally is treated as an ‘applicant for
admission,’ § 1225(a)(1), and a[] [noncitizen] who is detained shortly after unlawful

entry cannot be said to have effected an entry.” Id. at 140 (quotation modified). But “[t]he
distinction between a[] [noncitizen] who has effected an entry into the United States and
one who has never entered runs throughout immigration law . . . once a[] [noncitizen]
enters the country, the legal circumstance changes, for the Due Process Clause applies to
all ‘persons’ within the United States, including [noncitizens] . . . .” Zadvydas v. Davis,
533 U.S. 678, 693 (2001). The Supreme Court’s analyses on these issues comport with
Congress’s creation of different statutory schemes in sections 1225 and 1226. See also
Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“[O]ur immigration laws have long
made a distinction between those [noncitizens] who have come to our shores seeking
admission, such as petitioner, and those who are within the United States after an entry,
irrespective of its legality. In the latter instance the Court has recognized additional rights

and privileges not extended to those in the former category who are merely on the
threshold of initial entry.” (quotation modified)).
Mr. Tenesaca Lema’s situation underscores the tension between the Government’s
argument today and the historical conception of section 1225(b). When he was originally
detained in June 2021, DHS commenced removal proceedings against him, but he was
released back into the community until his re-detention related to the present petition in
August 2025. 8 U.S.C. § 1182(d)(5)(A) provides that a noncitizen detained under section
1225 may be paroled into the country “only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit.” There is no evidence in the record
indicating that either of those two exceptions apply to Mr. Tenesaca Lema.7 It follows that
because he was not mandatorily detained subject to section 1225, he must have been
conditionally released under the discretionary detention scheme of section 1226(a). Other
courts faced with a similar set of facts have reached identical conclusions. See Martinez,

2025 WL 2084238, at *4 (“The most logical conclusion to draw from these facts is that
Petitioner was not ‘parole[d] into the United States’ ‘for urgent humanitarian reasons or
significant public benefit’ under section 1182(d)(5)(A) but rather . . . was released upon
her own recognizance as a form of conditional parole under section 1226.”); Rosado, 2025
WL 2337099, at *7 (“[T]he record before the Court regarding Rosado’s lack of detention
during her removal proceedings beginning in 2018, after inspection at the border,
through April 30, 2025, can only be construed as demonstrating that Rosado was
conditionally paroled into the United States.”). As such, I construe Mr. Tenesaca Lema’s
previous treatment under section 1226(a) as weighing against the Government’s broad
construction of section 1225(b)(2). That the Government concedes this Court should treat
Petitioner Tenesaca Lema as indistinguishable from the other Petitioners only

underscores the sweeping overbreadth of its position. This position, specifically
inconsistent with the Government’s own practices regarding Mr. Tenesaca Lema, and also
inconsistent with the historical practices of its own agencies in general, surely is not what
Congress intended.

7 Neither party has provided the Court with a copy of Mr. Tenesaca Lema’s Order of Release.
For these reasons, I conclude section 1225(b) does not apply to the Petitioners’
detention, and they may be subject to detention only as a matter of discretion pursuant to
section 1226(a).
E. Due Process
Because I find that section 1226(a)’s discretionary detention scheme applies to

Petitioners, I must now address the question of whether their detention without a bond
hearing violates due process. The Government maintains that even if petitioners are
detained pursuant to section 1226(a), that statute allows the Attorney General the
discretion to detain Petitioners pending a final decision on their removal proceedings.
Gov’t Resp. at 14–15. As such, according to the Government, there is no violation. But the
Government’s argument fails to consider the plain text of section 1226(a) and its
implementing regulations, which provide for noncitizens to have bond hearings to
challenge their confinement, even while removal proceedings are ongoing. See Johnson
v. Arteaga-Martinez, 596 U.S. 573, 579–80 (2022) (“Noncitizens detained under
§ 1226(a) receive bond hearings after the Government initially detains them.” (citing
8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)). “Bond may be denied only if the government ‘either

(1) prove[s] by clear and convincing evidence that [the noncitizen] poses a danger to the
community or (2) prove[s] by a preponderance of the evidence that [the noncitizen] poses
a flight risk.’” Gomes, 2025 WL 1869299, at *2 (quoting Hernandez-Lara, 10 F.4th at 41).
Here, it is undisputed that none of the Petitioners has had a bond hearing since their
detention in August 2025.
Because the question of the Petitioners’ current detention turns on the “adequacy
of the process in the context of a civil immigration confinement,” Chipantiza-Sisalema v.
Francis, No. 25 Civ. 5528, 2025 WL 1927931, at *2 (S.D.N.Y. July 13, 2025) (citations
omitted), I turn to the three-part balancing test established in Mathews v. Eldridge, 424
U.S. 319 (1976). See Hernandez-Lara, 10 F.4th at 27–28 (applying Mathews to a
noncitizen’s detention under section 1226(a)). The three factors are: (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 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.” Id. at 28 (quoting
Mathews, 424 U.S. at 335). “The burden of proof of showing deprivation of rights leading
to unlawful detention is on the petitioner.” Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir.
2009) (citing Walker v. Johnston, 312 U.S. 275, 286 (1941)).
1. Private Interest
The Due Process Clause prohibits the deprivation of life, liberty, or property
without due process of law. U.S. Const. amend. V. “‘It is well established that the Fifth
Amendment entitles [noncitizens] to due process of law’ in the context of removal
proceedings.” Trump v. J.G.G., 604 U.S. 670, 673 (2025) (per curiam) (quoting Reno v.

