J.U. v. Maldonado, Jr.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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J.U.

Petitioner,

MEMORANDUM AND ORDER

- against- 25-CV-04836 (OEM)

RAUL MALDONADO, in his official capacity as

Warden of the Metropolitan Detention Center,

Respondent.

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ORELIA E. MERCHANT, United States District Judge:

Petitioner J.U.1 (“Petitioner”) petitions this Court for a writ of habeas corpus pursuant to

28 U.S.C. § 2241, challenging the lawfulness of his ongoing detention by Immigration and

Customs Enforcement (“ICE”) at the Metropolitan Detention Center (“MDC”) in Brooklyn, New

York. See Petition for Writ of Habeas Corpus (“Pet.”), ECF 1. Petitioner contends that on July 1,

2025, ICE unlawfully arrested and detained him at a Manhattan immigration court without first

making an individualized assessment as to whether he poses a flight risk or danger to the

community and therefore without due process. Id. Petitioner challenges his detention as a

violation of the Due Process Clause of the Fifth Amendment and the Immigration and Nationality

Act (“INA”) and its implementing regulations. Id. Petitioner seeks immediate release from

custody. For the following reasons, Petitioner’s petition for a writ of habeas corpus is granted.

1 On September 5, 2025, the Court granted Petitioner’s motion for leave to proceed under pseudonym.

BACKGROUND2

Petitioner is a Venezuelan national who fled his home country in May 2023 to escape

persecution based on his political beliefs and his sexual orientation. Pet. ¶¶ 22, 31.

He entered the United States through El Paso, Texas, on or about March 18, 2024. Id. ¶ 32.

He “presented himself” to U.S. Customs and Border Protection (“CBP”) border patrol agents and

was detained. Id. The next day, on March 19, 2024, CBP served Petitioner with a Form I-200

“warrant for arrest of alien” under “section 236 of the [INA]” and a Notice to Appear charging

Petitioner with removability under INA § 212(a)(6)(A)(i), codified at 8 U.S.C. § 1182(a)(6)(A)(i).

Notice to Appear (“NTA”), ECF 2-1. The NTA has separate boxes to designate an alien in removal

proceedings: “arriving alien,” “alien present in the United States who has not been admitted or

paroled,” or alien “admitted to the United States, but are removable for reasons” stated in the form.

Id. Petitioner was designated as an “alien present in the United States who has not been admitted

or paroled.” Id. The NTA placed Petitioner “[i]n removal proceedings under section 240 of the

Immigration and Nationality Act,” directing him to appear before an immigration judge in New

York, New York for a hearing to be held on June 17, 2025, at 10:00 a.m. Id.

That same day, DHS released Petitioner from custody on “[his] own recognizance”

“pending final administrative determination in [his] case” “in accordance with Section 236 of the

[INA]”, 8 U.S.C. § 1226. Notice of Custody Determination, ECF 2-15; Order of Release on

Recognizance, Ex. D, ECF 17. Upon his release from custody, Petitioner moved to New York,

where he had been living up until his unlawful arrest and detention.

2 The following facts are primarily drawn from Petitioner’s habeas petition, Pet.; the declaration of attorney for

Petitioner, Marc L. Greenwald (“Greenwald Decl.”), ECF 2, and exhibits attached thereto, ECF 2-1-2-21;

Respondent’s Opposition to the Petition for Writ of Habeas Corpus and Response to the Court’s Order To Show Cause

(“Resp.”), ECF 16; the declaration of MDC clinical director Bruce Bialor, M.D. (“Bailor Decl.”) and exhibits thereto,

ECF 16-2; the declaration of deportation officer Michael Charles (“Charles Decl.”) and exhibits attached thereto, ECF

17; Petitioner’s Reply in Support of his Petition (“Reply”), ECF 19.

Since his release more than a year ago, Petitioner has “established community ties,

including finding lawful employment and a romantic partner” with whom he has made a home.

Pet. ¶ 3. On May 16, 2024, Petitioner timely filed a Form I-1589 application for asylum application

and for withholding of removal under the Convention Against Torture (“CAT”). ECF 2-2. DHS

granted Petitioner’s application for employment authorization and issued him a social security

number and employment authorization document (“EAD”). ECF 2-16. His EAD allowed him to

obtain employment in the U.S.; he worked at Flying Food Group, a catering service that prepares

meals for airlines. Pet. ¶ 41; ECF 2-17. Petitioner has “no criminal history in any country”, as he

was never arrested or incarcerated prior to July 1, 2025. Pet. ¶ 4; ECF 2-20 (“Subject has no

criminal history”); ECF 2-21.

