S.D.B.B. v. JOHNSON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

S.D.B.B.,1 )

)

Petitioner, )

)

v. )

)

TERRY S. JOHNSON, in his official )

capacity as Sheriff, Alamance County; )

MAJOR STEVEN YOUNG, WARDEN, Alamance ) 1:25-cv-882

County Detention Facility; TODD LYONS, )

in his official capacity as Acting )

Director of Immigration and Customs )

Enforcement; KRISTI NOEM, Secretary of )

Homeland Security; and PAMELA BONDI, )

United States Attorney General, )

)

Respondents. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Petitioner S.D.B.B. has filed a seven-count petition for a

writ of habeas corpus (“Petition”), in which he asserts that he

has been illegally detained by the United States Department of

Homeland Security’s Immigration and Customs Enforcement (“ICE”)

since September 24, 2025. (Doc. 1.) Petitioner subsequently filed

an emergency motion for a temporary restraining order (“TRO”),

which is now before this court. (Doc. 4.) The court held a

hearing on October 1, 2025, and enjoined Petitioner’s removal from

the continental United States until 12:00 a.m. on October 7, 2025,

1 Petitioner has a pending motion to proceed under his initials rather

than full name. (Doc. 3.)

to permit the court adequate time to consider the request. (Doc.

7.) The court then ordered briefing, the parties thereafter filed

multiple briefs and supplements, and the court extended its October

1 order another twenty-four hours to consider these materials.

(Docs. 9, 11, 12, 13, 14, 16, 18.) For the reasons that follow,

Petitioner’s emergency motion for a TRO will be granted in part

and denied in part.

I. BACKGROUND

The allegations of the Petition, as well as facts of record,

show the following:

Petitioner entered the United States without inspection in

November 2021. (Doc. 1 ¶ 3.) On November 12, 2021, United States

Customs and Border Protection (“CBP”) issued Petitioner a Notice

to Appear. (Doc. 11-1 at 7.) The following day, CBP released

Petitioner into the United States on his own recognizance. (Id.

at 10.) Petitioner alleges that he has since complied with all

conditions of release (Doc. 1 ¶ 3), although Respondents disagree

(Doc. 11 at 3; Doc. 11-1 at 10).

In June 2022, Petitioner filed a Form I-589 Application for

Asylum and Withholding of Removal with United States Citizenship

and Immigration Services. (Doc. 1 ¶ 4.) His next hearing in

connection with the asylum application was scheduled for March

2027 in Charlotte, North Carolina. (Id. ¶ 5; Doc. 1-4 at 1.)

On September 24, 2025, military base guards questioned and

detained Petitioner when he attempted to gain access to Marine

Corps Air Station Cherry Point in the regular course of his

employment as a commercial truck driver for a large food

distribution company. (Doc. 1 ¶¶ 6-8; Doc. 11 at 4.) Petitioner

presented both his driver’s license and his government-issued

Employment Authorization Document (“EAD”), which is valid until

August 2030. (Doc. 1 ¶¶ 8-9; Doc. 1-5 at 1.) Nevertheless, the

base guards detained Petitioner, and ICE officers arrived at the

base to transfer him to the Alamance County Detention Facility in

Graham, North Carolina. (Doc. 1 ¶ 8.) At the time, the ICE

officers did not realize that Petitioner had been previously

released by CBP on his own recognizance. (Doc. 11 at 4.) On

October 2, 2025, during the pendency of the present petition,

Supervisory Detention and Deportation Officer (“SDDO”) Michael

Sanchez revoked Petitioner’s release after Petitioner had been

transferred to Stewart Detention Center in Lumpkin, Georgia. (See

Doc. 11-1 at 10; Doc. 12 at 3.) Petitioner reports that he has

now received notice that his removal hearing has been advanced to

October 9, 2025, at 1:00 p.m. in Lumpkin, Georgia. (Doc. 12-1.)

On September 27, 2025, Petitioner filed the present federal

habeas petition pursuant to 28 U.S.C. § 2241, challenging his

detention. (Doc. 1.) The Petition raises the following claims:

(1) Petitioner’s detention violates his substantive rights under

the Fifth Amendment’s Due Process Clause; (2) Petitioner’s

detention violates his procedural rights under the Fifth

Amendment’s Due Process Clause; (3) Respondents unconstitutionally

and unlawfully revoked Petitioner’s release on recognizance under

the Administrative Procedure Act (“APA”); (4) the revocation of

Petitioner’s release was arbitrary and capricious under the APA;

(5) the revocation of Petitioner’s release exceeded Respondents’

statutory authority under the APA; (6) no source of law authorizes

Petitioner’s detention under the circumstances; and (7)

Respondents violated the Accardi doctrine by failing to follow

their own procedures when they detained Petitioner.2 See United

States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). (Id.

¶¶ 62-109.)

On October 1, 2025, Petitioner filed an emergency motion for

a TRO. (Doc. 4.) Petitioner requested an emergency hearing on

the motion, which the court held that same day. (Id. at 4; see

Doc. 6.) Moreover, Petitioner requests his immediate release from

custody either under the terms of his Order of Release on

Recognizance (“OREC”) or under reasonable conditions of

supervision with constitutionally adequate procedures or, in the

alternative, an order preventing his transfer to another

jurisdiction or deportation from the United States. (Doc. 4 at

5.) The court enjoined Petitioner’s removal from the continental

2 Petitioner does not advance claims one, three, and four in his motion

for temporary relief.

