Opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

VICENTE TECUM PASTOR, ) Case No. 4:25-cv-02761

)

Petitioner, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) Carmen E. Henderson

DIRECTOR OF DETROIT FIELD )

OFFICE, U.S. IMMIGRATION AND )

CUSTOMS ENFORCEMENT, et al., )

)

Respondents. )

)

OPINION AND ORDER

On December 22, 2025, Petitioner Vicente Tecum Pastor, a Mayan indigenous

citizen of Guatemala illegally present in the United States and in custody without

bond pending removal proceedings, filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. For the following reasons, the Court DISMISSES the

petition WITHOUT PREJUDICE. Further, the Court GRANTS a certificate of

appealability.

STATEMENT OF FACTS

According to Petitioner, Mr. Tecum Pastor entered the United States sometime

in 2020 and has no criminal record. (ECF No. 1, ¶¶ 29 & 31, PageID #9.) The

Immigration Court recently denied his petition for asylum, which Petitioner indicated

he appealed to the Board of Immigration Appeals. (Id., ¶ 30, PageID #9.) Mr. Tecum

Pastor was detained on June 12, 2025 and remains detained at a jail in Youngstown,

Ohio. (Id., ¶ 2, PageID #2; ECF No. 1-2.) Petitioner alleges that Mr. Tecum Pastor

has been detained for 193 days as of the filing of the petition. (ECF No. 1, ¶ 2, PageID

#2.)

Following a hearing, on July 25, 2025, the Immigration Court denied

Mr. Tecum Pastor’s request for bond, determining that it lacked jurisdiction pursuant

to Section 235(b) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b), and

Matter of Q. Li, 29 I&N Dec. 66, 69 (BIA 2025). (Id., ¶¶ 32–33, PageID #9–10; ECF

No. 1-3.) On August 25, 2025, Mr. Tecum Pastor appealed the Immigration Court’s

dismissal of his removal proceedings to the Board of Immigration Appeals. (ECF

No. 1, ¶ 32, PageID #10.) The Immigration Court denied Mr. Tecum Pastor’s motion

for bond redetermination on similar grounds on August 28, 2025. (ECF No. 1-4.) The

Board of Immigration Appeals has yet to rule on Mr. Tecum Pastor’s appeal. (ECF

No. 1, ¶ 35, PageID #11.)

STATEMENT OF THE CASE

On December 22, 2025, Petitioner filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. (ECF No. 1.) He alleges that his detention violates:

(1) the Due Process Clause of the Fifth Amendment; (2) detention provisions of the

Immigration and Nationality Act; and (3) federal regulations regarding

interpretation and application of the Act. (Id., ¶¶ 63–72. PageID #19–21.)

Specifically, Petitioner contends that Mr. Tecum Pastor “was subjected to mandatory

detention flowing from an arbitrary and capricious overreach by the BIA in Matter of

Q. Li and Matter of Yajure Hurtado” and that these decisions “violate Petitioner’s

Fifth Amendment Due Process rights.” (Id., ¶¶ 65–66, PageID #19.) Further,

Petitioner claims that Mr. Tecum Pastor’s detention “violates 8 U.S.C. § 1225(b) and

28 C.F.R. § 68.36.” (Id., ¶ 72, PageID #21.)

ANALYSIS

Under 28 U.S.C. § 2243, a court shall forthwith issue a writ or order the

respondent to show cause why a writ should not issue, “unless it appears from the

application that the applicant or person detained is not entitled” to a writ of habeas

corpus. This statute requires an initial screening of a petition. See Alexander v.

Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011). At this stage of

the proceedings, a court accepts as true the allegations in the petition and construes

them in favor of the petitioner. Id. “If it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief in the district court, the

judge must dismiss the petition.” Rule 4 of the Rules Governing Section 2254 Cases

(applicable to petitions under Section 2241 through Rule 1(b)).

I. Jurisdiction

Section 2241(c)(3) extends the availability of the writ of habeas corpus to

persons “in custody in violation of the Constitution or law or treaties of the United

States.” 8 U.S.C. § 1252(a)(2) provides that no court has jurisdiction to review any

immigration matter except as provided by statute: “Notwithstanding any other

provision of law (statutory or nonstatutory), including section 2241 of title 28, or any

other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall

have jurisdiction to review” immigration cases.

As relevant here, judicial review is available in two circumstances. First, a

final order of removal is subject to judicial review by “the court of appeals for the

judicial circuit in which the immigration judge completed the proceedings,” not the

district court. 8 U.S.C. § 1252(b)(2); see also id. § 1252(b)(9). Second, 8 U.S.C.

§ 1252(a)(2)(D) preserves the ability to petition for a writ of habeas corpus to raise a

constitutional issue. In that case, however, Congress significantly limited judicial

review and the ability of courts to engage in fact-finding:

no court shall have jurisdiction, by habeas corpus under section 2241 of

title 28 or any other habeas corpus provision, . . . or by any other

provision of law (statutory or nonstatutory), to review such an order [a

final order of removal] or such questions of law or fact [those involving

interpretation and application of statutory provisions, arising from any

action taken or proceeding brought to remove an alien from the United

States].

Id. § 1252(b)(9). This statute encompasses challenges to the decision to seek removal

and the decision to detain an alien in the first place. See Jennings v. Rodriguez, 583

U.S. 281, 294 (2018); see also Nielsen v. Preap, 586 U.S. 392, 402 (2019). Significantly,

Congress specifically divested courts of jurisdiction to review bond determinations

and other discretionary determinations pending removal. See 8 U.S.C.

§ 1252(a)(2)(B)(ii).

II. Split of Authority in the Inferior Courts

Against this background, federal district courts have taken competing

approaches to whether petitioners are entitled to a bond hearing pending removal

under this statutory framework. The majority of courts agree with Petitioner that

such a hearing is warranted. See, e.g., Rodriguez v. Bostock, 779 F. Supp. 3d 1239,

1263 (W.D. Wash. 2025); Gomes v. Hyde, No. 1:25-cv-11571, 2025 WL 1869299, at *9

(D. Mass. July 7, 2025); Paredes Padillia v. Galovich, et al., No. 25-cv-863, 2025 WL

3251446, at *6 (W.D. Wis. Nov. 21, 2025); Diaz-Villatoro v. Larose, et al., No. 25-cv-

3087, 2025 WL 3251377, at *4 (S.D. Cal. Nov. 21, 2025). However, at least three

courts have taken a contrary position, agreeing with the United States’s reading of

the statute. See, e.g., Mejia Olalde v. Noem, No. 1:25-cv-00168, 2025 WL 3131942, at

*2 (E.D. Mo. Nov. 10, 2025); Vargas Lopez v. Trump, No. 8:25CV526, 2025 WL

2780351, at *9 (D. Neb. Sept. 30, 2025); Chavez v. Noem, No. 3:25-cv-02325, 2025 WL

2730228, at *4 (S.D. Cal. Sept. 24, 2025).

In the Court’s view, both approaches are mistaken. The statutory framework

provides a limited role for district courts to review a habeas petition in the

immigration context not concerning a final order of removal. 8 U.S.C. § 1252(a)(2)(D).

That is, Section 1252 preserves the ability of district courts to review a petition for a

writ of habeas corpus regarding a constitutional issue. Id. For example, such claims

might challenge the conditions of confinement or what amounts to indefinite

detention. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (recognizing the

serious constitutional concerns of indefinite detention following a final order of

removal); but see Jennings, 583 U.S. at 297 (finding no statutory right to periodic

bond hearings for aliens detained during the pendency of removal proceedings).

Outside of such limited and narrow constitutional claims, which Petitioner

does not raise, other constitutional challenges quickly implicate and often become

entwined with interpretation and implementation of the statutory framework and its

associated procedures. Such is the case with Petitioner’s Fifth Amendment due

process claim. (ECF No. 1, ¶¶ 63–69, PageID #19–20.) In the immigration context,

Congress has broad discretion to determine what process is due. See, e.g. Department

of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020); Reno v. Flores, 507 U.S.

292, 309 (1993). Put another way, a constitutional challenge to detention pending

removal and entitlement to a bond hearing pending removal collapse into analysis of

the statutory and regulatory regime—whether, for example, Section 1226(a) entitles

an alien to bond pending removal or whether Section 1225(b) authorizes the

government to detain an alien pending removal. Congress has made clear that

district courts lack the jurisdiction to make such determinations, even on a habeas

petition under Section 2241. As the Supreme Court has long recognized, these

statutory provisions aim “at protecting the Executive’s discretion from the courts—

indeed, that can fairly be said to be the[ir] theme.” Reno v. American-Arab Anti-

Discrimination Comm., 525 U.S. 471, 486 (1999).

Given the narrow space where a district court may exercise jurisdiction,

prudential principles of exhaustion counsel that a petitioner pursue his

administrative remedies to a final judgment from the Board of Immigration Appeals

before seeking a writ of habeas corpus. Because of the expertise that the Board of

Immigration Appeals and the immigration courts more generally have in the

statutory and administrative regimes governing the admission and removal of

foreigners, “‘many of the purposes for requiring exhaustion’ may be served by

permitting agency review in the first instance.” Ba v. Director of Detroit Field Off.,

No. 4:25-cv-02208, 2025 WL 2977712, at *3 (N.D. Ohio Oct. 22, 2025) (quoting

Hernandez Torrealba v. U.S. Dep’t of Homeland Sec., No. 1:25-cv-01621, 2025 WL

2444114, at *11 (N.D. Ohio Aug. 25, 2025)); see also Beharry v. Ashcroft, 329 F.3d 51,

62 (2d Cir. 2003) (discussing the benefits of limiting judicial interference in agency

affairs in the immigration context).

III. Application

The Court applies the foregoing framework to Mr. Tecum Pastor’s petition.

(ECF No. 1.)

III.A. Exhaustion

“When a petitioner does not exhaust administrative remedies, a district court

ordinarily should either dismiss the [habeas] petition without prejudice or stay the

proceedings until the petitioner has exhausted remedies, unless exhaustion is

excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (citations

omitted). In Leonardo, the petitioner pursued habeas review of the Immigration

Court’s adverse bond determination before he appealed to the Board of Immigration

Appeals. Id. The Ninth Circuit determined that filing a habeas petition in federal

district court was improper because the petitioner “should have exhausted

administrative remedies by appealing to the BIA before asking the federal district

court to review the IJ’s decision.” Id. (citing Rojas-Garcia v. Ashcroft, 339 F.3d 814,

819 (9th Cir. 2003)). The Sixth Circuit has endorsed this procedure for challenging

bond determinations, albeit in a short, unpublished order. See Rabi v. Sessions,

No. 19-3249, 2018 U.S. App. LEXIS 19661, at *1–2 (6th Cir. July 16, 2018) (citing

Leonardo, 646 F.3d at 1160); see also Hernandez Torrealba, 2025 WL 2444114, at *8

(applying the Ninth Circuit’s test for prudential exhaustion). Previously, the Court

has done so as well. See Monroy Villalta v. Greene, 794 F. Supp. 3d 528, 530 (N.D.

Ohio 2025); Laguna Espinoza v. Director of Detroit Field Off., U.S. Immigr. &

Customs Enf’t, No. 4:25-cv-02107, 2025 WL 2878173, at *2 (N.D. Ohio Oct. 9, 2025);

Ba, 2025 WL 2977712, at *2.

In this case, Mr. Tecum Pastor appealed the Immigration Court’s dismissal of

his removal proceedings to the Board of Immigration Appeals on August 25, 2025.

(ECF No. 1, ¶ 32, PageID #10.) The Board of Immigration Appeals has yet to rule on

Mr. Tecum Pastor’s appeal. (Id., ¶ 35, PageID #11.) As in Leonardo, 646 F.3d at

1160, prudential principles of exhaustion counsel that Petitioner pursue his

administrative remedies to a final judgment from the Board of Immigration Appeals

before seeking a writ of habeas corpus. In the petition, count two alleges violations

of 8 U.S.C. §§ 1225(b) and 1226(a) and their implementing regulations. (ECF No. 1,

¶¶ 70–72, PageID #20–21.) Though count one is styled as a Fifth Amendment due

process claim, it too presents claims about the statute and its associated procedures.

(Id., ¶¶ 63–69, PageID #19–20.)

Further, Petitioner seeks review of the application and interpretation of Matter

of Q. Li, 26 I&N Dec. 66 (BIA 2020), and Matter of Yajure Hurtado, 29 I&N Dec. 216

(BIA 2025). (Id., ¶¶ 36–57, 65, PageID #11–19.) In other words, any determination

regarding detention here turns on interpretation and application of the governing

removal regime. In the first instance, such review should proceed before the Board

of Immigration Appeals to “apply its experience and expertise without judicial

interference.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (abrogated on other

grounds); see also Rojas-Garcia , 39 F.3d at 819 (acknowledging that a “petitioner

must exhaust administrative remedies before raising the constitutional claims in a

habeas petition when those claims are reviewable by the BIA on appeal”); Monroy

Villalta, 794 F. Supp. 3d at 531; Laguna Espinoza, 2025 WL 2878173, at *2; Ba, 2025

WL 2977712, at *2.

III.B. Futility

Petitioner argues that an appeal to the Board of Immigration Appeals “would

be futile in light of Matter of Yajure Hurtado.” (ECF No. 1, ¶ 4, PageID #2.) To

support this argument, he claims that the Board had “predetermined the issue before

it in cases that are legally identical.” (Id.) But courts in this Circuit have determined

that even where there is a “high probability of denial” of a petitioner’s appeal of an

Immigration Judge’s bond decision, such a probability “does not weigh in favor of

waiving exhaustion.” Hernandez Torrealba, 2025 WL 2444114, at *11.

In Hernandez Torrealba, the petitioner sought relief from the exhaustion

requirement based on a decision of the Board of Immigration Appeals affirming the

denial of bond. But the court was “not certain how the BIA will rule on Petitioner’s

appeal given the particular circumstances of her case, and it would be presumptuous

of this Court to simply assume that the BIA will rule against Petitioner.” Id. So too

here. Petitioner provides little relevant background of Mr. Tecum Pastor’s

circumstances aside from the fact that he has been in the United States since 2020

and has no criminal record. (ECF No. 1, ¶¶ 29 & 31, PageID #9.) Without more, the

Court cannot determine whether the factual circumstances in both Matter of Q. Li

and Matter of Yajure Hurtado are distinct from this case in certain respects. In

Matter of Q. Li, the alien “crossed the southern border of the United States without

being inspected and admitted or paroled.” 29 I&N Dec. 66, at *67. Further, Interpol

issued a Red Notice for forgery and human smuggling crimes. Id. In Matter of Yajure

Hurtado, the alien “crossed the border into the United States without inspection” in

2022 and was granted temporary protected status in 2024. 29 I&N Dec. 216, at *216.

As previously discussed, “‘many of the purposes for requiring exhaustion’ may

be served by permitting agency review in the first instance.’” Hernandez Torrealba,

2025 WL 2444114, at *11 (quoting Beharry, 329 F.3d at 62). Indeed, courts outside

this Circuit acknowledge that the purposes of requiring exhaustion in the

immigration context “include protecting the authority of administrative agencies,

limiting interference in agency affairs, developing the factual record to make judicial

review more efficient, and resolving issues to render judicial review unnecessary.”

Beharry, 329 F.3d at 62 (citing McCarthy v. Madigan, 503 U.S. 140, 145 (1992);

McKart v. United States, 395 U.S. 185, 193–95 (1969)). In any event, the Court has

no jurisdiction to review the decisions of the Board of Immigration Appeals in Li or

Hurtado. That authority rests, if anywhere, with the Sixth Circuit. For these

reasons, the Court cannot say that exhaustion is futile or a waste of time or that

prudential reasons apply for excusing it.

III.C. Nationwide Class

Finally, Petitioner argues that Respondents hold Petitioner without a bond

hearing in “violation of binding federal District Court Precedent.” (ECF No. 1,

PageID #18.) Specifically, Petitioner argues that the Central District of California

issued an order in Bautista v. Santacruz, No. 5:25-cv-01873, 2025 WL 3288403 (C.D.

Cal. Nov. 25, 2025), that granted declaratory relief to a nationwide class of

noncitizens, “holding that the government is unlawfully subjecting them to

mandatory no-bond detention and that class members are eligible for release on bond

under the immigration laws.” (ECF No. 1, ¶¶ 58–59, PageID #18.) Pursuant to “the

Court’s order, class members should be able to request a bond hearing in immigration

court before an immigration judge.” (Id., ¶ 59, PageID #18.) This case began with

the filing of a habeas petition. See Bautista v. Santacruz, No. 5:25-cv-01873, 2025

WL 2670875, at *1 (C.D. Cal. July 28, 2025).

“[I]t is doubtful that class relief may be obtained in a habeas proceeding.”

A.A.R.P. v. Trump, 606 U.S. 91, 107 (2025) (Alito, J., dissenting). The Supreme Court

has “never so held, and it is highly questionable whether it is permitted.” Id. “[T]he

class action device is uniquely ‘ill-suited’ for habeas proceedings . . . which often turn

on individualized and fact specific determinations regarding the confinement of a

specific prisoner.” Id. at 109 (quoting Harris v. Nelson, 394 U.S. 286, 296 (1969)).

Although the Supreme Court has addressed class challenges to “vindicate notice

rights” under the Alien Enemies Act seeking habeas relief, it has not determined

whether such relief is appropriate in any other context. Id. at 97 n.1. The Court

doubts it is and fails to see how the Central District can issue a nationwide class of

habeas petitioners under Rule 23(b)(2). After all, courts issue writs of habeas corpus

to the person having custody over a petitioner. 28 U.S.C. § 2242. And the warden

having custody over Mr. Tecum Pastor was not before the Central District of

California.

In any event, the Court is not bound by the Central District of California’s

ruling and it declines to honor its approach or afford it any persuasive authority. “A

decision of a federal district court judge is not binding precedent in either a different

judicial district, the same judicial district, or even upon the same judge in a different

case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et al.,

Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)). Petitioner claims that he “is

entitled to a bond hearing as a member of this class.” (ECF No. 1, ¶ 62, PageID #19.)

But even Petitioner does not believe that argument. If he did, then his remedy lies

in the Central District of California, and he would have sought relief there. His

decision not to do so speaks volumes about the legal validity of that class certification

order.

* * *

For these reasons, the Court determines that Petitioner should pursue this

matter before the Board of Immigration Appeals. Because the petition makes no

mention of a stay and does not demonstrate grounds for excusing exhaustion, the

Court DISMISSES the petition WITHOUT PREJUDICE.

CERTIFICATE OF APPEALABILITY

Without a certificate of appealability, a habeas petitioner cannot appeal a final

order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). Issuance of a certificate of

appealability requires a petitioner to make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This means that the petitioner must

show that reasonable jurists could find the district court’s determination of the

relevant constitutional claims debatable or incorrect. Tennard v. Dretke, 542 U.S.

274, 282 (2004). The petitioner need not show that the appeal would succeed to be

eligible for a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 337

(2003).

Because of an absence of controlling precedent in this Circuit—or, so far as the

Court can tell, any circuit—on the proper procedure on the facts and circumstances

presented, the Court acknowledges that reasonable jurists may disagree with the

application of prudential exhaustion. For these reasons, the Court GRANTS a

certificate of appealability on count one of the petition.

In doing so, the Court expresses one grave reservation. Over the past several

months, the Court has resolved numerous habeas petitions like this one raising

nearly identical arguments. See, e.g., Monroy Villalta, 794 F. Supp. 3d at 531;

Laguna Espinoza, 2025 WL 2878173, at *4; Ba, 2025 WL 2977712, at *3. Although

the Court granted a certificate of appealability in these and other cases, not one

petitioner has pursued an appeal. In any given case here or there, any number of

litigating decisions might explain such a decision. But over the run of cases that the

Court has decided—or that have come before the district courts more broadly—such

innocent explanations fail to hold up. These circumstances provide the Court with

serious doubt that the lawyers filing these petitions are doing so in good faith.

Whatever one thinks about the merits of the competing approaches in the

inferior courts—whether one agrees with what has become the majority approach

that a district court may order a bond hearing, whether the government has the better

of the argument that it may lawfully deny such an opportunity, or whether the

jurisdictional limits placed on district courts in the field of immigration require

caution and counsel requiring prudential exhaustion—the judiciary would benefit

from appellate review and consideration of these issues. Failure to appeal deprives

the inferior courts of much needed guidance and uniformity that sows doubt and

instability to the detriment of the rule of law with no promise of judicial resolution at

the Supreme Court.

Accordingly, if no appeal is taken in this case, the Court will hold a hearing to

inquire into the reasonable good faith basis consistent with Rule 11 for failing to file

a notice of appeal.

CONCLUSION

For the foregoing reasons, the Court DISMISSES the petition for a writ of

habeas corpus WITHOUT PREJUDICE. (ECF No. 1.) Further, the Court

GRANTS a certificate of appealability on count one of the petition. Accordingly,

Petitioner’s motion to show cause is DENIED AS MOOT. (ECF No. 2.)

SO ORDERED.

Dated: December 24, 2025

J.PhilipCalabrese

United States District Judge

Northern District of Ohio

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