Petitioner “has complied with all procedures for his asylum application and all conditions

of release” as they relate to his immigration case, including checking in with ICE within one week

of arriving in New York. Pet. ¶¶ 36, 38. On July 1, 2025, Petitioner appeared at a scheduled

proceeding on his asylum application in immigration court, at 26 Federal Plaza in New York, New

York. Id. ¶ 44. While in court, Petitioner alleges that “ICE agents indiscriminately arrested

[Petitioner] and approximately 40 other persons.” Id. ¶ 44. Petitioner contends that “DHS made

no [individualized] determination, nor could it possibly have concluded that [he] is a flight risk or

any danger to the community, as no facts would support that conclusion.” Id. ¶ 6. Petitioner

specifically alleges that “there was no change in circumstances between March 2024, when ICE

made the decision to release [him] on his own recognizance, and July 2025, when ICE arrested

[him], sufficient to justify [his] arrest.” Id. ¶ 45. “DHS made no individualized determination as

to [Petitioner] before arresting him” and “no one at DHS has ever articulated any individualized

reason that [he] has been arrested or detained.” Id.

Following his arrest and detention at the immigration court, Petitioner was initially

detained at 26 Federal Plaza for approximately a week and on July 8, 2025 was transferred to

MDC, where he since has been held. Id. ¶ 52.

PROCEDURAL HISTORY

On August 29, 2025, Petitioner commenced this action by filing a petition for a writ of

habeas corpus, stating that his continued detention violates his due process under the Fifth

Amendment’s Due Process Clause and the INA. His Petition was supported by a declaration and

exhibits. Petitioner also filed a motion to proceed under pseudonym. The case was initially

assigned to Senior District Judge Amon, and on September 4, 2025, it was reassigned to the

undersigned.

On September 5, 2025, the Court granted Petitioner’s motion to proceed under pseudonym

and issued an Order to Show Cause (“OSC”) why this writ of habeas should not be granted. The

Court’s Order directed Petitioner to serve a copy of the OSC and the Petition on Respondent by

September 5, 2025, directed Respondent to file a response by September 8, 2025, and set a hearing

for September 11, 2025. The Court also directed that Petitioner not be removed from the United

States until further order of the Court.

That same day, with the consent of the Petitioner, Respondent requested an extension of

time to file a return to the OSC and requested that the hearing be adjourned to a later date. The

Court granted the extension request, directed Respondent to file a return by September 12, 2025,

and rescheduled the hearing to September 17, 2025, at 11:30 a.m. On September 12, 2025,

Respondent filed a return, and on September 15, 2025, supplemented its response with an updated

declaration and exhibits. Petitioner filed a reply and exhibits on September 16, 2025.

The Court held a hearing on the Order to Show Cause on September 17, 2025, at 11:30

a.m. Official Transcript of Proceeding (“Tr.”), ECF 22.

DISCUSSION

Petitioner argues that the government’s decision to arrest and detain him without an

individualized assessment as to whether he is a flight risk and a danger to the community violates

the Due Process Clause and the INA. See generally Pet. Upon review of the submissions before

the Court, there are three broad issues raised: (1) whether Petitioner is required to exhaust his

administrative remedies before seeking relief from this Court; (2) whether Petitioner, who has

resided in the United States for more than a year, was detained under 8 U.S.C. § 1225(b)(2)(A) or

under 8 U.S.C. § 1226(a); and (3) to the extent the Court finds that Petitioner was detained under

§ 1226(a), whether Petitioner’s detention violates the Due Process Clause of the Fifth Amendment.

See Pet; Resp.; Reply. The Court addresses each issue in turn.

A. Whether Petitioner Is Required to Exhaust Administrative Remedies

Federal courts have jurisdiction to review habeas petitions filed by immigration detainees

who assert that they are “in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). The parties do not contest that § 2241 confers jurisdiction on this

Court to hear the instant petition. Rather, Respondent argues that Petitioner’s challenge to his

detention at MDC in this Court is premature because he has not exhausted his administrative

remedies in immigration court by requesting discretionary parole under § 1225 and because his

bond appeal is still pending before the Board of Immigration Appeals (“BIA”) and that none of the

exceptions to the exhaustion requirement apply. Resp. at 8-9.

Petitioner contends that exhausting his administrative remedies would be futile. Petitioner

argues that the September 5, 2025 decision issued by the BIA in Matter of Yajure Hurtado, 29 I&N

Dec. 216 (BIA 2005), precludes immigration judges from hearing bond requests for noncitizens3

detained under § 1225, forecloses any available administrative remedies in this action. Further,

Petitioner contends that administrative exhaustion should be excused because: (1) Petitioner brings

a constitutional claim and has presented a substantial constitutional question for which

immigration courts do not have the authority to provide relief; (2) a bond hearing or appeal after

arrest is no substitute for the injury already inflicted on Petitioner by the unlawful arrest and

detention as there was no individualized determination made; and (3) the duration of the appeal

favors excusing administrative exhaustion. Pet. ¶¶ 93-109.

Courts generally require “administrative exhaustion before immigration detention may be

challenged in federal court by a writ of habeas corpus.” Quintanilla v. Decker, 21-CV-417, 2021

WL 707062, at *2 (S.D.N.Y. Feb. 22, 2021) (citing Joseph v. Decker, 18-CV-2640, 2018 WL

6075067, at *5 (S.D.N.Y. Nov. 21, 2018)). However, exhaustion is a “prudential matter,” not a

“statutory requirement.” Id. Indeed, courts in this Circuit have excused exhaustion when

“(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury

may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in

certain instances a plaintiff has raised a substantial constitutional question.” Beharry v. Ashcroft,

329 F.3d 51, 62 (2d Cir. 2003), as amended (July 24, 2003).

As to the first and third exceptions, there are no administrative remedies available that

could provide Petitioner with the relief he seeks. This is easily demonstrated by the source of the

injury alleged: Petitioner asserts that the original constitutional transgression occurred when ICE

detained him on July 1, 2025, without first making an individualized determination that he posed

a flight risk or a danger to community, or any other type of process and notice that would justify

3 The terms “noncitizen” and “alien” are used interchangeably in this Order.

the detention. Thus, the only cure to that unlawful detention is the vacatur of detention – that is,

the release of Petitioner from ICE custody. As explained infra, while a noncitizen detained under

§ 1226(a) is entitled to a bond hearing, “the implementing regulations provide that ‘[s]uch hearings

. . . are provided for the purpose of custody re-determination—a hearing held by an immigration

judge after ICE makes its initial decision to detain.’” Lopez Benitez v. Francis, 25-CV-5937

(DEH), 2025 WL 2371588, at *13 (S.D.N.Y. Aug. 13, 2025) (quoting Chipantiza-Sisalema v.

Francis, 25-CV-5528 (AT), 2025 WL 1927931, at *3 (S.D.N.Y. July 13, 2025); see also 8 C.F.R.

236.1(d)(1). But there was no “initial decision” as ICE’s detention of Petitioner did not comport

with the implementing regulations and § 1226(a); thus, a bond hearing for a post-deprivation

review is wholly inadequate to remedy that unlawful detention. See Chipantiza-Sisalema, at *3

(bond hearing “is no substitute for the requirement that ICE” must follow prior to the initial

decision to “strip a person of the freedom that lies at the heart of the Due Process Clause”); Tr.

33:2-34:4 (Petitioner’s counsel explaining that bond hearing is designed to address a noncitizen’s

challenge that the already-made individualized determination made to initially detain was in error).

As to the second exception, waiver of the exhaustion requirement is warranted because

Petitioner is likely to experience irreparable harm if he is unable to seek habeas relief in this Court

until the BIA issues a ruling on Petitioner’s appeal of the denial of his bond application. Further,

an immigration judge has already considered and denied Petitioner’s bond request and therefore

the principles undergirding the exhaustion requirements are not present here.

Finally, Petitioner’s petition raises a substantial constitutional question that cannot properly

be adjudicated administratively. See Lopez Benitez, 2025 WL 2371588, at *14. Here, Petitioner

contends that his continued detention under § 1226(a) without DHS first making an individualized

determination constitutes a violation of his due process rights. Yet, neither an immigration judge

nor the BIA is positioned to properly adjudicate such a claim. See Lopez Benitez, 2025 WL

2371588, at *14; Valdez v. Joyce, 25-CV-4627 (GBD), 2025 WL 1707737, at *1 n.1 (S.D.N.Y.

June 18, 2025) (“Petitioner has raised a constitutional question that could not be properly addressed

by the Immigration Judge or Board of Immigration Appeals.”). Therefore, the Court concludes

that Petitioner is excused from exhausting administrative remedies before seeking relief in this

Court.

B. Whether Petitioner Is Detained Under 8 U.S.C. § 1225 or § 1226

A threshold question in this case is whether Petitioner is detained pursuant to the

government’s authority under § 1225(b), as Respondent contends, or under § 1226(a), as

Petitioner’s March 2024 Notice of Custody Determination, Notice to Appear, and Order of Release

on Recognizance would indicate.

1. Statutory and Regulatory Framework of § 1225 and § 1226

The two principal statutes that govern the detention of noncitizens pending removal

proceedings are 8 U.S.C. § 1225 and § 1226. The parties agree that the two provisions are

exclusive; a noncitizen can only be subject to § 1225 or § 1226, not both. Tr. at 10:12-25

(Petitioner’s counsel “agree[s]” that the sections are mutually exclusive); id. at 11:3-4 (“the

Government’s position is that it can’t be both at the same time.”).

a) Section 1225

Section 235(a) of the INA, codified at 8 U.S.C. § 1225, provides that “[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 this chapter an applicant for admission.” 8 U.S.C. § 1225(a)(1).

Applicants for admission are divided into two categories: those covered by § 1225(b)(1) and those

covered by § 1225(b)(2). See Jennings v. Rodriguez, 583 U.S. 281, 287 (2018).