United States until 12:00 a.m. on October 7, 2025, pending the

court’s further consideration of the Petition. (Doc. 7 at 3-4.)

On October 2, 2025, the court issued an order directing Respondents

to respond to Petitioner’s emergency motion for a TRO by 5:00 p.m.

on October 3, 2025. (Doc. 8.) Respondents filed a response (Doc.

11), and Petitioner filed multiple supplemental memoranda (Doc. 9;

Doc. 12). Respondents filed another response to the supplemental

memoranda. (Doc. 13.) The court further directed Respondents to

address additional issues raised by Petitioner’s response, and

Respondents filed a supplemental response. (Doc. 14.) Petitioner

replied the same day. (Doc. 16.) To permit consideration of these

recent filings, the court extended through 12:00 a.m. October 8,

2025, its prior order enjoining Respondents from removing

Petitioner from the United States. (Doc. 18.) Thus, Petitioner’s

emergency motion is fully briefed and ready for decision.

II. ANALYSIS

A. Whether the Court Has Jurisdiction over Petitioner’s

Habeas Petition

As a threshold matter, Respondents argue that several

provisions of the Immigration and Naturalization Act (“INA”), as

amended by the REAL ID Act, preclude Petitioner from bringing his

claims before this court.3 (Doc. 11 at 7.)

3 Even though Petitioner has been moved out of the district to a detention

facility in Georgia, the court retains jurisdiction over the case. See

A district court may grant a writ of habeas corpus to any

person who demonstrates he is “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C.

§ 2241(c)(3). Historically, “the writ of habeas corpus has served

as a means of reviewing the legality of Executive detention, and

it is in that context that its protections have been strongest.”

INS v. St. Cyr, 533 U.S. 289, 301 (2001); see Munaf v. Geren, 553

U.S. 674, 693 (2008) (“Habeas is at its core a remedy for unlawful

executive detention.”). In the immigration context, habeas is

“regularly invoked on behalf of noncitizens.” St. Cyr, 533 U.S.

at 305. Although the INA and the REAL ID Act contain jurisdiction-

stripping provisions, they “do not eliminate habeas jurisdiction

over all immigration-related detention claims.” Luna Quispe v.

Crawford, 25-cv-1471, 2025 WL 2783799, at *2 (E.D. Va. Sept. 29,

2025) (emphasis added) (quoting Hasan v. Crawford, 25-CV-1408,

2025 WL 2682255, at *3 (E.D. Va. Sept. 19, 2025)).

1. 8 U.S.C. § 1252(b)(9)

First, Respondents argue that pursuant to 8 U.S.C.

§ 1252(b)(9), Petitioner must bring his challenge to his detention

in immigration court, not in federal district court. (Doc. 11 at

7.) Specifically, Respondents contend that the statute’s “zipper

Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004) (“[W]hen the Government

moves a habeas petitioner after she properly files a petition naming her

immediate custodian, the District Court retains jurisdiction and may

direct the writ to any respondent within its jurisdiction who has legal

authority to effectuate the prisoner’s release.”).

clause” permits judicial review of all matters arising from removal

only upon the issuance of a final removal order. (Id.) Though

Petitioner does not address the court’s alleged lack of

jurisdiction under § 1252(b)(9), “[f]ederal courts have an

independent duty to confirm their own jurisdiction.” Shaiban v.

Jaddou, 97 F.4th 263, 265 (4th Cir. 2024).

Under § 1252(b)(9),

[j]udicial 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 under this subchapter shall be

available only in judicial review of a final order under

this section.

“But that provision doesn’t help the government here because it

‘applies only with respect to review of an order of removal under

[8 U.S.C. § 1252(a)(1)].’” Casa de Md. v. U.S. Dep’t of Homeland

Sec., 924 F.3d 684, 697 (4th Cir. 2019) (alteration in original)

(quoting St. Cyr, 533 U.S. at 313). Simply put, the provision

cannot apply until a removal order has been issued.

Here, Petitioner does not challenge any removal order because

no order of removal has yet been entered against him. Rather, he

challenges the constitutionality and legality of his detention

during the period before his removal hearing, which he alleges has

now been scheduled for October 9, 2025, at 1:00 p.m. (See Doc. 12

at 1; Doc. 12-1 at 1.) Thus, § 1252(b)(9) does not deprive the

court of jurisdiction.

2. 8 U.S.C. § 1252(g)

Second, Respondents argue that 8 U.S.C. § 1252(g) deprives

the court of jurisdiction over any challenge to an alien’s

detention in connection with removal proceedings. (Doc. 11 at 8.)

Petitioner counters that § 1252(g) narrowly applies only to

judicial review of the Attorney General’s lawful discretion “in

only three distinct actions: (1) commence removal proceedings, (2)

adjudicate those cases, and (3) execute orders of removal.” (Doc.

9 at 34 (citing Abrego Garcia v. Noem, No. 25-1345, 2025 WL

1021113, at *2 (4th Cir. Apr. 7, 2025)).)

