Noem

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JORGE HUMBERTO ALVAREZ ORTIZ,

Petitioner,

25-CV-960-LJV

v. DECISION & ORDER

JOSEPH FREDEN et al.,

Respondents.

“To implement its immigration policy, the [g]overnment must be able to decide (1)

who may enter the country and (2) who may stay here after entering.” Jennings v.

Rodriguez, 583 U.S. 281, 286 (2018). For years, those have been two separate

questions. In fact, “[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.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

Until very recently, the United States Department of Homeland Security (“DHS”)

recognized this dichotomy and operated under two separate statutory schemes

governing the detention of noncitizens: 8 U.S.C. § 1225, covering noncitizens when

they arrive at the border or when they enter illegally and are caught very close to the

border, and 8 U.S.C. § 1226, covering noncitizens who successfully have entered the

United States—whether legally or illegally. Courts, including the United States Supreme

Court, have echoed that understanding. See, e.g. Jennings, 583 U.S. at 289 (“In sum,

U.S. immigration law authorizes the [g]overnment to detain certain [noncitizens] seeking

admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the

[g]overnment to detain certain [noncitizens] already in the country pending the outcome

of removal proceedings under §§ 1226(a) and (c).” (emphasis added)). But like much

immigration law of late, that long-recognized distinction is no more—at least as far as

the executive branch is concerned.

Notwithstanding Supreme Court caselaw and decades of practice, DHS now

takes the position that anyone who is in the country without having been legally

“admitted”—regardless of how long they have been here—falls under 8 U.S.C.

§ 1225(b), which mandates detention. See Romero v. Hyde, ––– F. Supp. 3d –––, 2025

WL 2403827, at *9 (D. Mass. Aug. 19, 2025) (“[R]espondents’ new interpretation is

contrary to the agency’s own implementing regulations, its published guidance, the

decisions of its immigration judges (until very recently), decades of practice, the

Supreme Court’s gloss on the statutory scheme, and the overall logic of our immigration

system.” (internal citations omitted)). In other words, DHS now says that those who

have entered the United States and those who have never entered are one and the

same. And this about-face has been approved by the Board of Immigration Appeals

(“BIA”). See Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA Sept. 5, 2025).

Following Hurtado, numerous district courts—including Judge Meredith A. Vacca

of this District1—have disagreed with the BIA’s reasoning and granted habeas petitions

or motions for preliminary relief for noncitizens whom DHS has detained ostensibly

1 Judge Vacca has issued several text orders with written decisions to follow

finding that petitioners like Alvarez Ortiz who already are in the country fall under

section 1226(a) and are entitled to a bond hearing. See Rezende v. Bondi, Case No.

6:25-cv-6538, Docket Item 19 (W.D.N.Y. Oct. 29, 2025); Barbosa Da Cunha v. Moniz,

Case No. 6:25-cv-6532, Docket Item 25 (W.D.N.Y. Oct. 20, 2025); Andrade Lozano v.

Hyde, Case No. 6:25-cv-6528, Docket Item 20 (W.D.N.Y. Oct. 17, 2025).

under section 1225(b)(2). See, e.g., Hyppolite v. Noem, 2025 WL 2829511 (E.D.N.Y.

Oct. 6, 2025); Guerrero Orellana v. Moniz, ––– F. Supp. 3d –––, 2025 WL 2809996 (D.

Mass. Oct. 3, 2025); Lepe v. Andrews, ––– F. Supp. 3d –––, 2025 WL 2716910 (E.D.

Cal. Sept. 23, 2025); Barrera v. Tindall, 2025 WL 2690565 (W.D. Ky. Sept. 19, 2025);

Hasan v. Crawford, ––– F. Supp. 3d –––, 2025 WL 2682255 (E.D. Va. Sept. 19, 2025);

Pizarro Reyes v. Raycraft, 2025 WL 2609425 (E.D. Mich. Sept. 9, 2025); Jimenez v.

FCI Berlin, Warden, ––– F. Supp. 3d –––, 2025 WL 2639390 (D.N.H. Sept. 8, 2025);

Mosqueda v. Noem, 2025 WL 2591530 (C.D. Cal. Sept. 8, 2025). By contrast, it

appears that to date only two district courts have followed Hurtado’s reasoning to find

that noncitizens already in the county are covered by section 1225(b)(2). See Vargas

Lopez v. Trump, ––– F. Supp. 3d –––, 2025 WL 2780351 (D. Neb. Sept. 30, 2025);

Chavez v. Noem, ––– F. Supp. 3d –––, 2025 WL 2730228 (S.D. Cal. Sept. 24, 2025).

That being said, this Court is obliged to carefully and independently analyze the

statutes at issue. The Court now has done just that. And for the reasons that follow,

the Court joins the majority of courts in finding that section 1225(b)(2) does not apply to

individuals, like the petitioner here—Jorge Humberto Alvarez Ortiz—who are physically

in the country but have not been legally admitted and seek to stay.

BACKGROUND2

Alvarez Ortiz is a citizen of Guatemala. Docket Item 1 at ¶ 1; Docket Item 12-3 at

2. He “entered the United States without inspection” more than twenty years ago, “[i]n

2 The Court takes the facts from the petition, Docket Item 1; Alvarez Ortiz’s

second motion for a temporary restraining order, Docket Item 8; and the government’s

motion to dismiss, Docket Item 12-3. The Court acknowledges that due to the

expedited briefing schedule, the government has not yet been able to obtain the alien

or about April 2003.” Docket Item 8 at ¶ 1. Alvarez Ortiz alleges that he is a victim of

spousal abuse, and on August 12, 2025, United States Citizenship and Immigration

Services determined that he had made a prima facie showing of eligibility for relief

under the Violence Against Women Act. Docket Item 1 at ¶ 1; Docket Item 12-3 at 2;

see Docket Item 1-2. That determination is not a final decision but is valid for 180 days.

Docket Item 12-3 at 2; see Docket Item 1-2.

Nevertheless, on or before October 1, 2025—that is, long before the 180-day

period expired—Immigrations and Custom Enforcement (“ICE”) took Alvarez Ortiz into

custody and detained him at the Buffalo Federal Detention Center in Batavia, New York.

See Docket Item 1 at ¶ 7; Docket Item 12-3 at 2. A short time later, Alvarez Ortiz filed a

petition for a writ of habeas corpus under 28 U.S.C. § 2241, alleging that he was being

held unlawfully. Docket Item 1. He also filed a motion for a temporary restraining order

(“TRO”) enjoining his transfer out of this District and his removal from the United States

during the course of these proceedings. Docket Item 2. This Court granted the TRO

“[t]o maintain the status quo, and solely so that the Court c[ould] make an informed

decision about its authority to issue relief and whether any relief that it ha[d] the power

to issue should be granted.” Docket Item 3.3

file for Alvarez Ortiz. See id. at 2 n.2. The government proceeded using the facts

alleged in the petition for its motion to dismiss only and did not admit them. See id.