Flores, 507 U.S. 292, 306 (1993)). The Petitioners here are asserting “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).
Section 1226(a) allows that “a[] [noncitizen] may be arrested and detained pending
a decision on whether the [noncitizen] is to be removed from the United States,” and
provides three options to the Attorney General: to release the noncitizen on bond, to
release them on their own recognizance, or to keep them detained. 8 U.S.C. § 1226(a). If
an immigration official makes an initial determination to detain the noncitizen, the
noncitizen is entitled to appeal the decision before an Immigration Judge. See 8 C.F.R.
§§ 1003.19(d), (e) (2025). But enforcing detention under section 1226(a) without a
meaningful opportunity to challenge the confinement is a significant erosion of a
noncitizen’s liberty interests. See Hernandez-Lara, 10 F.4th at 28 (“[T]he government’s
exercise of its power to detain immigrants pending removal is subject to important

constitutional limitations.” (quotation modified)). In order to provide them the process
they are due under section 1226(a), the Government must allow Petitioners the
opportunity to request bond before an Immigration Judge where the Government will
carry its burden as prescribed by the First Circuit in Hernandez-Lara. See Rodrigues De
Oliveira, 2025 WL 1826118, at *6 (“‘[D]ue process requires the government to either (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 impose detention throughout the period of removal proceedings,
including appeals.” (quoting Hernandez-Lara, 10 F.4th at 41)).
Petitioners’ liberty interests are thus clearly established for purposes of the first
prong of the Mathews balancing test.

2. Risk of Erroneous Deprivation
The second prong of the Mathews test not only requires the Court to consider the
risk to the deprivation of the liberty interest at stake, but also “the probable value, if any,
of additional or substitute procedural safeguards.” Hernandez-Lara, 10 F.4th at 28
(quoting Mathews, 424 U.S. at 335). Ensuring that due process is followed serves to
protect all three of the Petitioners’ liberty interests.
Mr. Tenesaca Lema’s deprivation is arguably more pronounced than the other two
Petitioners’ because of his original arrest and subsequent release in 2021. Section 1226(b)
provides that “[t]he Attorney General at any time may revoke a bond or parole authorized
under subsection (a), rearrest the alien under the original warrant, and detain the alien.”
8 U.S.C. § 1226(b). However, the BIA held in Matter of Sugay, 17 I. & N. Dec. 637, 640
(B.I.A. 1981), that “where a previous bond determination has been made by an
immigration judge, no change should be made by a District Director absent a change of

circumstance.” Courts have relied on Sugay to enjoin the government from re-arresting
a noncitizen before a custody re-determination hearing can be held in front of an
Immigration Judge. E,g., Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019);
dos Santos v. Noem, No. 1:25-CV-12052, 2025 WL 2370988, at *9 (D. Mass. Aug. 14,
2025). Mr. Tenesaca Lema’s liberty interest is at risk “‘[u]nless and until’ the government
carries its burden ‘to show that a change in circumstances supported its decision to
revoke’ the previous custody determination at a hearing before an Immigration Judge.”
Bermeo Sicha v. Bernal, No. 25-cv-00418, 2025 WL 2494530, at *7 (D. Me. Aug. 29,
2025) (quoting dos Santos, 2025 WL 2370988, at *9).
The Government points to the fact that Mr. Tenesaca Lema missed his master
calendar hearing in February 2024 to argue that he “has positively displayed a risk of

flight” sufficient to support a finding of changed circumstances to revoke his bond. Gov’t
Supp. Br. at 3. Mr. Tenesaca Lema responds that his nonappearance at the hearing should
not weigh against him “because his non-appearance was due, according to the
Immigration Judge, to the Government’s failure to provide him with proper notice of the
hearing as required by 8 U.S.C. § 1229a(b)(5)(A).”8 Pets.’ Supp. Br. at 9. It is not clear