Section 1252(g) provides that “no court shall have

jurisdiction to hear any cause or claim by or on behalf of any

alien arising from the decision or action by the Attorney General

to commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.” This provision’s

plain language “applies only to three discrete actions that the

[Secretary of Homeland Security] may take: her ‘decision or action

to commence removal proceedings, adjudicate cases, or execute

removal orders.’” Casa de Md., 924 F.3d at 696 (alteration in

original) (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525

U.S. 471, 482 (1999)); see also Reno, 525 U.S. at 482 (“It is

implausible that the mention of three discrete events along the

road to deportation was a shorthand way of referring to all claims

arising from deportation proceedings.”); Suri v. Trump, No. 25-

1560, 2025 WL 1806692, at *7 (4th Cir. Jul. 1, 2025) (“Because

§ 1252(g) simply does not extend to habeas challenges to present

immigration confinement, courts routinely exercise jurisdiction

over such challenges.”). Indeed, § 1252(g) is directed “against

a particular evil: attempts to impose judicial restraints upon

prosecutorial discretion.” Reno, 525 U.S. at 485 n.9. Here, to

the extent Petitioner challenges his detention and not the pending

hearing, his claims fall outside § 1252(g)’s scope.

B. Whether a TRO Should Issue

1. Legal Standard

“A preliminary injunction is an extraordinary remedy never

awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction

must establish [(1)] that he is likely to succeed on the merits,

[(2)] that he is likely to suffer irreparable harm in the absence

of preliminary relief, [(3)] that the balance of equities tips in

his favor, and [(4)] that an injunction is in the public interest.”

Id. at 20. These factors also apply to the issuance of a temporary

restraining order. Green v. ABC Cos., 702 F. Supp. 3d 418, 423 &

n.1 (W.D.N.C. 2023). Courts routinely apply the factors in the

immigration context. See, e.g., Vitkus v. Blinken, 79 F.4th 352,

361 (4th Cir. 2023) (applying the factors to determine whether the

plaintiff had demonstrated a likelihood of success on the merits

in opposing his extradition to Lithuania); Miranda v. Garland, 34

F.4th 338, 366 (4th Cir. 2022) (applying the factors to determine

whether the procedures afforded by the government in § 1226(a)

bond hearings violate the Constitution).

Because preliminary relief is extraordinary and not to be

granted as a matter of course, it may “only be awarded upon a clear

showing that the plaintiff is entitled to such relief.” Winter,

555 U.S. at 22. Moreover, because a prohibitory injunction seeks

to maintain the status quo, courts focus on “the last uncontested

status between the parties which preceded the controversy.” Di

Biase v. SPX Corp., 872 F.3d 224, 228 n.4 (4th Cir. 2017) (quoting

Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013)). Here, that

would be Petitioner’s status before he was detained September 24,

2025.

With this standard in mind, the court turns to the first

factor: whether Petitioner has established that he is likely to

succeed on the merits of his habeas challenge.

2. Whether Petitioner’s Detention Falls Under 8 U.S.C.

§ 1225 or § 1226

Respondents argue that Petitioner’s detention is governed by

the mandatory detention provisions in 8 U.S.C. § 1225(b)(2) rather

than the discretionary detention provisions in 8 U.S.C. § 1226(a).

(Doc. 11 at 11.) According to Respondents, they were free to

detain Petitioner under because he is an “applicant for admission”

and thereby subject to mandatory detention “during the pendency of

his removal proceedings.” According to Respondents, they were

free to detain Petitioner under § 1225 because he is an “applicant

for admission” and thereby subject to mandatory detention “during

the pendency of his removal proceedings.” (Id.) During the

hearing, Respondents further elaborated that Petitioner “does not

acquire the right to certain protections because – simply because

the statute was perhaps not correctly applied in the first place.”

(Doc. 10 at 36:16-18.) Petitioner counters that his detention is

governed by § 1226(a)’s discretionary detention provisions. (Doc.

9 at 6.)

Under § 1225(a)(1), “[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.” “[A]pplicants for admission fall into

one of two categories, those covered by § 1225(b)(1) and those

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

288 (2018). The second category, which serves as a catchall,

creates a mandatory detention scheme by providing 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 [full removal

proceedings].” 8 U.S.C. § 1225(b)(2)(A). Pursuant to § 1225, an

applicant for admission may only be released on parole “for urgent

humanitarian reasons or significant public benefit.” Jennings,

583 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)).

On the other hand, § 1226(a) sets out the “default rule” for

detaining and removing aliens “already present in the United

States.” Id. at 303. Under § 1226, an alien who is “arrested and

detained” faces three potential outcomes during the pendency of

his removal proceedings: (1) the Attorney General “may continue to

detain the arrested alien,” (2) the Attorney General “may release

the alien on bond of at least $1,500,” or (3) the Attorney General

“may release the alien on conditional parole.” 8 U.S.C. § 1226(a).

The provision therefore establishes a discretionary detention

framework. See Miranda, 34 F.4th at 345.