3 Approximately three weeks after this Court’s text order granting the first motion

for a TRO, the government responded, arguing that this Court does not have the power

to enjoin transfer and removal. Docket Item 11. This Court construes that response as

a motion for reconsideration and, after careful consideration, denies it. More

specifically, this Court finds that 8 U.S.C. § 1252(g) does not bar this Court’s temporarily

enjoining removal where the petitioner has alleged that removal would violate statutory

and constitutional law. See, e.g., Calderon v. Sessions, 330 F. Supp. 3d 944, 956

(S.D.N.Y. 2018) (finding that petitioner’s “seek[ing] consideration of his legitimate and

authorized pursuit of an existing process before the government exercises its right to

Alvarez Ortiz then filed a second motion for a TRO, this time seeking his release

pending the outcome of his petition. Docket Item 8. The government responded to the

arguments in the second motion for a TRO and moved to dismiss the petition. Docket

Item 12. After Alvarez Ortiz replied, Docket Item 13, this Court heard oral argument and

reserved decision, see Docket Item 14.

LEGAL PRINCIPLES

I. TEMPORARY RESTRAINING ORDER

“It is well established that in this Circuit the standard for an entry of a TRO is the

same as for a preliminary injunction.” Valenzuela Arias v. Decker, 612 F. Supp. 3d 307,

311 (S.D.N.Y. 2020) (quoting Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y.

2008)). “A plaintiff seeking a [TRO or] preliminary injunction must establish that he is

likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in his favor, and that an injunction is

in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

“When the government is a party to the suit, [the court’s] inquiries into the public interest

and the balance of the equities merge.” We The Patriots USA, Inc. v. Hochul, 17 F.4th

266, 295 (2d Cir.), opinion clarified, 17 F.4th 368 (2d Cir. 2021).

remove [him] . . . is not a claim of a right to remain in the United States”). And although

the respondents correctly note that this Court previously has declined to enjoin transfer,

see, e.g., Singh v. Whitaker, 362 F. Supp. 3d 93, 106 (W.D.N.Y. 2019), more recent

caselaw has caused this Court to reconsider that position. In particular, this Court finds

that the “[p]etitioner’s interests in participating in further proceedings before this Court

and in maintaining adequate access to legal counsel through these proceedings”

warrant an order enjoining transfer. See Perez y Perez v. Noem, 2025 WL 1908284, at

*2 (S.D.N.Y. June 13, 2025) (citing Ozturk v. Hyde, 136 F.4th 382, 402 (2d Cir. 2025)).

“The district court has wide discretion in determining whether to grant a [TRO or]

preliminary injunction.” Valenzuela Arias, 612 F. Supp. 3d at 311 (quoting Almontaser

v. N.Y.C. Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (per curiam)). That being

said, “[a] preliminary injunction is an extraordinary remedy,” Winter, 555 U.S. at 24, and

“should not be routinely granted,” Hanson Tr. PLC v. SCM Corp., 774 F.2d 47, 60 (2d

Cir. 1985) (quoting Med. Soc. of State of N.Y. v. Toia, 560 F.2d 535, 537 (2d Cir.

1977)). And “[w]hen deciding whether to issue a preliminary injunction, courts ‘should

pay particular regard for the public consequences in employing the extraordinary

remedy of injunction.’” We The Patriots USA, Inc., 17 F.4th at 279 (quoting Winter, 555

U.S. at 24).

II. SECTION 2241 PETITION

28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the Constitution or laws or treaties of

the United States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28

U.S.C. § 2241(c)(3)). “When a petitioner brings a habeas petition [under section] 2241,

the petitioner ‘bears the burden of proving that he is being held contrary to law; and

because the habeas proceeding is civil in nature, the petitioner must satisfy his burden

of proof by a preponderance of the evidence.’” Dzhabrailov v. Decker, 2020 WL

2731966, at *3 (S.D.N.Y. May 26, 2020) (quoting Skaftouros v. United States, 667 F.3d

144, 158 (2d Cir. 2011)). “The equitable principles governing [section] 2241 are

reflected in the plenary discretion vested in habeas courts to ‘hear and determine the

facts, and dispose of the matter as law and justice require.’” Id. (alterations omitted)

(quoting Pinkney v. Keane, 920 F.2d 1090, 1093 (2d Cir. 1990)).

III. MOTION TO DISMISS

“To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6)],

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but

it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

(quoting Twombly, 550 U.S. at 556).

DISCUSSION

I. STATUTORY FRAMEWORK

The two statutes at issue are 8 U.S.C. §§ 1225 and 1226—both sections of the

Immigration and Nationality Act (“INA”).

A. Section 1225

Section 1225 is titled “Inspection by immigration officers; expedited removal of

inadmissible arriving aliens; referral for hearing.”4 8 U.S.C. § 1225. Under this section,

a noncitizen “who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has not

been admitted,’ is treated as ‘an applicant for admission.’” Jennings, 583 U.S. at 287

(quoting 8 U.S.C. § 1225(a)(1)). “Section 1225(b)(1) applies to [noncitizens] initially

4 The INA defines the term “alien” as meaning “any person not a citizen or

national of the United States.” 8 U.S.C. § 1101(a)(3). This Court uses “alien” and

“noncitizen” interchangeably throughout this decision and order.

determined to be inadmissible due to fraud, misrepresentation, or lack of valid

documentation,” as well as “to certain other [noncitizens] designated by the Attorney

General in h[er] discretion.” Id. (citing 8 U.S.C. § 1225(b)(1)(A)).

Noncitizens “covered by [section] 1225(b)(1) are normally ordered removed

‘without further hearing or review’ pursuant to an expedited removal process.” Id. (citing

8 U.S.C. § 1225(b)(1)(A)(i)). But if a noncitizen covered by section 1225(b)(1)

“‘indicates either an intention to apply for asylum . . . or a fear of persecution,’ then that

[person] is referred for an asylum interview.” Id. (quoting 8 U.S.C. § 1225(b)(1)(A)(ii)).

In that case, the noncitizen “shall be detained pending a final determination of credible

fear of persecution and, if found not to have such a fear, until removed.” 8 U.S.C.

§ 1225(b)(1)(B)(iii)(IV). And “[i]f an immigration officer determines after that interview

that the [noncitizen] has a credible fear of persecution, ‘the [noncitizen] shall be

detained for further consideration of the application for asylum’” under section 240 of the

INA. Jennings, 583 U.S. at 287 (quoting 8 U.S.C. § 1225(b)(1)(B)(ii)).