8 8 U.S.C. § 1229a(b)(5)(A) states, “Any [noncitizen] who, after written notice required under paragraph (1)
or (2) of section 1229(a) of this title has been provided to the [noncitizen] or the [noncitizen’s] counsel of
record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service
establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that
the [noncitizen] is removable . . . .”
from the record whether the arresting officer knew that Mr. Tenesaca Lema had missed
his calendar hearing, let alone why he missed it, when he detained him. To the contrary,
all that is apparent to the Court from the record is that Mr. Tenesaca Lema was re-arrested
without an apparent change of circumstances. In any event, these types of factual
determinations are properly decided by an Immigration Judge after a detention hearing,

and only highlight the need for a hearing with properly allocated burdens to explore the
risk, or lack thereof, that a noncitizen may pose to flight or dangerousness.
In sum, I find that the Petitioners run a high risk of erroneous deprivation of their
liberty.
3. Government Interest
I agree with the Government’s assertion that “detention during deportation
proceedings [is] a constitutionally valid aspect of the deportation process,” Gov’t Resp. at
15 (quoting Demore, 538 U.S. at 523), and that the Government has a legitimate interest
in the “prompt execution of removal orders . . . which detention may facilitate,”
Hernandez-Lara, 10 F.4th at 32. But “[c]ivil detention comports with due process only
when a ‘special justification’ outweighs the ‘individual’s constitutionally protected

interest in avoiding physical restraint.’” Rosado, 2025 WL 2337099, at *14 (quoting
Zadvydas, 533 U.S. at 690). The Government has not identified any specific policy—other
than its across-the-board application of an inapplicable statute—which would weigh in
favor of the Petitioners’ continued detention without a hearing. Moreover, the public
interest weighs against detention without a hearing. See Hernandez-Lara, 10 F.4th at 33
(noting that “unnecessary detention” of noncitizens “imposes substantial societal costs”).
Simply put, the government interest in avoiding any pre-detention process in this
instance is minimal.
The third prong of Mathews therefore weighs toward the Petitioners.
III. Conclusion
In sum, the Mathews factors weigh in favor of the Petitioners and compel a hearing
on detention before an Immigration Judge where they may have the opportunity to be
heard. See Bermeo Sicha, 2025 WL 2494530, at *7; Rodrigues De Oliveira, 2025 WL

1826118, at *7. The question now is whether Petitioners should be released pending that
hearing. The answer to that question can be complex and fact-specific, although here it
appears to be straightforward.9
The parties all contended at the September 18, 2025, hearing that the fact that
Petitioners were arrested without a warrant was irrelevant to a determination on the
merits. Presumably, the Government rests its position on its contention that all three
Petitioners were detained under section 1225(b)(2), which does not require a warrant. As
discussed herein, detention under section 1225(b)(2) was improper. Thus, this Court is
not so convinced the warrantless nature of the arrests is irrelevant, at least not when it
comes to continued detention. Issuance of a warrant is a necessary condition to justify
discretionary detention under section 1226(a). Section 1226(a) plainly states: “On a

warrant issued by the Attorney General, a[] [noncitizen] may be arrested and detained .
. . .” 8 U.S.C. § 1226(a) (emphasis added). As such, it follows that absent a warrant a
noncitizen may not be arrested and detained under section 1226(a). To put it simply,
Petitioners’ detentions are improper because there is no evidence in the record that they
were arrested pursuant to a warrant. Since the Government did not comply with the plain

9 The parties have continuously treated all three Petitioners alike, including by submitting joint briefing and
joint argument on all three cases, presumably because the Government’s position is that all such noncitizens
are detained under section 1225, which this Court has found to be improper. The Court is not necessarily
convinced Mr. Tenesaca Lema is similarly situated, but he also was arrested without a warrant. In any event,
on the record before the Court, all three Petitioners are indeed entitled to the same relief.
language of section 1226(a), their immediate release is justified. See Hamdi, 542 U.S. at
529 (“[L]iberty is the norm . . . .” (citation omitted)).
In sum, Petitioners’ rights to due process have been unconstitutionally deprived by
the Government’s actions in this case. Petitioners have been residing continuously within
the country for more than two years; therefore, section 1225(b)(2)’s mandatory detention

requirement does not apply. Section 1226(a) is the proper discretionary detention scheme
to apply in all three Petitioners’ cases, but the Government has failed to comply with the
requirements of arrest and detention under that statute by failing to secure a warrant.
Accordingly, I GRANT the Petitioners’ habeas petitions and order that they be
released from detention until they receive individual bond hearings pursuant to section
1226(a). Dkt. No. 25-cv-00437, ECF No. 7; Dkt. No. 25-cv-00438, ECF No. 9; Dkt. No.
25-cv-00439, ECF No. 9. Mr. Tenesaca Lema remains subject to any conditions of release
previously imposed upon him by an Immigration Judge. The Government is enjoined
from denying Petitioners a bond hearing on the basis that 8 U.S.C. § 1225(b)(2) applies to
Petitioners and the Government shall provide Petitioners with a bond hearing in
accordance with 8 U.S.C. § 1226(a)(2) within fourteen days of the date of this order. The

Government is further ORDERED to file a status report for each Petitioner within five
days of his bond hearing, stating whether the Petitioner has been granted bond, and, if
his request for bond was denied, the reasons for that denial.
SO ORDERED.

Dated this 21st day of September, 2025.

/s/ Stacey D. Neumann
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11141693. Public record. Not legal advice.