In support of their position that Petitioner is an “applicant

for admission” and thereby subject to mandatory detention under

§ 1225, Respondents point to the fact that Petitioner entered the

United States illegally and cannot demonstrate that he is “clearly

and beyond a doubt entitled to be admitted” because he is

“inadmissible” under 8 U.S.C. § 1182(a)(6). (Doc. 11 at 11-12.)

“But the statute also provides that ‘[t]he term “applicant for

admission” has reference to the application for admission into the

United States and not to the application for the issuance of an

immigrant or nonimmigrant visa.’” Luna Quispe, 2025 WL 2783799,

at *5 (alteration in original) (quoting 8 U.S.C. § 1101(a)(4)).

This definition, when read together with the present tense

formulation of § 1225(b)(2)(A), seemingly “brings within its scope

only those individuals actively seeking admission into the

country, and not those that have already entered the country

(albeit illegally).” Id.

In support of their detention of Petitioner, Respondents rely

on the recent Board of Immigration Appeals decision in Matter of

Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025), which held that all

aliens present in the United States without admission are

applicants for admission within § 1225(b)(2)(A) and thus must be

detained for the duration of their removal proceedings. (Doc. 11

at 9-10.) This decision, however, admittedly conflicts with

longstanding treatment by the immigration courts and officials,

see Yajure Hurtado, 29 I&N Dec. at 225, as well as virtually every

district court nationwide that has addressed these sections and

found that § 1225 either does not or likely does not broadly apply

to aliens already present within the United States. See, e.g.,

Luna Quispe, 2025 WL 2783799, at *5; Guerrero Orellana v. Moniz,

25-cv-12664, 2025 WL 2809996, at *6 (D. Mass. Oct. 3, 2025);

Chanaguano Caiza v. Scott, 25-cv-00500, 2025 WL 2806416, at *3 (D.

Me. Oct. 2, 2025); D.S. v. Bondi, 25-cv-3682, 2025 WL 2802947, at

*6 (D. Minn. Oct. 1, 2025); Rodriguez Vazquez v. Bostock, No. 25-

cv-05240, 2025 WL 2782499, at *27 (W.D. Wash. Sept. 30, 2025);

J.U. v. Maldonado, 25-CV-04836, 2025 WL 2772765, at *5 (E.D.N.Y.

Sept. 29, 2025); Rivera Zumba v. Bondi, No. 25-cv-14626, 2025 WL

2753496, at *7 (D.N.J. Sept. 26, 2025); Lopez v. Hardin, No. 25-

cv-830, 2025 WL 2732717, at *2 (M.D. Fla. Sept. 25, 2025); Lepe v.

Andrews, No. 25-cv-01163, 2025 WL 2716910, at *9 (E.D. Cal. Sept.

23, 2025); Giron Reyes v. Lyons, No. C25-4048, 2025 WL 2712427, at

*5 (N.D. Iowa Sept. 23, 2025); Singh v. Lewis, No. 25-cv-96, 2025

WL 2699219, at *3 (W.D. Ky. Sept. 22, 2025); Pablo Sequen v.

Kaiser, No. 25-cv-06487, 2025 WL 2650637, at *7-8 (N.D. Cal. Sept.

16, 2025); Jimenez v. FCI Berlin, Warden, No. 25-cv-326, 2025 WL

2639390, at *10 (D.N.H. Sept. 8, 2025); Lopez-Campos v. Raycraft,

No. 25-cv-12486, 2025 WL 2496379, at *8 (E.D. Mich. Aug. 29, 2025);

Arrazola-Gonzalez v. Noem, No. 25-cv-01789, 2025 WL 2379285, at *2

(C.D. Cal. Aug. 15, 2025); Anicasio v. Kramer, 25CV3158, 2025 WL

2374224, at *2 (D. Neb. Aug. 14, 2025); Lopez Benitez v. Francis,

No. Civ. 5937, 2025 WL 2371588, at *3 (S.D.N.Y. Aug. 13, 2025);

Rosado v. Figueroa, No. CV 25-02157, 2025 WL 2337099, at *10 (D.

Ariz. Aug. 11, 2025). But see Vargas Lopez v. Trump, 25CV526,

2025 WL 2780351, at *9 (D. Neb. Sept. 30, 2025); Chavez v. Noem,

25-cv-02325, 2025 WL 2730228, at *5 (S.D. Cal. Sept. 24, 2025).

While the court is not bound by decisions of the BIA, at this

early stage it cannot be said that the government’s current novel

interpretation of the statutory scheme, which is admittedly “a

complex set of legal provisions created at different times and

modified over a series of years,” Yajure Hurtado, 29 I&N Dec. at

227, is wholly lacking in merit. But even Jennings, upon which

Respondents rely heavily, supports Petitioner’s position, as the

Court noted that § 1226 generally governs the process of arresting

and detaining aliens inadmissible at the time of entry who are

“already in the country pending the outcome of removal

proceedings.” Jennings, 583 U.S. at 289.

Here, Petitioner has been present in the United States since

2021, was released on his own recognizance following an initial

detention by CBP, and possesses a current government-issued EAD.