Section 1225(b)(1) applies to aliens “initially determined to be inadmissible due to fraud,

misrepresentation, or lack of valid documentation,” id. (citing § 1225(b)(1)(A)(i)), and other aliens

who receive special designation by the Attorney General, § 1225(b)(1)(A)(iii). Section 1225(b)(2)

is a “catchall provision” that applies to all other applicants. See Jennings, 583 U.S. at 287

(explaining that § 1225(b)(2) “serves as a catchall provision that applies to all applicants for

admission not covered by § 1225(b)(1)”).

Both § 1225(b)(1) and (b)(2) require the detention of persons deemed to be applicants for

admission. Applicants for admission covered by § 1225(b)(1) are removed “without further

hearing or review” under an expedited removal process, unless the alien “indicates either an

intention to apply for asylum . . . or a fear of persecution,” in which case that alien is referred for

an asylum interview. 8 U.S.C. § 1225(b)(1)(A)(i)-(ii). “If an immigration officer determines after

that interview that the alien has a credible fear of persecution, ‘the alien shall be detained for

further consideration of the application for asylum.’” Jennings, 583 U.S. at 287 (quoting

§ 1225(b)(1)(B)(ii)). However, applicants who do not assert such claims or whom the immigration

officials “found not to have such a fear,” this statutory provision require that they “shall be detained

. . . until removed.” 8 U.S.C. § 1225(b)(1)(A)(ii), (B)(iii)(IV).

Turning to § 1225(b)(2), it provides that:

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).

Regardless of which sub-section of § 1225(b)’s mandatory detention applies to a particular

noncitizen, that noncitizen may nonetheless be, in the discretion of the Secretary of Homeland

Security, “parole[d] into the United States temporarily under such conditions as he may prescribe

only on a case-by-case basis for urgent humanitarian reasons or significant public benefit[.]” 8

U.S.C. § 1182(d)(5)(A); see Jennings, 583 U.S. at 288. Once the purposes of parole have been

achieved, “the alien shall forthwith return or be returned to the custody from which he was paroled

and thereafter his case shall continue to be dealt with in the same manner as that of any other

applicant for admission to the United States.” Id.

b) Section 1226

Section 1226(a) governs a separate non-mandatory detention scheme and provides the

“default rule” for detaining and removing aliens “already present in the United States.” Jennings,

583 U.S. at 303. It provides that:

on 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.

8 U.S.C. § 1226(a). While that decision is pending, the Attorney General may “continue to detain

the arrested alien,” “release the alien on bond of at least $1,500,” or “release the alien on

conditional parole.” Id. § 1226(a)(1)-(2). Section 1226(c) contains several exceptions for persons

“who fall[ ] into one of the enumerated categories involving criminal offenses and terrorist

activities.” Jennings, 583 U.S. at 303.

2. Lawfulness of Petitioner’s Detention

The record before the Court, including the government’s treatment of Petitioner since his

arrival in the United States in March 2024, establishes that Petitioner was detained pursuant to the

government’s discretionary authority under § 1226(a). Petitioner crossed the border and entered

the United States without inspection on or about March 18, 2024. The next day, on March 19,

2024, DHS border patrol agents arrested Petitioner pursuant to an arrest warrant, stating that he

was “within the country in violation of the immigration laws and is therefore liable to being taken

into custody as authorized by Section 236 of the [INA],” codified at 8 U.S.C. § 1226. Charles

Decl. Ex. B. The Notice of Custody Determination states that CBP released Petitioner on his own

recognizance pursuant to “the authority contained in section 236 of the [INA].” Charles Decl. Ex.

C. The Order of Release on Recognizance issued on March 19, 2024, provided that he was released

“[i]n accordance with section 236 of [INA] and the Nationality Act and the applicable provisions

of Title 8 of the Code of Federal Regulations.” Charles Decl. Ex. D. Thus, on March 19, 2024,

Petitioner was released on his own recognizance. Accordingly, all of DHS’s actions with respect

Petitioner in March 2024 were taken pursuant to § 1226(a), as none of the DHS records related to

Petitioner’s 2024 arrest and detention make any reference at all to § 1225(b). The same is true for

Petitioner’s current arrest and detention: Petitioner’s arrest record from DHS is devoid of any

reference to § 1225, and Respondent has not presented any records showing that Petitioner was

detained pursuant to § 1225.

Further, if Petitioner was arrested and detained pursuant to § 1225(b), that authority would

have mandated that, upon Petitioner’s arrest in March 2024, he be detained or an individual

determination made to grant him parole. See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(e); Biden

v. Texas, 597 U.S. 785, 806 (2022) (explaining that DHS’s authority to parole applicants for

admission is “not unbounded” because “DHS may exercise its discretion to parole applicants ‘only

on a case-by-case basis for urgent humanitarian reasons or significant public benefit’” (quoting 8

U.S.C. § 1182(d)(5)(A))). But nothing in the record indicates that Petitioner was granted parole

based on a case-by-case determination for urgent humanitarian reasons or public benefit.

