concluding that Section 1225(b)(2) is “broader” than Section 1225(b)(1) and “serves as a catchall provision that applies to all applicants for admission not covered by Section 1225(b)(1)”
How later courts described this case
- concluding that Section 1225(b)(2) is “broader” than Section 1225(b)(1) and “serves as a catchall provision that applies to all applicants for admission not covered by Section 1225(b)(1)”
- “If the meaning [of a statute] is plain, the inquiry ends there.”
- “[E]ven if the statute were ambiguous, we would look to traditional canons of statutory construction to resolve the ambiguity, before looking to legislative history and interpretive regulations.”
- “Congress’s use of the present perfect tense—‘has . . . been admitted’—is significant here . . . Use of this tense evinces Congress’s intent to include any previous admission . . . including admission in the indefinite past.” (first ellipses in original)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Erika Rodriguez-Acurio,
Petitioner,
-v- 2:25-cv-6065
(NJC)
Judith Almodovar, Kristi Noem, and Pamela Bondi,
Respondents.
OPINION AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
On October 29, 2025, Erika Rodriguez-Acurio filed this petition for a writ of habeas
corpus (the “Petition”) pursuant to 28 U.S.C. § 2241, challenging the lawfulness of her detention
by Immigration and Customs Enforcement (“ICE”), and seeking a preliminary injunction or writ
of habeas corpus immediately releasing her, or at a minimum affording her a bond hearing. (Pet.
For Writ of Habeas Corpus (“Pet.”), ECF No. 1.) She argues that on October 29, 2025, just after
the conclusion of her credible fear interview, ICE agents detained her in violation of Section
236(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1226(a) (“Section 1226(a)”)
and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. (Pet. ¶¶ 26–35.)
Respondents are federal government officials: Judith Almodovar, Acting Director of the
ICE New York Field Office; Kristi Noem, the Secretary of the Department of Homeland
Security (“DHS”); and Attorney General Pamela Bondi. Respondents argue that Rodriguez-
Acurio’s detention is governed by a different INA provision, 8 U.S.C. § 1225(b) (“Section
1225(b)”), and that this statute requires her detention. Although their arguments are imprecise
and shifting, Respondents principally invoke Section 1225(b)(1), which applies to noncitizens
who satisfy criteria for inclusion in procedures known as expedited removal proceedings. In the
alternative, Respondents rely on Section 1225(b)(2), which governs the mandatory detention of
certain noncitizens who are “seeking admission” to the United States.
Shortly after Rodriguez-Acurio arrived in the United States in 2021, ICE paroled her into
the country for one year under 8 U.S.C. § 1182(d)(5)(A) (“Section 1182(d)(5)(A)”), which
permits noncitizens to be paroled “into the United States” for urgent humanitarian or significant
public benefit purposes. With that authorization, Rodriguez-Acurio lawfully moved to New York
and appeared for the sole ICE check-in scheduled for her. After her parole expired, she resided
continuously in the United States for more than three years, gave birth to her U.S. citizen son,
applied for asylum, appeared for a USCIS fingerprinting appointment, applied for and was
granted a five-year work authorization by USCIS starting in June 2025, worked as a housekeeper
to support her family, and was scheduled and appeared for a credible fear interview with USCIS
on October 29, 2025. She has never been charged or convicted of any crime in this country.
However, after recounting harrowing experiences in Ecuador during her credible fear interview,
Rodriguez-Acurio was unexpectedly ushered into another room and arrested and detained by ICE
officers.
A textual analysis of Section 1225(b) compels the conclusion that none of the provisions
of that statute authorizing the mandatory detention of noncitizens apply to Rodriguez-Acurio.
Neither at the time of her arrest, nor at any point thereafter, was Rodriguez-Acurio subject to
mandatory detention pending expedited removal as an “arriving alien” under Section
1225(b)(1)(A)(i) or as a noncitizen designated for such treatment under Section
1225(b)(1)(A)(iii). She also was not subject to mandatory detention under Section 1225(b)(2) as
a noncitizen who, among other things, was “seeking admission” to the United States. Contrary to
Respondents’ contentions, Rodriguez-Acurio’s detention falls squarely within the discretionary
detention framework of Section 1226(a), which permits detention when a DHS officer has made
an individualized determination that a noncitizen poses a flight or safety risk. That framework
also authorizes an appeal of a DHS denial of release on bond to an immigration judge.
Rodriguez-Acurio’s parole into the United States under Section 1182(d)(5)(A) was
premised by law on the determination that she did not pose a safety risk. Nothing in the record
before this Court shows any change in circumstances. No one at DHS or ICE ever made any
individualized determination that Rodriguez-Acurio poses a flight or public safety risk before she
was suddenly arrested and detained on October 29, 2025, immediately following her credible
fear interview. Rodriguez-Acurio’s detention is a clear infringement of her significant liberty
interest in being free from imprisonment—the quintessential interest triggering the procedural
due process protections of the Fifth Amendment, the hallmark of which is the requirement to
provide notice and an opportunity to be heard. In light of Rodriguez-Acurio’s significant interest
in physical liberty, even as a noncitizen subject to discretionary detention under Section 1226(a),
the high risk of erroneous deprivation, and the government interests in guarding against flight
risk and protecting public safety, Respondents’ detention of Rodriguez-Acurio without providing
any notice or opportunity to be heard before a DHS officer or an immigration judge is a violation
of her right to procedural due process.
Accordingly, for the reasons explained below, Respondents detained Rodriguez-Acurio
under Section 1226(a) and did so in violation of her Fifth Amendment rights. The Petition is
therefore granted.1
BACKGROUND
I. Factual Background
A. Rodriguez-Acurio’s Entry into the United States
Erika Rodriguez-Acurio is 30 years old and the mother of a three-year old U.S. citizen
son. (Pet., Ex. B; Jonathan Lipsitz Aff. ¶ 6, ECF No. 1-6.) A citizen of Ecuador, she journeyed to
the United States in September 2021 to seek asylum based on alleged physical and gender-based
violence by local law enforcement in her native country, which led her to fear for her safety. (Pet
¶ 1, 11; id., Ex. B; Lipsitz Aff. ¶ 11; Mem. L. Resp. Show Cause Order (“Resp.”) at 7, ECF No.
14.)
Rodriguez-Acurio reported during a credible fear interview that in Ecuador, she
experienced “severe domestic abuse by her ex-husband, including being beaten until she lost
consciousness and suffered a broken nose and eye injury requiring hospitalization.” (Lipsitz Aff.
¶ 11 (attesting to what Rodriguez-Acurio recounted in the interview).) Rodriguez-Acurio also
reported experiencing gender-based violence by local law enforcement. After Rodriguez-Acurio
obtained a restraining order against her ex-husband, who is the son of a high-ranking security
official in Ecuador, members of the local police department “continued to harass her.” (Id. ¶¶
11–12.) At some point while she was living in Ecuador, Rodriguez-Acurio’s ex-husband came to
1 Rodriguez-Acurio brings a separate cause of action for violation of Section 1226(a). (Pet.
¶¶ 32–35.) In resolving Rodriguez-Acurio’s due process claim, I consider whether her detention
is governed by Section 1226(a) as a threshold issue. However, I do not decide whether her
detention violates Section 1226(a) because it is clear that her detention violates her procedural
due process rights under the Fifth Amendment.
her restaurant and sexually assaulted her, and she represents that the police “continue to look for
her in Ecuador.” (Id. ¶ 13.)
Around 4:00 a.m. on September 4, 2021, Rodriguez-Acurio entered the United States by
walking across a “shallow part of the Rio Grande River.” (Record of Sworn Statement in
Proceedings Under Section 235(b)(1), Form I-867 (“Form I-867”) at 2, ECF No. 21-2 at 2–5.)
On or around that same day, an unnamed person with United States Customs and Border
Protection (“CBP”) encountered Rodriguez-Acurio near a port of entry in Eagle Pass, Texas.
(First Langlois Decl. ¶ 3, ECF No. 14-1.) According to U.S. Immigration and Customs
Enforcement (“ICE”) Supervisory Detention and Deportation Officer Jason V. Langlois, based
on his review of Department of Homeland Security (“DHS”) records, during the encounter,
Rodriguez-Acurio admitted to CBP that she had entered the United States by crossing the Rio
Grande River near Eagle Pass, Texas. (Id.) Langlois attests that, because Rodriguez-Acurio “did
not enter the United States through a designated port of entry,” she was not inspected by an
immigration officer when she entered or during this encounter with CBP. (Id. ¶ 3; Fourth
Langlois Decl. ¶ 5, ECF No. 21-1; ECF No. 21 at 2.)
CBP detained Rodriguez-Acurio and transported her to the Carrizo Springs Border Patrol
Station in Texas. (First Langlois Decl. ¶ 3.) According to the information set forth on a Form I-
867A, a Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, on
September 6, 2021, Rodriguez-Acurio told Border Patrol Agent Vincent Patlan III that she had a
“fear of torture or persecution” if she returned to her home country. (Form I-867 at 3.) She also
reported that it was her first time entering the United States, that she had not been arrested by
police in the United States or any other country, and that she was traveling to New York and
intended to stay in the United States “[i]ndefinitely.” (Id. at 2–3.)
Langlois also attests that, on or about September 6, 2021, CBP inspected Rodriguez-
Acurio and issued her a Notice and Order of Expedited Removal, Form I-860 (“Form I-860”),
pursuant to 8 U.S.C. § 1225(b)(1)(A)(i), what is defined below as the “Arriving Aliens
Provision” of 8 U.S.C. § 1225 (“Section 1225”). (First Langlois Decl. ¶ 4; Fourth Langlois Decl.
¶ 9; Form I-860, ECF No. 18-1.)2 The Form I-860 is signed by Patlan and reflects that
“[p]ursuant to . . . 8 U.S.C. 1225(b)(1),” DHS “determined that [Rodriguez-Acurio] [was]
inadmissible to the United States” under 8 U.S.C. § 1182(a)(7)(A)(i)(I), on the basis that she was
“an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border
crossing card, or other valid entry document” as required. (Form I-860.) However, the bottom
half of the form presents fillable blanks for an “ORDER OF REMOVAL,” but is not filled out.
(Id.) The back of the Notice features an “X” and an illegible marking that appears to be a
signature. (Id.) Because the “Order” portion of the form is blank there is no dispute Rodriguez-
Acurio was not ordered removed, and this document is accurately described as a “Notice of
Expedited Removal.”
Also on September 6, 2021, Rodriguez-Acurio was issued a Notice to Alien Ordered
Removed/Departure Verification, DHS Form I-296 (“Form I-296”), which is also signed by
Patlan. (Form I-296, ECF No. 21-2 at 7.) The Form I-296 includes fillable blanks for
“Verification of Removal,” which are blank. (Form I-296.) It warns Rodriguez-Acurio that she
was “found inadmissible as an arriving alien in proceedings under section 235(b)(1) or 240 of the
2 In his fourth declaration, Langlois refers to several provisions of “8 C.F.R. § 1225.” (See, e.g.,
Fourth Langlois Decl. ¶¶ 7, 9.) There is no section 1225 in title 8 of the Code of Federal
Regulations, so it appears that Langlois intended to refer to 8 U.S.C. § 1225.
[INA]” and is prohibited from entering, attempting to enter, or being in the United States “for a
period of 5 years from the date of [her] departure” from the United States. (ECF No. 21-2 at 7.)
Furthermore, Langlois attests that on September 6, 2021, Rodriguez-Acurio “was referred
for an interview by an asylum officer pursuant to 8 [U.S.C.] § 1225(b)(1)(A)(ii).” (Fourth
Langlois Decl. ¶ 7.) CBP served Rodrguez-Acurio with a Spanish language version of Form M-
444, which informed Rodriguez-Acurio of her rights in connection with the credible fear
interview. (First Langlois Decl. ¶ 5; ECF No. 14-2.) Rodriguez-Acurio was then transferred to
ICE custody and detained pursuant to 8 U.S.C. § 1225(b)(1)(A)(iv) at the T. Don Hutton
Detention Center in Taylor, Texas on or about September 8, 2021. (Id. ¶ 6; Fourth Langlois Decl.
¶ 9.) Roriguez-Acurio was not provided a credible fear interview while detained in Texas.
B. Rodriguez-Acurio’s Temporary Parole, Asylum Application, and Work
Authorization
On September 14, 2021, ten days after she was first detained by CBP, Rodriguez-Acurio
received a letter from DHS stating that ICE had “decided to parole [her] from its custody
pursuant to its authority under [Section 1182](d)(5)(A).” (Interim Notice Authorizing Parole
(“Parole Notice”) at 1, ECF No. 1-2.) The Interim Notice reflects that Rodriguez-Acurio would
reside in Glendale, New York and states that the parole authorization was “valid for only one
year beginning from the date on [the] notice” and would terminate automatically “at the end of
the one-year period unless ICE provides you with an extension at its discretion.” (Id.) According
to Langlois, the determination to release Rodriguez-Acurio on temporary parole was made based
on “risk factors then existing that may have placed [her] at heightened risk, if she were to
contract the COVID-19 virus.” (First Langlois Decl. ¶ 7.)
As a result, on October 17, 2021, Rodriguez-Acurio was “temporarily paroled from ICE
custody” under 8 U.S.C. § 1182(d)(5)(A), in accordance with the Interim Notice. (Id. ¶ 8.) On
October 21, 2021, she reported, as directed, to an ICE Field Office at 26 Federal Plaza, New
York, New York. (Id. ¶ 9; Fourth Langlois Decl. ¶ 11; Parole Notice at 2.) “DHS records do not
indicate what documents, if any, were given to [Rodriguez-Acurio] on that date, or whether any
information was otherwise conveyed to [Rodriguez-Acurio] on that date.” (Fourth Langlois Decl.
¶ 11.)
Langlois attests that during the fall of 2021, Enforcement and Removal Operations New
York was processing hundreds of noncitizens and was “only instructed to reprocess Family
Units, not single adults.” (Id. ¶ 12.) According to Langlois, because Rodriguez-Acurio was not
part of a family unit, “ICE did not reschedule [Rodriguez-Acurio] for another check-in, instead
deferring to the Asylum Office review process to be completed.” (Id. ¶ 13.)
As contemplated by the terms of her temporary parole, Rodriguez-Acurio resided first in
Glendale, New York, and afterwards in Brooklyn with her husband. (Pet. ¶ 16.) She worked as a
housekeeper for the next four years. (Id. ¶¶ 2, 16.) On August 2, 2022, Rodriguez-Acurio gave
birth to her son (Pet. ¶ 16.), for whom she currently serves as primary caretaker (Lipsitz Aff.
¶ 6.). On September 14, 2022, Rodriguez-Acurio’s temporary parole authorization terminated
automatically pursuant to the terms of the Interim Notice. (First Langlois Decl. ¶ 10.)
With the assistance of legal counsel, on September 26, 2024, Rodriguez-Acurio filed a
Form I-589, Application for Asylum and for Withholding of Removal (“Asylum Application”).
(ECF No. 1-4.) That same day, Rodriguez-Acurio received a Form I-797C, Receipt Notice,
which warned that although she could remain in the United States until her asylum application
was decided, the application did not preclude ICE or CBP from placing her in removal
proceedings. (Id.) It also notified Rodriguez-Acurio that 150 days after she filed her asylum
application, she could file an application for employment authorization. (Id.) On October 7,
2024, Rodriguez-Acurio received an Appointment Notice for the submission of biometrics for
her asylum application. (ECF No. 20-1.)
On October 30, 2024, Rodriguez-Acurio attended a U.S. Citizenship and Immigration
Services (“USCIS”) fingerprinting appointment. (ECF Nos. 20 at 2, 20-1; see also Nov. 10, 2025
Tel. Conf. Tr. 12:11–15:9 (reflecting that it is undisputed that Rodriguez-Acurio attended the
fingerprinting appointment).) Rodriguez-Acurio did not have any other appointments with ICE
or USCIS between October 21, 2021 and October 29, 2025—the day of her credible fear
interview. (ECF No. 20 at 1; Fourth Langlois Decl. ¶¶ 11–14.) In the Petition, Rodriguez-Acurio
states that “[i]n keeping ‘with the terms and conditions of [her] release,’ [Rodriguez-Acurio]
‘reported . . . for every appointment directed.’” (Pet. ¶ 18.) Respondents have not submitted any
evidence to contest this assertion.
Rodriguez-Acurio submitted an application for work authorization, which USCIS
received on June 3, 2025 and granted just three days later on June 6, 2025. (Nov. 10, 2025 Tel.
Conf. Tr. 12:25–13:2.) The record includes a copy of Rodriguez-Acurio’s employment
authorization card, which shows that USCIS granted her authorization to work in the United
States for five years—from June 5, 2025 through June 4, 2030. (ECF No. 20-2.) The parties
agree that the work authorization was granted in connection with Rodriguez-Acurio’s I-589
asylum application. (Nov. 10, 2025 Tel. Conf. Tr. 4:12–5:25.) The work authorization card
displays Rodriguez-Acurio’s “alien number,” which matches the “alien number” listed on both
her Notice of Expedited Removal and her Interim Notice Authorizing Parole. (ECF Nos. 1-2, 18-
1, 20-2.) There is no evidence in the record that USCIS rescinded Rodriguez-Acurio’s work
authorization at any time. (Nov. 10, 2025 Tel. Conf. Tr. 11:9–13 (Respondents’ counsel stating
that “[w]e have no documentation in the record at this time . . . that [the work authorization] was
rescinded”).)
Seven days after granting Rodriguez-Acurio work authorization, USCIS notified
Rodriguez-Acurio of the dismissal of her I-589 application by letter dated June 13, 2025. (ECF
No. 1-5.) The dismissal notice states that “[t]he asylum office [could not] process [her] Form I-
589 at this time,” but that her “claim of fear [would] be considered by an asylum officer through
the credible fear screening process.” (Id.)
On October 22, 2025, USCIS issued Rodriguez-Acurio a Notice of Credible Fear
Interview, Form G-56, directing that she appear at the New York Asylum Office in Bethpage,
New York, on October 29, 2025 for a credible fear interview. (Fourth Langlois Decl. ¶ 14.) The
notice indicates that the interview was scheduled for 7:00 AM. (ECF No. 21-2 at 9–10.)
C. Rodriguez-Acurio’s Credible Fear Interview, Arrest and Detention
On October 29, 2025, Rodriguez-Acurio reported as directed for her credible fear
interview. (Lipsitz Aff. ¶ 1.) During that interview, she recounted the gender-based violence she
experienced in Ecuador, including being severely beaten by her ex-husband until she lost
consciousness, and police harassment. (Id. ¶¶ 10–13.) At the end of the interview, the USCIS
officer asked her to enter a side room, where two ICE officers apprehended her. (Id. ¶¶ 4, 14.) At
that time, Lipsitz explained to the officers that Rodriguez-Acurio was the primary caretaker for
her three-year old child, who “would be left without her care” with the child’s father. (Id. ¶ 6.)
Nonetheless, ICE officers indicated their intent to detain Rodriguez-Acurio, and when Lipsitz
“inquired about the reason for her detention, one of the officers acknowledged that it was
unusual given her clean record and commented, ‘This is just a sign of the times.’” (Id. ¶ 5.)
Lipsitz “pleaded for an alternative to detention, such as an ankle monitor,” and one of the ICE
officers attempted to contact a supervisor to request release with a GPS monitor, but the request
was denied. (Id. ¶ 7.)
Rodriguez-Acurio was informed that she would be taken “first to Islip, then to Federal
Plaza, and likely to Delaney.” (Id. ¶ 9.) She was escorted out of the office in tears and
transported to 100 Federal Plaza, Central Islip, New York, for processing. (Id. ¶ 9; First Langlois
Decl. ¶ 12.) There, Rodriguez-Acurio was served with a Warrant for Arrest of Alien, Form I-200,
signed by Langlois. (First Langlois Decl. ¶ 13; Form I-200 Warrant, ECF No. 14-3.) According
to the warrant, there is probable cause to believe that Rodriguez-Acurio “is removable from the
United States” based on “the execution of a charging document to initiate removal proceedings
against” her. (Form I-200 Warrant.) On its face, the warrant indicates that Rodriguez-Acurio was
arrested pursuant to “sections 236 and 287 of the Immigration and Nationality Act and part 287
title 8, Code of Federal Regulations,” which correspond to 8 U.S.C. §§ 1226 and 1357 and 8
C.F.R. §§ 287.1–287.12. (Id.) Directly contradicting the face of the warrant attached to his
declaration, Langlois attests, without submitting any supporting evidence in the record, that “ICE
took [Rodriguez-Acurio] into custody pursuant to 8 C.F.R. [§] 235.3(b)(2)(iii) and 8 U.S.C.
§ 1225(b)(1) . . . .” (First Langlois Decl. ¶ 12.)
On October 30, 2025, Rodriguez-Acurio was transported from Central Islip, New York to
ICE’s processing space at 26 Federal Plaza, New York, New York, “pending accommodations at
another facility.” (William Joyce Decl. ¶ 7, ECF No. 15; First Langlois Decl. ¶ 14.) ICE’s New
Orleans Field Office approved bedspace for Rodriguez-Acurio in Louisiana. (Joyce Decl. ¶ 9.)
D. Rodriguez-Acurio’s Filing of the Habeas Petition and Subsequent Events
Rodriguez-Acurio filed the habeas petition initiating this action on October 29, 2025.
Shortly after this action was assigned to this Court’s docket on October 30, 2025, this Court
issued an order prohibiting Respondents from removing Rodriguez-Acurio from the United
States or from transferring her to detention outside of the Eastern District of New York, the
Southern District of New York, or the District of New Jersey in order to preserve this Court’s
jurisdiction. (Joyce Decl. ¶ 10; ECF No. 9.) The October 30, 2025 Order also set a briefing
schedule on the Petition and notified the parties that the Court would hold a hearing on
November 7, 2025. (ECF No. 9.)
Respondents elected to detain Rodriguez-Acurio at 26 Federal Plaza. According to
William Joyce, Deputy Field Office Director in the New York City ICE Field Office of
Enforcement and Removal Operations, the New Jersey ICE detention facility used to detain
women did not have bed space, and ICE does not detain women in the Eastern District of New
York and does not use any facilities other than 26 Federal Plaza to detain women in the Southern
District of New York. (Joyce Decl. ¶¶ 1, 8–13.)
Rodriguez-Acurio was detained in “one of four rooms in the 26 Federal Plaza Hold Room
facility.” (Joyce Decl. ¶ 15.a.) Because 26 Federal Plaza is “not a designated detention space” it
does “not have shower facilities or beds,” so Rodriguez-Acurio slept on a sleeping mat. (Resp. at
9 n.3; Joyce Decl. ¶ 15.b.) Conditions of confinement for people in ICE detention at 26 Federal
Plaza are governed by a preliminary injunction in Barco Mercado v. Noem, No. 25-cv-6568
(S.D.N.Y. Sept. 17, 2025), ECF No. 97, which requires, among other things, “fifty square feet
per” noncitizen, “exclusive of eight-foot buffer zone[s] around toilets” (Joyce Decl. ¶ 15.a).
Joyce attests that Rodriguez-Acurio was detained in 26 Federal Plaza in accordance with those
requirements. (Joyce Decl. ¶ 15.)
On November 4, 2025, Rodriguez-Acurio was transferred to the Elizabeth Contract
Detention Facility in New Jersey. (ECF No. 16.) Two days later, on November 6, 2025, USCIS
issued a negative credible fear determination. (Third Langlois Decl. ¶ 3, ECF No. 19; ECF No.
19-1.) According to Langlois, Rodriguez-Acurio was served with the negative credible fear
determination that same day and requested review of the determination by an immigration judge.
(Third Langlois Dec. ¶ 6.)
On November 10, 2025, the Immigration Court notified Rodriguez-Acurio that she would
have a hearing before an immigration judge on November 12, 2025 concerning her request for
review of the negative credible fear determination. (Fourth Langlois Decl. ¶ 15; ECF No. 21-2 at
12.)
II. Procedural History
As noted, Rodriguez-Acurio filed the instant Petition seeking a writ of habeas corpus
directing Respondents to release her from detention on October 29, 2025 at 9:22 p.m. following
her detention earlier that day. (See Pet.) In support of the Petition, Rodriguez-Acurio filed five
exhibits. (Pet., Exs. A–E.) She also filed a proposed Order to Show Cause that would direct
Respondents to show why “the relief sought should not be granted.” (ECF No. 2.)
On October 30, 2025, the Court ordered that the Respondents show cause why the
Petition should not be granted and ordered that Rodriguez-Acurio not be removed from the
United States or from the Eastern District of New York, the Southern District of New York, or
the District of New Jersey absent further order of this Court. (ECF No. 9.)
Respondents submitted their response in opposition to the Petition on November 3, 2025,
which included the First Langlois Declaration and two attached exhibits. (See Resp.; First
Langois Decl.) The Court ordered the parties to appear for a telephone conference later that
afternoon to address Rodriguez-Acurio’s detention at 26 Federal Plaza. (Elec. Order, Nov. 3,
2025.) At the conference, the Court notified the parties of the preliminary injunction in Barco
Mercado v. Noem, No. 25-cv-6568 (S.D.N.Y. Sept. 17, 2025), ECF No. 97, which governs
conditions of confinement for people held in ICE detention at 26 Federal Plaza, and ordered
Respondents to file an affidavit addressing whether Rodriguez-Acurio’s detention at 26 Federal
Plaza complied with the requirements set forth in the preliminary injunction. (Min. Entry, Nov.
3, 2025.) Respondents filed the Joyce Declaration in response to that order on November 4,
2025. (ECF No. 15.)
On November 5, 2025, the Court ordered Respondents to file the Notice and Order of
Expedited Removal, Form I-860 because Respondents had not included it with their opposition
to the Petition. (Elec. Order, Nov. 5, 2025.) Later that day, Respondents filed a status report
informing the Court that Rodriguez-Acurio had been transferred to the Elizabeth Contract
Detention Facility. (ECF No. 16.)
On November 6, 2025, Respondents filed the Second Langlois Declaration and the Form
I-860. (ECF Nos. 18, 18-1.) On that same day, Rodriguez-Acurio filed a reply brief in response
to Respondents’ opposition. (Pet.’s Reply to Resps.’ Opp’n (“Reply”), ECF No. 17.)
The Court held a show cause hearing on the Petition on November 7, 2025 (the “Show
Cause Hearing”). (Min. Entry, Nov. 7, 2025.) Thirteen minutes before the start of that hearing,
Respondents filed the Third Langlois Declaration along with the attached Record of Negative
Credible Fear Finding. (Third Langlois Decl., ECF No. 19; ECF No. 19-1.) At the end of the
hearing, the Court ordered the parties to appear for a telephone conference on November 8, 2025.
(Min. Entry, Nov. 7, 2025.)
On November 8, 2025, the Court issued an order, which the Court amended at its
telephone conference later that day, requiring the parties to supplement the record with any
documents showing: (1) the scheduling of any ICE check-ins for Rodriguez-Acurio between her
October 21, 2021 parole check-in and her credible fear interview on October 29, 2025, (2) what
transpired at any such check-ins, including the October 21, 2021 check-in, and (3) all paperwork
provided to Rodriguez-Acurio related to any such ICE check-in, including but not limited to the
October 21, 2021 check-in. (Elec. Order, Nov. 8, 2025; Min. Entry, Nov. 8. 2025.) The Court
also ordered Respondents to file an affidavit addressing what was communicated to Rodriguez-
Acurio during the October 21, 2021 check-in, whether any other check-ins were scheduled and,
if so, how she was provided notice and what was communicated to her during any such check-
ins, and what documentation was provided to her during or after any check-ins. (Elec. Order,
Nov. 8, 2025; Min. Entry, Nov. 8. 2025.) At the November 8, 2025 telephone conference, the
Court heard additional argument from the parties. (Min. Entry, Nov. 8. 2025.)
On November 10, 2025, the parties provided the submissions in response to the Court’s
November 8, 2025 Order. (ECF Nos. 20, 21.) Respondents submitted the Fourth Langlois
Declaration. (ECF No. 21.) Rodriguez-Acurio provided a copy of her employment authorization
card and the notice of her October 30, 2024 biometrics appointment. (ECF Nos. 20-1, 20-2.)
Later on November 10, 2025, the Court held a telephone conference where it heard
additional argument from the parties. (Min. Entry, Nov. 10, 2025.) After hearing argument, the
Court granted Rodriguez-Acurio habeas relief for the reasons explained on the record, which the
Court indicated would be set forth in more detail in this written Opinion and Order. (Id.) The
Court ordered Respondents to transfer Rodriguez-Acurio from the Elizabeth Contract Detention
Facility to the Eastern District of New York and to release her immediately upon effectuating her
transfer. (Id.) Afterwards, at the joint request of the parties, the Court amended its oral order to
require that Respondents release Rodriguez-Acurio from the Elizabeth Contract Detention
Facility in New Jersey upon her family’s arrival at that facility that day and to confirm via a
filing on the docket that the release had been accomplished that evening. (Elec. Order, Nov. 10,
2025.)
The following day, on November 11, 2025, Respondents filed an untimely certification
confirming that Rodriguez-Acurio had been released from custody on November 10, 2025, in
accordance with the Court’s amended order. (ECF No. 23.)
This Opinion and Order sets forth in more detail the reasons for the Court’s order
granting Rodriguez-Acurio’s habeas petition on November 10, 2025.
LEGAL STANDARD
Rodriguez-Acurio brings a petition for a writ of habeas corpus under 28 U.S.C. § 2241,
which “authorizes a district court to grant a writ of habeas corpus whenever a petitioner is ‘in
custody in violation of the Constitution or law or treaties of the United States.’” Wang v.
Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C. § 2241(c)); see also Hechavarria
v. Sessions, 891 F.3d 49, 53 (2d Cir. 2018). Federal courts have jurisdiction to hear habeas
corpus claims by noncitizens challenging the constitutionality of their detention. Velasco Lopez
v. Decker, 978 F.3d 842, 850 (2d Cir. 2020); see also Hechavarria, 891 F.3d at 53 (“[A]t its
historical core, 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.”).
Additionally, “[c]laims that the discretionary process [used to detain someone] . . . was
constitutionally flawed are cognizable in federal court on habeas because they fit comfortably
within the scope of § 2241.” Velasco Lopez, 978 F.3d at 850.
DISCUSSION
I. Statutory Framework
A. Section 240 Proceedings vs. Expedited Removal
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRAIRA”), Congress established the two main processes for removing noncitizens deemed
ineligible to enter or remain in the United States. See Pub. L. 104-208, 110 Stat. 3009, 3009-546
(1996); see also Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 106 (2020).3 The
“usual removal process” is commonly referred to as “Section 240” and is codified in 8 U.S.C.
§ 1229a. Thuraissigiam, 591 U.S. at 108. Section 240 proceedings involve an evidentiary hearing
before an immigration judge, where a noncitizen may “attempt to show that he or she should not
be removed.” Id.; Coal. for Humane Immigrant Rts. v. Noem, No. 25-cv-872, __ F. Supp. 3d __,
2025 WL 2192986, at *3 & n.4 (D.D.C. Aug. 1, 2025) (“Coalition”). This process was
established by Congress to create “a ‘streamlined’ removal process . . . ‘[f]or illegal aliens
already present in the U.S.’” Coalition, 2025 WL 2192986, at *3 (quoting H.R. Rep. 104-469, at
12, 107–08 (1996)). In these proceedings, noncitizens have a right to hire counsel, to a
reasonable opportunity to examine evidence against them, to present evidence on their own
behalf, and to cross-examine any government witnesses. 8 U.S.C. § 1229a(b)(4)(A)–(B). The
proceedings themselves are recorded, typically take place over the course of multiple hearings
and months, and upon a decision by the immigration judge, either party may appeal to the Board
of Immigration Appeals (“BIA”). Coalition, 2025 WL 2192986, at *3; see also 8 C.F.R.
3 Unless otherwise indicated, case quotations omit all internal quotation marks, brackets
alterations, and citations.
§§ 1003.1, 1240.15. The BIA’s decision may then be appealed to a United States court of
appeals. 8 U.S.C. § 1252.
The IIRAIRA also provides a separate track for expedited removal proceedings as set
forth in 8 U.S.C. § 1225(b)(1), which “substantially shorten and speed up the removal process.”
Make the Rd. New York v. Wolf, 962 F.3d 612, 618–19 (D.C. Cir. 2020). Pursuant to the statute,
noncitizens who satisfy two criteria may be subject to expedited removal. First, those noncitizens
are “inadmissible” to the United States either because they lack proper entry documents or
because they engaged in fraud or willfully misrepresented a material fact on their application for
admission. 8 U.S.C. § 1225(b)(1)(A)(i); see id. § 1182(a)(6)(C), (a)(7) (grounds of
inadmissibility). Second, those noncitizens fall into at least one of two provisions of the
expedited removal statute: (1) they “[are] arriving in the United States[,]” 8 U.S.C.
§ 1225(b)(1)(A)(i), and thereby fall into what is known as the “Arriving Aliens Provision”;
and/or (2) they “have not been admitted or paroled” into the United States and have “not
affirmatively shown” to an immigration officer’s satisfaction that they have been “physically
present in the United States continuously for [a] 2-year period immediately prior to the date of
the determination of inadmissibility[,]” id. § 1225(b)(1)(A)(iii)(II), and thereby fall into what is
known as the “Designation Provision.” See Make the Rd, 962 F.3d at 618–19; Coalition, 2025
WL 2192986, at *5. The expedited removal statute grants the Attorney General the authority to
designate the population of noncitizens who fall under the Designation Provision. 8 U.S.C.