(See Doc. 1 ¶¶ 3, 6; Doc. 1-5 at 1.) Moreover, Respondents do not

allege that CBP released Petitioner on temporary humanitarian

parole pursuant to 8 U.S.C. § 1182(d)(5)(A), which would designate

him an “arriving alien” and subject him to § 1225’s mandatory

detention provisions. Cf. Rodriguez v. Bondi, No. 25-cv-00791,

2025 WL 2490670, at *2-3 (E.D. Va. June 24, 2025) (applying § 1225

to a petitioner who had been released on temporary humanitarian

parole rather than on his own recognizance). Thus, Petitioner’s

detention is likely governed by § 1226(a)’s discretionary

framework, not § 1225(b)’s mandatory detention procedures.

3. Whether Petitioner’s Detention Under § 1226 Is

Unlawful

Petitioner raises multiple arguments in asserting that his

detention under § 1226 is unlawful. He argues his detention

contravened the governing statutory and regulatory framework and

violates the Constitution’s guarantee of due process. More

specifically, he asserts Respondents’ failure to comply with

several required procedural protections – including “issuance of

a notice to appear, a warrant of arrest, a bond hearing,

individualized assessment of flight risk and danger, and consular

notification.” (Doc. 9 at 14.) He also argues that the official

who ordered the revocation of his release on recognizance, SDDO

Sanchez, lacked the authority to do so; that revocation was not

appropriate because there was not a prior finding that he is a

flight risk or danger to the community; and that even if revocation

of his release were otherwise appropriate, his detention remains

unlawful because revocation occurred approximately a week after

his detention. (See Doc. 1 at 18-27; Doc. 12 at 3.)

To be sure, Respondents do not purport to have complied with

§ 1226 in initially detaining Petitioner, as they have consistently

maintained that they were instead legally permitted to detain him

under § 1225. (See, e.g., Doc. 11 at 4 (noting that “ICE/ERO

detained the Petitioner pursuant to INA § 235(b)(2)(A)”); id. at

6 (referencing Respondents’ “reliance on § 1225’s mandatory-

detention provision”).) Indeed, Respondents admit, when

Petitioner was detained, they were unaware that he had previously

been released on an order of release on recognizance. (Id. at 4

(“At that time, it was not readily apparent that [CBP] previously

released the Petitioner on the OREC.”); Doc. 11-1 at 2 (same).)

Consequently, when detaining Petitioner, Respondents did not

comply with the regulatory requirements governing revocation of

release under 8 C.F.R. § 236.1, which entitle a detainee to an

opportunity to seek release on bond and notice of his right to

contact consular services.

Revocation itself occurred on October 2, 2025, approximately

a week into Petitioner’s detention. To date, there is no record

that Petitioner has been given any notice as to why he was detained

or a bond hearing. Because Petitioner is an alien subject to

§ 1226, Respondents’ failure to comply with agency regulations,

including arrest by an authorized immigration official, deprived

him of the procedural process due him, rendering his initial arrest

and detention unlawful. See Accardi, 347 U.S. 260.4

But this court must evaluate Petitioner’s request for relief

against the changed factual landscape – namely, that since his

detention, Respondents have revoked his release on recognizance

and moved up his removal hearing to October 9, 2025. Respondents

have submitted evidence that Petitioner has failed to appear for

scheduled hearings, as discussed further below. In considering

Petitioner’s request for release, the court “recognizes the need

to carefully distinguish between ‘the substantive power of the

4 To the extent Respondents eschew “prior administrative policy that

resulted in [Petitioner’s] release on a recognizance bond after

unlawfully crossing the border,” which they construe as a “long-standing

practice,” and rely instead on a new interpretation of § 1225 and new

policy emphases (Doc. 11 at 14), Accardi prohibits them from dispensing

with the current regulatory requirements.

Executive branch over immigration issues, an area in which it

indeed has plenary power, and the means the government has chosen

to exercise that plenary power to which no executive deference is

necessary.’” Hasan, 2025 WL 2682255, at *10 (quoting Ashley v.

Ridge, 288 F. Supp. 2d 662, 667 (D.N.J. 2003)).

a. Petitioner’s Detention and the Statutory

and Regulatory Framework

Petitioner has not pointed to any authority that § 1226

requires (1) certain notice prior to the detention of an alien or

(2) an alien previously released on recognizance to be deemed a

flight risk or danger to the community prior to detention. See

generally 8 U.S.C. § 1226; see Jennings, 583 U.S. at 307 (rejecting

claim that § 1226(c) required release where not a flight risk or

danger to the community). Section 1226 does, however, contemplate

that the Attorney General may release the alien on bond. 8 U.S.C.

§ 1226(a)(2). Although the statutory language itself suggests

that the decision to grant or withhold bond is a discretionary act

by the Attorney General, courts have generally found that alien

detainees under § 1226 are entitled to a bond hearing. See, e.g.,

Hasan, 2025 WL 2682255, at *5 (noting that “those detained under

Section 1226(a) are entitled to a bond hearing before an

[immigration judge] at any time before entry of a final removal

order” (quoting Rodriguez Vazquez v. Bostock, 779 F. Supp. 3d 1239,

1247 (W.D. Wash. 2025))). The governing regulations contemplate

a detainee’s ability to make his case for release on bond,

including before an immigration judge: “the immigration judge is

authorized . . . to detain the alien in custody, release the alien,

and determine the amount of bond, if any, under which the

respondent may be released.” 8 C.F.R. § 236.1(d)(1). Indeed, the

Fourth Circuit has noted that an alien detainee under § 1226 has

the right to seek release on bond. See Miranda, 34 F.4th at 346-

47, 363-64 (discussing an alien’s ability to seek release before

an immigration officer, an immigration judge, and the Board of

Immigration Appeals).