Section 1225(b)(2) covers “[i]nspection of other aliens” and 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.” Id. § 1225(b)(2)(A). In other words, whereas for section 1225(b)(1) to apply, the

immigration officer must definitively determine that the noncitizen “is inadmissible,” for

section 1225(b)(2) to apply, the immigration official need only determine that the

noncitizen “is not clearly and beyond a doubt entitled to be admitted.” See id.

§§ 1225(b)(1)(A)(i), (b)(2)(A). The Supreme Court has described section 1225(b)(2) “as

a catchall provision that applies to all applicants for admission not covered by [section]

1225(b)(1).” See Jennings, 583 U.S. at 287.

The only exception to the mandatory detention required by section 1225(b) is that

“applicants for admission may be temporarily released on parole ‘for urgent

humanitarian reasons or significant public benefit.’” Id. at 288 (quoting 8 U.S.C.

§ 1182(d)(5)(A)). “Such parole, however, ‘shall not be regarded as an admission of the

alien.’” Id. (quoting 8 U.S.C. § 1182(d)(5)(A)).

B. Section 1226

Section 1226 is titled “Apprehension and detention of aliens.” 8 U.S.C. § 1226.

It states that “[o]n a warrant issued by the Attorney General, an alien may be arrested

and detained pending a decision on whether the alien is to be removed from the United

States.” Id. § 1226(a). It further provides that:

[e]xcept as provided in subsection (c) and pending such decision, the

Attorney General—

(1) may continue to detain the arrested alien; and

(2) may release the alien on—

(A) bond of at least $1,500 with security approved by, and containing

conditions prescribed by, the Attorney General; or

(B) conditional parole; but

(3) may not provide the alien with work authorization (including an

“employment authorized” endorsement or other appropriate work permit),

unless the alien is lawfully admitted for permanent residence or otherwise

would (without regard to removal proceedings) be provided such

authorization.

Id.

Section 1226(c) deals with the “[d]etention of criminal aliens” and provides that

“[t]he Attorney General shall take into custody any alien who” has committed certain

crimes. See id. § 1226(c). In 2025, Congress passed the Laken Riley Act, which added

the following category of individuals to section 1226(c)’s mandatory detention:

[A]ny alien who—

. . .

(i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 1182(a)

of this title; 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[.]

Id. § 1226(c)(1)(E); see Laken Riley Act, Pub. L. No. 199-1, § 2(1)(C), 139 Stat. 3, 3

(2025).

II. EXHAUSTION

The respondents first argue that this Court should dismiss the petition because

Alvarez Ortiz failed to exhaust his administrative remedies. See Docket Item 12-3 at 5-

6. But based on Alvarez Ortiz’s reply, it appears that he has indeed exhausted them.

See Docket Item 13-1 (immigration judge’s order denying bond because under Hurtado,

Alvarez Ortiz is being held under section 1225(b)(2)(A)). Moreover, even if he had not,

this Court would find that exhaustion was futile because immigration judges are bound

to follow Hurtado absent an order from this Court. See Guerrero Orellana, 2025 WL

2809996, at *4 n.2 (explaining that “[t]he BIA made its position on the scope of [section]

1225(b)(2)(A) crystal clear in Matter of Hurtado such that further agency proceedings

would be futile” (citation and internal quotation marks omitted)). Thus, the Court

declines the respondents’ invitation to dismiss the petition for failure to exhaust.

III. AUTHORITY FOR ALVAREZ ORTIZ’S DETENTION

The respondents move to dismiss Alvarez Ortiz’s petition because, they say, he

is properly detained under section 1225(b)(2). See Docket Item 12-3 at 6-12. Alvarez

Ortiz counters that he is detained under section 1226(a) and is therefore entitled to a

bond hearing. See Docket Item 13 at 3-4. He further argues that he is entitled to a

TRO because he is likely to succeed on the merits of his claim and “is suffering

irreparable harm due to his present detention in violation of his statutory and due

process rights.” See Docket Item 8 at 1-2.

As always when statutes are at issue, the starting point is the statutory text. See

United States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016). In analyzing statutory

language, the Court first must “determine whether [the] language is clear or

ambiguous.” Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005).

If “there is no statutory definition of a term, [the Court] consider[s] ‘the ordinary,

common-sense meaning of the words.’” Rowland, 826 F.3d at 108 (quoting United

States v. Dauray, 215 F.3d 257, 260 (2d Cir. 2000)).

The Court determines whether statutory language is ambiguous “by referenc[ing]

the language itself, the specific context in which that language is used, and the broader

context of the statute as a whole.” Daniel, 428 F.3d at 423 (quoting Robinson v. Shell

Oil Co., 519 U.S. 337, 341 (1997)). If the Court concludes that the “meaning is plain,”

that ends the inquiry. Id. But if the Court finds the statutory language to be ambiguous,

it then “resort[s] first to canons of statutory construction, and, if the meaning remains

ambiguous, to legislative history.” Id. (internal citation omitted).

With that backdrop, the Court turns to the text of 8 U.S.C. § 1225(b)(2)—the

section under which the respondents claim that Alvarez Ortiz is being held. See Docket

Item 12-3 at 12. Section 1225(b) is titled “Inspection of applicants for admission.” 8

U.S.C. § 1225(b). Subsection (b)(1) is titled “Inspection of aliens arriving in the United

States and certain other aliens who have not been admitted or paroled,” and subsection

(b)(2) is titled “Inspection of other aliens.” Id. As noted above, section 1225(b)(2)

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.” Id. § 1225(b)(2)(A) (emphasis added). So the Court must

begin by determining what the terms “applicant for admission” and “alien seeking

admission” mean.

As explained above, section 1225 defines an “applicant for admission”: Under

section 1225(a)(1),

[a]n alien present in the United States who has not been admitted or who

arrives in the United States (whether or not at a designated port of arrival

and including an alien who is brought to the United States after having been

interdicted in international or United States waters) shall be deemed for

purposes of this chapter an applicant for admission.

8 U.S.C. § 1225(a)(1). And elsewhere, the INA defines “admission” and “admitted” as

“the lawful entry of the alien into the United States after inspection and authorization by

an immigration officer.” Id. § 1101(a)(13)(A). So based on the plain text, any noncitizen

who has not been legally allowed to enter is treated under section 1225 as an “applicant

for admission.”

A harder question is what the term “seeking admission” means. More

specifically, is a noncitizen who already has entered the United States but was not

legally admitted and seeks to stay here “seeking admission”? The Court again turns

first to the plain meaning of the statutory language.

“‘Seeking’ means ‘asking for’ or ‘trying to acquire or gain.’” Lepe, 2025 WL

2716910, at *5 (quoting Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/seeking). Moreover, “the use of a present participle, ‘seeking,’

‘necessarily implies some sort of present-tense action.’” Id. (quoting Martinez v. Hyde,

––– F. Supp. 3d –––, 2025 WL 2084238, at *6 (D. Mass. July 24, 2025)). As noted

above, “admission” is defined as “the lawful entry of the alien into the United States after

inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). So

“seeking admission” means actively trying to acquire “lawful entry . . . after inspection

and authorization by an immigration officer.”

“Entry,” however, is not defined in the INA. See generally id. § 1101. The

dictionary defines “entry” as “the right or privilege of entering” or “the act of entering.”5

See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/entry.

So arguably, “lawful entry” could mean either the legal right to enter, as the respondents

claim, or the act of entering the country legally, as Alvarez Ortiz urges. In other words,

the plain text is ambiguous.

Because of that ambiguity, the Court turns to the canons of statutory

construction. See Daniel, 428 F.3d at 423. One “cardinal principle of statutory

construction” is that “a statute ought, upon the whole, to be so construed that, if it can

be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167,

5 The dictionary alternatively defines “entry” as “a place of entrance,” such as a

“vestibule”; “the act of making or entering a record”; or “a person, thing, or group

entered into something (such as a contest of market).” See Merriam-Webster

Dictionary, https://www.merriam-webster.com/dictionary/entry. But none of those

definitions would make sense here.

174 (2001)); see also United States v. Menasche, 348 U.S. 528, 538-39 (1955) (“It is

our duty to give effect, if possible, to every clause and word of a statute.” (citation and

internal quotation marks omitted)). As numerous courts have observed, if all

“applicant[s] for admission” also are “seeking admission,” then the words “seeking

admission” would be surplusage. See, e.g., Hyppolite, 2025 WL 2829511, at *9;

Guerrero Orellana, 2025 WL 2809996, at *7; Jimenez, 2025 WL 2639390, at *8;

Romero, 2025 WL 2403827, at *9; Martinez, 2025 WL 2084238, at *4. After all,

Congress simply could have said “if the examining immigration officer determines that

an applicant for admission is not clearly and beyond a doubt entitled to be admitted, the

alien shall be detained.” Instead, however, Congress said that an alien who is an

applicant for admission and who is seeking admission shall be detained if the examining

immigration officer determines that he or she is not clearly entitled to be admitted. 8

U.S.C. § 1225(b)(2)(A).

So “seeking admission” cannot be synonymous with “applicant for admission.” It

must refer to seeking physical entry at the border,6 not the legal right to enter.7

6 This includes noncitizens who have been “paroled” into the county, as they “are

‘treated’ for due process purposes” and for statutory purposes “‘as if stopped at the

border.’” See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139 (2020)

(quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215 (1953));

Henderson v. I.N.S., 157 F.3d 106, 111 n.5 (2d Cir. 1998) (describing parole as “a legal

fiction”). It also includes noncitizens “who [are] detained shortly after unlawful entry”

because they “cannot be said to have ‘effected an entry.’” Thuraissigiam, 591 U.S. at

140 (quoting Zadvydas, 533 U.S. at 693). For example, in Thuraissigiam, the Supreme

Court found that a noncitizen who “succeeded in making it 25 yards into U.S. territory

before he was caught” had not effected an entry and therefore was properly detained

under section 1225(b). See id. at 139.

7 The BIA, by contrast, found that the text of section 1225(b)(2) unambiguously

covers any noncitizen who has not been legally admitted to the country. See Hurtado,

29 I. & N. Dec. at 221 (concluding that noncitizen’s “argument [wa]s not supported by

the plain language of the INA”). In the BIA’s view, the idea that someone could be

The other subparagraphs in section 1225(b)(2) support this interpretation.

Subparagraph (B) provides that section 1225(b)(2)(A) “shall not apply to an alien . . .

who is a crewman” or “who is a stowaway.” 8 U.S.C. § 1225(b)(2)(B). And

subparagraph (C) states that “[i]n the case of an alien described in subparagraph (A)

who is arriving on land (whether or not at a designated port of arrival) from a foreign

territory contiguous to the United States, the Attorney General may return the alien to

that territory pending a proceeding under section 1229a of this title.” Id. § 1225(b)(2)(C)

(emphasis added). The fact that these carve-outs involve various means of arriving in

the United States suggests “that the category of applicants for admission covered by

[section] 1225(b)(2) who are ‘seeking admission’ is meant to refer to those who are

presenting themselves at the border, or who were recently apprehended just after

entering—not those in [Alvarez Ortiz’s] circumstances.” See Hyppolite, 2025 WL

2829511, at *9.

The regulations also support this Court’s reading of section 1225(b)(2). Section

235.1(f)—titled “Alien applicants for admission”—provides that

[e]ach alien seeking admission at a United States port-of-entry must present

whatever documents are required and must establish to the satisfaction of

the inspecting officer that the alien is not subject to removal under the

immigration laws, Executive Orders, or Presidential Proclamations, and is

entitled, under all of the applicable provisions of the immigration laws and

this chapter, to enter the United States.

seeking to stay in the country but not “seeking admission . . . creates a legal

conundrum.” Id. “If he is not admitted to the United States (as he admits) but he is not

‘seeking admission’ (as he contends),” the BIA asked, “then what is his legal status?”

Id. Of course, the answer may be that he has no legal status—that he is an illegal

noncitizen—but that does not make him any less present in the country. Moreover, the

BIA did not address the argument outlined here regarding surplusage, nor did either of

the two district courts to follow Hurtado. See Vargas Lopez, 2025 WL 2780351, at *7-9;

Chavez, 2025 WL 2730228, at *4-5.

8 C.F.R. § 235.1(f)(1) (emphasis added). This suggests that those “seeking admission”

are at or near the border.

Additionally, as numerous courts have observed, the respondents’ interpretation

of section 1225(b)(2) would render the 2025 Laken Riley Act—which amended 8 U.S.C.

§ 1226(c)—purposeless. See, e.g., Hyppolite, 2025 WL 2829511, at *10; Romero, 2025

WL 2403827, at *11; Gomes v. Hyde, 2025 WL 1869299, at *7-8 (D. Mass. July 7,

2025). As explained above, the Laken Riley Act added the following category to those

who must be detained under section 1226(c):

[A]ny alien who . . . (i) is inadmissible under paragraph (6)(A), (6)(C), or (7)

of section 1182(a) of this title; 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); see also Romero, 2025 WL 2403827, at *11. But as the

respondents conceded at oral argument, anyone who “is inadmissible under” section

1182(a)(6)(A), (6)(C), or (7) is by definition an “applicant for admission” and therefore

would be covered under the respondents’ reading of section 1225(b)(2). In other words,

by the respondents’ own admission, the text added by the Laken Riley Act is completely

co-extensive with their interpretation of section 1225(b)(2), and Laken Riley therefore

was a meaningless addition to our nation’s laws.