§ 1225(b)(1)(A)(iii). The Attorney General has since delegated that authority to the Secretary of
DHS. Make the Rd., 962 F.3d at 619 & n.1.
Unlike removal orders issued through Section 240 proceedings, expedited removal orders
are “usually issued within a few days, if not hours.” Make the Rd. New York v. Noem, No. 25-cv-
190, __ F. Supp. 3d __, 2025 WL 2494908, at *3 (D.D.C. Aug. 29, 2025). In these proceedings,
the initial fact finder is an immigration officer, not an immigration judge. 8 C.F.R.
§ 235.3(b)(2)(i). This officer asks the noncitizen a series of questions to determine their
inadmissibility and whether they intend to apply for asylum or express a fear of prosecution or
torture or a fear of returning to their country of origin. Id. § 235.3(b)(2)(i), (b)(4); Coalition,
2025 WL 2192986, at *3. If the noncitizen is inadmissible and does not indicate an intent to
apply for asylum or express a fear of prosecution or torture or fear of returning to their country of
origin, the officer issues a Notice and Order of Expedited Removal; the noncitizen may respond
in a sworn statement, and once a supervising officer reviews and approves the determination of
inadmissibility, the noncitizen is ordered removed. Coalition, 2025 WL 2192986, at *3. If the
noncitizen expresses an intent to apply for asylum or a fear of prosecution, the inspecting officer
must refer the noncitizen for a “credible fear interview” before a USCIS asylum officer. 8 C.F.R.
§ 208.30(b), 235.3(b)(4). The asylum officer shall conduct this interview “either at a port of
entry or such other place designated by the Attorney General.” 8 U.S.C. § 1225(b)(1)(B)(i).
Alternatively, if “in exercising USCIS’s discretion, it is determined that circumstances so
warrant, the asylum officer, after supervisory concurrence, may refer the alien for proceedings
under section 240 of the Act [8 U.S.C. § 1229a] without making a credible fear determination.”
8 C.F.R. § 208.30(b).
If the noncitizen is referred for a credible fear interview and the asylum officer finds the
noncitizen to have a credible fear of persecution or torture, USCIS has “complete discretion” to
either issue a Notice to Appear for full consideration of the asylum and withholding of removal
claim in Section 240 proceedings or to “retain jurisdiction over the application for asylum.” Id.
§ 208.30(f); see Coalition, 2025 WL 2192986, at *3 (summarizing these procedures). If USCIS
retains jurisdiction, USCIS “shall conduct” an asylum interview “within 45 days of the applicant
being served with a positive credible fear determination.” 8 C.F.R. § 208.9(a)(1); see also id.
§ 208.2(a)(ii) (directing that asylum interviews are governed by the procedures in 8 C.F.R.
§ 208.9). Except in exigent circumstances, applications for extensions of time to file evidence
will not be granted that “would prevent a decision from being issued on the application within 60
days of service of the positive credible fear determination.” Id. § 209.9(e)(2).
If, however, the USCIS asylum officer makes a negative credible fear determination, a
different procedure ensues, which involves review by a supervisory asylum officer and the
availability of review by an immigration judge before the expedited removal determination
becomes final. Id. § 208.30(e)(8), (g). This review “shall be conducted as expeditiously as
possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days
after the date of the [negative credible fear] determination.” 8 U.S.C. § 1225(b)(1)(B)(iii)(III).
B. Detention Pursuant to Section 1226
Section 1226 governs the detention of noncitizens “already in the country pending the
outcome of removal proceedings.” Jennings v. Rodriguez, 583 U.S. 281, 289 (2018) (emphasis
added); see also id. at 288, (explaining that, “once inside the United States . . . an alien present in
the country may still be removed” under “Section 1226” (emphasis added)). Section 1226
distinguishes between “two different categories” of detention under the statute. Id. at 288.
The first category is “a discretionary detention framework” established by Section
1226(a). Lopez Benitez v. Francis, No. 25-cv-5937, 2025 WL 2371588, at *3 (S.D.N.Y. Aug. 13,
2025). Section 1226(a) provides that, for a noncitizen who is “arrested and detained” “[o]n a
warrant issued by the Attorney General,” the Attorney General: (1) “may continue to detain” the
arrested noncitizen; (2) “may release” the noncitizen on “bond”; or (3) “may release” the
noncitizen on “conditional parole.” 8 U.S.C. § 1226(a)(1)–(2).
The second category is a mandatory detention framework established by Section 1226(c),
which “carves out a statutory category of [noncitizens] who may not be released” on bond or
conditional parole pending the conclusion of removal proceedings. Jennings, 583 U.S. at 289
(emphasis in original). Specifically, Section 1226(c) provides that the “Attorney General shall
take into custody any alien” who falls into one of five enumerated categories involving criminal
offenses and terrorist activities. 8 U.S.C. § 1226(c)(1).
C. Mandatory Detention Under Section 1225(b)
Section 1225 enumerates the procedures by which the government must mandatorily
detain certain “applicants for admission” into the United States. 8 U.S.C. § 1225(a)(1); see also
Jennings, 583 U.S. at 287–89. It defines an “applicant for admission” as a noncitizen “present in
the United States who has not been admitted or who arrived in the United States.” 8 U.S.C. §
1225(a)(1). “Admission” is defined by the INA as “the lawful entry of the alien into the United
States after inspection and authorization by the immigration officer.” 8 U.S.C. § 1101(a)(13)(A).
“The term ‘applicant for admission’ is . . . something of a misnomer. It doesn’t require an
application of any sort. All that’s needed is presence without admission—in other words, it
applies to the great number of undocumented immigrants who currently live in this country.”
Huamani v. Francis, No. 25-cv-8110, 2025 WL 3079014, at *3 (S.D.N.Y. Nov. 4, 2025).
Section 1225(b) requires mandatory detention for two specific groups of “applicants for
admission.” See 8 U.S.C. § 1225(b)(1), (2). First, under Section 1225(b)(1), people subject to
expedited removal are subject to mandatory detention. As set out above, Section 1225(b)(1)
governs noncitizens: (1) who are inadmissible for lack of proper entry documents or because
they engaged in fraud or a willful misrepresentation of a fact on their application for admission;
and (2) who fall within either the “Arriving Aliens Provision” or the “Designation Provision.”
See 8 U.S.C. § 1225(b)(1)(A)(i), (iii)(II); see supra Discussion § I.A. Section
1225(b)(1)(B)(iii)(IV) provides that any noncitizen “subject to the procedures under this clause
shall be detained pending a final determination of credible fear of prosecution and, if found not
to have such a fear, until removed.” 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (emphasis added); see also
id. § 1225(b)(1)(B)(ii) (directing that if the immigration officer determines that a noncitizen
subject to expedited removal “has a credible fear of persecution . . . the alien shall be detained
for further consideration of the application for asylum” (emphasis added)).
Second, under Section 1225(b)(2), mandatory detention also applies to an applicant for
admission who is “seeking admission” and determined by an immigration officer to not be
“clearly and beyond a doubt entitled to be admitted,” with the exception of any crewman,
stowaway, or noncitizen not covered by the expedited removal provision. Id. § 1225(b)(2)(A).
Falling within this provision, for example, are:
noncitizens who are arriving in the United States, seeking admission, and are
inadmissible for some reason other than misrepresentation or failure to meet document
requirements (such as those having certain types of criminal convictions or those who
would pose a foreign policy risk or are associated with terrorists, the Communist party, or
Nazi activity).
Valencia Zapata v. Kaiser, No. 25-cv-7492, 2025 WL 2741654, at *4 (N.D. Cal. Sept. 26, 2025)
(citing 8 U.S.C. § 1182(a)(2)–(3)).
Under the “plain meaning” of Section 1225(b)(1) and (b)(2), detention under Section
1225(b)(1) “must continue until immigration officers have finished ‘consider[ing]’ the
application for asylum,” while detention under Section 1225(b)(2) must continue “until removal
proceedings have concluded.” Jennings, 583 U.S. at 299 (citing 8 U.S.C. § 1225(b)(1)(B)(ii),
(b)(2)(A)). With the exception of temporary parole under Section 1182(d)(5)(A), “there are no
other circumstances under which aliens detained under [Section] 1225(b) may be released.”
Jennings, 583 U.S. at 300. Accordingly, “[b]oth provisions mandate detention until a certain
point and authorize release prior to that point only under limited circumstances.” Id. at 301.
D. Parole Pursuant to Section 1182(d)(5)(A)
As noted, an applicant for admission detained under Section 1225(b)(1) or (b)(2) “may
be temporarily released on parole ‘for urgent humanitarian reasons or significant public
benefit,’” pursuant to Section 1182(d)(5)(A). Jennings, 583 U.S. at 288. Under that statute, the
Secretary of Homeland Security may, except in circumstances not relevant here, “in his
discretion parole into the United States temporarily under such conditions as he may prescribe
only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any
alien applying for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A).
Parole is “not [to] be regarded as an admission of the alien[,] and when the purposes of
such parole. . . have been served,” Section 1182(d)(5)(A) mandates that “the alien shall forthwith
return or be returned to the custody from which he was paroled.” Id. Thereafter the parolee’s
case “shall continue to be dealt with in the same manner as that of any other applicant for
admission to the United States.” Id. “In other words, the United States accepts an alien paroled
under § 1182(d)(5)(A) into the country for as long as the humanitarian or public benefit purpose
persists.” Cruz-Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011). Moreover, when a
noncitizen’s parole is terminated automatically by the “expiration of the time for which parole
was authorized,” if the “exclusion, deportation, or removal order cannot be executed within a
reasonable time, the alien shall again be released on parole unless . . . public interest requires that
the alien be continued in custody.” 8 C.F.R. § 212.5(e)(1)–(2).
Parole pursuant to Section 1182(d)(5)(A) serves a unique function. Although Section
1182(d)(5)(A) “does not grant . . . ‘admission’ to the United States,” it “allows the executive to
permit certain aliens ‘on a case-by-case basis’ to enter or remain in this country only for ‘urgent
humanitarian reasons or significant public benefit.’” Cruz-Miguel, 650 F.3d at 198. Accordingly,
a Section 1182(d)(5)(A) parolee’s “physical presence within the United States cannot be said to
be unlawful or illegal because it is authorized by the Attorney General, and parole has long been
understood to constitute lawful status.” United States v. Balde, 943 F.3d 73, 84 (2d. Cir. 2019).
As a result, noncitizens “paroled into the United States” under Section 1182(d)(5)(A): (1) may be
eligible to access certain Federal public benefits (if paroled into the United States for a period of
at least one year), 8 U.S.C. §§ 1611(a), 1641(b)(4); (2) can apply for adjustment of status under 8
U.S.C. § 1255(a); and (3) can seek employment authorization, 8 C.F.R. § 274a.12(c)(11). That
distinguishes parole into the United States under Section 1182(d)(5)(A) from release on
“conditional parole” under Section 1226(a)(2)(B). Cruz-Miguel, 650 F.3d at 198 (holding that
the two forms of parole serve “distinct functions” and recognizing that Section 1182(d)(5)(A)
parolees are eligible for work authorization and adjustment of status, but noncitizens granted
conditional parole under Section 1226(a)(2)(B) are not). Unlike parole under Section
1182(d)(5)(A), conditional parole does not “mean that the alien has been accepted into the
country, even temporarily” and “merely permits an alien to remain at liberty based upon a
determination that he poses no risk of danger or flight while his removal is actively sought.” Id.
(emphasis in original).
II. Analysis
Rodriguez-Acurio seeks a writ of habeas corpus or a preliminary injunction “directing
Respondents to immediately release [her], or at minimum afford her a bond hearing.” (Pet. at
12.) She offers two grounds in support of the petition. First, she argues that her detention violates
her procedural due process rights under the Fifth Amendment to the United States Constitution
because she was arrested and detained by ICE following her credible fear interview without any
notice or opportunity to be heard. (Pet. ¶¶ 26–31.) Second, she argues that her detention without
a bond hearing violates Section 1226(a). (Id. ¶¶ 32–35.)
In response, Respondents make three arguments. First, they argue that Rodriguez-
Acurio’s detention is governed by the mandatory detention provisions of Section 1225, not the
Section 1226 discretionary detention framework. (Resp. at 13–23.) Second, they contend that
courts apply an “entry fiction” to claims by noncitizens whereby the only procedural due process
rights that noncitizens like Rodriguez-Acurio possess are those that Congress has provided by
statute. (Id. at 10–12.) Finally, Respondents argue that even if the Court finds that Respondents
violated Rodriguez-Acurio’s rights under the Fifth Amendment Due Process Clause and Section
1226, the proper remedy is to require a bond hearing before an immigration judge as opposed to
release. (Hr’g Tr. 22:4–23:11.)
For the reasons explained below, contrary to Respondents’ contentions, Rodriguez-
Acurio’s detention does not fall under the mandatory detention provision of either Section
1225(b)(1) and (b)(2) based on the statutory text. Accordingly, Rodriguez-Acurio is necessarily
detained pursuant to Section 1226(a), and her detention by ICE without any notice or opportunity
to be heard violates her rights to procedural due process under the Fifth Amendment.
Considering Rodriguez-Acurio’s weighty liberty interests alongside Respondents’ interests in
enforcing immigration laws and the substantial risk of erroneous deprivation stemming from
ICE’s arrest and detention of Rodriguez-Acurio without any notice or opportunity to be heard,
Rodriguez-Acurio’s detention violates her right to procedural due process.
A. Rodriguez-Acurio is Not Detained Under Section 1225(b)
Respondents argue that Rodriguez’s detention is lawful because she is detained under the
mandatory detention provisions of Section 1225(b). Although their arguments are imprecise and
shifting, Respondents primarily invoke Section 1225(b)(1) as the basis for mandatory detention
and rely on Section 1225(b)(2) as a “catchall” basis for detention should the Court find that
Section 1225(b)(1) does not apply. (Hr’g Tr. 13:17–14:8, 25:8–25, 31:1–5.)
The inconsistencies in Respondents’ position are notable because, combined with
Respondents’ inability explain why Rodriguez-Acurio was not detained for three years while
purportedly subject to mandatory detention, they call into question the basis for Rodriguez-
Acurio’s detention. The inconsistencies in Respondents’ position include the following:
• In their briefing, Respondents invoke both Section 1225(b)(1) and (b)(2) but do so
inconsistently. (See, e.g., Resp. at 9 (“After her interview, Petitioner was detained by
ICE pursuant to 8 C.F.R. § 235.3(b)(2)(iii) and 8 U.S.C. § 1225(b)(1)”); id. at 13
(“Petitioner falls squarely within the ambit of § 1225(b)(2)’s mandatory detention
requirement.”)
• At the November 7, 2025 Show Cause hearing on Rodriguez-Acurio’s habeas
petition, Respondents generally invoked Section 1225(b)(1) as the basis for her
detention but, in response to the Court’s questions, could not clearly identify whether
they were invoking the Designation Provision or the Arriving Aliens Provision. (See,
e.g., Hr’g Tr. 13:11–16, 14:9–14.)4
4 For example, initially Respondents argued that “[Rodriguez-Acurio] would fall under [Section
1225](b)(1)([A])([ii]) [because] she was inadmissible pursuant to 1182(a)(7).” (Hr’g Tr. 13:11–
16; see also id. 14:9–14 (“Your Honor, . . . It’s the fact that she was detained in the country, she
did not have any papers . . . and, therefore, she was deemed inadmissible in 1182 and placed into
expedited removal proceedings.”).)
However, Section 1225(b)(1)(A)(ii) provides that a noncitizen who is inadmissible on one of two
grounds and is either “an alien . . . who is arriving in the United States or is described in [the
Designation Provision]” shall be referred for an interview by an asylum officer if the noncitizen
expresses an intent to apply for asylum or a fear of persecution. 8 U.S.C. § 1225(b)(1)(A)(ii)
(emphasis added). Respondents’ invocation of Section 1225(b)(1)(A)(ii) thus does not establish
whether Rodriguez-Acurio was detained under the Arriving Aliens provision or the Designation
• Eventually, Respondents stated that Rodriguez-Acurio was detained under the
Designation Provision of Section 1225(b)(1) and not the Arriving Aliens Provision of
Section 1225(b)(1) or the mandatory detention provision set forth in Section
1225(b)(2). (Hr’g Tr. 13:17–14:8 (invoking Section 1225(b)(1) and not (b)(2)), 14:9–
14 (stating that the “arriving alien issue” was not “relevant here”), 15:4–7 (invoking
the Designation Provision).)
• Nonetheless, after the Court twice noted on the record that Respondents had
“conceded” that they were not invoking the Arriving Aliens Provision of Section
1225(b)(1), Respondents “walk[ed] back” that concession. (Hr’g Tr. 18:8–12, 25:8–
25.)