Furthermore, such parole is granted only on a temporary basis; however, there is no evidence that

any “expiration of time” was placed upon Petitioner’s release such that his parole automatically

terminated. See 8 C.F.R. § 212.5(e)(1); 8 U.S.C. § 1182(d)(5)(A) (providing that “such parole of

such alien shall not be regarded as an admission of the alien and when the purposes of such parole

shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or

be returned to the custody from which he was paroled”); see 8 C.F.R. 212.5(c) (officials may “after

review of the individual case, parole into the United States temporarily in accordance with section

212(d)(5)(A) of the Act, [8 U.S.C. § 1182(d)(5)(A)], any alien applicant for admission, under such

terms and conditions . . . as he or she may deem appropriate.”). Further, Respondents do not

contend that any notice was provided to Petitioner lawfully revoking any such alleged parole. See

id. § 212.5(e)(2)(i). Thus, the fact that Respondents complied with none of the procedures

prescribed by § 1182(d)(5)(A) and its implement regulations when releasing Petitioner in March

2024 and detaining him in 2025 supports the conclusion that Petitioner was not subject to

§ 1225(b)(2)’s mandatory detention, but rather to § 1226(a)’s discretionary detention.

Indeed, Petitioner’s release on recognizance is incompatible with a release on parole into

the United States within the meaning of § 1182(d)(5)(A). Rather, release on recognizance

constitutes a form of conditional parole from detention housed in the provisions of § 1226’s

discretionary detention. See Cruz-Miguel v. Holder, 650 F.3d 189, 191, 198 (2d Cir. 2011)

(distinguishing between being paroled into the United States and being released on recognizance,

noting that they serve “distinct functions”); see also Lopez Benitez, 2025 WL 2371588, at *4

(where petitioner was initially arrested under § 236 and later released on recognizance, finding

that petitioner was detained under § 1226); Martinez v. Hyde, 25-CV-11613 (BEM), 2025 WL

2084238, at *3 (D. Mass. July 24, 2025) (where a petitioner was released on her own recognizance,

concluding that it “does not indicate that she was examined or detained under section 1225 but

instead explicitly premises her release on section 1226 (‘[i]n accordance with section 236 of the

Immigration and Nationality Act’)”); Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1115-16 (9th

Cir. 2007) (holding that a noncitizen released on an “Order of Release on Recognizance”

necessarily must have been detained and released under § 1226, including because he was not an

“arriving alien” under the regulations governing § 1225 examinations); Gomez v. Hyde, 25-CV-

11571 (JEK), 2025 WL 1869299, *5 (D. Mass July 7, 2025) (noting that “the government may

release a noncitizen detained under Section 1226(a) on an Order of Recognizance, which is a form

of conditional parole”); Matter of Cabrera-Fernandez, 28 I. & N. Dec. 747, 747 (B.I.A. 2023)

(“The respondents were . . . released on their own recognizance pursuant to DHS’ conditional

parole authority under . . . 8 U.S.C. § 1226 (a)(2)(B)[.]”).

To the extent Respondent argues that the government should be permitted to clarify the

detention authority that applies in this case, the distinction between a release on recognizance

under § 1226 and release on parole under § 1225 is imbued with legal significance. These two

provisions serve fundamentally different functions. Section 1226(a) “authorizes detention only

‘[o]n a warrant issued’ by the Attorney General,” Jennings, 583 U.S. at 302, and § 1225(b) contains

no warrant requirement, see 8 U.S.C. § 1225(b). Thus, the use of a warrant in March 2024 to arrest

and detain Petitioner is further evidence that Petitioner could only be detained pursuant to

§ 1226(a). See Martinez, 2025 WL 2084238, at *3 (noting that the distinction between release on

recognizance and parole is “more than an [immigration] officer’s choice of paperwork” but instead

is legally distinct); see also Hassan v. Crawford, 25-CV-1408 (LMB) (IDD), 2025 WL 2682255,

at *8 (Ed. Va. Sept. 19, 2025) (“Given the significant distinction between being paroled into the

United States under § 1182(d)(5)(A) and being released on recognizance under § 1226(a)(2)(B),

DHS’s consistent citations to § 1226(a) on [petitioner’s] paperwork does not support the argument

that the federal respondents actually intended for him to be paroled into the United States pursuant

to § 1182(d)(5)(A).”).

In its opposition to the Petition and at oral argument, Respondent nonetheless argues that

Petitioner was all along detained pursuant to § 1225(b)(2)(A)’s mandatory detention, despite DHS

records stating the contrary, because Petitioner is an “applicant for admission” to the United States

as he is present in the country without having been admitted or paroled; that Petitioner’s release

on his own recognizance does not change his status as an applicant for admission; that because

Petitioner has not demonstrated to an examining immigration officer that he is “clearly and beyond

a doubt entitled to be admitted,” his detention is mandatory under § 1225(b)(2)(A); and that

amendments to the immigration laws support the conclusion that Congress did not intend for aliens

like Petitioner to be treated better than other aliens. Resp. at 11-17. In sum, Respondent argues

that Petitioner has never “lawful[lly] ent[ered]” the United States. Id.

Respondent’s novel and expansive construction of § 1225(b)(2)(A) fails to withstand

scrutiny because it disregards the plain meaning of that provision, would render § 1226 and a

recent amendment to it superfluous, and is inconsistent with Supreme Court’s prior statutory

interpretations.

Respondent has not pointed to a single Article III court that has adopted its expansive

construction of § 1225(b)(2), but instead cites a recent BIA decision in Matter of Yajure Hurtado,

29 I&N Dec. 216 (BIA 2025), to argue that Petitioner is an “applicant for admission” and therefore

can be detained pursuant to § 1225, regardless of how many years they have been present in the

United States. Resp. at 14-16. In that case, the BIA held that noncitizens who are present in the

United States without admission and are arrested on a warrant are subject to § 1225(b)(2)(A).

Matter of Yajure Hurtado, 29 I&N Dec. at 227. However, while the BIA decision might be a

helpful guidance, this Court is not bound by it, see Loper Bright Enters. v. Raimondo, 603 U.S.

369, 385-86, 401 (2024) (interpretation of the meaning of a statute belongs to the “independent

judgment” of the courts, as “agencies have no special competence in resolving statutory

ambiguities”), particularly where BIA made prior pronouncements to the contrary. See Matter of

Yajure Hurtado, 29 I&N Dec. at 225 n.6 (“We acknowledge that for years Immigration Judges

have conducted [§ 1226(a)] bond hearings for aliens who entered the United States without

inspection.”); see Martinez, 2025 WL 2084238, at *8 (discussing prior BIA decisions). Under

Loper, the Court is not required to defer to the BIA’s recent interpretation, particularly when that

view has not “remained consistent over time.” 603 U.S. at 386; id. at 385-86 (“‘the longstanding

practice of the government’—like any other interpretive aid—‘can inform [a court’s] determination

of what the law is’”) (citations omitted); see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

(stating that the “weight of such a judgment 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”).

This Court finds that the historical practice – under which § 1225(b)(2)(A) would not have

applied to Petitioner – is consistent with the text, structure, and statutory scheme. As noted above,

§ 1225(a) defines an applicant for admission as “[a]n alien present in the United States who has

not been admitted or who arrives in the United States” and in turn, § 1225(b)(2)(A) states that “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.”

The government’s argument that every noncitizen who has not been lawfully admitted into

the United States continues to be a noncitizen “seeking admission” appears to equate “applicant

for admission” with “seeking admission.” But such a reading would render the phrase “seeking

admission” in § 1225(b) superfluous—that is, it is not doing any work in the statutory text, which

would violate the rule against surplusage. See United States, ex rel. Polansky v. Exec. Health Res.,

Inc., 599 U.S. 419, 432 (2023) (“‘[E]very clause and word of a statute’ should have meaning.”).

It is a basic canon of statutory interpretation that a statute should be construed as to give effect to

all its provisions and that no part will be superfluous. Corley v. United States, 556 U.S. 303, 314

(2009). If an interpretation of one provision “would render another provision superfluous, courts

presume that interpretation is incorrect.” Bilski v. Kappos, 561 U.S. 593, 607-08 (2010). This

presumption is “strongest when an interpretation would render superfluous another part of the

same statutory scheme.” Marx v. Gen. Rev. Corp., 568 U.S. 371, 386 (2013).

Under Respondent’s reading and application of § 1225(b)(2), nearly all noncitizens already

in the United States but not previously admitted or entered illegally would be subject to § 1225(b)’s

mandatory detention. If, as Respondent submits, § 1225(b)’s mandatory detention provision

applies to all noncitizens who remain applicants for admission to the United States, this would

render superfluous the mandatory detention provisions found in § 1226(c)(1)(A), (D), and (E).

Section 1226(c)(1)(A) provides that the “Attorney General shall take into custody any alien who

is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this

title,” such as crimes of moral turpitude and offenses relating to controlled substances. 8 U.S.C. §

1226(c)(1)(A). As Hasan explained, “this mandatory detention under § 1226(c) would be

unnecessary if all persons who have not been admitted into the United States were already subject

to § 1225(b)’s mandatory detention provisions.” 2025 WL 2682255, at *9. Likewise, Congress

amended § 1226 this year with the Laken Riley Act by adding § 1226(c)(1)(E), which makes

noncitizens subject to mandatory detention if (1) they are inadmissible under certain provisions in

8 U.S.C. § 1182 and (2) are charged with, arrested for, convicted of, or admit to having committed

certain crimes. 8 U.S.C. § 1226(c)(1)(E). Even under this new amendment, only when the

inadmissibility and the criminal conduct criterion are both satisfied did Congress intend for

mandatory detention to be triggered. See Gomez, 2025 WL 186929, at *6. Thus, Respondent’s

theory that § 1225 applies to noncitizens who are arrested on a warrant while residing in the United

States would make § 1226(c)(1)(E)’s criminal conduct requirement superfluous, thereby

“nullify[ing] a statute that Congress enacted this very year.” Id. at *7. In sum, the Court concludes

that Respondent’s reading of the relationship between § 1226 and § 1225 would contravene

Congress’s intent that, except as provided in § 1226(c), § 1226(a)’s discretionary framework

applies to all citizens arrested on a warrant while residing the United States.

Further, the issuing officer did not deem Petitioner to be an “arriving alien” but instead

deemed him, at the time, to be “present” in the United States. As explained infra, the Supreme

Court has interpretated the language of noncitizens “seeking admission” to mean something

different from those already present in the United States.

Finally, Respondent’s interpretation of the statutory scheme does not square with more than

a century of Supreme Court’s holdings interpreting the relationship between §§ 1225(b) and

1226(a). In 1958, the Court held that “our immigration laws have long made a distinction between

those aliens who have come to our shores seeking admission . . . and those who are within the

United States after an entry, irrespective of its legality[;] [i]n 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.’” Leng May Ma v. Barber, 357 U.S. 185, 187 (1958).

The Supreme Court later explained in Zadvydas v. Davis that “[t]he distinction between an alien

who has effected an entry into the United States and one who has never entered runs throughout

immigration law.” 533 U.S. 678, 693 (2001) (noting that “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”). In Jennings, the Supreme Court reaffirmed this principle, stating that § 1225(b)

governs “aliens seeking admission into the country” whereas § 1226(a) governs “aliens already in

the country” who are subject to removal proceedings. 583 U.S. at 289. And as recently as 2020,

in Department of Homeland Security v. Thuraissigiam, where a petitioner was arrested a mere 25

yards after crossing the border, the Supreme Court held that he was still “at the threshold of initial

entry” and although technically in the country, could still be treated as “an alien seeking initial

entry.” 591 U.S. 103, 114 (2020) (holding that a noncitizen detained “within 25 yards of the

border” is treated as if stopped at the border and therefore due process claim failed). Contrary to

Respondent’s position, Thuraissigiam did not upend more than a century of precedent but rather

held that noncitizens detained close to the border “shortly after unlawful entry” have not yet

“effected an entry.” Id. at 140. It continues to be the law of in this country that noncitizens “on

the threshold of initial entry stand[ ] on a different footing” than those who have “passed through

our gates.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). Here, the Court

finds that Petitioner “effected entry” into the United States in the past year since his release, see

Thuraissigiam, 591 U.S. at 140, and therefore was “already in the country,” see Jennings, 583 U.S.

at 289.

Accordingly, the Court finds that, under the circumstances here, Petitioner may only be

subject to detention as a matter of discretion under § 1226(a).

C. Whether ICE’s Detention of Petitioner Violates the Due Process Clause

The Court now turns to whether, under the circumstances of this case, ICE’s detention of

Petitioner violates his due process rights. The Fifth Amendment’s Due Process Clause prevents

the Government from depriving any person of “life, liberty, or property, without due process of

law.” U.S. CONST. AMEND. V. “Freedom from imprisonment—from government custody,

detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process

Clause] protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). It is well established that due

process protections extend to noncitizens, including those in removal proceedings. See id. at 693

(“[T]he Due Process clause applies to all ‘persons’ within the United States, including aliens,

whether their presence here is lawful, unlawful, temporary, or permanent.”); Reno v. Flores, 507

U.S. 292, 306 (1993). “Even noncitizens have a liberty interest in continued freedom from civil

immigration confinement.” Valdez v. Joyce, 25-CV-4627 (GBD), 2025 WL 1707737, at *2

(S.D.N.Y. June 18, 2025) (citing Lopez v. Sessions, 18-CV-4189 (RWS), 2018 WL 2932726, at *12

(S.D.N.Y. June 12, 2018) (holding that “Petitioner’s re-detention, without prior notice, a showing

of changed circumstances, or a meaningful opportunity to respond, does not satisfy the procedural

requirements of the Fifth Amendment.”)); see Lopez Benitez v. Francis, 25-CV-5937 (DEH), 2025

WL 2371588, at *9 (S.D.N.Y. Aug. 13, 2025). The Supreme Court has repeatedly—and recently—

reiterated this principle. See, e.g., Trump v. J.G.G., 145 S. Ct. 1003, 1006 (2025) (“‘It is well

established that the Fifth Amendment entitles aliens to due process of law’ in the context of

removal proceedings.” (citation omitted)).

The Second Circuit has held that the Mathews v. Eldridge three-factor balancing test applies

when determining the adequacy of process in the context of civil immigration confinement.

Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020) (citing Mathews v. Eldridge, 424 U.S.

319 (1976)). The determination of what procedures are required under the Fifth Amendment

requires consideration of: (1) the private interest that will be affected by the official action; (2) the

risk of erroneous deprivation of that interest through the procedures used; and (3) the

Government's interest, including the fiscal and administrative burdens that the additional or

substitute procedures would entail. Mathews, 424 U.S. at 335.

To the extent that Respondent argues that Petitioner’s detention does not violate the Due

Process because he was subject to mandatory detention, the Court has rejected that premise.

Respondent agrees that, to the extent DHS seeks to detain a noncitizen pursuant to the discretionary

authority provided by 1226(a), ICE must follow certain procedural safeguards. Tr. at 26-27.

With respect to the first prong of the Mathews test, Petitioner invokes “the most significant

liberty interest there is—the interest in being free from imprisonment.” Velasco Lopez, 978 F.3d

at 851 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004)). A person’s liberty cannot be abridged

without “adequate procedural protections.” Zadvydas, 533 U.S. at 690. Petitioner contends that

he “was wrongfully arrested while appearing at an immigration proceeding on his claim for

asylum” as DHS “improperly arrested him and locked him up with no hearing and on the strength

of no individualized determination.” Pet. ¶ 89. Petitioner’s liberty interest is clearly established.

See Valdez, 2025 WL 1707737, at *3.

With respect to the second prong of the Mathews test, the record unequivocally

demonstrates, and Respondent concedes both in its submissions and at oral argument, that no

individualized determination was made prior to or contemporaneously with the decision to detain

Petitioner in July 2025, and there was no change in circumstances from the time DHS released

Petitioner on his own recognizance in March 2024 to his re-arrest and detention in July 2025. Tr.

33:9-12 (The Court: “Can I pause here? There is no dispute that there was no individualized

determination?” Government Counsel: “That’s correct, your Honor.”); id. 36:25-37:2 (same); id.

35: 1-4 (Government: “[W]e conceded that Petitioner has not been arrested in the intervening

months between March 2024 and July of 2025”); id. 37:6-17 (In response to Court’s inquiry as to

what was the change in circumstances, the government responded, “there are no specific events

that happened to Petitioner that changed.”). Thus, the risk of erroneous deprivation of Petitioner’s

liberty interest is high. See Lopez, 2018 WL 2932726, at*11 (finding a risk of erroneous

deprivation where petitioner was re-detained absent a change in circumstances, procedure, or

evidentiary findings).

As to the third and final Mathews prong, “the Attorney General’s discretion to detain

individuals under 8 [] U.S.C. [§] 1226(a) is valid where it advances a legitimate governmental

purpose,” such as “ensuring the appearance of aliens at future immigration proceedings and

preventing danger to the community.” Valdez, 2025 WL 1707737, at *4 (first quoting Velasco

Lopez, 978 F.3d at 854; then quoting Zadvydas, 533 U.S. at 690). Here, as stated above, nothing

suggests that Petitioner is a flight risk or a danger to the community. Rather, the record evidence

shows that, in the nearly 16 months that Petitioner has resided in the United States, he timely filed

for asylum application, appeared at his immigration court proceedings, was gainfully employed,

and has had no criminal history. Letters of support from friends and neighbors of Petitioner

highlight Petitioner’s commitment to support his family, his strong family values and work ethic,

and integrity and honesty. ECF 2-18. Simply put, there is no evidence that Petitioner posed a risk

of flight or danger to the community sufficient to justify his detention. Thus, Respondent has

failed to show a significant interest in Petitioner’s continued detention.

Respondent’s ongoing detention of Petitioner with no process at all, much less prior notice,

no showing of changed circumstances, or an opportunity to respond, violates his due process rights.

See Valdez, 2025 WL 1707737, at *4; Lopez, 2018 WL 2932726, at *15. Given the deprivation of

Petitioner’s liberty, formerly granted and approved by Respondent, the absence of any deliberative

process prior to or contemporaneous with the deprivation, and the statutory and constitutional

rights implicated, a writ of habeas corpus is the only form of relief and the most appropriate

remedy. Id.

CONCLUSION

For the foregoing reasons, Petitioner’s Petition for a Writ of Habeas Corpus, ECF 1, is

GRANTED. Respondent is ORDERED to immediately release Petitioner from custody. By

September 29, 2025, Respondent shall certify compliance with this Order by a filing on the docket

and noting specifically that Petitioner has been released. The Clerk of Court is respectfully

directed to enter judgment in accordance with this Memorandum and Order and close this case.

SO ORDERED.

/s/

ORELIA E. MERCHANT

United States District Judge

September 29, 2025

Brooklyn, New York