The respondents argue that this was a mere “belt and suspenders” approach to

make extra sure that noncitizens in this category were not released. But as much as

this Court understands and values reducing risk through redundancy, “the canon

against surplusage”—which “is strongest when an interpretation would render

superfluous another part of the same statutory scheme”—does not. See Marx v. Gen.

Revenue Corp., 568 U.S. 371, 386 (2013); see also Bilski v. Kappos, 561 U.S. 593, 608

(2010) (“[The canon against surplusage], of course, applies to interpreting any two

provisions in the U.S.[ ]Code, even when Congress enacted the provisions at different

times.”); Stone v. I.N.S., 514 U.S. 386, 397 (1995) (“When Congress acts to amend a

statute, we presume it intends its amendment to have real and substantial effect.”).

And here, the respondents’ interpretation would not only “render superfluous

another part of the same statutory scheme,” it would render superfluous an act

amending that statutory scheme. In other words, the respondents implicitly suggest that

Congress passed Laken Riley for no good reason at all. So the Laken Riley Act also

leads this Court to conclude that “seeking admission” means seeking entry at or near

the border, not seeking the legal right to enter.

Zooming out, looking at the statute as a whole, and considering its place in the

statutory scheme of immigration law bolsters this Court’s conclusion that only those

“seeking admission” at or near the border are subject to detention under section

1225(b)(2). See King v. Burwell, 576 U.S. 473, 486 (2015) (explaining that courts “must

read the words in their context and with a view to their place in the overall statutory

scheme” (citation and internal quotation marks omitted)); see also Graham Cnty. Soil &

Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 290 (2010) (“Courts have

a ‘duty to construe statutes, not isolated provisions.’” (quoting Gustafson v. Alloyd Co.,

513 U.S. 561, 568 (1995))). The relevant subchapter of the INA—titled “Inspection,

Apprehension, Examination, Exclusion, and Removal”—includes the following sections:

§ 1221. Lists of alien and citizen passengers arriving and departing

§ 1222. Detention of aliens for physical and mental examination

§ 1223. Entry through or from foreign territory and adjacent islands

§ 1224. Designation of ports of entry for aliens arriving by aircraft

§ 1225. Inspection by immigration officers; expedited removal of inadmissible

arriving aliens; referral for hearing

§ 1225a. Preinspection at foreign airports

§ 1226. Apprehension and detention of aliens

§ 1226a. Mandatory detention of suspected terrorists; habeas corpus; judicial

review

§ 1227. Deportable aliens

§ 1228. Expedited removal of aliens convicted of committing aggravated felonies

§ 1229. Initiation of removal proceedings

§ 1229a. Removal proceedings

§ 1229b. Cancellation of removal; adjustment of status

§ 1229c. Voluntary departure

§ 1230. Records of admission

§ 1231. Detention and removal of aliens ordered removed

§ 1232. Enhancing efforts to combat the trafficking of children

Notably, sections 1221 through 1225a all deal with noncitizens arriving in the United

States—or in the case of section 1225a—seeking to arrive. It would make little sense to

sandwich section 1225 between sections dealing exclusively with arrival or attempted

arrival of noncitizens if it were intended to broadly apply to all noncitizens present in the

United States who have not been admitted.

The title of section 1225 also bears noting: “Inspection by immigration officers;

expedited removal of inadmissible arriving aliens; referral for hearing.” 8 U.S.C. § 1225

(emphasis added); see also Barrera, 2025 WL 2690565, at *4 (“The added word of

‘arriving’ indicates that the statute governs ‘arriving’ noncitizens, not those present

already.”); Pizarro Reyes, 2025 WL 2609425, at *5 (“The use of ‘arriving’ to describe

noncitizens strongly indicates that the statute governs the entrance of noncitizens to the

United States. This reading is bolstered by the fact that [section] 1225 clearly

establishes an inspection scheme for when to let noncitizens into the country.”).

Regulations define “arriving alien” as

an applicant for admission coming or attempting to come into the United

States at a port-of-entry, or an alien seeking transit through the United

States at a port-of-entry, or an alien interdicted in international or United

States waters and brought into the United States by any means, whether or

not to a designated port-of-entry, and regardless of the means of transport.

8 C.F.R. § 1.2.

This Court’s reading of section 1225(b)(2) also is consistent with Supreme Court

jurisprudence. As explained above, in Jennings, the Court described section 1225(b) as

“authoriz[ing] the [g]overnment to detain certain [noncitizens] seeking admission into the

country” and section 1226(a) and (c) as “authoriz[ing] the [g]overnment to detain certain

[noncitizens] already in the country pending the outcome of removal proceedings.” See

583 U.S. at 289 (emphasis added). More fundamentally, “[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.” See Zadvydas, 533 U.S. at 693. And, as the

Supreme Court has held, “once [a noncitizen] enters the country, the legal circumstance

changes, . . . whether their presence here is lawful, unlawful, temporary, or permanent.”

Id.

Finally, if all that were not enough, the Court’s reading of the statutes has been

DHS’s and ICE’s reading for many years. See, e.g., Guerrero Orellana, 2025 WL

2809996, at *8; Hasan, 2025 WL 2682255, at *9; Lopez Benitez v. Francis, ––– F.

Supp. 3d –––, 2025 WL 2371588, at * (S.D.N.Y. Aug. 13, 2025). “Congress enacted

the current statutory scheme in the Illegal Immigration Reform and Immigrant

Responsibility Act (‘IIRIRA’) in 1996.” Guerrero Orellana, 2025 WL 2809996, at *8

(citing Pub. L. No. 104-208, §§ 302-03, 110 Stat. 3009, 3009-579 to -587 (1996)). And

“[w]hen the Department of Justice issued implementing regulations months after

passage of IIRIRA, the agency explained that ‘[d]espite being applicants for admission,

aliens who are present without having been admitted or paroled . . . will be eligible for

bond and bond redetermination.’” Id. (quoting Inspection and Expedited Removal of

Aliens, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997)). Under the administrations of five

presidents—including this one in 2016-2020—section 1225 applied to noncitizens at or

near the border or those who were still seeking admission under the legal fiction of

parole; section 1226, on the other hand, applied to those noncitizens found in the United

States without legal status and therefore subject to removal. See id. (“Until changing

their positions this year, the relevant agencies consistently applied [section]1226, not

[section] 1225(b)(2)(A), to noncitizens who entered without inspection and were later

apprehended within the country.”). And nothing has changed—factually or legally—to

warrant that ipse dixit change in interpretation, which “would require the detention of

millions of immigrants currently residing in the United States.” See Martinez, 2025 WL

2084238, at *5.

For all those reasons, this Court finds that section 1225(b)(2) applies only to

noncitizens actively “seeking admission” at or near the border or who have been

paroled.8 This Court therefore denies the respondents’ motion to dismiss, and it also

finds that Alvarez Ortiz is likely to succeed on the merits of his claim that the authority

for his detention stems from section 1226(a) and not section 1225(b).

IV. IRREPARABLE HARM AND BALANCE OF THE EQUITIES

Having found that Alvarez Ortiz is likely to succeed on the merits of his claim, this

Court easily finds that the other two prongs of the TRO test are met. First, there is no

question that unlawful detention causes irreparable harm: indeed, every minute that

someone is unlawfully denied freedom results in an injury that really can never be

remedied. Likewise, there is little question that the balance of the equities and the

public interest favors granting a TRO to ensure that Alvarez Ortiz gets the process he is

due under section 1226(a). After all, if he is not a danger or a flight risk, then it is in no

one’s interest to detain him. And the Court finds that any added burden on the

government is far outweighed by Alvarez Ortiz’s—and society’s—interest in his release

if his detention is not warranted.

8 Because the Court finds that Alvarez Ortiz—and those like him—who are

already present in the country are not “seeking admission,” it need not decide the scope

of “inspection” under section 1225 or who qualifies as an “examining immigration

officer.” See Jimenez, 2025 WL 2639390, at *7 (noting that “for [section] 1225(b)(2)’s

mandatory detention regime to apply, several requirements must be met: (1) an

‘examining immigration officer’ (2) must conclude during an ‘inspection’ (3) of an

‘applicant for admission’ (4) who is ‘seeking admission’ (5) that the person ‘is not clearly

and beyond a doubt entitled to be admitted’” (quoting 8 U.S.C. § 1225(b)(2)(A))).

V. REMEDY

Alvarez Ortiz seeks a TRO requiring his “release or [that] a bond hearing on the

merits be held by [the r]espondents within [seven] days.” Docket Item 8 at 2. The Court

finds that a bond hearing is the appropriate remedy. See, e.g., Romero, 2025 WL

2403827, at *13 (noting that “the appropriate remedy will usually be a bond hearing to

consider the merits of release under section 1226”); Gomes, 2025 WL 1869299, at *9

(finding that “the appropriate remedy is to order the Immigration Court to conduct a new

hearing at which it considers Gomes’[s] eligibility for bond under [s]ection 1226(a)). But

that is only part of the answer. The Court also must address what procedures are

required at that hearing.

In Jennings, “the Supreme Court held that [section] 1226(a) does not mandate

that a clear and convincing evidence burden be placed on the government in bond

hearings, [but] it left open the question of whether the Due Process Clause does.”9

Darko v. Sessions, 342 F. Supp. 3d 429, 434-35 (S.D.N.Y. 2018); see Adejola v. Barr,

408 F. Supp. 3d 284, 287 (W.D.N.Y. 2019) (noting that section “1226(a) is silent on the

issues of which party bears the burden of proof at a custody redetermination hearing

and the quantum of evidence necessary to satisfy that burden”). Since Jennings,

however, “a number of district courts have taken up the question left open by the

Supreme Court, and there has emerged a consensus view that where, as here, the

9 “The Fifth Amendment’s Due Process Clause forbids the [g]overnment to

‘depriv[e]’ any ‘person . . . of . . . liberty . . . without due process of law.’” Zadvydas, 533

U.S. at 690. It “applies to all ‘persons’ within the United States, including [noncitizens],

whether their presence here is lawful, unlawful, temporary, or permanent.” Id. at 693;

see also Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020) (“No one disputes

that the Fifth Amendment entitles noncitizens to due process of law.” (citing Reno v.

Flores, 507 U.S. 292, 306 (1993))).

government seeks to detain an alien pending removal proceedings, it bears the burden

of proving that such detention is justified.” Darko, 342 F. Supp. 3d at 435 (collecting

cases).

This includes several courts in this District. See Adejola, 408 F. Supp. 3d at 287

(Wolford, J.) (“This Court . . . concludes that the Fifth Amendment’s Due Process

Clause requires the [g]overnment to bear the burden of proving, by clear and convincing

evidence, that detention is justified at a bond hearing under [section] 1226(a).” (citation

and internal quotation marks omitted)); Aparicio-Villatoro v. Barr, 2019 WL 3859013, at

*5-7 (W.D.N.Y. Aug. 16, 2019) (Telesca, J.) (“The Court agrees with the district court

cases holding that allocating the burden to a noncriminal alien to prove he should be

released on bond under [section] 1226(a) violates due process because it asks ‘[t]he

individual . . . to share equally with society the risk of error when the possible injury to

the individual is significantly greater than any possible harm to the [government].’”

(quoting Addington v. Texas, 441 U.S. 418, 427 (1979))). And more recently, in three

cases like this one involving the misclassification of detention authority, Judge Vacca

ordered the respondents to “conduct a constitutionally adequate bond hearing . . .

where the [g]overnment bears the burden of proving by clear and convincing evidence

that [the p]etitioner[’]s continued detention is justified based on his dangerousness to

the community or risk of flight.” See Rezende v. Bondi, Case No. 6:25-cv-6538, Docket

Item 19 (W.D.N.Y. Oct. 29, 2025); Barbosa Da Cunha v. Moniz, Case No. 6:25-cv-6532,

Docket Item 25 (W.D.N.Y. Oct. 20, 2025); Andrade Lozano v. Hyde, Case No. 6:25-cv-

6528, Docket Item 20 (W.D.N.Y. Oct. 17, 2025).

The First Circuit likewise has concluded that at an initial bond hearing under

section 1226(a), the burden must be on the government. See Hernandez-Lara v.

Lyons, 10 F.4th 19, 39 (1st Cir. 2021). But the Third, Fourth, and Ninth circuits have

held that due process does not require shifting the burden from the noncitizen to the

government in a section 1226(a) bond hearing. See Borbot v. Warden, Hudson Cnty.

Corr. Facility, 906 F.3d 274, 279 (3d Cir. 2018); Miranda v. Garland, 34 F.4th 338, 366

(4th Cir. 2022); Rodriguez Diaz v. Garland, 53 F.4th 1189, 1213 (9th Cir. 2022).

The Second Circuit has not squarely reached the issue of what process is due to

a detained noncitizen before detention has been prolonged. See Velasco Lopez v.

Decker, 978 F.3d 842, 855 n.13 (2d Cir. 2020) (“This case does not require us to

establish a bright-line rule for when due process entitles an individual detained under

[section] 1226(a) to a new bond hearing with a shifted burden. On any calculus,

Velasco Lopez’s fifteen-month incarceration without a determination that his continued

incarceration was justified violated due process.”). The Second Circuit recognized,

however, that “the [g]overnment’s interest may have initially outweighed short-term

deprivation of Velasco Lopez’s liberty interests.” Id. at 855 (emphasis added); see also

id. at 83 (explaining that “‘as the period of . . . confinement grows,’ so do the required

procedural protections no matter what level of due process may have been sufficient at

the moment of initial detention” (quoting Zadvydas, 533 U.S. at 701)).

Thus, “Velasco Lopez suggests that there could be cases in which failing to shift

the burden to the government at the outset would not violate due process, because the

interests at that stage of the proceedings differ from the interests after prolonged

detention.” Onosamba-Ohindo v. Searls, 678 F. Supp. 3d 364, 373 (W.D.N.Y. 2023).

But it also does not foreclose this Court’s finding that such process is required. See,

e.g., id. at 374 n.2 (Chief Judge Wolford’s explaining that she “continues . . . to be of the

view that the Due Process Clause requires that individuals detained under [section]

1226(a) be provided a bond hearing at which the government bears the burden of

proving by clear and convincing evidence that the individual is either a danger to the

community or a flight risk, and where the immigration judge must consider non-bond

alternatives to detention or, if setting a bond, ability to pay”); B.S. v. Joyce, 2023 WL

1962808, at *4 (S.D.N.Y. Feb. 13, 2023) (“Like other courts faced with due process

challenges to initial bond hearings since Velasco Lopez, this Court will continue to

require the government to bear the burden of proof at all section 1226(a) bond

hearings.”); Jimenez v. Decker, 2021 WL 826752, at *8 (S.D.N.Y. Mar. 3, 2021) (finding

that “[r]espondents’ interpretation of the Second Circuit’s decision as holding that

allocating the burden on the detainee at an initial bond hearing ‘does not violate due

process absent prolonged detention’ proves too much”).

After careful consideration and for the reasons that follow, this Court finds that

constitutional due process requires the government to bear the burden of proving by

clear and convincing evidence that the individual is either a danger to the community or

a flight risk even at an initial bond hearing under section 1226(a). In doing so, this Court

joins the “[n]umerous district courts in the Second Circuit” that have reached that

conclusion.10 See Banegas v. Decker, 2021 WL 1852000, at *2 (S.D.N.Y. May 7, 2021)

10 This Court previously has suggested that absent prolonged detention, no

burden shifting is required to satisfy due process. See, e.g., Rasel v. Barr, 2019 WL

4257408, at *3, *6 (W.D.N.Y. Sept. 9, 2019); Fallatah v. Barr, 2019 WL 2569592, at *3-5

(W.D.N.Y. June 21, 2019). But after careful review of the caselaw—including the First

Circuit’s subsequent decision in Hernandez-Lara, 10 F.4th 19—and reconsideration of

(collecting cases). Moreover, consistent with this Court’s rulings in prolonged detention

cases, see, e.g., Pucha Quituizaca v. Barr, 2020 WL 3166732, at *8 (W.D.N.Y. June 15,

2020); Hemans v. Searls, 2019 WL 955353, at *9 (W.D.N.Y. Feb. 27, 2019), the Court

finds that the immigration judge must consider non-bond alternatives to detention or, if

setting a bond, the noncitizen’s ability to pay.

A. Mathews v. Eldridge Analysis

As with any procedural due process question, the Court is guided by the

balancing test outlined in Mathews v. Eldridge, 424 U.S. 319 (1976). As the Court in

Mathews explained, “[t]he fundamental requirement of due process is the opportunity to

be heard ‘at a meaningful time and in a meaningful manner.’” Id. at 333 (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[I]dentification of the specific dictates

of due process generally requires consideration of three distinct factors”: (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 [g]overnment’s interest,

including the function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail.” Id. at 335.

1. The Private Interest Affected

Alvarez Ortiz’s interest here “is the most significant liberty interest there is—the

interest in being free from imprisonment.” Velasco Lopez, 978 F.3d at 851 (citing

the factors under Mathews v. Eldridge, 424 U.S. 319 (1976), this Court now revises its

position.

Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004)). “Freedom from imprisonment—from

government custody, detention, or other forms of physical restraint—lies at the heart of

the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. And

“[c]ase after case instructs us that in this country liberty is the norm and detention ‘is the

carefully limited exception.’” Velasco Lopez, 978 F.3d at 851 (quoting United States v.

Salerno, 48 U.S. 739, 755 (1987)).

Moreover, although “the liberty interest of a noncitizen detained under section

1226(a) may . . . be slightly less weighty than that of individuals facing indefinite and

prolonged detention,” it is “only slightly less.” Hernandez-Lara, 10 F.4th at 29 (noting

that “[t]he exact length of detention under section 1226(a) is impossible to predict and

can be quite lengthy”). As the Second Circuit noted in Velasco Lopez, “[d]etention

under [section] 1226(a) is frequently prolonged because it continues until all

proceedings and appeals are concluded.” 978 F.3d at 852. “Absent release on bond,

detention lasts through the initial removal determination proceedings (which themselves

can take months or years) and all inter-agency and federal court appeals, even where

an individual has prevailed and the [g]overnment appeals.” Id.

Finally, it is important to recognize that the deprivation of liberty that individuals

detained under section 1226(a) experience is “not the result of a criminal adjudication.”

See id. at 851; see also Hernandez-Lara, 10 F.4th at 36 (“Unlike section 1226(c),

section 1226(a) applies to a wide swath of noncitizens, many of whom . . . have no

criminal record at all.”). This, too, heightens Alvarez Ortiz’s interest in his liberty.

For all those reasons, the Court finds that the first Mathews factor weighs heavily

in Alvarez Ortiz’s favor.

2. The Risk of Erroneous Deprivation and the Value of Additional

Procedural Safeguards

The Court also finds that the second factor—“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,” Mathews, 424 U.S. at 335—weighs in

favor of requiring a bond hearing with the burden of proof on the government. As the

First Circuit has observed, “noncitizens have no right to be provided with counsel in

immigration proceedings and very often cannot obtain counsel on their own, particularly

if they are detained.” Hernandez-Lara, 10 F.4th at 30; see also Black v. Decker, 103

F.4th 133, 155 (2d Cir. 2024) (finding “persuasive the First Circuit’s reasoning” in

Hernandez-Lara when considering procedures required after prolonged detention under

8 U.S.C. § 1226(c)).

Additionally, “detained individuals will likely experience difficulty in gathering

evidence on their own behalf.” Hernandez-Lara, 10 F.4th at 30. And this is particularly

so given that “noncitizens subject to immigration detention often lack full proficiency in

English.” See id. Moreover, “immigration law and procedures and the particular

preferences of individual [immigration judges] are likely much better known to

government representatives than to detainees.” See id. at 31. And finally, “proving a

negative (especially a lack of danger) can often be more difficult than proving a cause

for concern.” See id. (citing Elkins v. United States, 364 U.S. 206, 218 (1960) (“[A]s a

practical matter it is never easy to prove a negative.”)).

As to the burden of proof, “[t]he Supreme Court has consistently held the

[g]overnment to a standard of proof higher than a preponderance of the evidence where

liberty is at stake[] and has reaffirmed the clear and convincing standard for various

types of civil detention.” Velasco Lopez, 978 F.3d at 856 (collecting cases). “The

preponderance standard, the Supreme Court has noted, ‘creates the risk of increasing

the number of individuals erroneously committed’ and ‘it is at least unclear to what

extent, if any, the state's interests are furthered by using [it].’” Id. (quoting Addington,

441 U.S. at 426). Thus, in the context of prolonged detention, the Second Circuit has

found it “improper to allocate the risk of error evenly between the individual and the

[g]overnment when the potential injury is as significant as the individual’s liberty.” Id.

And this Court now sees no reason to impose a different standard at an initial section

1226(a) bond hearing.

What is more, these concerns are all the more heightened in the current moment

where the government has been, as this Court recently observed, “chang[ing] the rules

by fiat.” See Mata Velasquez v. Kurzdorfer, ––– F. Supp. 3d –––, 2025 WL 1953796, at

*18 (W.D.N.Y. July 16, 2025). Indeed, and as noted above, in this case the government

has detained Alvarez Ortiz under an interpretation of section 1225(b)(2) that runs

counter to precedent and decades of past practice. And that highlights the importance

of due process protections—and in particular, saddling the government with the burden

of proof.

Finally, in the context of prolonged detention, the Second Circuit has held that

immigration judges conducting bond hearings must “consider [the noncitizen’s] ability to

pay and alternative means of assuring his appearance.” Black, 103 F.4th at 159.

“Requiring that [immigration judges consider] alternatives to detention and the

noncitizen’s ability to pay does nothing to constrain [the judges’] discretion,” the Second

Circuit explained,” because an immigration judge “is free to give as much or as little

weight to these factors as appropriate, as long as some weight is given, and as long as

the decision is reasonable.” Id. (citation and internal quotation marks omitted). This

Court sees no reason why that same analysis should not apply in a bond hearing that

could prevent prolonged detention. See Alfaro v. Barr, 426 F. Supp. 3d 6, 12 (W.D.N.Y.

2019) (Wolford, J.) (finding “that both due process and BIA precedent require the

[immigration judge] to consider ability to pay and alternative conditions of release in

setting bond” under section 1226(a)).

3. The Government’s Interest

Finally, the Court considers “the [g]overnment’s interest, including the function

involved and the fiscal and administrative burdens that the additional or substitute

procedural requirement would entail.” Mathews, 424 U.S. at 335. The government’s

“interests in detaining noncitizens under [section] 1226(a) [are] (1) ensuring that

noncitizens do not abscond and (2) ensuring they do not commit crimes.” Velasco

Lopez, 978 F.3d at 854. So the government certainly has a strong interest in being able

to detain Alvarez Ortiz if he is a danger or a flight risk.

But the question here is whether the government also has an interest that might

counsel against its bearing the burden of proof by clear and convincing evidence. And

this Court finds that if there is such an interest, any additional burden borne by the

government would be minimal.

First, “the government already has a strong incentive to obtain criminal records

even under existing bond procedures,” and the Court “doubt[s] very much that shifting

the burden will cause the government to expend more than minimal additional

resources obtaining such records.” See Hernandez-Lara, 10 F.4th at 33. In other

words, the government’s work will be the same regardless of who bears the burden of

proof.

Moreover, the Court finds that the Second Circuit’s analysis in Velasco Lopez—

although it dealt with this question in the context of prolonged detention—applies

equally here. See 978 F.3d at 854-55. More specifically, the Second Circuit noted that

the government had “not articulated an interest in the prolonged detention of noncitizens

who are neither dangerous nor a risk of flight.” Id. at 854. “ICE and DHS can access

the records of other federal agencies and local law enforcement and routinely do so for

purposes of the merits proceedings.” Id. Moreover, the panel explained, “shifting the

burden of proof to the [g]overnment to justify continued detention promotes the

[g]overnment’s interest—one we believe to be paramount—in minimizing the enormous

impact of incarceration in cases where it serves no purpose.” Id. Thus, the panel

concluded that “requiring [the government] to justify [the petitioner]’s detention by clear

and convincing evidence” would not “substantially undermine[ the government’s]

legitimate interests or entail[] an undue administrative burden.” Id. at 854-55.

For all those reasons, this Court finds that any interest the government has in the

burden being on the petitioner in a section 1226(a) bond hearing is limited and does not

outweigh the other factors described above.

CONCLUSION

In sum, the Court finds that Alvarez Ortiz is not subject to mandatory detention

under 8 U.S.C. § 1225(b)(2) but instead is detained under section 1226(a). As a result,

the Court DENIES the respondents’ motion to dismiss, Docket Item 12, and finds that

Alvarez Ortiz is likely to succeed on the merits of his claim. The Court further finds that

Alvarez Ortiz has established irreparable harm and that the balance of the equities

weighs in his favor. Thus, the Court GRANTS his motion for a TRO, Docket Item 8.

More specifically, the Court ORDERS the respondents to provide Alvarez Ortiz

with an individualized bond hearing before an immigration judge within seven calendar

days of the date of this decision and order at which the government shall bear the

burden to demonstrate, by clear and convincing evidence, that he is a danger to the

community or a flight risk. At that bond hearing, the immigration judge must consider

non-bond alternatives to detention or, if setting a bond, Alvarez Ortiz’s ability to pay. If

the respondents fail to provide such a hearing within seven calendar days, they shall

immediately release Alvarez Ortiz.

On or before November 12, 2025, the respondents shall (1) file a status report

confirming that Alvarez Ortiz has either been granted a bond hearing in compliance with

this decision and order or released from custody, (2) show cause why the TRO should

not be converted into a preliminary injunction and/or why the petition should not be

granted for the reasons explained in this decision and order.

SO ORDERED.

Dated: November 4, 2025

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE