Avandeev

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

VIKTOR AVANDEEV (A246 841 942), )

)

Petitioner, )

)

v. ) Case No. 6:25-cv-3390-MDH

)

KRISTI NOEM, et. al., )

)

Respondents. )

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner has been detained by the Department of Homeland Security (“DHS”) and has

been denied the opportunity to seek a bond hearing. Pending is his Verified Petition for Writ of

Habeas Corpus in which he argues federal statutes and the Due Process Clause require that he be

granted a bond hearing. The Court agrees with Petitioner’s statutory arguments, and on that basis,

it concludes the Petition for Writ of Habeas Corpus should be GRANTED.

BACKGROUND

Petitioner is a native of Kazakhstan and citizen of Russia. Petitioner last entered the United

States in 2023, over two years ago without inspection. Petitioner is married and has no criminal

record. On October 30, 2025, Petitioner was taken into custody by ICE/ERO officials. Petitioner

was working as a cab driver when he was stopped and detained by ICE at the O’Hare International

Airport without a warrant. Petitioner is in removal proceedings before the Kansas City

Immigration Court despite his home and family being in Chicago, Illinois. On December 19, 2025,

the immigration judge ordered Petitioner removed. That removal order is not final until January

20, 2026. Petitioner’s removal counsel is seeking an appeal with the Board of Immigration

Appeals. Petitioner is presently being detained by U.S. Immigration and Customs Enforcement

(“ICE”) at the Greene County Jail, located in Springfield, Missouri.

Petitioner brought this proceeding, seeking a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241, against (1) the acting assistant field office director for ICE Chicago, (2) the Secretary of

DHS, and (3) the Greene County Missouri Sheriff.1 He asserts the Immigration and Nationality

Act (the “INA”) and the Due Process Clause entitle him to the opportunity to seek release on bond.

Respondents argue that Petitioner is not entitled to be considered for release, and the Court resolves

the parties’ arguments below.

DISCUSSION

I. Exhaustion of Remedies

Petitioner would like to be considered for release on bond. Respondent argues this Court

should dismiss the petition for lack of jurisdiction as Petitioner has failed to exhaust administrative

remedies in not requesting a bond hearing with an IJ. However, any request for such consideration

is futile because the DHS and the Executive Office of Immigration Review (“EIOR”) have taken

the position that Petitioner’s detention is mandatory and bond is categorically not permitted.

Further, in September 2025, the Board of Immigration Appeals (“BIA”) held that a person in

Petitioner’s circumstances is not entitled to consideration for release on bond. See Matter of Yajure

Hurtado, 29&N Dec. 206 (BIA 2025).

II. Jurisdiction

1 Petitioner’s Petition lists Sheriff Arnott as a party by virtue of his administration of the Greene County Jail where

Petitioner is currently detained. While Sheriff Arnott was not served in this case as of the date of this Order, the Court

construes the proper party holding Petitioner in custody as the Department of Homeland Security through Immigration

and Customs Enforcement. As DHS and ICE are utilizing the Greene County Jail to hold Petitioner and other detainees,

the Court expects its ruling to apply to the Government and those aiding the Government regarding this specific case.

Respondents argue that three statutory provisions—8 U.S.C. §§ 1252(e)(3), 1252(g) and

(b)(9) deprive this Court of jurisdiction to consider Petitioner’s claims. The Court disagrees.

Section 1252(e)(3), entitled “Challenges on validity of the system,” limits the scope of

judicial review of “orders under Section 1225(b)(1)” and limits venue to the U.S. District Court

for the District of Columbia. Petitioner is “not challenging the lawfulness of any particular statute,

regulation, or written policy or procedure.” Thus, § 1252(e)(3) does not strip this Court of

jurisdiction. See Munoz Materano v. Arteta, 2025 WL 2630826 (S.D.N.Y. Sept. 12, 2025), at *10.

Further, this statute only bars jurisdiction based on those held under 8 U.S.C. § 1225. However,

the Court finds that Petitioner is being held under 8 U.S.C. § 1226. Therefore, 8 U.S.C. §

1252(e)(3) does not deprive the Court of Jurisdiction.

Sections 1252(g) and (b)(9) apply narrowly to systemic challenges to regulations

implementing expedited removal, review of an order of removal, the decision to seek removal, or

the process by which removability will be determined, not to constitutional or statutory claims

which precede and are collateral to that process, including, as relevant here, unlawful arrest or

detention. See Mata Velasquez v. Kurzdorfer, No. 25-CV-493-LJV, 2025 U.S. Dist. LEXIS 135986,

2025 WL 1953796, at *7 (W.D.N.Y. July 16, 2025); see also Hernandez-Cuevas v. Olson, No.

4:25-cv-00830-BP, at 3 (W.D. Mo. Nov. 05, 2025) (citing 8 U.S.C. § 1252(b)(2)). Petitioner intends

to challenge his order of removal in the appropriate court. In this case, he is not challenging his

removal order or anything else listed in Sections 1252(b)(9), (e)(3) and (g) which would strip this

court of jurisdiction. Here, he simply challenges his unlawful arrest that was made collateral to

that process. This Court concludes it has jurisdiction over Petitioner’s habeas petition.

III. 8 U.S.C. §§1225 and 1226

Petitioner argues that he is being detained in violation of immigration laws because he is

not subject to mandatory detention under 8 U.S.C. §1225(b)(2) and is instead subject to the

discretionary detention provisions of 8 U.S.C. §1226(a), which requires that he be given a bond

hearing. Respondents argue Petitioner is properly detained because he entered and has remained

in the United States without inspection or admission and is therefore deemed an “applicant for

admission” to whom such mandatory detention under 8 U.S.C. § 1225(b)(2)(A) applies and is

ineligible for a custody redetermination hearing before an IJ. Considering the parties’ arguments,

this Court joins the numerous federal courts that have rejected Respondent’s interpretation of §

1225(b)(2).2

Statutory Background

Historically, noncitizens already residing in the country, such as Petitioner, were placed in

standard removal proceedings and received bond hearings, unless their criminal histories rendered

them ineligible under § 1226(c). See Jennings v. Rodriguez, 583 U.S. 281, 288 138 S.Ct. 830, 200

L.Ed.2d 122 (2018). Noncitizens who resided in the United States, but who had previously entered

without inspection, were not deemed “arriving aliens” under § 1225(b), but were instead subject

to § 1226(a). See Jennings v. Rodriguez, 583 U.S. 281, 287, 138 S.Ct. 830 (“In sum, U.S.

immigration law authorizes the Government to detain certain aliens seeking admission into the

country under §§ 1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens

already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c).”)

(emphasis added). In Jennings, the Court framed its discussion of §1225 as part of a process that

2 As of the date of this Order the Court is not aware of any that have been appealed nor are there any appellate decisions.

The Court however will highlight cases from District Courts in this Circuit as supporting the analysis in this case:

Barrajas v. Noem, 2025 WL 2717650, at *3 (S.D. Iowa Sep. 23, 2025); Giron Reyes v. Lyons, 2025 WL 2712427, at

*4 (N.D. Iowa Sept. 23, 2025); Jose J.O.E. v. Bondi, 2025 WL 2466670, at *6-7 (D. Minn. Aug. 27, 2025).

“generally begins at the Nation's borders and ports of entry, where the Government must determine

whether a [noncitizen] seeking to enter the country is admissible.” 583 U.S. at 287, 138 S.Ct. 830.

Then, when discussing §1226, Jennings describes it as governing “the process of arresting and

detaining” noncitizens who are living “inside the United States” but “may still be removed,”

including noncitizens “who were inadmissible at the time of entry.” Id. at 288, 138 S.Ct. 830.

The legislative history behind §1226 also tends to support Petitioner's argument that it

governs noncitizens like himself that reside in the United States but previously entered without

inspection. Before IIRIRA passed, the predecessor statute to §1226(a) governed deportation

proceedings for all noncitizens arrested within the United States. Rodriguez v. Bostock, 779

F.Supp.3d 1239, 1247 (W.D. Wash. 2025) (citing 8 U.S.C. § 1252(a)(1) (1994) (“Pending a

determination of deportability ... any [noncitizen] ... may, upon warrant of the Attorney General,

be arrested and taken into custody.”); Hose v. I.N.S., 180 F.3d 992, 994 (9th Cir. 1999) (“A

deportation hearing was the ‘usual means of proceeding against a[ ] [noncitizen] already physically

in the United States[.]’ ”)). This predecessor statute, like §1226(a), included discretionary release

on bond. Rodriguez, 779 F.Supp.3d at 1260 (citing § 1252(a)(1) (1994) (“[A]ny such [noncitizen]

taken into custody may, in the discretion of the Attorney General ... be continued in custody ... [or]

be released under bond[.]”)). Upon passing IIRIRA, Congress declared that the

new §1226(a) “restates the current provisions in [the predecessor statute] regarding the authority

of the Attorney General to arrest, detain, and release on bond a[ ] [noncitizen] who is not lawfully

in the United States.” Rodriguez, 779 F.Supp.3d at 1260 (citing H.R. Rep. No. 104-469, pt. 1, at

229; see also H.R. Rep. No. 104-828, at 210 (same)). Because noncitizens like Petitioner were

entitled to discretionary detention under §1226(a)’s predecessor statute and Congress declared its

scope unchanged by IIRIRA, this background supports Petitioner's position that he too is subject

to discretionary detention under §1226(a).

Now, pursuant to the July 8, 2025, ICE memo entitled “Interim Guidance Regarding

Detention Authority for Applicant for Admission,” DHS and ICE deem any person who entered

the United States without inspection as an “applicant for admission” under §1225(a), and therefore

argue that they are subject to mandatory detention under §1225(b)(2)(A). The Court agrees with

Petitioner that a plain reading of §1226(a) and an analysis of statutory construction support the

argument that §1226(a) applies to him rather than §1225(b)(2).

Plain Language

The plain language of §1225(b)(2) provides that “an alien who is an applicant for

admission,” shall be detained for a proceeding under §1229(a) of this title, “if the examining

immigration officer determines that [the alien] seeking admission is not clearly and beyond a doubt

entitled to be admitted.” (emphasis added). Respondents’ interpretation does not follow that plain

language. Petitioner is not “seeking admission,” he is already present in the U.S. Martinez v. Hyde,

No. CV 25-11613-BEM, 2025 WL 2084238, at *2 (D. Mass. July 24, 2025) (explaining that

for §1225(b)(2)(A) to apply, “an ‘examining immigration officer’ must determine that the

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

beyond doubt entitled to be admitted’”). One who is “seeking admission” is presently attempting

to gain admission into the United States. Id. at *6 (discussing the plain meaning of “seeking”); see

also Lopez Benitez v. Francis, No. 25-Civ-5937, 2025 WL 2371588, *7 (S.D.N.Y. Aug. 13, 2025)

(interpreting “seeking admission” to mean a person who is actively “seeking” lawful entry. Lopez-

Campos v. Raycraft, No. 2:25-cv-12486 2025 WL 2496379, at *8 (E.D. Mich. Aug. 29, 2025) (“

‘[S]eeking admission’ ... implies action – something that is currently occurring, and in this

instance, would most logically occur at the border upon inspection.”). Through its reading of the

statutory definition of “applicant for admission” in § 1225(a)(1), the Government has completely

ignored the “seeking admission” language. Lopez Benitez, 2025 WL 2371588, at *6 (explaining

how the Government's preferred interpretation would simply strike the phrase “seeking admission”

from the statute in violation of the rule of statutory interpretation prohibiting a construction that

turns terms into surplusage). Noncitizens who are present in the country for years, are not actively

‘seeking admission.’” See Hernandez-Cuevas v. Olson, No. 4:25-cv-00830-BP, at 3 (W.D. Mo.

Nov. 05, 2025) (citing Barrera v. Tindall, 2025 WL 2690565, at *4 (W.D. Ky. Sept. 19, 2025)

(quotations omitted)). Thus, as Petitioner has been in the United States for over 2 years, he is not

“seeking admission” within the meaning of §1225(b)(2)(A).

Legislative Intent

Further, Congress specified that the mandatory detention provision of § 1225(b)(2)(A)

applies to those “seeking admission” and did not use the phrase “applicant for admission” that it

defined previously in § 1225(a)(1). See J.A.M. v. Streeval, 2025 WL 3050094, at *2 (M.D. Ga.

Nov. 1, 2025) (“Had Congress intended for this subsection to apply to all applicants for admission,

it could have said so by simply replacing the phrase “an alien seeking admission” with the term

“an applicant for admission;”).

Statutory Construction

Moreover, Respondents’ interpretation is inconsistent with recent amendments to § 1226.

In 2025, Congress passed the Laken Riley Act, which added § 1226(c)(1)(E) and requires detention

of aliens who are inadmissible pursuant to § 1182(a)(6)(A), (D), or (E). Hernandez-Cuevas (W.D.

Mo. Nov. 5, 2025) at 6. But under the Respondent’s interpretation of these provisions, such aliens

are already subject to mandatory detention under § 1225(b)(2)—which means the 2025

amendments to § 1226 have no purpose. Id. “[O]ne of the most basic interpretive canons [is] that

a statute should be construed so that effect is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant.” Id. at 6 (citing Corley v. United States, 556 U.S.

303, 314 (2009) (cleaned up)). Moreover, “[w]hen Congress acts to amend a statute, we presume

it intends its amendment to have real and substantial effect.” Id. at 6 (citing Stone v. I.N.S., 514

U.S. 386, 397 (1995)).

For these reasons, Respondents’ interpretation of §1225 is not supported by the plain

language of the text, statutory construction, or legislative intent. Thus, Petitioner is subject to the

discretionary detention provisions of 8 U.S.C. §1226(a), not §1225.

IV. The Due Process Clause

Petitioner alleges his indefinite detention without an individualized hearing violates the

Due Process Clause of the Fifth Amendment. The Court’s conclusion that §1226 grants Petitioner

the right to a bond hearing however is sufficient to remedy a Constitutional violation. There is no

need to independently evaluate the compliance with the Due Process Clause under Respondents’

detention policy.3

V. Temporary Restraining Order

In the Petition, Petitioner asks this Court to issue a temporary restraining order directing

Petitioner's release and enjoin Respondents’ continued detention of Petitioner or a temporary

restraining order directing Respondents to conduct a bond hearing to ensure his due process rights.

3 The Court has significant initial concerns regarding constitutionality of Respondents’ detention policy. However, it

is the Court’s position that the relief Petitioner seeks can be granted without an adjudication of the issue.

Petitioner also asks the Court to grant any other and further relief that this Court deems just and

proper.

The Court below orders release or a bond hearing and will not issue a TRO specifically for

those matters. However, under similar circumstances, this Court has granted temporary injunctive

relief to habeas petitioners to enjoin Respondents from relocating petitioners outside the

jurisdiction of this Court. The Courts finds that such relief is just and proper in this case.

In analyzing a request for a TRO, the Court weighs: 1) probability movant will succeed on

the merits; 2) threat of irreparable harm to the movant absent injunction; 3) balance between

threatened harm to the movant and harm the injunction would inflict on other interested parties;

and 4) the public interest. Dataphase Sys., Inc. v. C L Syst., Inc., 640 F.2d 109, 114 (8th Cir.1981)

(en banc). “No single factor is dispositive;” rather, the court must consider all factors to determine

whether on balance they weigh towards granting the remedy. Calvin Klein Cosmetics Corp. v.

Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987).

The Court finds that a TRO in this case is appropriate. As discussed above, the Court has

already found that movant will succeed on his Petition for Habeas Corpus by virtue of his INA

argument that has been fully briefed by both parties. Further, the threat of irreparable harm to the

movant absent injunction is high as any move from this district prior to a bond hearing would

render this Order and Petitioner’s right to a bond hearing as meaningless. As to the balance between

the threatened harm to the movant and the harm the injunction would inflict on other interested

parties, the balance tips in favor of Petitioner. Respondents and other interested parties would not

suffer by allowing Petitioner to have a bond hearing. Lastly, there is a public interest in allowing

those who are detained pursuant to 8 U.S.C. § 1226 to be given a bond hearing as expressed and

determined by Congress. For these reasons, the Court finds Petitioner’s request for a TRO is

appropriate.

VI. Attorneys’ Fees

Petitioner requests an award of reasonable attorneys’ fees and costs pursuant to the Equal

Access to Justice Act, 28 U.S.C. § 2412(d). Pursuant to the EAJA, a court shall award to a

prevailing party fees and other expenses incurred by that party in any civil action, brought by or

against the United States, unless the court finds that the position of the United States was

substantially justified or that special circumstances make an award unjust. 28 U.S.C §

2412(d)(1)(A). To be eligible for fees under the EAJA, a petitioner must submit an application

within thirty days of final judgment, and the petitioner's net worth must be less than two million

dollars at the time the civil action was filed. See id. §§ (d)(1)(B), (d)(2)(B)(i). The EAJA was

enacted with the purpose of removing the financial disincentive for individuals challenging or

defending against government action and encouraging challenges to improper government action

as a means of helping formulate better public policy. See, e.g., Comm'r, I.N.S. v. Jean, 496 U.S.

154, 163 (1990) (“[T]he specific purpose of the EAJA is to eliminate for the average person the

financial disincentive to challenge unreasonable governmental actions.” (citation omitted));

Boudin v. Thomas, 732 F.2d 1107, 1114 (2d Cir. 1984) (“The EAJA was passed partly to encourage

challenges to improper actions by government agencies. The drafters perceived legal actions as

helping to formulate public policy.” (citations omitted)).

As explained throughout, the Court finds the position of the United States is not

substantially justified. The manner in which the provisions have historically been interpreted,

legislative intent, statutory construction, and the plain text of the statutes all support that the United

States is not substantially justified in its novel interpretation of §1225. Thus, Petitioner may pursue

an award of reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice Act.

CONCLUSION

The Court concludes Petitioner is not subject to mandatory detention pursuant to §1225,

and that he is entitled to a bond hearing pursuant to §1226. Accordingly, the Petition for Writ of

Habeas Corpus is GRANTED as follows.

1. Petitioner is not subject to mandatory detention under 8 U.S.C. § 1225(b)(2), and is instead

subject to detention, if at all, pursuant to the discretionary provisions of 8 U.S.C. §

1226(a)(1).

2. Respondents must provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within

ten (10) days of the date of this Order.

3. If Respondents do not provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) as

required herein, Petitioner must be immediately released from detention and returned to a

reasonable proximity of the geographical location of arrest.

4. Petitioner shall promptly report to the Court any failure to comply with this Order by

Respondent.

5. Petitioner may submit an application for fees under the EAJA within thirty days of the

entry of final judgment.

6. It is FURTHER ORDERED that Respondents are enjoined from relocating Petitioner

outside the jurisdiction of this Court prior to compliance with this Order.

IT IS SO ORDERED.

DATED: January 8, 2026

/s/ Douglas Harpool

DOUGLAS HARPOOL

UNITED STATES DISTRICT JUDGE