Here, the Petition alleges that Respondents “ignore[d]

instructions in their own regulations regarding . . . [an]

opportunity to apply for a bond.” (Doc. 1 ¶ 109.) Respondents do

not contend that Petitioner has in fact been provided that

opportunity. (See generally Docs. 11, 13.) Consequently,

Respondents have violated Petitioner’s right to seek release on

bond as contemplated by 8 C.F.R. § 236.1(d)(1).5

Petitioner’s argument that SDDO Sanchez lacked authority to

revoke his release on recognizance, by contrast, is unpersuasive.

The Petition alleges that the ICE Executive Associate Director had

neither revoked release nor delegated his authority to revoke.

5 In his supplemental briefing, Petitioner also notes that he has not

been advised of his right to consular communication under 8 C.F.R.

§ 236.1(e). (Doc. 9 at 7, 14.) Respondents have not responded to this

assertion. (See generally Doc. 11.)

(Doc. 1 ¶ 85.) Subsequently, in briefing, Petitioner argued that

only those listed in 8 C.F.R. § 236.1(c)(9) were authorized to

revoke release and that SDDO Sanchez lacked the proper delegation.

(Doc. 16 at 5.) But Respondents have submitted an exhibit

indicating that the Executive Associate Director had in fact

delegated this authority to SDDOs in July 2019. (See Doc. 14-1 at

1.) Petitioner is thus not likely to demonstrate success on the

merits of this contention.

Similarly unpersuasive is Petitioner’s argument that his

detention is unlawful because of insufficient notice. (See

generally Docs. 1, 4-1, 9.) Petitioner has been unable to identify

any requirement in the governing statutes or regulations

indicating advance notice was required prior to his detention under

§ 1226. Given Respondents’ evidence that Petitioner was provided

notice of his obligation to report in November 2021 and failed to

comply, see Doc. 11-1 at 1-2, this court is disinclined to grant

relief on the grounds that Respondents have not provided sufficient

notice.

The court turns next to Petitioner’s argument that his

detention is necessarily unlawful without a prior finding that he

is a danger to the community or a flight risk.

As with § 1226, nothing under the governing regulations

suggests that an alien previously released on recognizance must be

deemed a flight risk or danger to the community prior to detention.

See 8 C.F.R. § 236.1. Section 236.1(c)(8) provides in part that

release may be appropriate “provided that the alien must

demonstrate to the satisfaction of the officer that such release

would not pose a danger to property or persons, and that the alien

is likely to appear for any future proceeding.” It does not

necessarily follow, however, that re-apprehension after release is

only permitted under these regulations where a change in

circumstances has occurred such that the alien is now considered

a danger to the community or flight risk. Indeed, § 236.1(c)(9)

suggests that detention after release is a highly discretionary

act:

When an alien who, having been arrested and taken into

custody, has been released, such release may be revoked

at any time in the discretion of the district director,

acting district director, deputy district director,

assistant district director for investigations,

assistant district director for detention and

deportation, or officer in charge (except foreign), in

which event the alien may be taken into physical custody

and detained.

8 C.F.R. § 236.1(c)(9). Having found no statutory or regulatory

basis for Petitioner’s change of circumstances requirement, the

court turns to Petitioner’s argument that his detention violates

the Constitution’s guarantee of due process. (See Doc. 4-1 at 11-

13; Doc. 9 at 10-14.)

b. Petitioner’s Detention and Constitutional

Due Process

As both Petitioner and Respondents note, the court evaluates

this constitutional claim through the test set out in Mathews v.

Eldridge, 424 U.S. 319, (1976). (Doc. 4-1 at 11, Doc. 11 at 16.)

That requires a court to consider “three distinct factors”:

First, the private interest that will be affected by the

official action; second, 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 finally, 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 335. District courts, as well as the First and Ninth

Circuits, and a panel of the Fourth Circuit, have used the Mathews

factors to consider constitutional due process claims for

detention based on § 1226. See Miranda, 34 F.4th at 358-59

(discussing other courts’ use of the Mathews factors in this

context). The parties’ briefing on this issue is, at best, sparse.

Petitioner’s argument under Mathews, as the court understands it,

is that constitutional due process only permits detention under

§ 1226 where there has been a prior finding that the alien is a

flight risk or danger to the community. (See Doc. 4-1 at 12.)

The first Mathews factor requires the court to weigh the

private interests at stake; in this case, Petitioner’s freedom

from detention. A person’s interest in freedom from detention

“lies at the heart of the liberty that [the Due Process] Clause

protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

Petitioner’s interest here is nevertheless reduced for two

reasons: his status as a noncitizen, and because his detention is

not of an indefinite duration is but much more limited – until his

removal hearings, which have now been moved up from March 2027 to

October 9, 2025. (See Doc. 12 at 4.) “Supreme Court precedent

establish[es] that aliens are due less process when facing removal

hearings than an ordinary citizen would have.” Miranda, 34 F.4th

at 361; see id. at 360-61 (distinguishing instances where a

prisoner is detained for an impending removal hearing from

instances where a prisoner is detained indefinitely and possibly

permanently). However, Petitioner’s OREC was the product of CBP’s

conclusion that he demonstrated that he was not a flight risk or

a danger to the community. 8. C.F.R. § 236.1(c)(8). This factor

therefore weighs in Petitioner’s favor, though weakly.