• Likewise, after having also conceded that they were not invoking Section 1225(b)(2),
Respondents later stated that Section 1225(b)(2) served as a “catchall” basis for
Rodriguez-Acurio’s detention in the event the Court were to find that her detention is
not governed by Section 1225(b)(1). (Hr’g Tr. 19:15–18 (noting that Respondents had
conceded Section 1225(b)(2) did not apply), 21:15–17 (“[A]lthough we’re not
arguing it here, if she were not detained under 12[25](b)(1), then our position would
be that 1225(b)(2)(a) would apply. But our argument is not that”), 31:1–5 (invoking
Section 1225(b)(2) as a “catchall”).)
Notwithstanding the inconsistencies in their justifications for Rodriguez-Acurio’s detention,
Respondents argue that no matter which provision of the INA authorizes her detention,
Rodriguez-Acurio does not have a right to procedural due process, beyond those rights protected
by Section 1225(b), as a noncitizen who is an applicant for admission. (Resp. at 10–13.)
Respondents’ arguments are unpersuasive. For the reasons explained below, the record
demonstrates that Rodriguez-Acurio is detained pursuant to Section 1226(a)—not the
Designation Provision or the Arriving Aliens Provision of Section 1225(b)(1) or Section
1225(b)(2). Moreover, Respondents failed to afford Rodriguez-Acurio notice and an opportunity
to be heard before she was arrested and detained by ICE on October 29, 2025. Balancing the
Provision. Likewise, although Section 1182(a)(7) is referenced within Section 1225(b)(1), it
governs the documentation requirements for admission and is not part of the expedited removal
statute. See id. § 1182(a)(7).
three Mathews v. Eldridge, 424 U.S. 319 (1976), factors considered in evaluating procedural due
process claims—the private interest at stake, the risk of erroneous deprivation, and the
government’s interests—Rodriguez-Acurio’s detention violates her Fifth Amendment right to
procedural due process.
i. Section 1225(b)(1)
Respondents argue that Rodriguez-Acurio’s detention is mandated by Section 1225(b)(1),
which governs expedited removal and detention pending a final determination of those
proceedings. (Resp. at 1.) Rodriguez-Acurio’s briefing does not specifically address whether she
falls within the text of Section 1225(b)(1) and instead focuses on the text of 1225(b)(2) and
Respondents’ argument that her claim is barred by the so-called entry fiction. (Reply at 2–7
(arguing that the “entry fiction” is a “narrow exception” that does not apply to Rodriguez-
Acurio); id. at 7–12 (arguing that Rodriguez-Acurio’s detention is not governed by Section
1225(b)(2)).)
This Court holds that neither the Arriving Aliens Provision nor the Designation Provision
of Section 1225(b)(1) authorizes expedited removal and the detention of noncitizens who, like
Rodriguez-Acurio, were paroled into the United States under Section 1182(d)(5)(A). In doing so,
it joins other district courts that have reached this same conclusion. See Coalition, 2025 WL
2192986, at *22, 30 (concluding that Section 1225(b)(1) “forbids the expedited removal of
noncitizens who have been, at any point in time, paroled into the United States” because “the
only way to make sense of the statutory scheme Congress created is to see that parolees fall
under neither [provision of Section 1225(b)(1)]” and that “[a]ny other result conflicts with other
aspects of the statute and regulations, Congress’s evident purpose, and the ordinary meaning of
the statute’s words”); Bustos v. Raycraft, No. 25-cv-13202, 2025 WL 3022294, at *6 (E.D. Mich.
Oct. 29, 2025) (finding that a noncitizen who unlawfully entered the country, was paroled into
the United States, and received a negative credible fear designation was not subject to expedited
removal and detention despite the expiration of temporary parole); Munoz Materano v. Arteta,
No. 25-cv-6137, 2025 WL 2630826, at *11 (S.D.N.Y. Sept. 12, 2025); Aviles-Mena v. Kaiser,
No. 25-cv-6783, 2025 WL 2578215, at *4 (N.D. Cal. Sept. 5, 2025). To be sure, none of these
decisions by other district judges is binding here. This Court, as always in the absence of a
governing Supreme Court or Second Circuit decision, makes its own independent assessment of
whether Section 1225(b)(1) or (b)(2) or Section 1226 applies to Rodriguez-Acurio.
1. The Designation Provision of Section 1225(b)(1)(A)(iii) Does not
Apply to Rodriguez-Acurio
In their briefing, Respondents do not argue that the Designation Provision imposes
mandatory detention on Rodriguez-Acurio. Nonetheless, at the Show Cause Hearing,
Respondents asserted, for the first time, that Section 1225(b)(1)(iii)(II) served as the primary
basis for Rodriguez-Acurio’s detention. (Hr’g Tr. 13:17–14:8, 15:4–7, 21:15–17.) As discussed,
that provision, in relevant part, authorizes the Secretary of Homeland Security, as the Attorney
General’s delegate, to designate as eligible for expedited removal any
alien . . . who has not been admitted or paroled into the United States, and who has not
affirmatively shown, to the satisfaction of an immigration officer, that the alien has been
physically present in the United States continuously for the 2-year period immediately
prior to the date of the determination of inadmissibility . . .
8 U.S.C. § 1225(b)(1)(A)(iii)(II) (emphasis added).
No one disputes that Rodriguez-Acurio was not continuously physically present in the
United States for the 2-year period immediately prior to September 6, 2021, when she was
determined to be inadmissible. (See Form I-860; Reply at 1 (acknowledging that the “facts of this
case are undisputed”).) Rodriguez-Acurio also does not appear to dispute that she was detained
on September 6, 2021 under Section 1225(b)(1). (Id.; Reply at 1.) Instead, the critical question is
whether the Designation Provision authorizes expedited removal of Rodriguez-Acurio, and
thereby mandatory detention, when she was previously “paroled into the United States” and,
following the termination of parole, resided continuously in the United States for more than three
years, was granted work authorization, and was handled through the asylum process for some
period of time.
As with any question of statutory interpretation, this question “begins with [the statute’s
text], read coherently and in context” and “given the meaning that proper grammar and usage
would assign them.” Yupangui-Yunga v. Bondi, No. 23-6522-cv, __ F.4th __, 2025 WL 2989588,
at *5, 7 (2d Cir. Oct. 24, 2025); see also Greathouse v. JHS, Sec. Inc., 784 F.3d 105, 111 (2015)
(holding that a statute “should be enforced according to its plain and unambiguous meaning,”
which is “determined by reference to the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole”). “If the meaning is plain, the
inquiry ends there.” United States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016). When the plain
text of a statute is ambiguous, however, a court must apply “canons of statutory construction for
assistance in interpreting the statute.” Id. The court may “resort to legislative history only if, after
consulting canons of statutory [construction], the meaning remains ambiguous.” Id. (citing
Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir. 2005)); see United States v.
Peterson, 394 F.3d 98, 105 (2d Cir. 2005) (“[E]ven if the statute were ambiguous, we would
look to traditional canons of statutory construction to resolve the ambiguity, before looking to
legislative history and interpretive regulations.”). If the canons of statutory interpretation and
legislative history do not resolve the ambiguity, the court will “afford[] some degree of weight to
the interpretations of the agencies charged with enforcing [the statute].” Greathouse, 784 F.3d at
113.
The issue here hinges on the meaning of the phrase “who has not been . . . paroled into
the United States” in 8 U.S.C. § 1225(b)(1)(A)(iii)(II). Respondents argue that once a non-
citizen’s parole has ended, the individual has no longer “been paroled into the United States.”
But the statutory text does not read that a noncitizen is eligible for expedited removal if that
person “is not currently on parole.” Instead, it ties the ability to be designated for expedited
removal to whether the noncitizen “has not been . . . paroled,” leaving open the possibility that
“whether a noncitizen’s parole is active, or has expired or been terminated, does not matter.”
Coalition, 2025 WL 2192986, at *22; see also Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir.
2010) (“Congress’s use of the present perfect tense—‘has . . . been admitted’—is significant here
. . . Use of this tense evinces Congress’s intent to include any previous admission . . . including
admission in the indefinite past.” (first ellipses in original)).
Nonetheless, the meaning of the phrase “has not been . . . paroled into the United States”
remains ambiguous because, as the court reasoned in Coalition, the Supreme Court has
elsewhere indicated that the meaning of a “has not been” grammatical construction—what is
referred to as the “negative form of the present-perfect tense”—depends on the “way in which
the phrase at issue [is] used” in the statute, the adjacent statutory language, and any “background
principles.” Coalition, 2025 WL 2192986, at *22 (citing Hewitt v. United States, 145 S. Ct.
2165, 2172 (2025) (holding that a criminal sentence that “has not been imposed” is a criminal
sentence that has no “continued legal validity”)). In fact, in Dobrova, although the Second
Circuit held that the use of a “has been” statutory construction can show an intent to consider
whether a legal status was held “at any time in the indefinite past,” it acknowledged that this
language can also refer to whether a past status “has continuing legal relevance.” 607 F.3d at
301–02. For example, in that case, the relevant statutory clause was the phrase, “has previously
been admitted to the United States as an alien lawfully admitted for permanent residence.” Id. at
300–02 (quoting 8 U.S.C. § 1182(h)) (emphasis added). The Second Circuit concluded that
because a person’s lawful permanent residence status terminates upon final removal, the term
“previously” helped “clarifi[y] that the statute does not apply only to aliens who were and still
are admitted as [lawful permanent residents].” Dobrova, 607 F.3d at 302.
In light of the ambiguity in the phrase “has not been . . . paroled into the United States,”
this Court considers adjacent statutory terms and the context of the entire statutory scheme to
determine the best reading of the statute. This Court agrees with Coalition that the statutory text
of the Designation Provision prohibits “the expedited removal of noncitizens who have been, at
any point in time, paroled into the United States.” Coalition, 2025 WL 2192986, at *22; see also
Salgado Bustos, 2025 WL 3022294, at *6 (reaching the same conclusion and holding that
“[n]umerous courts have rejected Respondents’ interpretation of [Section 1225(b)(1)]”); Munoz
Materano, 2025 WL 2630826, at *11 (applying Coalition’s interpretation of Section 1225(b)(1));
Aviles-Mena, 2025 WL 2578215, at *4 (same).
First, as the court reasoned in Coalition, the “meaning of ‘paroled’ is elucidated by its
association with ‘admitted.’” 2025 WL 2192986, at *23; see 8 U.S.C. § 1225(b)(1)(A)(iii)(II)
(referring to an “alien . . . who has not been admitted or paroled into the United States”
(emphasis added)). Whereas the term “‘parole,’ . . . can refer to ‘both a manner of entry [into the
country] and a status[,]’ . . . when accompanied by ‘admitted,’ which refers only to a manner of
entry, ‘paroled’ likely refers to a manner of entry, too.” Coalition, 2025 WL 2192986, at *23; see
also Sanchez v. Mayorkas, 593 U.S. 409, 415 (2021). Accordingly, the clause “admitted or
paroled” does not refer to a legal status but rather to the event of entry into the United States via
admission or parole, which either did or did not occur.
This conclusion is further supported by the ordinary meaning of the preposition “into” in
the phrase “has not been . . . paroled into the United States,” which conveys entrance inside of a
location, rather than a status. 8 U.S.C. § 1225(b)(1)(A)(iii)(II) (emphasis added).5 In line with
this ordinary meaning, Second Circuit decisions hold that humanitarian parole under Section
1182(d)(5)(A) is a distinct legal concept that governs parole “into the United States.” See Cruz-
Miguel, 650 F.3d at 198–99 (“parole into the United States” does not include “conditional
parole” under Section 1226(a)(2)(B) because humanitarian parole permits a noncitizen “to enter
or remain in this country,” but conditional parole “does not mean that the alien has been accepted
into the country, even temporarily” (emphasis added)); Balde, 943 F.3d at 85–86 (“supervised
release” is not “parole[] into the country within the meaning of 8 U.S.C. § 1182(d)(5)(A)”).
Whereas other forms of parole are more akin to “bail release” during the time period in which
“removal is actively sought,” Cruz-Miguel, 650 F.3d at 198, a person paroled under Section
1182(d)(5)(A) is temporarily “authorized to come into the United States,” Balde, 943 F.3d at 84
(quoting Matter of Castillo-Padilla, 25 I. & N. Dec. 257, 259 (B.I.A. 2010)) (emphasis added).
5 In Leng May Ma v. Barber, 357 U.S. 185 (1958), the Supreme Court held that a person paroled
into the United States under Section 1182(d)(5)(A) was not considered to be “within the United
States.” However, that decision interpreted a since-repealed provision of the INA and therefore is
not instructive concerning the interpretation of the phrase “has not been . . . paroled into the
United States” in 8 U.S.C. § 1225(b)(1)(A)(iii)(II). Leng May Ma, 357 U.S. at 186–188.
Moreover, the question in Leng May Ma was whether parole “somehow effects a change in [an]
alien’s legal status,” not whether parole is a method of entry into the United States, and the
Supreme Court concluded that detention does not “constitute an entry even though [an] alien is
physically within the United States.” Id. at 188. Here, the grant of Section 1182(d)(5)(A) parole
to Rodriguez-Acurio released her from detention and allowed her to move from the border to the
interior of the country.
As a result, such persons are lawfully present in the United States even as they “do[] not change
. . . immigration status” and have not been admitted. Id..6 For this reason, once a noncitizen is
authorized into this country via Section 1182(d)(5)(A) parole, “for at least some purposes, parole
has ongoing legal effect even after it expires or is terminated.” Coalition, 2025 WL 2192986, at
*23 (discussing 8 C.F.R. § 245.1(b)(3), which makes any noncitizen “who was not . . . paroled
[into the United States] following inspection” ineligible for adjustment of status (emphasis
added)); Aviles-Mena, 2025 WL 2578215, at *4 (agreeing with this analysis).
Rodriguez-Acurio physically entered the United States prior to her parole by crossing the
Rio Grande River near Eagle Pass, Texas. (First Langlois Decl. ¶ 3.) It was only shortly
afterwards that CBP apprehended her near the port of entry on or about September 4, 2021,
inspected and issued her a Notice and Order of Expedited Removal on September 6, 2021, and
paroled her into the United States pursuant to Section 1182(d)(5)(A) on September 14, 2025. (Id.
¶¶ 3–4, 7; Fourth Langlois Decl. ¶ 9.) Nevertheless, Rodriguez-Acurio’s placement in expedited
removal was predicated on her classification as an “arriving alien,” Fourth Langlois Decl. ¶ 9,
ECF No. 21-2, which is consistent with expedited removal’s purpose: quickly “screen[ing] out
arriving aliens . . . with no significant possibility of establishing a claim to asylum.”7 Because
6 In Balde, the Second Circuit explained that although a parolee under Section 1182(d)(5)(A)
does not change immigration status in that “[they] remain ‘at the border’ for the purposes of
immigration law and are treated as applicants for admission into the country,” parolees are
“authorized to come into” the country. 943 F.3d at 84 (emphasis added). Accordingly, although a
Section 1182(d)(5)(A) parolee remains “at the border” in the sense that they remain an applicant
for admission, these parolees have nevertheless entered into the United States by virtue of their
parole, as explained in detail in this section. See Discussion § II.A.i.1.
7 Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg.
10312-01, 1997 WL 93131, at *10320 (Mar. 6, 1997) (implementing provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996).
Rodriguez-Acurio’s parole served to permit Rodriguez-Acurio to move from the border to the
interior of the country, it functionally served to do exactly what its plain text conveys—“parole
[her] into the United States” and out of expedited removal. 8 U.S.C. § 1182(d)(5)(A) (emphasis
added).8 Thus, once DHS “affirmatively cho[se]” to authorize Rodriguez-Acurio’s parole and
corresponding release from ICE detention, it “made the determination that it no longer intend[ed]
to fast-track [her] removal and that it [would] proceed with the standard removal process under
8 U.S.C. § 1229a.” Aviles-Mena, 2025 WL 2578215, at *5.
When questioned at the Show Cause Hearing about how the plain text of Section
1225(b)(1)(iii)(II) applied to Rodriguez-Acurio, Respondents initially were “not able to
specifically address that point . . . .” (Hr’g Tr. 18:13–19:18.) Later, after having a “moment to
consider it,” Respondents argued that Section 1225(b)(1)(iii)(II) applied to Rodriguez-Acurio
because her parole expired more than three years before Respondents detained her. (Hr’g Tr.
19:21–20:4.) Respondents failed to connect their argument to the text of Section
1225(b)(1)(iii)(II), and instead argued that Rodriguez-Acurio falls under the Designation
Provision because, notwithstanding her release on humanitarian parole, “it’s effectively the same
as if she was still at the border”—the so-called “entry fiction.” (Hr’g Tr. 17:5–19.) They contend
8 This understanding of the impact of granting Rodriguez-Acurio Section 1182(d)(5)(A) parole is
also consistent with the legislative history of IIRAIRA. Prior to IIRAIRA’s enactment, the INA
subjected noncitizens who “entered the United States without inspection” to deportation and
prohibited those “already physically present in the United States” from seeking humanitarian
parole. Cruz-Miguel, 650 F.3d at 198. Following IIRAIRA, however, “both aliens arriving at the
border and aliens already present without inspection are deemed ‘applicants for admission,’ 8
U.S.C. § 1225(a)(1), who must be ‘inspected by immigration officers.’” Id. at 197. Accordingly,
in contrast to “the pre-IIRAIRA regime, even aliens already physically present in the United
States who, upon inspection, are placed in removal proceedings, may be eligible for
humanitarian or public benefit parole under § 1182(d)(5)(A).” Id. at 198. Respondents admit that
Rodriguez-Acurio was inspected several days prior to her parole into the United States. (Fourth
Langlois Decl. ¶ 9.)
that “after discretionary parole expires, the alien is restored to the status that he had at the time of
parole.” (Resp. at 15.) In support, they rely on the text of Section 1182(2)(5)(A) and 8 C.F.R
§ 212.5(e)(2)(i), and several cases standing for the proposition that “parole is not an admission
into the United States and . . . is treated for constitutional purposes ‘as if stopped at the border.’”
(Id. (citing Thuraissigiam, 591 U.S. at 114 and other cases).)
However, the cases on which Respondents rely, including Department of Homeland
Security v. Thuraissigiam, are inapposite for the reasons addressed below in Section II.B.i.
Moreover, the statutory authority on which Respondents rely does not establish the principle they
wish to assert for the following reasons. First, as the court in Coalition explained, Section
1182(d)(5)(A) does not say that parolees “return, upon the termination or expiration of their
parole, to the position of an applicant for admission standing at the threshold of entry.” 2025 WL
2192986, at *24. Nor does it say that they are “restored to the status that [they] had at the time of
parole.” (Resp. at 15.) “Rather, the provision says that two things happen to a noncitizen
following expiration of parole: (1) he ‘shall forthwith return or be returned to the custody from
which he was paroled’; and (2) ‘thereafter his case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the United States.’” Coalition, 2025 WL
2192986, at *24 (quoting 8 U.S.C. § 1182(d)(5)(A) (emphasis added)). All the term “applicant
for admission” requires is presence in the United States without admission. See Huamani, 2025
WL 3079014, at *3. Thus, Section 1182(d)(5)(A) suggests that rather than reverting to any prior
status, a noncitizen whose parole has expired is treated like the vast majority of undocumented
immigrants currently living in this country who are not subjected to expedited removal. See
8 U.S.C. § 1225(b)(1)(A)(iii)(II) (permitting the Attorney General to designate for expedited
removal only those noncitizens who have not been admitted or paroled and have not been
“physically present in the United States continuously for the 2-year period immediately prior to
the date of the determination of inadmissibility.”).
Second, the clause in Section 1182(d)(5)(A) directing that parolees “shall forthwith return
or be returned to the custody from which [they were] paroled” does not place Rodriguez-Acurio
within the Designation Provision either. See 8 U.S.C. § 1182(d)(5)(A). The Supreme Court has
confirmed that “nothing in this text [of Section 1182(d)(5)(A)] . . . affirmatively authorizes
detention,” so the statute is not an independent authority to detain parolees following the
expiration of parole. Clark v. Martinez, 543 U.S. 371, 385 (2005). To the contrary, the Supreme
Court has stressed, “[Section 1182(d)(5)(A)] provides that, when parole is revoked [or expires]”
the noncitizen will be returned to the “custody from which he was paroled and thereafter his case
shall continue to be dealt with in the same manner as that of any other applicant for admission.”
Id. (emphasis in original).9 Here, Section 1182(d)(5)(A) may permit Rodriguez-Acurio to be
returned to ICE custody, but her case, which necessarily includes the procedures required before
detention, “shall continue to be dealt with in the same manner as that of any other applicant for
admission,” 8 U.S.C. § 1182(d)(5)(A), and any other applicant for admission residing in the
United States for more than three years would be detained under Section 1226, see, e.g.,
Huamani, 2025 WL 3079014, at *3 (holding that Section 1226 “governs the process of arresting
9 Relying on the italicized clause in Section 1182(d)(5)(A) to interpret the language regarding
return to custody, the Supreme Court in Clark, rejected the argument that a habeas petitioner
whose humanitarian parole had been revoked and who had been ordered removed, could be
detained longer than a 90-day limit set out in Section 1231(a)(6), which is the statute governing
the detention and removal of non-citizens ordered removed. Clark, 543 U.S. at 385 (2005). The
Court reasoned that because “[t]he manner in which . . . any other applicant [for admission who
had been ordered removed] would be ‘dealt with’ beyond the 90-day removal period is
prescribed by § 1231(a)(6),” the petitioner’s detention was governed by Section 1231(a)(6). Id. at
386.
and detaining non-citizens who have already entered the United States pending their removal”
(quoting Jennings, 583 U.S. at 288)); Lopez Benitez, 2025 WL 2371588, at 3 (holding that
“‘once inside the United States . . . an alien present in the country may still be removed’ under
Section 1226” (quoting Jennings, 583 U.S. at 288)).
Third, Respondents’ reliance on 8 C.F.R. § 212.5 is unpersuasive. This regulation
provides that upon expiration of humanitarian parole under Section 1182(d)(5)(A), the noncitizen
“shall be restored to the status that he or she had at the time of parole” and that “[a]ny further
inspection or hearing [following expiration of parole] shall be conducted under section 235 or
240.” 8 C.F.R. § 212.5(e)(1)–(2). Therefore, as the court reasoned in Coalition, this regulation
is easily read as providing not . . . for either expedited removal or section 240 removal for
noncitizens whose parole is terminated. Instead, it appears to provide for either inspection
under section 235 (which can then lead to either expedited or regular removal
proceedings) or, if the parolee does not require any ‘further inspection,’ to section 240
proceedings.
2025 WL 2192986, at *26. Respondents selectively rely on the first part of the regulation
(providing that a noncitizen “shall be restored to the status that he or she had at the time of
parole”) while ignoring the second (providing that “[a]ny further inspection or hearing
[following expiration of parole] shall be conducted under section 235 or 240”).
Respondents own actions toward Rodriguez-Acurio are consistent with the textual
analysis of Sections 1182(d)(5)(A) and 1225(b)(1)(A)(iii) set forth above, and the resulting
conclusion that the grant of humanitarian parole to Rodriguez-Acurio moved her out of
expedited removal proceedings and related mandatory detention. The record does not include
any facts showing that Respondents made any effort to return Rodriguez-Acurio to ICE detention
at any time between the expiration of her humanitarian parole and until after she had
continuously resided in the United States for more than three years and had applied for, and was
granted, work authorization in 2025. Although Respondents argue that Section 1182(d)(5)(A)
required Rodriquez Acurio to “be returned to [] custody,” after the expiration of humanitarian
parole, they offered no explanation for why they waited until three years after Rodriguez-
Acurio’s parole ended to arrest and detain her. (Hr’g Tr. 27:1–2 (“I don’t know why it took the
amount of time that it did.”).) In fact, at one point counsel for Respondents incorrectly claimed
that there was “no indication that [Respondents] waited for years” to detain Rodriguez-Acurio
and it was “not clear they knew where [Rodriguez-Acurio] was located.” (Id. 27:5–7.)
Respondents’ own records squarely contradict that assertion, instead showing that Rodriguez-
Acurio “reported for . . . every appointment as directed.” (Pet. ¶ 18.) She attended the October
21, 2021 ICE-Check, submitted a September 2024 asylum application with USCIS, appeared for
an October 2024 fingerprinting application with USCIS, applied for work authorization in June
2025, and secured work authorization from June 2025 through June 2030. (Pet. ¶¶ 17–18; First
Langlois Decl. ¶ 11; ECF Nos. 20, 20-1, 20-2.) On October 22, 2025, Respondents also mailed
Rodriguez-Acurio a notice of the date and time of her October 29, 2025 credible fear interview.
(ECF No. 21-2 at 9–10; Fourth Langlois Decl. ¶ 14.) Moreover, Langlois admits that
Respondents decided not to reschedule Rodriguez-Acurio for further check-ins after the October
2021 check-in, “instead deferring to the Asylum Office review process to be completed.” (Fourth
Langlois Decl. ¶ 13.) Respondents’ records also show that Rodrigeuz-Acurio informed the
Department of Homeland Security where she was residing even after her temporary parole
expired because Rodriguez-Acurio’s residential address is set forth on her asylum and work
authorization applications and the notices to appear for the USCIS fingerprinting application and
the credible fear interview. (ECF Nos. 1-2, 1-4, 1-5, 20-1, 20-2.) The record plainly shows that
after Respondents paroled Rodriguez-Acurio into the United States under Section 1182(d)(5)(A),
they treated her as a noncitizen subject to Section 1226 and not as a noncitizen subject to
mandatory detention under any of the applicable provisions of Section 1225(b).10
Finally, Respondents argue that the grant of work authorization to Rodriguez-Acurio in
June 2025 has no bearing on the question of whether she is detained pursuant to Section
1225(b)(1)’s Designation Provision because USCIS and ICE are “different agencies” and “don’t
necessarily have the same information in each of their systems.” (Nov. 10, 2025 Tel. Conf. Tr.
8:18–9:7.) Rather, they frame the grant of work authorization to Rodriguez-Acurio as a mistake
due to USCIS’s purported lack of awareness that Rodriguez-Acurio was pending expedited
removal. (Id.) This argument is unpersuasive. USCIS and ICE are both part of DHS and all
documentation relating to Rodriguez-Acurio feature her alien number, including her work
authorization application, her asylum application, her Interim Notice Authorizing Parole, and the
10 In their briefing, Respondents frame this analysis as one premised on the doctrine of “equitable
estoppel.” (See Rep. at 21 (arguing that Rodriguez-Acurio’s argument that her detention is
governed by Section 1226(a) boils down to the contention that “Respondents should be estopped
from detaining [Rodriguez-Acurio] as an applicant for admission because they did not do so for
more than two years after her parole expired”) To be clear, this Court’s analysis is nothing of the
sort. It is grounded in the dictates of the text of Section 1225(b) and the facts in the record.
Respondents fail to show that Rodriguez-Acurio’s detention is authorized under the Designation
Provision of Section 1225(b)(1), or for the reasons explained below, the Arriving Aliens
Provision of Section 1225(b)(1) or the mandatory detention provision of Section 1225(b)(2).
Accordingly, Rodriguez-Acurio’s detention commencing on October 29, 2025 was carried out
under Section 1226(a), and she has a right to procedural due process, which Respondents
violated for the reasons discussed below.
This conclusion is also consistent with past DHS practice. I take judicial notice that in Coalition
the court asked the government if they were “aware of DHS or its predecessors ever applying or
subjecting to expedited removal procedures individuals who had been previously paroled but
whose parole terminated for whatever reason?” and the government was not initially “aware of
any such instance.” Coalition, No. 25-cv-872 (D.D.C. July 16, 2025), ECF No. 36. After briefing
and argument the government identified only two historical instances of individuals being
processed for expedited removal, both of which involved noncitizens who had been paroled into
the country for criminal prosecution—a situation inapposite to the one here. Id.
Notice and Order of Expedited Removal. (ECF Nos. 1-2, 1-4, 18-1, 20-2). DHS regulations
provide that the inspecting officer who issues the Notice and Order of Expedited Removal “shall
not proceed further with removal” until the officer refers any noncitizen who expresses an
intention to apply for asylum or a fear of persecution or torture to USCIS for a credible fear
interview. See 8 C.F.R. § 235.3(b)(4). USCIS then oversees the credible fear review process with
USCIS asylum officers conducting these interviews. See id. § 208.30(b), (3)(8), (g). USCIS
granted Rodriguez-Acurio work authorization and also scheduled—and handled—Rodriguez-
Acurio’s credible fear interview. Respondents’ hypothesis that USCIS’s decision to grant
Rodriguez-Acurio work authorization was simply an error does not square with the facts.11
2. Rodriguez-Acurio is not an Arriving Alien Under Section
1225(b)(1)(A)(i)
As explained above, although Respondents generally argue in their briefing that Section
1225(b) mandates Rodriguez-Acurio’s detention, they made no specific argument that the
Arriving Alien Provision of Section 1225(b)(1) mandates her detention until the Show Cause
Hearing. (Resp. at 1 (arguing for detention under Section 1225(b)(1) generally, without reference
to the Arriving Aliens Provision or the Designation Provision); id. at 13–14 (arguing that Section
1225(b)(1) applies to “aliens arriving in the United States”); Hr’g Tr. 14:9–10 (Respondents’
counsel: “Your Honor, I don’t believe the arriving alien issue is relevant here”); id. at 18:8–12
(noting Respondents’ concession that the Arriving Aliens Provision did not apply); id. at 25:8–25
11 Respondents also argue that the work authorization is merely an “ancillary benefit that just
comes along with the filing of the [I-589],” so USCIS likely granted Rodriguez-Acurio work
authorization because it appeared that she was eligible for it. (Nov. 10, 2025 Tel. Conf. Tr. 4:12–
20.) However, Rodriguez-Acurio points out that this characterization fails to acknowledge that
work authorization follows a “separate application,” which can only be granted after a case for
asylum has been “pending for more than six months.” (Id. 5:12–25.)
(Respondents’ counsel “walk[ing] back” concession).) For the following reasons, based on the
ordinary meaning of the plain text of the Arriving Alien Provision, Rodriguez-Acurio is not an
“arriving alien,” and therefore her detention does not fall under Section 1225(b)(1)(A)(i).
As set out above, the Arriving Aliens Provision imposes expedited removal and detention
on any noncitizen who is inadmissible due to lack of entry documents or fraud or willful
misrepresentation on an admission application and “who is arriving in the United States.”
8 U.S.C. § 1225(b)(1)(A)(i). The INA “does not define the term ‘arriving,’” Coalition, 2025 WL
2192986, at *27. As a result, Respondents rely upon 8 C.F.R. § 1.2, which defines an “[a]rriving
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 . . . An arriving alien remains an arriving alien even if paroled pursuant to section
212(d)(5) of the Act, and even after any such parole is terminated or revoked. . . .
8 C.F.R. § 1.2.12 Prior to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024), the Second Circuit exercised deference to a provision within 8 U.S.C.
§ 1.1(q), the precursor to 8 C.F.R. § 1.2, which provided that “[a]n arriving alien remains such
even if paroled pursuant to [INA] section 212(d)(5) . . . .” Ibragimov v. Gonzales, 476 F.3d 125,
135–37 & n.17 (2d Cir. 2007) (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)); see
also Cruz-Miguel, 650 F.3d at 197 n.14 (similarly relying on 8 C.F.R. § 1.1(q) to conclude that
an “arriving alien remains such even if paroled pursuant to 8 U.S.C. § 1182(d)(5)(A)”).
Accordingly, in Ibragimov, the Second Circuit held that a petitioner who had overstayed his visa
and been paroled back into the country was an “arriving alien” because that was his status before
12 8 C.F.R. § 1.2 excepts from its definition certain individuals who are not at issue here.
he was paroled into the country and then-in force 8 C.F.R. § 1.1(q) “command[ed] that ‘an
arriving alien remains such even if paroled.” Ibragimov, 476 F.3d at 136 (emphasis in original).
Respondents do not cite Ibragimov or address that it was decided before the Supreme
Court replaced Chevron deference with a new standard in Loper Bright. They nevertheless argue,
relying on 8 C.F.R. § 1.2, that Rodriguez-Acurio is subject to mandatory detention because CBP
originally detained her on September 4, 2021 near a port of entry in Eagle Pass, Texas, and she
was later “discretionarily paroled into the United States.” (Resp. at 15 (relying on 8 U.S.C.
§ 1182(d)(5)(A) and 8 C.F.R. § 1.2 to argue that a “parolee remains both an applicant for
admission and an arriving alien” (emphasis in original)).) However, the Second Circuit has not
considered the meaning of the term “arriving alien” in 8 U.S.C. § 1225(b)(1)(A)(i) since Loper
Bright, under which “courts must exercise independent judgment in determining the meaning of
statutory provisions” rather than simply deferring to agencies’ interpretations of ambiguous
statutes. 603 U.S. at 394.
As discussed, a statute “should be enforced according to its plain and unambiguous
meaning.” Greathouse, 784 F.3d at 111; see also Yupangui-Yunga, 2025 WL 2989588, at *7; see
also Bondi v. VanDerStok, 604 U.S. 458, 477 n.4 (2025) (when engaged in statutory
interpretation, courts “interpret the words Congress enacted ‘consistent with their ordinary
meaning’”). Accordingly, this analysis starts with the text of Section 1225(b)(1)(A)(i), which
provides that a noncitizen “who is arriving in the United States” and satisfies the other criteria is
subject to mandatory detention pending expedited removal. Here the plain meaning of the word
“arriving” is being “in the process of reaching” a destination. Coalition, 2025 WL 2192986, at
*28. Moreover, nothing in Section 1225 suggests that “arriving” is used as a term of art in the
clause, “an alien . . . who is arriving in the United States . . . .” See Coalition, 2025 WL
2192986, at *28 (discussing 8 U.S.C. § 1225(b)(1)(A)(i)). The words “arriving,” “arrival,” and
“arrive” in Section 1225 appear to refer to a process that occurs upon physical entry into the
United States, “not an interminable . . . status” that attaches to a noncitizen upon arrival.
Coalition, 2025 WL 2192986, at *27 (citing approvingly this argument made by plaintiffs based
on the text of 8 U.S.C. § 1225(b)(1)(A)(i), (F), (b)(2)(C), (d)(2)). Therefore, an “arriving alien”
is one who is in the process of reaching the United States. See United States v. Rowland, 826
F.3d 100, 108 (2d Cir. 2016) (“If the meaning [of a statute] is plain, the inquiry ends there.”);
Torres v. Holder, 764 F.3d 152, 156 (2d Cir. 2014), aff’d sub nom. Torres v. Lynch, 578 U.S.
452 (2016) (“The plainness or ambiguity of statutory language is determined by reference to the
language itself, the specific context in which that language is used, and the broader context of the
statute as a whole.”).13
Applying the plain meaning of the term “arriving” in Section 1225(b)(1)(A)(i),
Rodriguez-Acurio can no longer be classified as a noncitizen “who is arriving in the United
States” even though she was initially detained as such in Texas in September 2021. When ICE
arrested her in Bethpage, New York on October 29, 2025—more than four years after she
entered the United States—Rodriguez-Acurio was not then, nor is she now, in the process of
13 Notably, less than a year after IIRAIRA’s enactment, the Immigration and Naturalization
Service promulgated regulations defining the term “arriving alien” and included people whose
parole had expired because Section 1182(d)(5)(A) provided that parole “shall not be regarded as
an admission.” See Inspection and Expedited Removal of Aliens; Detention and Removal of
Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312-01 (Mar. 6,
1997) (interim final rule). However, the promulgation of these regulations coincided with a time
period in which “there were many judges who ‘abhor[red] . . . ‘plain meaning’ and preferred
instead to elevate ‘legislative history” . . . [and] a law’s ‘purposes’ over enacted statutory text.”
Loper Bright, 603 U.S. at 443 n.6 (Gorsuch, J. concurring). Loper Bright reflected a “demand
that all return to a more faithful adherence to the written law” consistent with the recognition that
“we’re all textualists now.” Id.
“arriving” in the United States. See Bollat Vasquez v. Wolf, 460 F. Supp. 3d 99, 111 (D. Mass.
2020) (“Under the statutory language, if applicants are apprehended while crossing the border
(whether or not at a check point), they are ‘arriving’ applicants under the statute, and if
apprehended at some point thereafter, they are not ‘arriving,’ but rather “alien[s] present in the
United States who [have] not been admitted.” (quoting 8 U.S.C. § 1225(a)(1))).14 Indeed, it
would be illogical to find that Rodriguez-Acurio is still in the process of “arriving” in the United
States when she has been continuously residing in the United States for more than three years
after the expiration of her humanitarian parole, gave birth to her son in 2022, and was granted
USCIS work authorization for five years starting in June 2025. See ECF No. 20-2; Pet. ¶ 16;
Aviles-Mena, 2025 WL 2578215, at *4 (concluding that Petitioner “no longer qualifies for
expedited removal because he was ‘paroled’ into the United States and has been living and
working in the United States for three years”).
In fact, even in Ibragimov, where the Second Circuit deferred to the agency interpretation
of “arriving alien” in then-in-force 8 C.F.R. § 1.1(q), it nonetheless described humanitarian
parole under Section 1182(d)(5)(A) as “a means by which the government allows aliens who
have arrived at a port-of-entry to temporarily remain” in the country even as the parolee has not
been “admitted” to the United States. 476 F.3d at 134 (emphasis added); see also Coalition, 2025
WL 2192986, at *28 (construing this language to convey that while a Section 1182(d)(5)(A)
14 Other courts have reached this same conclusion. See Al Otro Lado v. Exec. Off. for Immigr.
Rev., 138 F.4th 1102, 1115 (9th Cir. 2025), cert. granted sub nom. Noem v. Al Otro Lado, No.
25-5, 2025 WL 3198572 (U.S. Nov. 17, 2025) (“The phrase ‘physically present in the United
States’ encompasses noncitizens within our borders, and the phrase ‘arrives in the United States’
encompasses those who encounter officials at the border, whichever side of the border they are
standing on.”); Martinez, 2025 WL 3152847, at *8 (holding that because a petitioner was
“already present in the United States at the time of his detention [he was] not ‘arriving’”).
parolee remains “‘legally unadmitted,’ they ‘have arrived’—i.e., their arrival is complete,
whereas their admission is not”). This distinction between arrival and admission also explains
why much of Respondents’ analysis is inapposite to the question of which statute governs
Rodriguez-Acurio’s detention in 2025.15
Accordingly, Rodriguez-Acurio is not an arriving alien and therefore is not subject to
mandatory detention under Section 1225(b)(1)(A)(i).
* * *
Because Rodriguez-Acurio cannot be designated for expedited removal and detention
under Section 1225(b)(1)(A)(iii)(II), and because she is not an “arriving alien” under Section
1225(b)(1)(A)(i), her detention commencing on October 29, 2025 is not governed by Section
1225(b)(1). This conclusion is compelled by the text of the statute and is consistent with how
Respondents have treated her between the expiration of her humanitarian parole in September
2022 and her credible fear interview more than three years later in 2025, at the conclusion of
which, she was suddenly arrested and detained. Whereas expedited removal orders are “usually
issued within a few days, if not hours,” Rodriguez-Acurio’s removal proceedings have been
pending for more than four years. Make the Rd., 2025 WL 2494908, at *3. In effect, “when ICE
affirmatively chooses to release an individual on parole, it has made the determination that it no
longer intends to fast-track their removal and that it will proceed with the standard removal
15 Respondents also make light of the language within Section 1182(d)(5)(A) and decisions in
which “[c]ontrolling precedent” holds that “[p]arole does not change parolees’ immigration
status: they remain ‘at the border’ for the purposes of immigration law and are treated as
applicants for admission into the country.” (Resp. at 15 (quoting for example, Balde, 943 F.3d at
83).) However, these arguments are unpersuasive for the reasons already addressed with respect
to the Designation Provision. See supra Discussion § II.A.i.1.
process under 8 U.S.C. § 1229a.” Aviles-Mena, No. 25-cv-6783, 2025 WL 2578215, at *5 (N.D.
Cal. Sept. 5, 2025) (citing 8 U.S.C. § 1225(b)(2)).
Accordingly, the next issue this Court must consider is whether Rodriguez-Acurio is
subject to mandatory detention under Section 1225(b)(2) pending removal proceedings under 8
U.S.C. § 1229a.
ii. Section 1225(b)(2) Does not Apply to Rodriguez-Acurio
Respondents invoke Section 1225(b)(2) as a basis for Rodriguez-Acurio’s detention only
as a “catchall” basis for detention in the event that this Court finds that Section 1225(b)(1) does
not apply. (Hr’g Tr. 13:17–14:8, 25:8–25, 31:1–5.) Section 1225(b)(2)(A) 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.” 8 U.S.C.
§ 1225(b)(2)(A) (emphasis added). As other courts have recognized, this language requires that
“several conditions must be met” to impose mandatory detention under Section 1225(b)(2).
Lopez Benitez, 2025 WL 2371588, at *5. The noncitizen must be: “(1) an applicant for
admission; (2) seeking admission; and (3) not clearly and beyond a doubt entitled to be
admitted.” Id.; Martinez v. Hyde, 792 F. Supp. 3d 211, 214 (D. Mass., 2025). No one disputes
that Rodriguez is “an applicant for admission” or that she is “not clearly and beyond a doubt
entitled to be admitted.” Instead, the question here is whether Rodriguez-Acurio is “seeking
admission” such that she is subject to mandatory detention under Section 1225(b)(2)(A).
Like the phrase “arriving alien,” the term “‘seeking admission’ is undefined in the
statute,” Martinez, 792 F. Supp. 3d at 218, but courts have repeatedly held that the term requires
“some active desire of process toward admission,” Huamani, 2025 WL 3079014, at *3; see
Martinez, 792 F. Supp. 3d at 218 (holding that the term “seeking admission” “necessarily implies
some sort of present-tense action”). As already explained, “admission” refers to “the lawful entry
of the alien into the United States after inspection and authorization by the immigration officer.”
8 U.S.C. § 1101(a)(13)(A). Under a straightforward reading of the statute, “seeking admission is
meant to refer to those who are presenting themselves at the border, or who were recently
apprehended just after entering.” Hyppolite, 2025 WL 2829511, at *9.
Although Rodriguez-Acurio is an applicant for admission, she clearly is not presenting
herself at the border and was not recently apprehended just after entering, and thereby is not
“seeking admission” under Section 1225(b)(2). Moreover, while Rodriguez-Acurio’s
participation in the credible fear process may indicate that “[s]he continues to ‘seek’ something,
what [s]he seeks is not ‘admission’ or ‘lawful entry’ to the United States, but to obtain a lawful
means to remain here” where she has been continuously residing for more than four years. Lopez
Benitez, 2025 WL 2371588, at *6 n.7.
In response, Respondents offer the “novel and illogical interpretation of the INA” that
Section 1225(b)(2) applies to all applicants for admission who are not subject to Section
1225(b)(1). Hyppolite, 2025 WL 2829511, at *12; Resp. at 13. Once again, exercising
independent assessment based on the statutory text, this Court concludes that Respondents’
position has numerous flaws and is contrary to the text of Section 1225(b)(2). Respondents’
position has been routinely rejected by other district courts, although such decisions are not
binding here. See, e.g., Hyppolite, 2025 WL 2829511 at *12 (collecting cases); Reply at 7–8.
Indeed, another district court conducted a comprehensive survey of district court decisions and
found the following:
[T]he administration’s new position that all noncitizens who came into the United States
illegally, but since have been living in the United States, must be detained until their
removal proceedings are completed – has been challenged in at least 362 cases in federal
district courts. The challengers have prevailed, either on a preliminary or final basis, in
350 of those cases decided by over 160 different judges sitting in about fifty different
courts spread across the United States.
Barco Mercado v. Francis, No. 25-cv-6582, at 9–10 (S.D.N.Y. Nov. 26, 2025) (citing
appendices containing references to the 362 cases). The “overwhelming, lopsided majority”
reflected in this survey demonstrates “that the law still means what it always has meant.” Id. at
10. The flaws with Respondents’ position are as follows.
First, Respondents’ position violates the canon of statutory interpretation that “every
clause and word of a statute should have meaning” because if Section 1225(b)(2) applied to all
“applicants for admission” there would be no need for Congress to have separately referenced a
sub-category of persons “seeking admission” in the specific section. United States, ex rel.
Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023). In other words, Respondents’
reading of Section 1225(b)(2)(A) would render the phrase “seeking admission” in the statute
superfluous. See Huamani, 2025 WL 3079014, at *4; Hyppolite, 2025 WL 2829511, at *9;
Lopez-Benitez, 2025 WL 2371588, at *6.
Second, Respondents’ interpretation would be “entirely inconsistent with the Laken Riley
Act,” which “makes noncitizens subject to mandatory detention if (1) they are inadmissible
under certain provisions of 8 U.S.C. § 1182 and (2) are charged with, arrested for, convicted of,
or admit to having committed certain crimes.” Huamani, 2025 WL 3079014, at *4; see also
Lopez Benitez, 2025 WL 2371588, at *7 (reasoning that the same interpretation of Section
1225(b)(2) offered by Respondents here would “nullify” the Laken Riley Act). As several courts
have recently explained:
If Section 1225(b)(2) applied to noncitizens who are arrested on a warrant while residing
in the United States, it would render Section 1226(c)(1)(E)’s criminal conduct criterion
superfluous whenever the noncitizen is inadmissible under Sections 1182(a)(6)(A) or
(a)(7). Such an interpretation, which would largely nullify a statute Congress enacted this
very year, must be rejected. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013)
(“[T]he canon against surplusage is strongest when an interpretation would render
superfluous another part of the same statutory scheme.”).
Huamani, 2025 WL 3079014, at *4 (citing Gomes v. Hyde, No. 25-cv-11571, 2025 WL
1869299, at *7 (D. Mass. July 7, 2025)).
Third, Respondents’ reading of Section 1225 would “all but read Section 1226 off the
books,” because if any person who has entered the country unlawfully is subject to mandatory
detention under Section 1225(b)(2)(A), then “it is not clear under what circumstances
§ 1226(a)’s authorization of detention on a discretionary basis would ever apply.” Huamani,
2025 WL 3079014, at *4; Lopez-Benitez, 2025 WL 2371588, at *8; see also id. (reasoning that
“there is no indication that Congress intended § 1226 to be limited only to visa overstays”).
Fourth, “DHS’s own regulations understand an ‘applicant seeking admission’ to be
synonymous with an ‘arriving alien.’” Huamani, 2025 WL 3079014, at *4. And, as I have
already explained, the regulations refer to an arriving alien as an “applicant for admission
coming or attempting to come into the United States.” Lopez Benitez, 2025 WL 2371588, at *7
(quoting 8 C.F.R. § 1.2) (emphasis in original); see also Huamani, 2025 WL 3079014, at *7
(same).
Respondents’ attempts to defend their interpretation of Section 1225(b)(2) and its
application to Rodriguez-Acurio in this action are similarly unpersuasive. For example, in
support of their claim that Section 1225(b)(2) is a “catchall” basis for detention authority should
their Section 1225(b)(1) arguments fail, Respondents quote language from the Supreme Court’s
decision in Jennings v. Rodriguez, 583 U.S. 281 (2018) that “applicants for admission fall into
one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).” 583
U.S. at 287 (concluding that Section 1225(b)(2) is “broader” than Section 1225(b)(1) and “serves
as a catchall provision that applies to all applicants for admission not covered by Section
1225(b)(1)”); see also Resp. at 13–14. However, as other judges of this District have held, this
language in Jennings is “taken out of context” and “arguably dicta,” since Jennings “neither
considered nor decided the scope of [the] INA subsections in the context arising here.”
Hyppolite, 2025 WL 2829511, at *10 n.9. Indeed, in Jennings, the Supreme Court considered the
entirely different question of whether noncitizens who were indisputably subject to the
mandatory detention provisions of 8 U.S.C. §§ 1225(b)(1), 1225(b)(2), or 1226(c), were entitled
to “periodic bond hearings,” and whether the detention of noncitizens under Sections 1225(b)(1)
and (b)(2) is limited to a six-month period. Jennings, 583 U.S. at 286, 297. In holding that the
mandatory-detention provisions of the INA contained no such time limitations, the Supreme
Court in Jennings “said nothing about whether persons like [Rodriguez-Acurio] were subject to
those [mandatory detention] provisions in the first place.” Hyppolite, 2025 WL 2829511, at
*10.16
Respondents also rely upon the BIA’s recent decision in Matter of Yajure Hurtado, 29
I&N Dec. 216 (BIA 2025), where the BIA held that the INA requires that all applicants for
admission—including those who have been residing in the United States for years—are subject
to mandatory detention under Section 1225(b)(2). (Resp. at 16.) However, other courts in the
Second Circuit have rejected that holding, and it is not persuasive for all the reasons discussed
16 In support of their interpretation of Section 1225(b)(2), Respondents also cite the Supreme
Court’s decision in Thuraissigiam as well as many of the same statutes and regulations upon
which they rely in support of their interpretation of Section 1225(b)(1), which are addressed in
the proceeding and subsequent sections, including Sections II.A.i.1 and 2 and II.B.i. (See Resp.
at 13–15.) However, Thuraissigiam is distinguishable for the reasons discussed below. (See infra
Discussion § II.B.i.) Moreover, Respondents’ arguments concerning Section 1182(d)(5)(A) and
8.C.F.R. §§ 1.2, 212.5(e)(2)(i) are addressed and rejected above. See supra Discussion § II.A.i.1–
2.
already. See Perez v. Francis, No. 25-cv-8112, 2025 WL 3110459, at *3 (S.D.N.Y. Nov. 6,
2025) (concluding that the BIA’s decision in “Yajure Hurtado rested on the premise that
detention of noncitizens arrested while residing in the United States is governed by 8 U.S.C.
§ 1225(b)(2)(A), rather than § 1226(a),” which is “incorrect; detention in these circumstances is
governed by § 1226(a).”); Hyppolite, 2025 WL 2829511, at *11; J.U. v. Maldonado, No. 25-cv-
4836, 2025 WL 2772765, at *7 (E.D.N.Y. Sept. 29, 2025). Moreover, after Loper Bright, it is the
province of the courts—not the BIA—to “authoritatively interpret” the INA. Loper Bright, 603
U.S. at 402. Accordingly, Rodriguez-Acurio is not detained under Section 1225(b)(2)(A).
iii. Section 1226(a)
Sections 1225 and 1226 are “mutually exclusive—a noncitizen cannot be subject to both
mandatory detention under § 1225 and discretionary detention under § 1226.” Lopez Benitez,
2025 WL 2371588, at *4. Because neither Section 1225(b)(1) or (b)(2) govern Rodriguez-
Acurio’s detention, for all of the reasons explained above, her detention is instead governed by
Section 1226(a).
Section 1226(a) “authorizes the Government to detain certain aliens already in the
country pending the outcome of removal proceedings,” Jennings, 583 U.S. at 289, and it applies
when a noncitizen is “arrested and detained” “[o]n a warrant issued by the Attorney General,”
8 U.S.C. § 1226(a). That is precisely what occurred here. Rodriguez-Acurio was arrested on a
Form I-200 U.S. Department of Homeland Security Warrant for Arrest of Alien issued pursuant
to Section 1226(a). The face of the warrant states that an immigration officer issued the warrant
“pursuant to sections 236 and 287 of the Immigration and National Act” and part 287 of title 8 of
the Code of Federal Regulations. (Form I-200 Warrant.) Those sections correspond to 8 U.S.C.
§§ 1226, 1357 and 8 C.F.R. 287.1–287.12. Although not dispositive standing alone, Rodriguez-
Acurio’s arrest on a warrant under Section 1226 supports the conclusion that her detention is
governed by Section 1226(a)’s discretionary framework. See Sampiao v. Hyde, No. 25-cv-11981,
2025 WL 2607924, at *1 (D. Mass. Sept. 9, 2025) (holding that to mandate the petitioner’s
detention “in these circumstances would contravene Congress’s intent that Section 1226(a)’s
discretionary detention framework apply to all noncitizens arrested on a warrant except those
subject to Section 1226(c)’s carve out”); dos Santos v. Noem, No. 25-cv-12052, 2025 WL
2370988, at *7 (D. Mass. Aug. 14, 2025) (“Section 1225(b)(2) does not apply to noncitizens who
are arrested on a warrant issued by the Attorney General while residing in the United States.”).
At the Show Cause Hearing, Respondents objected to the characterization of the warrant
as being issued pursuant to Section 1226(a) and not Section 1225. (Hr’g Tr. 27:18–30:19.) They
argue that the warrant also cites 8 C.F.R. 287.3, which governs the “[d]isposition of cases of
aliens arrested without warrant” and is associated with Section 1225(b). See 8 C.F.R. 287.3; Hr’g
Tr. 27:18–30:19. However, the fact that a broader citation on the face of the warrant includes a
regulation that deals with warrantless arrests, which then in turn cites Section 1225, does not
establish that the warrant was issued to effect a mandatory detention under Section 1225(b). To
the contrary, Section 1225(b) “contains no warrant requirement,” Maldonado, 2025 WL
2772765, at *6, and one possible indication that a person is detained pursuant to Section 1225(b)
is that the person was arrested or detained without a warrant. See Matter of Li, 29 I. & N. Dec.
66, 66 (BIA 2025) (“Once an alien is detained under section 235(b), DHS cannot convert the
statutory authority governing her detention from section 235(b) to section 236(a) through the
post-hoc issuance of a warrant.”). The fact that ICE secured a warrant to detain Rodriguez-
Acurio therefore suggests that they understood her to be subject to discretionary rather than
mandatory detention, since securing such a warrant was unnecessary if Respondents were
actually detaining her under Section 1225(b).
Thus Rodriguez-Acurio’s detention following the credible fear interview is governed by
Section 1226(a). Having resolved these threshold questions regarding which statute governs
Rodriguez-Acurio’s detention, the next issue concerns whether Rodriguez-Acurio has a right to
procedural due process and whether Respondents violated that right.
B. Procedural Due Process
The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, liberty,
or property, without due process of law.” U.S. Const. amend. V. Rodriguez-Acurio argues that
her detention violates her Fifth Amendment rights to procedural due process. (Pet. ¶¶ 26–31.)
When evaluating a procedural due process claim, there are “two elements: (1) the existence of a
property or liberty interest that was deprived and (2) deprivation of that interest without due
process.” Radwan v. Manuel, 55 F.4th 101, 123 (2d Cir. 2022); see also Nnebe v. Daus, 931 F.3d
66, 80 (2d Cir. 2019).
i. Rodriguez-Acurio’s Detention Infringes on her Protected Liberty
Interest
Rodriguez-Acurio argues that her detention by ICE triggers her right to procedural due
process because any decision to detain her is subject to Section 1226(a) and there is no dispute
that she was given no notice or opportunity to be heard prior to her sudden arrest and detention at
the conclusion of her credible fear interview, much less an individualized determination by a
DHS officer on whether she poses a public safety or flight risk or the opportunity to appeal such
a determination to an immigration judge. (See Reply at 5.)
Respondents’ brief in response to the Order to Show Cause focuses primarily on whether
Rodriguez-Acurio’s detention infringes on a protected liberty interest. They argue that because
Rodriguez-Acurio is an applicant for admission, “‘the Due process Clause provides nothing
more’ than the procedural protections set forth in 8 U.S.C. § 1225.” (Resp. at 11 (quoting
Thuraissigiam, 591 U.S. at 139–40).) To support this claim, Respondents rely principally on the
Supreme Court’s decisions in Thuraissigiam and Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206, 212 (1953), as well as a handful of decisions citing those cases. (Resp. at 10–12.)
Respondents place particular emphasis on language in Thuraissigiam that noncitizens “who
arrive at ports of entry—even those paroled elsewhere in the country for years pending
removal—are ‘treated’ for due process purposes ‘as if stopped at the border.’” 591 U.S. at 139;
see also id. at 140 (holding “[f]or [this] reason[], an alien in respondent’s position has only those
rights regarding admission that Congress has provided by statute” (emphasis added)); Resp. at
11. Because Rodriguez-Acurio was paroled into the country, they argue, she is “stopped at the
border” and is not entitled to any further procedural due process than that afforded under Section
1225(b)(1), even in the context of detention. (Resp. at 11.)
As an initial matter, and for the reasons addressed at length, Rodriguez-Acurio’s
detention is not pursuant to Section 1225(b)(1) or Section 1225(b)(2) under the text of these
statutory provisions. She is therefore entitled to the protections afforded by Section 1226(a). See
supra Discussion § II.A.iii.
More importantly, however, Respondents misstate the law. “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 v. Davis, 533 U.S. 678,
690 (2001). The Due Process Clause “covers noncitizens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Velasco Lopez v. Decker, 978 F.3d 842, 850 (2d Cir. 2020);
see also Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903) (noncitizen who entered the country in
violation of the law cannot be “deprived of [her] liberty” without receiving “due process of
law”)). In habeas proceedings concerning executive detention, courts must conduct “the most
searching review” to ensure the legality of detention that “occur[s] without the procedural
protections required in courts of law.” Velasco Lopez, 978 F.3d at 850–51.
Contrary to Respondents’ contentions, Thuraissigiam stands for the limited principle that
those “at the threshold of initial entry” stand on a different footing for due process purposes than
noncitizens “who have established connections in this country.” 591 U.S. at 107. Whereas
Rodriguez-Acurio was paroled into the interior of the United States, has been living and working
in the United States for more than four years, and has a three-year-old U.S. citizen child (Pet. ¶¶
2, 16; Lipsitz Aff. ¶ 6), Thuraissigiam was “brought by an individual who was apprehended 25
yards from the border and then was subject to continuous detention,” Aviles-Mena, 2025 WL
2578215, at *4 (citing Thuraissigiam, 591 U.S. at 119) (emphasis added). Therefore,
Thuraissigiam “merely held that noncitizens ‘in [the] respondent’s position’—those detained
close to the border ‘shortly after unlawful entry’—have not yet “effected an entry.” Make the
Rd., 2025 WL 2494908, at *11 (quoting Thuraissigiam, 591 U.S. at 140) (emphasis in original).
Moreover, the passing reference in Thuraissigiam to “those paroled elsewhere in the
country” is dicta and does not alter this conclusion here. See 591 U.S. at 140 (citing Mezei, 345
U.S. at 215). As the district court explained in Make the Road, this one reference in
Thuraissigiam to people on parole reflects a rule originating in the “historical practice of
allowing ships containing noncitizens to land in American harbors rather than staying at sea . . .
while immigration authorities determined the admissibility of the noncitizens.” Make the Rd.,
2025 WL 2494908, at *12 n.15.17 Treating parole as akin to being stopped at the border in that
situation is consistent with the underlying rationale in Thuraissigiam that the power to exclude
“foreigners who have never . . . acquired any domicil or residence within the United States” is a
“sovereign prerogative.” 591 U.S. at 138–39 (emphasis added). However, unlike Thuraissigiam,
Rodriguez-Acurio was paroled into the interior of the United States, has continuously resided in
New York for more than four years, has developed deep community ties, was granted five years
of work authorization from 2025 to 2030, and therefore cannot be analogized to a person stopped
within 25 yards of the border. See Make the Rd., 2025 WL 2494908, at *12 (reasoning that while
the “government’s power ‘is at its zenith at the international border,’” the Constitution requires
the government to “turn square corners” in the country’s interior, which “means affording due
process”). Therefore, “[j]ust as Thuraissigiam cannot swallow the general rule that those who
have effected entry are entitled to due process, neither can the legal fiction that the Court crafted
for parolees.” Id. at *12 n.15.
Furthermore, it is also notable that Thuraissigiam’s holding concerns only “the right to
additional due process sought over admission determinations” and does not “address the due
17 For the same reason, the cases cited in Thuraissigiam for this proposition are similarly
inapposite. For example, Mezei concerned a noncitizen who had been “permanently excluded
from the United States on security grounds but stranded in his temporary haven on Ellis Island
because other countries [would] not take him back.” 345 U.S. at 207. The Supreme Court
expressly recognized that Mezei’s exclusion for security reasons was also distinguishable from
those cases, like the one here, where such justifications do not exist. Id. at 216 (“An exclusion
proceeding grounded on danger to the national security, however, presents different
considerations; neither the rationale nor the statutory authority for such release exists.”).
Likewise, in Kaplan v. Tod, 267 U.S. 228, 229 (1925), “[t]he appellant was born in Russia,” was
brought to the U.S., “was ordered to be excluded” and then, because of World War I, was kept
first at Ellis Island and then at the Hebrew Sheltering and Immigrant Aid Society “until she could
be deported safely.” Id. Finally, Leng May Ma concerned the legal status of temporarily paroled
persons under a since-replaced provision of the INA and did not interpret the procedural due
process rights of someone in Rodriguez-Acurio’s position. 357 U.S. at 186–188.
process rights of a noncitizen to remain free once released.” Hyppolite, 2025 WL 2829511, at
*10 (quoting Salcedo Aceros v. Kaiser, No. 25-cv-6924, 2025 WL 2637503, at *6 (N.D. Cal.
Sep. 12, 2025)). Indeed, the Supreme Court made clear that Thuraissigiam sought “a new
opportunity to apply for asylum and other applicable forms of relief” and that “[h]is petition
made no mention of release from custody.” 591 U.S. at 115 (emphasis added). By contrast
Rodriguez-Acurio invokes “the most significant liberty interest there is—the interest in being
free from imprisonment.” Velasco Lopez, 978 F.3d at 851; see also Aviles-Mena, 2025 WL
2578215, at *4 (finding Thuraissigiam inapplicable because the petitioner’s “habeas petition
challenges his detention, not his ‘admission’”).18
Finally, having rejected Respondents’ characterization of Thuraissigiam, it is worth
putting in perspective the rule they seek. As was the case in Make the Road, Respondents’
position here would create a:
startling rule—that unless and until someone is lawfully admitted, they are entitled to
zero process beyond whatever courtesy Congress might offer. If that was right, Congress
could subject noncitizens who had spent decades in the United States to immediate
removal, without any advance notice or right to a hearing, and the Constitution would
have nothing to say about it.
2025 WL 2494908, at *11.
For all of these reasons, Rodriguez-Acurio’s situation is distinguishable from
Thuraissigiam, and she has a liberty interest in being free from detention that is afforded
18 The other cases on which Respondents rely are distinguishable for similar reasons. For
example, Guerrier v. Garland, 18 F.4th 304 (9th Cir. 2021), like Thuraissigiam, concerned a
noncitizen who was apprehended “shortly” after crossing the border, proceeded thereafter
through expedited removal, and sought to distinguish his case from that of Thurassigiam on the
sole ground that “Thuraissigiam filed a habeas petition” whereas Guerrier directly appealed an
expedited removal order to the Ninth Circuit. 18 F.4th at 307 n.1, 313; see also Resp. at 12.
procedural due process protection. Velasco Lopez, 978 F.3d at 850 (confirming that the Fifth
Amendment “covers noncitizens, whether their presence here is lawful, unlawful, temporary, or
permanent”). Rodriguez-Acurio’s liberty interest was necessarily infringed by her detention by
ICE officials on October 29, 2025, immediately following her credible fear interview.
ii. Respondents Did Not Provide Rodriguez-Acurio Adequate Notice and an
Opportunity to be Heard.
Next is whether Respondents violated Rodriguez-Acurio’s procedural due process rights
by detaining her without any pre-deprivation notice or opportunity to be heard. To make that
determination, courts balance the factors laid out in Mathews v. Eldridge: (1) “the private interest
that will be impacted 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 . . . fiscal and
administrative burdens that the additional or substitute procedural requirement[s] would entail.”
424 U.S. at 335; see also Liberian Cmty. Ass’n of Conn. v. Lamont, 970 F.3d 174, 191 (2d Cir.
2020). Because the Mathews v. Eldridge test “entails balancing multiple factors . . . due process is
flexible and calls for such procedural protections as the particular situation demands.” Liberian
Cmty. Ass’n of Conn., 970 F.3d at 191 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
However, the “essence of due process” is the requirements of notice and an opportunity to be
heard. Mathews, 424 U.S. at 348; see also Almazon v. Town of Oyster Bay, No. 24-2789-CV,
2025 WL 1215309, at *3 (2d Cir. Apr. 28, 2025) (summary order).
Rodriguez-Acurio argues that because she was afforded no pre-deprivation notice or
opportunity to be heard, her detention violates her right to procedural due process. Respondents
do not address any of the Mathews balancing factors in their briefing. Based on an assessment of
these factors, Respondents’ detention of Rodriguez-Acurio violated her procedural due process
rights.
1. Private Interest
As already established, with regards to the first factor, Rodriguez-Acurio invokes “the
most significant liberty interest there is—the interest in being free from imprisonment.” Velasco
Lopez, 978 F.3d at 851. On October 29, 2025, Rodriguez-Acurio was detained without any
notice, explanation, or an opportunity to be heard, first at 26 Federal Plaza in New York and then
at an ICE facility in New Jersey. (Joyce Decl. ¶ 7, 9, 10; ECF No. 16.) As a result, she was
separated from her family, including her three-year old U.S. citizen child, for whom she is the
primary caregiver. Rodriguez-Acurio spent six days detained at “26 Federal Plaza Hold Room
facility,” which was limited to “fifty square feet per” noncitizen, “exclusive of eight-foot buffer
zone[s] around toilets.” (Joyce Dec. ¶ 15.a; ECF No. 16.) While detained there, Rodriguez-
Acurio was deprived of the ability to shower and slept on a sleeping mat because 26 Federal
Plaza does “not have shower facilities or beds.” (Resp. at 9 n.3.) During the entirety of her
detention, Rodriguez-Acurio experienced additional restraints that she would not experience if at
liberty, including restrictions on when and how she could communicate with legal counsel during
removal proceedings, which includes the time period during which she was preparing to appear
before an immigration judge on appeal from a negative credible fear determination. (See Nov.
10, 2025 Tel. Conf. Tr. 16:14–17:1.) Respondents’ detention of Rodriguez-Acurio thus
implicates her weighty private interest in personal liberty.
Rodriguez-Acurio’s interest in being free from detention is significant even in the context
of the Section 1226(a) discretionary detention scheme. Section 1226(a) provides that, “pending a
decision on whether [an] alien is to be removed from the United States,” the Attorney General
“may . . . detain” the noncitizen or “may release” the noncitizen on “bond” or “conditional
parole.” 8 U.S.C. § 1226(a). Moreover, the regulations implementing Section 1226(a) delegate to
DHS officers the authority to grant bond or conditional parole, and pursuant to such authority, a
DHS officer must make an individualized determination as to whether detention is appropriate
based on two factors—whether the noncitizen is (1) a “danger to property or persons” and (2) is
“likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8); see also Lopez Benitez,
2025 WL 2371588, at *10. The noncitizen has an “opportunity to appeal a detention decision” by
the DHS officer who conducted this individualized assessment “to an immigration judge who
then conducts their own assessment of the noncitizens’ flight risk and dangerousness, among
other factors.” Lopez Benitez, 2025 WL 2371588, at *10 (citing 8 C.F.R. § 1003.19(d)).
Accordingly, Section 1226(a) and its implementing regulations vest DHS with “broad
authority to arrest and detain noncitizens, but due process must account for the wide discretion
that Section 1226(a) vests in the Government to arrest any person in the United States suspected
of being removable” especially in light of the individualized custody determination that Section
1226(a) and its implementing regulations require. Lopez Benitez, 2025 WL 2371588, at *10
(emphasis in original). Rodriguez-Acurio therefore has a weighty private interest in being
granted parole or bond under Section 1226(a) pending removal proceedings.
2. Risk of Erroneous Deprivation
Here, the complete lack of any pre- or post-deprivation notice and opportunity for
Rodriguez-Acurio to be heard before a DHS officer or immigration judge gives rise to an
extraordinarily high risk of erroneous deprivation, and the additional procedural safeguard of
requiring any detention to be preceded by a bond hearing before an immigration judge would
squarely address that risk.
Civil immigration detention must be “nonpunitive in purpose” and bear a “reasonable
relation” to the authorized statutory purposes of preventing flight and danger to the community.
Zadvydas, 533 U.S. at 690; see also Aviles-Mena, 2025 WL 2578215, at *5. Additionally, “[t]he
purpose of requiring an exercise of discretion [under Section 1226(a)] prior to the decision to
detain a noncitizen who is not subject to mandatory detention is to prevent an erroneous
deprivation of liberty.” Lopez Benitez, 2025 WL 2371588, at *12.
The evidence in the record unequivocally establishes that Rodriguez-Acurio is neither a
flight risk nor a danger to the community and should be discretionarily released under Section
1226(a). Pursuant to Respondents’ own regulations, ICE’s original decision to parole Rodriguez-
Acurio into the United States on September 14, 2021 was required by regulation to be premised
on the determination that Rodriguez-Acurio was “neither a security risk nor a risk of
absconding.” 8 C.F.R. § 212.5(b) (humanitarian or public interest parole may not be granted if
non-citizen presents a security risk or a risk of absconding). Respondents have not submitted any
evidence of changed circumstances. To the contrary, Rodriguez-Acurio “reported . . . for every
appointment directed” (Pet. ¶ 18), including an October 21, 2021 ICE check in, an October 30,
2024 USCIS fingerprinting appointment, and her October 29, 2025 credible fear interview
(Fourth Langlois Decl. ¶¶ 11, 13; ECF No. 20-1; Nov. 10, 2025 Tel. Conf. Tr. 12:11–15:9
(reflecting that Respondents did not contest that Rodriguez-Acurio attended all appointments as
directed)). Moreover, USCIS granted Rodriguez-Acurio five years of work authorization on June
6, 2025, which entirely undermines any assertion that she presents a public safety risk. (Nov. 10,
2025 Tel. Conf. Tr. 13:6–10; ECF No. 20-2.) Respondents fail to point to anything in the record
showing that Rodriguez was a flight or public safety risk and have admitted that they chose not
to schedule any additional ICE check-ins for Rodriguez-Acurio following the October 21, 2021
check-in. (Fourth Langlois Decl. ¶¶ 11–13.)
Respondents did not conduct any individualized determination showing a consideration
of these facts when abruptly detaining Rodriguez-Acurio on October 29, 2025, immediately after
her credible fear interview. Nor did they consider the value of any additional procedural
safeguards that could have protected against the risk of erroneous deprivation of liberty, such as
having a DHS officer conduct an individualized determination or bringing Rodriguez-Acurio
before an immigration judge. Instead, when one of Rodriguez-Acurio’s attorneys, Lipsitz,
“inquired about the reason for [Rodriguez-Acurio’s] detention, one of the [ICE] officers
acknowledged that it was unusual given her clean record and commented, ‘This is just a sign of
the times.’” (Lipsitz Aff. ¶ 5.) Lipsitz “pleaded for an alternative to detention, such as an ankle
monitor,” and one of the ICE officers attempted to contact a supervisor to request release with a
GPS monitor, but the request was denied. (Id. ¶ 7.)
Therefore, Rodriguez-Acurio’s detention without any notice or opportunity to be heard,
including an individualized assessment into whether she poses a flight or public safety risk, such
as “any change in circumstances” since her release on temporary parole in September 2021
establishes a high risk of erroneous deprivation of her protected liberty interest. See Lopez
Benitez, 2025 WL 2371588, at *12; Hyppolite, 2025 WL 2829511, at *13–14 (finding an
“extremely high” risk of erroneous deprivation where a person is detained under Section 1226(a)
without any pre-deprivation notice or an opportunity to be heard); cf. Black v. Decker, 103 F.4th
133, 152 (2d Cir. 2024) (holding that the “almost nonexistent procedural protections in place for
section 1226(c) detainees markedly increase[] the risk of an erroneous deprivation”).
3. The Government’s Interest in Detaining Rodriguez-Acurio Without
a Hearing
Here, Respondents have not addressed any of the Matthews v. Eldridge factors, much less
any government interests advanced by the detention of Rodriguez-Acurio. The Second Circuit
has recognized that “the Attorney General’s discretion to detain individuals under [Section
1226(a)] is valid where it advances a legitimate governmental purpose,” such as “ensuring that
noncitizen[s] do not abscond and . . . ensuring they do not commit crimes.” Velasco Lopez, 978
F.3d at 854. However, Respondents have also pointed to no evidence in the record showing that
Rodriguez-Acurio is a flight risk or a danger to the community or that anything has changed
since she was released on humanitarian parole, which necessarily involved the determination that
she posed no flight or public safety risk. See 8 C.F.R. § 212.5(b). Respondents therefore fail to
demonstrate that Rodriguez-Acurio’s detention advances any legitimate government interests.
Moreover, contrary to Respondents’ contentions, Rodriguez-Acurio does not argue that
“judicial-type procedures must be imposed upon [the] administrative action[s]” of ICE greater
than those already required by law. Velasco Lopez, 978 F.3d at 851; see also Chipantiza-
Sisalema v. Francis, No. 25-cv-5528, 2025 WL 1927931, at *3 (S.D.N.Y. July 13, 2025). Rather,
all she argues is that the “agency must comply with the procedures already in place, and its
failure to do so amounts to a complete and arbitrary denial of due process.” Id. (citing Velasco
Lopez, 978 F.3d at 851). Here, there is no evidence that Rodriguez-Acurio poses a public safety
or flight risk. Respondents’ decision to detain her immediately following her credible fear
interview, without any individualized determination by a DHS officer that she poses a public
safety or flight risk, subject to review by an immigration judge, does not advance any legitimate
government purpose.
* * *
Weighing all of the Matthews factors—the significant liberty interest at stake, the high
risk of erroneous deprivation through lack of notice and an opportunity for Rodriguez-Acurio to
be heard, and Respondents’ failure to demonstrate that detention is required to advance any
legitimate government interest in ensuring Rodriguez-Acurio’s appearance at removal
proceedings or preventing danger to the community, Respondents’ detention of Rodriguez-
Acurio with no notice or opportunity to be heard and no showing of changed circumstances
violates her due process rights. See, e.g., Lopez Benitez, 2025 WL 2371588, at *13; Huamani,
2025 WL 3079014, at *9.
Respondents argue, without citing authority, that the “majority, if not all of the cases
cited by [Rodriguez-Acurio]” involved situations in which the petitioners had been detained for
“periods of months” and there is a “six month presumpti[on] that detention is valid.” (Id. 22:22–
23:11.) Respondents appear to refer to Black v. Decker, in which the Second Circuit held that
prolonged detention under Section 1226(c) without a bond hearing violates due process and that,
although there is no bright-line rule, the Supreme Court has “recognized a ‘presumptively
reasonable period of detention’ of ‘six months.’” 103 F.4th at 150 (citing Zadvydas, 533 U.S. at
701).
Black is inapposite. As other courts have recognized, in that case, the petitioners “agreed
that the government could detain them without an initial bond determination.” Huamani, 2025
WL 3079014, at *8 (discussing Black, 103 F.4th at 142). Here, by contrast, Rodriguez-Acurio’s
detention was unlawful from its inception because ICE detained her under the wrong statute and
without affording her any notice or process whatsoever, much less the procedures due under
Section 1226(a). Accordingly, Respondents’ detention of Rodriguez-Acurio violated her Fifth
Amendment rights.
III. Remedy
Upon finding a constitutional violation, a district court “may” grant a writ of habeas
corpus and “dispose of the matter as law and justice so require.” 28 U.S.C §2241(a), 2243.
Release from detention is the “typical remedy” for “unlawful executive detention.” Munaf v.
Green, 553 U.S. 674, 693 (2008).
Here, Rodriguez-Acurio seeks a preliminary injunction or writ of habeas corpus directing
Respondents to immediately release her or provide a bond hearing. (Pet. at 12.) She also seeks
any “such other relief as the Court deems just and proper.” (Id.)
Respondents argue that even if Rodriguez-Acurio’s detention is governed by Section
1226(a) she is not entitled to immediate release because the statute “contemplates that the bond
hearing and/or the conditional parole hearing that are discretionary under the statute would come
after detention has actually occurred.” (Hr’g Tr. 22:14–18 (emphasis added).) They further argue
that “the only remedy is to order an immigration judge bond hearing.” (Id. 37:11–13, 38:6–12.)
Here, a bond determination by a DHS officer or an immigration judge would not remedy
the core constitutional violation at issue here. Rodriguez-Acurio’s detention was unlawful from
its inception because ICE detained her under the wrong statute and without any notice or
opportunity to be heard, much less the procedures required under Section 1226(a). In this
situation a post-deprivation bond hearing before a DHS officer or even an immigration judge
would provide no genuine opportunity to relief because the detention without adequate pre-
deprivation procedures has already been carried out. See, e.g., Barco Mercado, No. 25-cv-6582,
at 31 (holding that a post-deprivation “bond hearing would not provide a genuine opportunity for
adequate relief” because the petitioner had been “redetained . . . pursuant to the wrong statute
and accordingly afforded [] no process whatsoever”); Lopez Benitez, 2025 WL 2371588, at *13
(holding that a post-deprivation bond hearing was “not a substitute for the requirement that ICE
engage in a deliberative process prior to, or contemporaneous with, the initial decision to strip a
person of the freedom that lies at the heart of the Due Process Clause”).
Moreover, were this Court to require a bond hearing before an immigration judge, such
relief would also be “futile” because, on September 6, 2025, the BIA held that “[b]ased on the
plain language of section 235(b)(2)(A) of the INA, Immigration Judges lack authority to hear
bond requests or to grant bond to aliens who are present in the United States without admission.”
Barco Mercado, No. 25-cv-6582, at 31–32 (quoting Yajure Hurtado, 29 I & N. Dec. at 216).
That decision is binding on all immigration judges and would bar Rodriguez-Acurio from being
granted bond as an applicant for admission. See Barco Mercado, No. 25-cv-6582, at 31–32.
Pursuant to Yajure Hurtado, not only are immigration judges not holding bond hearings, but any
request for release on bond would be denied, resulting in a situation that “would be
‘Kafkaesque.’” Id. And even if an immigration judge were to hold a hearing and grant bond, it is
a “foregone conclusion under [Yajure] Hurtado” that ICE would succeed in reversing that
decision on appeal. Carlos v. Noem, No. 25-cv-1900, 2025 WL 2998184, at *4 (D. Nev. Oct. 24,
2025).
Therefore, “disposing of the matter as law and justice require” necessitates Rodriguez-
Acurio’s release from detention and relief guarding against her re-detention in violation of this
Court’s determinations that she is not subject to mandatory detention under Section 1225(b). See
28 U.S.C. § 2243. ICE caused Rodriguez-Acurio to be placed in custody in violation of her rights
to procedural due process. The proper remedy for that unlawful detention is release. See Munaf,
553 U.S. at 693; see, e.g., Barco Mercado, No. 25-cv-6582, at 33; Lopez Benitez, 2025 WL
2371588, at *13; Huamani, 2025 WL 3079014, at *9. Respondents’ proposed alternative that
this Court require an immigration judge to conduct a bond hearing is futile for the reasons
already addressed. Barco Mercado, No. 25-cv-6582, at 31–32 (quoting Yajure Hurtado, 29 I &
N. Dec. at 216); Carlos, 2025 WL 2998184, at *4. Moreover, Respondents’ contention that
Rodriguez-Acurio should be detained for at least six months before any habeas relief entirely
misunderstands the nature and purpose of habeas relief. Here, where the Court has already
determined that Rodriguez-Acurio’s detention was unlawful from its inception due to the failure
to provide the required notice and opportunity to be heard, the illegality of Rodriguez-Acurio’s
detention does not hinge on whether the length of the detention is also unduly prolonged.
Accordingly, on November 10, 2025, the Court issued an oral order requiring
Respondents to immediately release Rodriguez-Acurio. The Court’s oral order also enjoined
Respondents from re-detaining Rodriguez-Acurio without ensuring that she receives a bond
hearing before an immigration judge to assess whether she poses a flight risk or safety risk.
However, in light of the BIA’s decision rendering such bond hearings before an immigration
judge futile, the Court’s oral ruling is modified as follows: pending the issuance of any final
removal order against Rodriguez-Acurio, Respondents are enjoined from denying her bond in
any subsequent proceeding on the basis that she must be detained pursuant to Section 1225(b)
absent a change in relevant circumstances consistent with this Opinion and Order. See, e.g.,
Barco Mercado, No. 25-cv-6582, at 31–32 (granting similar relief); Torres v. Francis, No. 25-
cv-8408, 2025 WL 3168759, at *6 (S.D.N.Y. Nov. 13, 2025) (same); Fangzeng Huang v.
Almodovar, No. 25-cv-9346, 2025 WL 3295912, at *4 (S.D.N.Y. Nov. 26, 2025) (same);
Martinez v. McAleenan, 385 F. Supp. 3d 349, 373 (S.D.N.Y. 2019) (“As Petitioner’s arrest and
detention were blatantly unlawful from the start, the only commensurate and appropriate
equitable remedy to even partially restore Plaintiff is to immediate release him and enjoin the
Government from further similar transgressions.”)19 This additional relief is necessary in order to
ensure that the release of Rodriguez-Acurio pursuant to this Opinion and Order is not rendered
meaningless.20 As a result, the relief ordered here falls within the “core of habeas.”
Thuraissigiam, 591 U.S. at 119.
CONCLUSION
For the reasons set forth above, Rodriguez-Acurio’s Petition (ECF No. 1) was granted on
November 10, 2025. On November 11, 2025, Respondents confirmed that Rodriguez-Acurio was
released from custody on November 10, 2025, in accordance with the Court’s amended oral
order granting the Petition and ordering her release from the Elizabeth Contract Detention
Facility in New Jersey. (ECF No. 23.) Additionally, pending the issuance of any final removal
order against Rodriguez-Acurio, Respondents are also enjoined from denying her bond in any
19 Numerous courts outside the Second Circuit have also ordered similar relief in granting a writ
of habeas corpus against unlawful detention by ICE. See, e.g., Kashranov v. Jamison, No. 25-cv-
5555, 2025 WL 3188399, at *8 (E.D. Pa. Nov. 14, 2025); Chogllo Chafla v. Scott, No. 25-cv-
437-SDN, 2025 WL 2688541, at *12 (D. Me. Sept. 21, 2025); Aguilar Guerra v. Joyce, No. 25-
cv-534, 2025 WL 2999042, at *3 (D. Me. Oct. 24, 2025).
20 This Court is mindful that the traditional remedy in habeas is release from illegal custody.
Thuraissigiam, 591 U.S. at 107 (2020) (“Habeas has traditionally been a means to secure release
from unlawful detention.” (emphasis in original)) Certain relief requested may be “far outside the
‘core’ of habeas” such that it “may not be pursued through habeas.” Id. at 119. Thus, in
Thuraissigiam, the Supreme Court rejected as an improper habeas remedy, the request to vacate
a removal order and grant a new opportunity to seek asylum. Id. at 119–20. Here, the Court’s
order enjoining Respondents, pending any final order of removal against Rodriguez-Acurio,
from denying her bond on the basis that she must be detained pursuant to 8 U.S.C. § 1225(b)
absent a change in relevant circumstances lies within the core of habeas relief because it seeks to
ensure compliance with this Court’s order granting release. See, e.g., Martinez, 385 F. Supp. 3d
at 373.
subsequent proceeding on the basis that she must be detained pursuant to 8 U.S.C. § 1225(b),
absent a change in relevant circumstances consistent with this Opinion and Order.
Dated: Central Islip, New York
November 28, 2025
/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge