Andrews

1

2

3

4 UNITED STATES DISTRICT COURT

5 EASTERN DISTRICT OF CALIFORNIA

6

7 OTILIO B.F., No. 1:25-cv-01398-KES-EPG (HC)

8 Petitioner,

ORDER GRANTING MOTION FOR

9 v. PRELIMINARY INJUNCTION

10 TONYA ANDREWS, Administrator, Doc. 2

Golden State Annex Detention Facility;

11 SERGIO ALBARRAN, Acting Field Office

Director of the San Francisco Immigration

12 and Customs Enforcement Office; KRISTI

NOEM, Secretary of the United States

13 Department of Homeland Security;

PAMELA BONDI, Attorney General of the

14 United States,

15 Respondents.

16

17 Petitioner Otilio B.F. is an immigration detainee who was ordered released on bond by an

18 immigration judge on August 27, 2025.1 Despite the immigration judge’s order, petitioner

19 remains in detention pending appeal to the Board of Immigration Appeals (“BIA”) due to the

20 Department of Homeland Security’s (“DHS’s”) invocation of an automatic stay regulation,

21 8 C.F.R. § 1003.19(i)(2).

22 On October 20, 2025, petitioner filed a petition for writ of habeas corpus, Doc. 1, and a

23 motion for temporary restraining order, Doc. 2, arguing that the immigration judge properly

24 released him following a bond hearing pursuant to 8 U.S.C. § 1226(a) and that the automatic stay

25 1 As recommended by the Committee on Court Administration and Case Management of the

Judicial Conference of the United States, the Court omits petitioner’s full name, using only his

26

first name and last initial, to protect sensitive personal information. See Memorandum re: Privacy

27 Concern Regarding Social Security and Immigration Opinions, Committee on Court

Administration and Case Management, Judicial Conference of the United States (May 1, 2018),

28 https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.

1 regulation violates the Due Process Clause. On October 28, 2025, respondents filed an

2 opposition, in which they largely do not address petitioner’s arguments and instead argue that 8

3 U.S.C. § 1226(c)(1)(A) serves as an alternative basis to find petitioner mandatorily detained.

4 Doc. 10. For the reasons set forth below, petitioner’s motion for temporary restraining order,

5 which the Court converts to a motion for preliminary injunction, is granted.

6 I. Background

7 Petitioner was born in Mexico in 2004 but entered the United States with his parents when

8 he was two years old. Doc. 1-2, Ex. A, B.F. Decl. at ¶ 2. He has resided in the United States ever

9 since, most of the time in the same community in the Central Valley. Doc. 1-3, Ex. B., Kyle

10 Decl. at ¶ 3. In 2021, he stopped attending school to work and support his mother, who has heart

11 problems. Doc. 1-2, Ex. A, B.F. Decl. at ¶ 2. In 2024, he returned to school to complete his

12 GED, but that process has been interrupted by his present detention. Id.

13 Petitioner is engaged to marry his partner, and they have a two-year old son together. Id.

14 ¶ 5. Both petitioner’s fiancée and his son are U.S. citizens. Doc. 1-3, Ex. B., Kyle Decl. at ¶ 4.

15 Petitioner has a pending application for a U Visa, and his attorney asserts that petitioner is also

16 eligible for other forms of relief from removal, for which he intends to apply. Id. ¶ 8.

17 Petitioner was arrested in May 2025 on a domestic violence offense involving his fiancé.

18 Doc. 1-2, Ex. A, B.F. Decl. at ¶ 7. In that state matter, petitioner was released from custody

19 following his arrest and was told to appear for a state court hearing two weeks later. Doc. 1-3,

20 Ex. B., Kyle Decl. at ¶ 4. On June 2, 2025, petitioner attempted to attend his initial state court

21 hearing. Doc. 1-3, Ex. B., Kyle Decl. at ¶ 6. Prior to the hearing, immigration agents arrested

22 him as he was exiting an elevator at the state courthouse. Id. Petitioner indicates that agents

23 pushed him to the ground, handcuffed him, and told him that they had a warrant for his arrest. Id.

24 Immigration authorities did not allow petitioner to attend his state court hearing. Id. They

25 subsequently transported petitioner to Golden State Annex, a detention facility in McFarland,

26 California, where he remains detained. Id. ¶ 7.

27 An immigration judge held a bond hearing on August 27, 2025, and granted petitioner

28 release on bond. Doc. 10-1, Ex. 8. In doing so, the immigration judge considered petitioner’s

1 May 2025 arrest as well as evidence of his lengthy residence in the United States, his family and

2 community ties, and his paths to lawful immigration status. Id.; see Doc. 1-4, Ex. C. The

3 immigration judge concluded that petitioner was not a flight risk or danger to the community.

4 Doc. 10-1, Ex. 8; see In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). The immigration judge

5 rejected DHS’s argument that petitioner was subject to the mandatory detention scheme of 8

6 U.S.C. § 1225(b)(2), found that petitioner was entitled to release on bond under 8 U.S.C.

7 § 1226(a), and set a bond of $2,500. Doc. 10-1, Ex. 8. Id.

8 Petitioner’s family attempted to post bond, but before they could do so, DHS filed a notice

9 of intent to appeal pursuant to 8 C.F.R. § 1003.19(i)(2). Doc. 1-3, Ex. B., Kyle Decl. at ¶ 6. That

10 filing resulted in an automatic stay of the immigration judge’s bond order pending appeal,

11 meaning that petitioner would not be released on bond pursuant to that order unless and until the

12 Board of Immigration Appeals (“BIA”) affirmed the decision. Id.; see 8 C.F.R. § 1003.19(i)(2).

13 On September 5, 2025, the BIA decided Matter of Yajure Hurtado and held that all

14 noncitizens present in the country who entered without lawful admission are subject to mandatory

15 detention under 8 U.S.C. § 1225(b)(2). Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025).

16 The immigration judge in petitioner’s immigration case thereafter issued a memorandum stating:

17 “In light of the intervening authority of Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025),

18 the immigration court lacked authority to set bond for the respondent. The Board should reverse

19 the order entered on August 25, 2025, and find that respondent is subject to mandatory custody.”

20 Doc. 10-1, Ex. 8.

21 II. Conversion to a Motion for Preliminary Injunction

22 When the Court set a briefing schedule on the motion, it ordered the parties to state their

23 position on whether the motion for temporary restraining order should be converted to a motion

24 for preliminary injunction and whether the parties requested a hearing on the motion. Doc. 4.

25 Neither party objected to converting the motion to one for a preliminary injunction or requested a

26 hearing. See Docs. 10, 11. Given that the standards for issuing a temporary restraining order and

27 a preliminary injunction are the same, see Stuhlbarg Int’l Sales Co. v. John D. Bush & Co., 240

28 F.3d 832, 839 n.7 (9th Cir. 2001), and respondents had notice and opportunity to respond in

1 opposition, see Doc. 10, petitioner’s motion is converted to a motion for preliminary injunction.

2 III. Legal Standard

3 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

4 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689–

5 90 (2008)). “A plaintiff seeking a preliminary injunction must establish that he is likely to

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

7 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

8 Id. at 20 (citing Munaf, 553 U.S. at 689–90; Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S.

9 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–12 (1982)). “Likelihood of

10 success on the merits is a threshold inquiry and is the most important factor.” Simon v. City &

11 Cnty. of San Francisco, 135 F.4th 784, 797 (9th Cir. 2025) (quoting Env’t Prot. Info. Ctr. v.

12 Carlson, 968 F.3d 985, 989 (9th Cir. 2020)). “[I]f a plaintiff can only show that there are serious

13 questions going to the merits—a lesser showing than likelihood of success on the merits—then a

14 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s

15 favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767

16 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted).

17 IV. Discussion

18 Petitioner argues that 8 U.S.C. § 1225(b)(2)(A) does not apply to him, that 8 U.S.C.

19 § 1226(a) and its implementing regulations permit his release on bond, and that the automatic stay

20 pursuant to 8 C.F.R. § 1003.19(i)(2) violates due process. See Doc. 2. Respondents’ opposition

21 does not address those arguments; instead, respondents argue that petitioner’s mandatory

22 detention can be upheld under 8 U.S.C. § 1226(c)(1)(A). See Doc. 10. Because respondents do

23 not address petitioner’s arguments that 8 U.S.C. § 1225(b)(2) does not apply and that the

24 automatic stay provision of 8 C.F.R. § 1003.19(i)(2) violates due process, the Court first

25 addresses respondents’ argument that 8 U.S.C. § 1226(c)(1)(A) mandates petitioner’s detention.

26 a. Section 1226(c)(1)(A) Does Not Apply to Petitioner.

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

28 alien who [] is inadmissible by reason of having committed any offense covered in section

1 1182(a)(2) of this title.” 8 US.C. § 1226(c)(1)(A). Respondents acknowledge that petitioner has

2 not been convicted of an offense and that the immigration judge ordered petitioner released on

3 bond under section 1226(a), not detained under section 1226(c). Nonetheless, respondents rely

4 on 8 U.S.C. § 1182(a)(2)(A)(i) as purportedly authorizing petitioner’s immigration detention.

5 Respondents point to the part of that statute that provides that “any alien . . . who admits

6 committing acts which constitute the essential elements of — (I) a crime involving moral

7 turpitude . . . is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i) (emphasis added). Respondents argue

8 that a police report reflects that petitioner admitted to a violation of California Penal Code

9 § 273.5. Essentially, respondents rely on petitioner’s statement to the police that he pushed his

10 fiancée while she was allegedly hitting him but that he did not cause her any injury. Doc. 10-1,

11 Ex. 1 at 14, 16.2 Respondents argue that, in his statement to the police, petitioner admitted to the

12 essential elements of willful infliction of corporal injury under California Penal Code § 273.5(a).

13 See Doc. 10 at 5–7 (citing Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1059–60 (9th Cir.

14 2006)). The immigration judge did not make any such finding. Respondents nonetheless request

15 that this Court find that petitioner may be mandatorily detained under section 1226(c)(1)(A) and

16 “order remand” to the immigration judge to proceed under section 1226(c)(1)(A). Id. at 5–7.

17 Respondents’ argument is unpersuasive. Respondents fail to show that petitioner admitted

18 to conduct meeting the essential elements of California Penal Code § 273.5. The statement by

19 petitioner that respondents point to does not establish all elements of a section 273.5 violation.

20 The essential elements of California Penal Code § 273.5(a) are a: (1) direct application of force

21 by a defendant on the victim; and (2) a resulting corporal injury. People v. Jackson, 77 Cal. App.

22

23 2 While the police report contains substantial allegations against petitioner, it includes only

limited statements by petitioner. Respondents appear to rely on the following statement by

24 petitioner, as noted by the interviewing officer: “I questioned [petitioner] about CV’s injuries,

and he relayed to me that it was ‘Cap.’ [Petitioner] said he never pulled CV by her hair, and he

25

never caused her injuries on her knees as well. [Petitioner] denied any of this happened.

[Petitioner] said that he pushed CV when she was hitting him, and [petitioner] denied throwing

26

the water bottle packets at CV.” Doc. 10-1, Ex. 1 at 14. The report also includes a narrative by

27 another officer who attended petitioner’s interview, which notes: “[Petitioner] denied pulling her

hair, causing her knee injuries, or throwing water bottles at her, claiming her injuries were

28 fabricated. He admitted to pushing her when she was hitting him.” Id. at 16.

1 4th 574, 580 (2000); see Banuelos-Ayon v. Holder, 611 F.3d 1080, 1085 (9th Cir. 2010)

2 (following Jackson’s holding as to essential elements of crime). According to the police report,

3 petitioner denied that he caused any injury. Doc. 10-1, Ex. 1 at 14, 16. Petitioner therefore did

4 not admit that he had engaged in conduct that caused the victim corporal injury, an essential

5 element of California Penal Code § 273.5(a).3

6 Respondents have failed to show any basis to detain petitioner under section

7 1226(c)(1)(A).4 Petitioner has not been found guilty of any offense under section 273.5. In fact,

8 ICE appears to have prevented the state’s prosecution of petitioner by detaining petitioner in the

9 courthouse before his criminal case hearing and by not allowing petitioner to appear at the

10 hearing. Rather than allowing the state prosecution to proceed, ICE chose to detain petitioner on

11 immigration grounds. Respondents have failed to show any ground for the immigration detention

12 of petitioner based on a domestic violence charge on which ICE has apparently prevented the

13 state from prosecuting petitioner and on which no finding has been made as to petitioner’s guilt.

14 In these circumstances, the immigration judge appropriately found that petitioner was entitled to

15 bond consideration under section 1226(a).

16 The Court next considers petitioner’s likelihood of success on the merits of his two

17 claims.

18

19 3 Nor does petitioner’s statement appear to be a validly obtained admission for immigration

purposes: “[F]or an admission to qualify as having been validly obtained[,]” three requirements

20 must be met: (1) “the admitted conduct must constitute the essential elements of a crime in the

jurisdiction where it occurred”; (2) the noncitizen making the admission “must have been

21 provided with the definition and essential elements of the crime prior to his admission”; and (3)

“his admission must have been voluntary.” Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216 (9th Cir.

22

2002) (citing Matter of K, 7 I & N Dec. 594, 598 (BIA 1957); Matter of J, 2 I & N Dec. 285 (BIA

23 1945)). Petitioner’s statement to the police does not meet the first requirement, as noted above.

Nor have respondents shown that it meets the second requirement, as there is no evidence in the

24 record that the police provided petitioner with the definition and essential elements of California

Penal Code § 273.5(a) prior to his statement. Cf. Pazcoguin, 292 F.3d at 1216 (“Because

25

Inspector Myers failed to provide Pazcoguin with a definition and the essential elements of the

crime . . . , the BIA should not have considered Pazcoguin’s admission to Inspector Myers.”).

26

27 4 Given this finding, the Court declines to consider petitioner’s other argument that, under BIA

precedent, the immigration judge would have considered the police report to be unreliable

28 evidence and would have given it insignificant weight.

1 b. Petitioner’s Likelihood of Success on the Merits

2 i. Section 1225(b)(2)(A) Does Not Apply to Petitioner.

3 Petitioner argues that section 1225(b)(2)(A) does not apply to him, and that the

4 immigration judge correctly concluded on August 27, 2025 that petitioner was entitled to bond

5 consideration under section 1226(a). Doc. 1 at ¶¶ 55–73. He requests an injunction preventing

6 section 1225(b)(2)(A) from being applied to him.5 In their opposition, respondents fail to

7 address the applicability of section 1225(b)(2)(A) in any meaningful way. They refer to the issue

8 in a footnote but do not offer any argument as to why section 1225(b)(2)(A) should apply to

9 petitioner. They have therefore waived this issue. See e.g., Shakur v. Schriro, 514 F.3d 878, 892

10 (9th Cir. 2008) (holding party abandons claims by not raising them in opposition to movant’s

11 motion); Jenkins v. Cty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005).

12 This issue is one of statutory interpretation, and the Court’s analysis begins with the text

13 of the statute. See Lackey v. Stinnie, 604 U.S. 192, 199 (2025).

14 1. Statutory Framework

15 Two statutory sections govern the detention of noncitizens prior to a final order of

16 removal: 8 U.S.C. §§ 1225 and 1226. Section 1225 governs the detention of noncitizens seeking

17 admission into the United States. See Jennings v. Rodriguez, 583 U.S. 281, 289 (2018). Relevant

18 here, section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for

19 admission, if the examining immigration officer determines that an alien seeking admission is not

20 clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding

21 under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). “A noncitizen detained under

22 [s]ection 1225(b)(2) may be released only if he is paroled ‘for urgent humanitarian reasons or

23 significant public benefit’ pursuant to 8 U.S.C. § 1182(d)(5)(A).” Gomes v. Hyde, 25 Civ. 11571,

24 2025 WL 1869299, at *2 (D. Mass. July 7, 2025). “Other than this limited exception[,] . . .

25

5 Based on the BIA’s decision in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), which

26

held that section 1225(b)(2)(A) applies to all noncitizens present in the United States without

27 admission, it is likely that the immigration judge’s bond order under § 1226(a) would be reversed

by the BIA, as the immigration judge recommended in a subsequent memorandum in light of

28 Matter of Yajure Hurtado. See Doc. 10-1, Ex. 8.

1 detention under § 1225(b)(2) is considered mandatory . . . [and] [i]ndividuals detained under

2 § 1225 are not entitled to a bond hearing.” Lopez Benitez v. Francis, No. 25 CIV. 5937 (DEH),

3 2025 WL 2371588, at *3 (S.D.N.Y. Aug. 13, 2025).

4 While section 1225 “authorizes the Government to detain certain aliens seeking admission

5 into the country,” section 1226 “authorizes the Government to detain certain aliens already in the

6 country pending the outcome of removal proceedings.” Jennings, 583 U.S. at 289 (emphasis

7 added). Section 1226(a) sets out the “default rule” for noncitizens already present in the country.

8 Id. at 288. It provides:

9 On a warrant issued by the Attorney General, an alien may be

arrested and detained pending a decision on whether the alien is to

10 be removed from the United States. . . . [T]he Attorney General--

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

11 (2) may release the alien on--

(A) bond . . . ; or

12 (B) conditional parole . . . .

13 8 U.S.C. § 1226(a). “Section 1226(a), therefore, establishes a discretionary detention

14 framework.” Lopez Benitez, 2025 WL 2371588, at *3 (internal citations omitted). An

15 immigration officer makes the initial determination to either detain or release the noncitizen, but

16 after that decision has been made, the noncitizen may request a bond hearing before an

17 immigration judge. 8 C.F.R. § 1236.1(c)(8), (d)(1). At any such bond hearing, “the burden is on

18 the non-citizen to ‘establish to the satisfaction of the Immigration Judge . . . that he or she does

19 not present a danger to persons or property, is not a threat to the national security, and does not

20 pose a risk of flight.’” Hernandez v. Sessions, 872 F.3d 976, 982 (9th Cir. 2017) (citing In re

21 Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006)).

22 2. Section 1225(b)(2)(A) Does Not Apply to Petitioner.

23 The BIA’s current position is that section 1225(b)(2)(A) applies to all noncitizens present

24 in the United States without admission. Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025).

25 That interpretation of the statute (1) disregards the plain meaning of section 1225(b)(2)(A);

26 (2) disregards the relationship between sections 1225 and 1226; (3) would render a recent

27 amendment to section 1226(c) superfluous; and (4) is inconsistent with decades of prior statutory

28

1 interpretation and practice.6

2 As other courts have concluded, “[f]or section 1225(b)(2)(A) to apply, several conditions

3 must be met—in particular, an ‘examining immigration officer’ must determine that the

4 individual is: (1) an ‘applicant for admission’; (2) ‘seeking admission’; and (3) ‘not clearly and

5 beyond a doubt entitled to be admitted.’” Martinez v. Hyde, No. CV 25-11613-BEM, 2025 WL

6 2084238, at *2 (D. Mass. July 24, 2025); see also Lopez Benitez, 2025 WL 2371588, at *5. As an

7 initial matter, there is no evidence in the record that an “examining immigration officer” made

8 these determinations as to petitioner.

9 While petitioner could be considered an “applicant for admission” because he is an “alien

10 present in the United States who has not been admitted,” as defined at 8 U.S.C. § 1225(a)(1),

11 respondents have failed to show that, over 20 years after he entered the country, petitioner was

12 actively “seeking admission.” As the Lopez Benitez court noted: “If, as the government argues,

13 [section] 1225(b)(2)(A) was intended to apply to all ‘applicant[s] for admission,’ there would be

14 no need to include the phrase ‘seeking admission’ in the statute.” Lopez Benitez, 2025 WL

15 2371588, at *6. The rule against surplusage counsels that “‘every clause and word of a statute’

16 should have meaning.” See United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S.

17 419, 432 (2023) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (1883)); League of California

18 Cities v. Fed. Commc’ns Comm’n, 118 F.4th 995, 1019 (9th Cir. 2024) (“The rule against

19

20 6 Other district courts have reached a similar conclusion. See, e.g., Lopez Benitez v. Francis, No.

25-Civ-5937, 2025 WL 2267803 (S.D.N.Y. Aug. 8, 2025); Martinez v. Hyde, No. CV 25-11613-

21 BEM, 2025 WL 2084238, at *9 (D. Mass. July 24, 2025); Gomes v. Hyde, No. 1:25-cv-11571-

JEK, 2025 WL 1869299, at *8 (D. Mass. July 7, 2025); Vasquez Garcia v. Noem, 2025 WL

22

2549431 (S.D. Cal. Sept. 3, 2025); Lopez-Campos v. Raycraft, No. 2:25-cv-12486, 2025 WL

23 2496379 (E.D. Mich. Aug. 29, 2025); Kostak v. Trump, No. 3:25-cv-01093-JE, Doc. 20 (W.D.

La. Aug. 27, 2025); Doc. 11, Benitez v. Noem, No. 5:25-cv-02190 (C.D. Cal. Aug. 26, 2025);

24 Leal-Hernandez v. Noem, No. 1:25-cv-02428-JRR, 2025 WL 2430025 (D. Md. Aug. 24, 2025);

Romero v. Hyde, No. 25-11631-BEM, 2025 WL 2403827 (D. Mass. Aug. 19, 2025); Arrazola-

25

Gonzalez v. Noem, No. 5:25-cv-01789-ODW, 2025 WL 2379285 (C.D. Cal. Aug. 15, 2025);

Aguilar Maldonado v. Olson, No. 25-cv-3142, 2025 WL 2374411 (D. Minn. Aug. 15, 2025); Dos

26

Santos v. Noem, No. 1:25-cv-12052-JEK, 2025 WL 2370988 (D. Mass. Aug. 14, 2025); Rocha

27 Rosado v. Figueroa, No. CV 25-02157, 2025 WL 2337099 (D. Ariz. Aug. 11, 2025), report and

recommendation adopted 2025 WL 2349133 (D. Ariz. Aug. 13, 2025); Doc. 11, Maldonado

28 Bautista v. Santacruz, No. 5:25-cv-01874-SSS-BFM, *13 (C.D. Cal. July 28, 2025).

1 surplusage generally prohibits [a court] from interpreting [a statute] in a way that ‘mak[es] a part

2 of it unnecessary.’” (quoting NLRB v. Aakash, Inc., 58 F.4th 1099, 1105 (9th Cir. 2023)). DHS’s

3 position would make the “seeking admission” language meaningless and violate the rule against

4 surplusage. Martinez, 2025 WL 2084238, at *6; Lopez Benitez, 2025 WL 2371588, at *6.

5 “Seeking” means “asking for” or “trying to acquire or gain.” Merriam-Webster

6 Dictionary, https://www.merriam-webster.com/dictionary/seeking. And the use of a present

7 participle, “seeking,” “necessarily implies some sort of present-tense action.” Martinez, 2025

8 WL 2084238, at *6. The term “admission” is defined as “the lawful entry of the alien into the

9 United States after inspection and authorization by an immigration officer.” 8 U.S.C.

10 § 1101(a)(13)(A). And “entry” has long been understood to mean “a crossing into the territorial

11 limits of the United States.” Hing Sum v. Holder, 602 F.3d 1092, 1100–01 (9th Cir. 2010)

12 (quoting Matter of Pierre, 14 I & N Dec. 467, 468 (1973)). To piece this together, the phrase

13 “seeking admission” means that one must be actively “seeking” “lawful entry.” See Lopez

14 Benitez, 2025 WL 2371588, at *7.7

15 However, petitioner is not actively “seeking” “lawful entry” because he already entered

16 the United States—over twenty years ago. If anything, petitioner is seeking to remain in the

17 United States. As the Lopez Benitez court noted:

18 [S]omeone who enters a movie theater without purchasing a ticket

and then proceeds to sit through the first few minutes of a film would

19 not ordinarily then be described as “seeking admission” to the

theater. Rather, that person would be described as already present

20 there. Even if that person, after being detected, offered to pay for a

ticket, one would not ordinarily describe them as “seeking

21 admission” (or “seeking” “lawful entry”) at that point—one would

say that they had entered unlawfully but now seek a lawful means of

22 remaining there. As § 1225(b)(2)(A) applies only to those

noncitizens who are actively “seeking admission” to the United

23

24 7 This understanding is further buttressed by the fact that “lawful entry” may occur only after

“inspection and authorization by an immigration officer,” see 8 U.S.C. § 1101(a)(13), a process

25

that typically must occur at the border or other port of entry. See Posos-Sanchez v. Garland, 3

F.4th 1176, 1183 (9th Cir. 2021) (explaining that “inspection and authorization” must “take place

26

at a ‘port of entry’” for one to be considered to have “lawfully entered”). The regulations that set

27 out “inspection procedures” make clear that inspection is a procedure that occurs at ports of entry.

See 8 C.F.R § 235.1(a) (“Application to lawfully enter the United States shall be made in person

28 to an immigration officer at a U.S. port-of-entry when the port is open for inspection.”).

1 States, it cannot, according to its ordinary meaning, apply to

[petitioner], because he has already been residing in the United States

2 for more than two years.

3 Lopez Benitez, 2025 WL 2371588, at *7; see also Lopez-Campos v. Raycraft, No. 2:25-CV-

4 12486, 2025 WL 2496379, at *6 (E.D. Mich. Aug. 29, 2025) (“[S]eeking admission’ implies

5 action – something that is currently occurring, and in this instance, would most logically occur at

6 the border upon inspection.”).

7 This is consistent with the statutory scheme. As the Supreme Court noted in Jennings,

8 section 1225 applies “at the Nation’s borders and ports of entry, where the Government must

9 determine whether an alien seeking to enter the country is admissible.” Jennings, 583 U.S. at

10 287. Section 1225 “authorizes the Government to detain certain aliens seeking admission into the

11 country,” whereas section 1226 “authorizes the Government to detain certain aliens already in the

12 country pending the outcome of removal proceedings.” Id. at 289 (emphasis added).

13 Application of section 1225(b)(2)(A) to noncitizens already in the country, such as

14 petitioner, would also render superfluous a recent amendment to section 1226(c). See Gomes,

15 2025 WL 1869299, at *5. Although section 1226(a) sets out a discretionary detention scheme,

16 section 1226(c) provides an exception which mandates detention for noncitizens who have

17 committed certain crimes. See 8 U.S.C. § 1226(c)(1)(E). Section 1226(c)(1)(E), which was

18 added to the statute in 2025 by the Laken Riley Act, mandates detention for any noncitizen

19 (i) who is inadmissible under section 1182(a)(6)(A)(i) as an “alien present in the United States

20 without being admitted or paroled,” and (ii) who “is charged with, arrested for, convicted of, or

21 admits” to committing certain crimes. 8 U.S.C. § 1226(c)(1)(E) (emphasis added); see Gomes,

22 2025 WL 1869299, at *5 (explaining statutory section).

23 If every “applicant for admission”—which is defined, as relevant here, as an “alien

24 present in the United States who has not been admitted,” see 8 U.S.C. § 1226(a)(1)—were already

25 subject to mandatory detention under section 1225(b)(2)(A), there would have been no need for

26 the new section 1226(c)(1)(E), which mandates detention for every noncitizen who is “present in

27 the United States without being admitted or paroled” and who has been “charged with, arrested

28 for, or admits to” committing certain crimes, see 8 U.S.C. § 1226(c)(1)(E). Applying section

1 1225(b)(2)(A) would thus render section 1226(c)(1)(E) superfluous. See Gomes, 2025 WL

2 1869299, at *5; Lopez Benitez, 2025 WL 2371588, at *7; Romero v. Hyde, No. CV 25-11631-

3 BEM, 2025 WL 2403827, at *11 (D. Mass. Aug. 19, 2025); Maldonado v. Olson, No. 25-CV-

4 3142 (SRN/SGE), 2025 WL 2374411, at *12 (D. Minn. Aug. 15, 2025) (“The Court will not find

5 that Congress passed the Laken Riley Act to ‘perform the same work’ that was already covered

6 by § 1225(b)(2).”).

7 “When Congress acts to amend a statute, [the Court] presume[s] it intends its amendment

8 to have real and substantial effect.” See Stone v. I.N.S., 514 U.S. 386, 397 (1995); Marx v. Gen.

9 Revenue Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against surplusage is strongest when an

10 interpretation would render superfluous another part of the same statutory scheme.”). Section

11 1226(c)(1)(E) is a detention provision. If all noncitizens present in the United States without

12 lawful admission were subject to mandatory detention under section 1225(b)(2)(A) already—as

13 Matter of Yajure Hurtado concluded—section 1226(c)(1)(E) would be superfluous. Maldonado,

14 2025 WL 237441, at *12 (“If § 1225(b)(2) already mandated detention of any alien who has not

15 been admitted, regardless of how long they have been here, then adding § 1226(c)(1)(E) to the

16 statutory scheme was pointless.”).

17 The only detention provision that could have applied to petitioner is the “default rule” of

18 section 1226(a), as initially found by the immigration judge, which “authorizes the Government

19 to detain certain aliens already in the country pending the outcome of removal proceedings.”

20 Jennings, 583 U.S. at 288–89. The government previously applied section 1226(a) to

21 noncitizens, such as petitioner, who entered the country without admission. See Matter of Yajure

22 Hurtado, 29 I&N Dec. 216 n.6 (B.I.A. 2025) (“We acknowledge that for years Immigration

23 Judges have conducted [section 1226(a)] bond hearings for aliens who entered the United States

24 without inspection.”); Inspection and Expedited Removal of Aliens; Detention and Removal of

25 Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323 (Mar.

26 6, 1997) (“Despite being applicants for admission, aliens who are present without having been

27 admitted or paroled (formerly referred to as aliens who entered without inspection) will be

28 eligible for bond and bond redetermination.”); Martinez, 2025 WL 2084238, at *6. While

1 divining the meaning of a statute belongs to the “independent judgment” of the courts, “‘the

2 longstanding practice of the government’—like any other interpretive aid—‘can inform [a

3 court’s] determination of what the law is.’” Loper Bright Enters. v. Raimondo, 603 U.S. 369,

4 385–86, 412 (2024) (quoting NLRB v. Noel Canning, 573 U.S. 513, 525 (2014)). The Court finds

5 that the government’s longstanding practice, under which section 1226(a), and not section

6 1225(b)(2)(A), would have applied to petitioner’s circumstances, is consistent with the text and

7 statutory scheme. See, e.g., Lopez Benitez, 2025 WL 2371588, at *8 (reaching same conclusion).

8 Applying section 1225 to those stopped at the border and section 1226 to those already in

9 the country is also consistent with the different due process considerations at issue for noncitizens

10 encountered at the border or ports of entry, versus for noncitizens who have established residence

11 in this country. As the court in Romero noted:

12 “[O]nce an alien enters the country, the legal circumstance changes,

for the Due Process Clause applies to all ‘persons’ within the United

13 States, including aliens, whether their presence here is lawful,

unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S.

14 678, 693, 121 S. Ct. 2491, 150 L. Ed.2d 653 (2001). “It is therefore

reasonable to read these statutes ‘against [that] backdrop.’” Hewitt v.

15 United States, 145 S. Ct. 2165, 2173 (2025)).

16 Romero, 2025 WL 2403827, at *12–13; cf. Lopez-Campos, 2025 WL 2496379, at *9–10 (finding

17 that the government’s application of section 1225(b)(2)(A) in similar circumstances violated

18 detainee’s due process rights).

19 In sum, the Court concludes that petitioner has shown a likelihood of success on his claim

20 that he is not subject to mandatory detention under section 1225(b)(2)(A).

21 ii. The Automatic Stay of 8 C.F.R. § 1003.19(i)(2) Violates Procedural

22 Due Process As Applied to Petitioner.

23 Petitioner next argues that the automatic stay of 8 C.F.R. § 1003.19(i)(2) violates

24 procedural and substantive due process, both facially and as applied. Doc. 2-4 at 11.

25 Respondents do not offer any substantive argument in response and have therefore waived this

26 issue for purposes of this motion. See Doc. 10; Shakur, 514 F.3d at 892. The Court will limit its

27 discussion to petitioner’s as-applied procedural due process challenge, because petitioner would

28 obtain the relief he is seeking on this motion if the Court grants relief on his as-applied challenge.

1 The automatic stay regulation provides:

2 In any case in which DHS has determined that an alien should not

be released or has set a bond of $10,000 or more, any order of the

3 immigration judge authorizing release (on bond or otherwise) shall

be stayed upon DHS’s filing of a notice of intent to appeal the

4 custody redetermination (Form EOIR–43) with the immigration

court within one business day of the order, and, except as otherwise

5 provided in 8 CFR 1003.6(c), shall remain in abeyance pending

decision of the appeal by the Board.

6

7 8 C.F.R. § 1003.19(i)(2).8

8 The District Court for the District of Nevada’s analysis in Herrera v. Knight, No. 2:25-

9 CV-01366-RFB-DJA, 2025 WL 2581792, at *9 (D. Nev. Sept. 5, 2025), is instructive and the

10 Court adopts its reasoning here. In that case, three petitioners had been granted bond by

11 immigration judges after establishing that they were neither a danger nor flight risk, but each

12 petitioner was denied release when DHS filed a notice of intent to appeal, invoking the automatic

13 stay regulation. Id. at *1–4. The court granted the petition, finding that the automatic stay

14 regulation violated substantive and procedural due process, both facially and as applied to each

15 petitioner. Id. at *8–13; see also Silva v. Larose, No. 25-CV-2329-JES-KSC, 2025 WL 2770639,

16 at *3 (S.D. Cal. Sept. 29, 2025) (following Herrera’s reasoning and ruling similarly).

17 Courts to address this issue have begun by noting that, for due process purposes, invoking

18 the automatic stay “is a separate act of detention” from the initial act of detaining a noncitizen

19 suspected to be in the country illegally. Silva, 2025 WL 2770639, at *3. Both the initial act and

20 subsequent act “require valid authority and due process.” Herrera, 2025 WL 2581792, at *9.

21 The initial act of detention was authorized by 8 U.S.C. § 1226(a). See id. But § 1226(a)

22 detention was no longer authorized once the immigration judge granted petitioner release on

23 bond. See id. The government therefore turned to 8 C.F.R. § 1003.19(i)(2) to detain petitioner

24 pending the government’s appeal to the BIA. See id. As explained below, the Court finds that

25 8 DHS may alternatively seek a discretionary stay pursuant 8 C.F.R. § 1003.19(i)(1), which

requires approval from the BIA. See 8 C.F.R. § 1003.6(c)(4). The regulation also sets forth a

26

procedure by which DHS may request an emergency stay of an immigration judge’s custody

27 determination from the BIA, which initiates expedited preliminary review by the BIA to

determine whether a stay is warranted based on the individual circumstances of the detainee and

28 the merits of DHS’s appeal. See 8 C.F.R. § 1003.19(i)(1).

1 this act of detention violates procedural due process as applied to petitioner.

2 To determine whether “detention violates procedural due process, courts apply” the

3 Mathews factors. Herrera, 2025 WL 2581792, at *9. Those factors are:

4 [T]he private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

5 the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s

6 interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

7 requirement would entail.

8 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

9 The private interest here is petitioner’s interest in freedom from detention. That interest

10 “lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533

11 U.S. 678, 690 (2001). “In our society liberty is the norm, and detention prior to trial or without

12 trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). As

13 the court found in Herrera:

14 [T]he automatic stay necessarily always infringes on a noncitizen’s

fundamental right to freedom from Government detention . . . .

15 Petitioners’ as applied challenge is further bolstered by the

individualized harms attendant to their incarceration—including

16 being separated from their families, which in two cases includes

minor children who require specialized medical treatment and care,

17 their employment and ability to earn an income (in one case as the

sole provider for their family), and their deep community ties based

18 on their decades of residence in the United States.

19 Id. at *10. Similarly, here, petitioner’s detention pursuant to the automatic stay regulation

20 prevents him from being reunited with his fiancée and two-year-old son, from working to support

21 them, and from continuing to pursue his GED, even though a neutral decisionmaker already

22 found that he was not a flight risk or danger. This private interest is substantial.

23 As for the second Mathews factor, the “automatic stay provision creates an extreme risk of

24 erroneous and arbitrary confinement” for several reasons. Id. “First, the text of the regulation

25 provides no identifiable standard that would guide any purported due process procedures.” Id.

26 The regulation may be invoked by DHS “[i]n any case in which DHS has determined that an alien

27 should not be released . . . .” 8 C.F.R. § 1003.19(i)(2). “Such an undefined and subjective

28 standard clearly creates a likelihood of arbitrary and capricious application.” Herrera, 2025 WL

1 2581792, at *10. Additionally, the automatic stay harms only “those detainees who have already

2 prevailed in a judicial hearing.” Günaydin v. Trump, 784 F.Supp.3d 1175, 1187 (D. Minn. 2025).

3 The “challenged regulation permits an agency official who is also a participant in the adversarial

4 process to unilaterally override” a neutral decisionmaker’s finding, without making any findings

5 of her own. Id. And with regards “to the probable value of additional procedure” to prevent an

6 erroneous deprivation of liberty, “it is not difficult to conclude that any additional procedure is

7 valuable [when] the only procedure” that an agency official must follow is “checking a box and

8 filing a form.” Herrera, 2025 WL 2581792, at *11. Furthermore, “this unilateral stay stands in

9 contrast to the ordinary requirements of overriding a judge’s order pending appeal, which requires

10 a showing of, inter alia, a likeliness of success on the merits of the appeal and irreparable injury

11 in the absence of a stay.” Id. at *11 (citing Nken v. Holder, 556 U.S. 418, 426 (2009)). As in

12 Herrera, “[t]he Court thus finds the automatic stay presents a conflict of interest in conferring

13 unreviewable discretionary authority in the same prosecuting agency official that makes

14 erroneous deprivation not just a risk, but likely.” Id.

15 Turning to the final Mathews factor, the Court notes that the government’s interests in

16 “protecting the public from dangerous criminal” noncitizens and preventing noncitizens from

17 fleeing are “interests of the highest order.” Rodriguez Diaz, 53 F.4th at 1208. But those interests

18 are adequately protected by having a neutral decisionmaker evaluate whether a noncitizen

19 presents those risks. Herrera, 2025 WL 2581792, at *11. A neutral decisionmaker did so here

20 and found that those interests did not justify petitioner’s detention. “Further, Respondents can

21 continue to preserve the BIA’s authority and limit the necessity of judicial intervention by using

22 existing regulatory procedures to seek an emergency stay from the BIA,” as set out in 8 C.F.R.

23 § 1003.19(i)(1). Id. “Finally, the use of already existing alternate procedures cannot be construed

24 as a fiscal or administrative burden on the Government as such alternative procedures exist and

25 are familiar to the Government.” Id.

26 Accordingly, each of the Mathews factors shows that invocation of the automatic stay

27 regulation likely violates procedural due process as applied to petitioner.

28

1 c. Irreparable Harm

2 Turning to the second Winter factor, petitioner has established that he will be irreparably

3 harmed absent a preliminary injunction. Under the BIA’s current interpretation of the

4 immigration statutes and without injunctive relief from a federal court, “ICE [would] remain[]

5 free to subject [petitioner] to mandatory detention under section 1225(b)(2), a provision that is not

6 applicable to [him], and provide [him] with no additional process to challenge [his] detention.”

7 Valencia Zapata v. Kaiser, No. 25-CV-07492-RFL, 2025 WL 2741654, at *12 (N.D. Cal. Sept.

8 26, 2025). “Obviously, the [unlawful deprivation] of liberty is a . . . severe form of irreparable

9 injury.” Ferrara v. United States, 370 F. Supp. 2d 351, 360 (D. Mass. 2005). Thus, the

10 misapplication of section 1225(b) causes “immediate and irreparable injury.” Doc. 11 at 9,

11 Maldonado Bautista v. Santacruz, No. 5:25-cv-01874-SSS-BFM (C.D. Cal. July 28, 2025);

12 Valencia Zapata, 2025 WL 2741654, at *12.

13 Additionally, “[i]t is well established that the deprivation of constitutional rights

14 ‘unquestionably constitutes irreparable injury.” Hernandez, 872 F.3d at 994 (quoting Melendres

15 v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). “When an alleged deprivation of a constitutional

16 right is involved, most courts hold that no further showing of irreparable injury is necessary.”

17 Warsoldier v. Woodford, 418 F.3d 989, 1001–02 (9th Cir. 2005) (quoting Wright, Miller, &

18 Kane, Federal Practice and Procedure, § 2948.1 (2d ed. 2004)). Given the Court’s conclusion that

19 petitioner is likely to succeed on the merits of his claim that the automatic stay provision violates

20 his due process rights, petitioner faces irreparable harm absent a preliminary injunction

21 d. Balance of Hardships and Public Interest

22 When the government is the nonmoving party, “the last two Winter factors merge.” Baird

23 v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (internal citations omitted). Although the

24 government has a strong interest in enforcing the immigration laws, the government “cannot

25 reasonably assert that it is harmed in any legally cognizable sense” by being compelled to follow

26 the law. Zepeda v. I.NS., 753 F.2d 719, 727 (9th Cir. 1983). Respondents argue in opposition

27 that they should be allowed to detain petitioner based on a different provision—8 U.S.C.

28 § 1226(c)(1)(A)—even though the immigration judge did not rely on that provision and instead

1 found petitioner entitled to bond under section 1226(a). But, as addressed above, respondents fail

2 to present any basis on which the Court could find section 1226(c)(1)(A) applicable to petitioner

3 at this time. The Court finds that the balance of hardships tips sharply in petitioner’s favor.

4 The public interest also weighs in petitioner’s favor. “The public has a strong interest in

5 upholding procedural protections . . ., and the Ninth Circuit has recognized that the costs to the

6 public of immigration detention are staggering.” Diaz v. Kaiser, No. 3:25-CV-05071, 2025 WL

7 1676854, at *3 (N.D. Cal. June 14, 2025) (citing Jorge M.F. v. Wilkinson, No. 21-CV-01434-JST,

8 2021 WL 783561, at *3) (N.D. Cal. Mar. 1, 2021).

9 e. Remedy

10 The purpose of a preliminary injunction is to return the parties to the status quo ante,

11 which is “not simply [] any situation before the filing of a lawsuit, but instead [] ‘the last

12 uncontested status which preceded the pending controversy.’” GoTo.com, Inc. v. Walt Disney

13 Co., 202 F.3d 1199, 1210 (9th Cir. 2000). The immigration judge ordered petitioner released on

14 bond under § 1226(a), and the government then turned to the automatic stay regulation and

15 prevented petitioner from posting bond. The last uncontested status would be the moment before

16 petitioner was unlawfully detained under the automatic stay regulation and prevented from

17 posting bond. The Court finds that petitioner’s immediate release, subject to petitioner thereafter

18 timely posting the bond, is appropriate in these circumstances.

19 V. Conclusion and Order

20 Accordingly, the motion for preliminary injunction, Doc. 2, is GRANTED. The Court

21 ORDERS that respondents release petitioner immediately. Within ten days of receiving notice

22 from the government that the payment system will accept petitioner’s payment of the bond,

23 petitioner SHALL post the $2,500 bond, as ordered by the immigration judge on August 27,

24 2025.

25 Respondents are ENJOINED and RESTRAINED from re-detaining petitioner under 8

26 U.S.C. § 1225(b) or 8 U.S.C. § 1226(c)(1)(A), unless and until petitioner is convicted of a

27 qualifying criminal offense or his removal order is upheld by the Ninth Circuit. If the

28 government seeks to re-detain petitioner under section 1226(a) and its implementing regulations,

1 | it must provide no less than seven (7) days’ notice to petitioner and must hold a pre-deprivation

2 | bond hearing before a neutral arbiter, at which petitioner’s eligibility for bond must be

3 | considered.

4 The portion of the Court’s October 21, 2025 minute order, Doc. 4, regarding the removal

5 | or transfer of petitioner is vacated as moot.

6 The bond requirement of Federal Rule of Civil Procedure 65(c) is waived. Courts

7 | regularly waive security in cases like this one. See Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir.

8 | 2011); Garcia, 2025 WL 1676855, at *3; Pinchi, 2025 WL 1853763, at *4.

9 Respondents may file an additional brief related to the merits of the petition within 30

10 | days, and petitioner may file a reply brief within 15 days of respondents’ brief. Alternatively, the

11 || parties may stipulate to a different briefing schedule or to submitting the petition on the merits

12 || based on the current record.

13

14 | IIS SO ORDERED. _

15 Dated: _ November 11, 2025 4h

6 UNITED STATES DISTRICT JUDGE

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