The second factor requires the court to analyze the risk of

erroneous deprivation of private interests through Respondents’

process and the probable value of additional or substitute

safeguards. To be sure, “aliens already receive the fundamental

features of due process – notice and an opportunity to be

heard. . . . The current procedures provide aliens detained by

the government three separate opportunities to make their case

concerning bond.” Miranda, 34 F.4th at 362 (referring to

opportunities before an immigration officer, immigration judge,

and the Board of Immigration Appeals) (quoting Mathews, 424 U.S.

at 333 for the proposition that “[t]he fundamental requirement of

due process is the opportunity to be heard at a meaningful time

and in a meaningful manner” (quotation marks omitted)). Relevant

here, contrary to the law of the First and Ninth Circuits, the

Fourth Circuit has approved placing the burden on a petitioner to

show at a bond hearing that he is not a danger to the community or

flight risk. See id. at 366. Petitioner overlooks this standard

in this circuit in asserting that constitutional due process

requires the agency to affirmatively find the alien to be a flight

risk or danger to the community prior to detention. (See Doc. 9

at 8-9.) The court finds that the current statutory and regulatory

process under § 1226 and § 236.1 sufficiently protects his asserted

interests such that the value of his proposed requirements would

be minimal.

As to the third factor, the court considers Respondents’

interests in using the current process, including the burdens they

would incur using additional or substitute process. Respondents’

interest in exercising its authority under the Nation’s

immigration laws to protect the Nation’s borders and ensure that

those subject to removal are not a danger to the community is

indeed high. First, as a general matter, control over immigration

is “a sovereign prerogative, largely within the control of the

executive and the legislature.” Landon v. Plasencia, 459 U.S. 21,

34 (1982). Second, the government has a legitimate interest in

detention during the deportation process. Miranda, 34 F.4th at

364 (citing Wong Wing v. United States, 163 U.S. 228, 235, (1896)).

“[P]reventing detained aliens from absconding and ensuring that

they appear for removal proceedings is a legitimate governmental

objective.” Dawson v. Asher, 447 F. Supp. 3d 1047, 1050 (W.D.

Wash. 2020) (citing Jennings, 583 U.S. at 286).6

Here, § 1226(a) permits Respondents to detain Petitioner in

preparation for a removal proceeding. While such detention cannot

be for an indefinite period of time, see Zadvydas, 533 U.S. at

689-90, here Petitioner’s removal hearing is set for October 9,

2025. Under current law, the government must provide Petitioner

the procedural protections of § 1226(a) and § 236.1, which include

the individualized determination of an immigration judge as to

whether Petitioner should be released on bond under § 1226(a) as

well as his right to consular communication. These protections

constitute a meaningful burden on Respondents. Petitioner’s

additional requirements would constitute an impingement on the

government’s sovereign prerogative to control immigration. This

6 This is especially true where, as here, the Government proffers evidence

that Petitioner has failed to comply with his conditions of release on

recognizance by failing to appear. (See Doc. 11-1 at 1-2 (Declaration

of SDDO Michael Sanchez).) Cf. Espinoza v. Kaiser, No. 25-CV-01101,

2025 WL 2675785, at *13 (E.D. Cal. Sept. 18, 2025) (noting that “release

from ICE custody constituted an implied promise that [his] liberty would

not be revoked unless [he] failed to live up to the conditions of [his]

release.” (quotation marks and citation omitted)); (Doc. 11-1 at 10 (OREC

advising Petitioner that failure to comply with his release order may

result in revocation of release and arrest and detention by ICE).)

Although Petitioner’s brief asserts that Petitioner has complied with

his reporting obligations, see Doc. 12 at 3, there is no evidence to

support that claim.

factor thus weighs in favor of Respondents.

Accordingly, the court finds that the Mathews factors favor

Respondents on Petitioner’s claim that he is entitled to a pre-

detention determination of changed circumstances. This does not

vitiate Respondents’ requirement, however, to provide Petitioner

the protections of § 1226(a) and § 236.1.

4. Remaining Winter Factors

The remaining Winter factors also weigh in favor of

Petitioner’s entitlement to a bond hearing and consular

notification. He contends that he will suffer irreparable harm in

the absence of preliminary relief based on his ongoing detention.

(Doc. 4 at 2.) He faces a period of mandatory detention without

a bond hearing, likely in violation of the statutory scheme.

During his time detained, Petitioner is separated from his wife

and family, whom he supports financially, and he confronts ongoing

risks to his safety and health. (Id.) This loss of liberty in

the absence of a TRO would constitute irreparable harm. See

Miranda, 34 F.4th at 365 (noting that the erroneous deprivation of

an alien’s liberty, “for even minimal periods of time,

unquestionably constitutes irreparable injury” (quoting Elrod v.

Burns, 427 U.S. 347, 373 (1976))).

Finally, the third and fourth preliminary injunction factors

– the balance of the equities and the public interest – “merge

when the Government is the opposing party.” Nken v. Holder, 556

U.S. 418, 435 (2009). As to the balance of the equities, “courts

‘must balance the competing claims of injury and must consider the

effect on each party of the granting or withholding of the

requested relief.’” Winter, 555 U.S. at 24 (quoting Amoco Prod.

Co. v. Village of Gambell, 480 U.S. 531, 542 (1987)). When

considering the public interest, the court “should pay particular

regard for the public consequences in employing the extraordinary

remedy of injunction.” Id. (quoting Weinberger v. Romero-Barcelo,

456 U.S. 305, 312 (1982)). But “the public ‘undoubtedly has an

interest in seeing its governmental institutions follow the law.’”

Roe v. Dep’t of Def., 947 F.3d 207, 230-31 (4th Cir. 2020) (quoting

Roe v. Shanahan, 359 F. Supp. 3d 382, 421 (E.D. Va. 2019)).

Here, Respondents initially revoked Petitioner’s release on

recognizance without lawful authority; transferred him between two

separate domestic detention centers before revoking his release;

and failed to present him to any immigration judge or officer.

Given these clear deprivations, the balance of equities and the

public interest favor the requested injunctive relief.

5. Petitioner’s Upcoming Hearing

In Petitioner’s second supplemental memorandum, he requests

that the court order Respondents to cancel the recently scheduled

removal hearing for October 9, 2025, in Lumpkin, Georgia. (Doc.

12 at 4.) Petitioner contends that only the cancellation of this

hearing, along with the transfer of his removal proceedings back

to Charlotte, North Carolina, on the non-detained docket, will

restore him to his position prior to the current detention. (Id.)

But Petitioner does not cite to any authority that would provide

the court with jurisdiction over the scheduling of a removal

proceeding. In fact, Petitioner’s request runs squarely into §

1252(g)’s jurisdictional bar regarding the adjudication of removal

proceedings. Cf. Mohammed H. v. Trump, 786 F. Supp. 3d 1149, 1155

(D. Minn. 2025) (finding no § 1252(g) jurisdictional bar in part

because the petitioner did not seek “to pause or end his removal

proceedings” (emphases added)). The court therefore declines to

grant Petitioner this requested relief.

* * *

In sum, Petitioner has shown a likelihood of success on his

claim that his continued detention is unlawful, because he is not

being provided the protections afforded under § 1226(a). For over

thirteen days, he has been denied rights under 8 C.F.R. § 236.1 –

including a bond hearing and right to consular communication.7

However, because Respondents have demonstrated that SDDO Sanchez

possessed delegated authority to revoke Petitioner’s release on

7 The court need not determine the proper time a bond determination must

be made. Because Respondents have held Petitioner for thirteen days

without such a determination and have advanced Petitioner’s hearing to

October 9, 2025, Respondents left themselves with little time to offer

a meaningful hearing and consular communication. Thus, on the facts of

this case the court will order that Respondents act within twenty-four

hours.

October 2, 2025, Petitioner’s argument that his present detention

remains unlawful is unlikely to succeed as long as Petitioner is

provided the rights noted above.8 Finally, as long as Respondents

provide Petitioner his rights under § 236.1, Petitioner has not

demonstrated that the text of the governing statute and regulations

or the Mathews test likely compels a different outcome.

III. CONCLUSION

For the reasons stated,

IT IS HEREBY ORDERED that Petitioner’s motion for a TRO is

GRANTED IN PART and DENIED IN PART, in that Respondents, including

all those acting for them or on their behalf, SHALL release

Petitioner within twenty-four hours unless he is provided the

procedural protections of 8 U.S.C. § 1226(a) and 8 C.F.R. § 236.1,

including a bond hearing and right to consular communication, and

the motion is otherwise DENIED.

Given the nature of the relief ordered, namely the granting

8 At the hearing, counsel for Petitioner asked the court to order a bond

hearing if it would not order full release of Petitioner. (See Doc. 10

at 43:22-25.) In his subsequently filed supplemental briefing,

“Petitioner respectfully request[ed] relief in the form of release, as

ordering a bond hearing before an Immigration Judge would likely be

futile under the current circumstances.” (Doc. 9 at 26.) The court

does not construe this as a waiver of his request for a bond hearing.

The court cannot conclude that such a hearing would be futile; moreover,

release would be inappropriate if Petitioner is provided the procedural

rights to which he is entitled. See Romero-Nolasco v. McDonald, No. 25-

cv-12492, 2025 WL 2778036, at *3 (D. Mass. Sept. 29, 2025) (finding that

petitioner “has provided no support to show that he would not receive a

fair bond hearing upon the Court’s order to do so under 8 U.S.C.

§ 1226(a)”).

of a bond hearing as required by the regulations, and because the

government cannot reasonably assert that it is harmed in any

legally-cognizable sense, the court DECLINES to require the

posting of any bond.

/s/ Thomas D. Schroeder

United States District Judge

October 7, 2025

7:28 p.m.