Hu

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

HUANFANG HU, CASE NO. 4:26-cv-113

Petitioner DISTRICT JUDGE

JAMES R. KNEPP II

vs.

MAGISTRATE JUDGE

KEVIN RAYCRAFT, Acting Director of JAMES E. GRIMES JR.

Enforcement and Removal Operations,

Detroit Field Office, Immigration and

Customs Enforcement, et al., REPORT AND

RECOMMENDATION

Respondents.1

Petitioner Huanfang Hu has filed a petition for writ of habeas corpus

under 28 U.S.C. § 2241. Doc. 1. The Court referred this matter to a Magistrate

Judge under Local Rule 72.2 for the preparation of a Report and

Recommendation. For the following reasons, I recommend that the Court grant

Hu’s petition.

1 The proper respondent in an immigration habeas for a noncitizen

detained in this District is the Field Director of the Detroit Field Office for U.S.

Immigration and Customs Enforcement. Mendoza v. Raycraft, No. 4:25-cv-

2183, 2025 WL 3157796, at *8 (N.D. Ohio Nov. 12, 2025). The Court should

therefore dismiss from this action the Attorney General and the Secretary of

the Department of Homeland Security. See Roman v. Ashcroft, 340 F.3d 314,

320 (6th Cir. 2003).

Background

Factual background and Immigration Court proceedings2

Hu is 44 years old and a Chinese citizen. Doc. 1, at 1 ¶1.3 She entered

the United States without being inspected through Mexico, at or near Otay

Mesa, California, on April 8, 2024. Id. The next day a Border Patrol agent

issued Hu a Notice to Appear (NTA), placing her in immigration removal

proceedings, Doc. 1-2, and released her, Doc. 9-1, at 1.

The Notice to Appear did not allege that Hu was an arriving alien.

Rather, it alleged that she was “an alien present in the United States who ha[d]

not been admitted or paroled.” Doc. 1-2, at 1. The Notice to Appear directed Hu

to appear for a removal hearing on June 6, 2025, in New York City. Id.

In June 2024, Hu, through counsel, filed in the New York Immigration

Court a written pleading conceding the truth of the allegations in the Notice to

Appear. Doc. 9-2. Hu also filed an I-589 asylum application. Doc. 1, at 1, ¶2.

On July 11, 2025, Hu was taken into custody during an enforcement

operation in Parma Heights, Ohio. Doc. 1, at 5, ¶22. She was not given bond.

2 “At this stage of proceedings, allegations in the Petition are accepted as

true and construed in Petitioner’s favor.” See Alexander v. N. Bureau of

Prisons, 419 F. App’x 544, 545-46 (6th Cir. 2011) (describing the pleadings

standard and applying to the § 2243 stage in a § 2241 petition). In addition,

“documents attached to the pleadings become part of the pleadings and may be

considered” by the Court. Id. at 546 (quoting Commercial Money Ctr., Inc. v.

Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007)). Gaps in Hu’s

recitation of events have been filled in by documents that the government has

attached to its opposition brief.

3 The Court cites the CM/ECF-generated page numbers at the top of the

parties’ filings.

Id. On July 18, Hu requested a bond hearing. Doc. 9-5, at 1–2. On July 21, the

government issued Hu a Form I-261, alleging an additional ground of

removability. Doc. 9-3 (Form I-261, Additional Charges of

Inadmissibility/Deportability). On July 24, the Immigration Judge denied

Hu’s bond eligibility because, under Matter of Q. Li, 26 I&N Dec. 66 (BIA 2025),

the immigration judge lacked jurisdiction to determine bond.4 Doc. 9-5, at 9. In

September, Hu appealed this ruling. Doc. 1, at 5–6, ¶22. Hu’s appeal remains

pending. Doc. 1, at 5–6, ¶22. Hu has filed subsequent motions for bond

hearings, which have all been denied. Id. at 5–6, ¶22. Meanwhile, Hu has not

yet had an asylum hearing because the Immigration Court has no access to the

Hebei interpreter that Hu needs. Id. at 14–15, ¶65. Hu has thus remained in

custody at Mahoning County Jail since July 11, 2025. Doc. 1, at 2, ¶4; Doc. 9-

4. Hu’s Immigration Court venue changed from New York to Cleveland and

proceedings remain pending on the Cleveland Immigration Court docket. Doc.

1, at 1–2; Doc. 9-4.

4 In Matter of Q, 29 I. & N. Dec. 66 (BIA 2025), Board of Immigration

Appeals held that “[a]n applicant for admission who is arrested and detained

without a warrant while arriving in the United States … and subsequently

placed in removal proceedings is detained under … 8 U.S.C. § 1225(b) … and

is ineligible for any subsequent release on bond under … 8 U.S.C. § 1226(a).”

See also Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 216 (BIA 2025) (finding

that “Immigration Judges lack authority to hear bond requests or to grant bond

to aliens who are present in the United States without admission” based on the

“plain language of … 8 U.S.C. § 1225(b)(2)(A).”

Hu’s habeas petition

On January 15, 2026, Hu filed a petition for writ of habeas corpus under

28 U.S.C. § 2241. Doc. 1. Hu states that she is being detained unlawfully and

seeks “enforcement of her rights as a member of the Bond Eligible Class

certified in Maldonado Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM

(C.D. Cal.).” Id. at 2, ¶3; see also id. at 12 (describing count one of her petition

as a violation of the Immigration and Nationality Act). Alternatively, she asks

the Court to order her release “unless Respondents provide a bond hearing

under 8 U.S.C. § 1226(a) within seven days.” Id. at 3, ¶13. In count two, Hu

alleges a due process violation for her detention without bond and the

government’s failure to provide her with an asylum hearing. Id. at 14–15.

Respondents filed an opposition. Doc. 9. They contend that the Court

lacks jurisdiction to review Hu’s claims. Id. at 5–10. Respondents also argue

that the Bautista case “has no preclusive effect here”; Hu has failed to exhaust

administrative remedies, which should not be excused due to futility; and that

Hu’s due process claim fails. Id. at 10–14.

Legal Standard

Under 28 U.S.C. § 2241, a district court may grant a writ of habeas

corpus to any person who demonstrates that she is in custody in violation of

the Constitution or laws of the United States. 28 U.S.C. § 2241(c)(3). An alien

may challenge the lawfulness of immigration detention through a writ of

habeas corpus. See INS v. St. Cyr, 533 U.S. 289, 301 (2001) (observing that “the

writ of habeas corpus has served as a means of reviewing the legality of

Executive detention, and it is in that context that its protections have been

strongest.”); see also Demore v. Kim, 538 U.S. 510, 517 (2003); Zadvydas v.

Davis, 533 U.S. 678, 687 (2001).

Although the Court lacks jurisdiction in habeas over issues such as

challenges to the legality of a removal order, see Hamama v. Adducci, 912 F.3d

869, 876 (6th Cir. 2018), it has jurisdiction to consider whether a noncitizen is

lawfully detained, see Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103,

117 (2020) (describing habeas corpus as the “‘appropriate remedy to’”

determine the legality of a person’s custody) (quoting 3 Commentaries on the

Constitution of the United States § 1333, p. 206 (1833)).

Discussion

1. The Court has jurisdiction over Hu’s petition.

Respondents argue that under 8 U.S.C. § 1252(a)(5), (b)(9) and (g), this

Court lacks jurisdiction to review Hu’s petition. See Doc. 9, at 5–6, 8–10. Before

discussing these provisions, it is worth noting that Section 1252 is entitled

“judicial review of orders of removal.” While “section headings cannot limit the

plain meaning of a statutory text, ‘they supply cues’ as to what Congress

intended.” Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 583 U.S. 366, 380

(2018) (citations omitted). So it is questionable at the start whether any of the

provisions in Section 1252 would apply to Hu, who is not challenging an order

of removal.

In any event, Respondents argue that “Section 1252(g) … categorically

bars jurisdiction over ‘any cause or claim by or on behalf of any alien arising

from the decision or action by the [Secretary of Homeland Security] to

commence proceedings, adjudicate cases, or execute removal orders against any

alien.’” Doc. 9, at 10 (quoting 8 U.S.C. § 1252(g)). Respondents also argue that

“[u]nder § 1252(b)(9), ‘judicial review of all questions of law … including

interpretation and application of statutory provisions … arising from any

action taken … to remove an alien from the United States’ is only proper before

the appropriate court of appeals in the form of a petition for review of a final

removal order.” Id, at 8 (citing 8 U.S.C. § 1252(b)(9)).

Respondents are mistaken. See Deng Chol A. v. Barr, 455 F. Supp. 3d

896, 900–01 (D. Minn. 2020) (the right of a “person detained by the

government” to “challenge the legality of h[er] confinement through a petition

for a writ of habeas corpus …. extends to those persons challenging the

lawfulness of immigration-related detention”) (citing Zadvydas, 533 U.S. at

688, and Demore, 538 U.S. at 517).

First, Section 1252(g) does not bar, categorically or otherwise, Hu’s

claims. Section 1252(g) provides in relevant part that:

[e]xcept as provided in this section and

notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241

of Title 28, or any other habeas corpus provision, …

no court shall have jurisdiction to hear any cause or

claim by or on behalf of any alien arising from the

decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute

removal orders against any alien under this chapter.

8 U.S.C. § 1252(g). Based on this statute, Respondents argue that the Secretary

of Homeland Security’s “decision to commence removal proceedings includes

the decision to detain pending such removal proceedings.” Doc. 9, at 10.

Respondents’ position, however, ignores the Supreme Court’s caution that the

jurisdictional limits detailed in Section 1252(g) have a “narrow” reach, and

apply only to “review of cases ‘arising from’ decisions ‘to commence

proceedings, adjudicate cases, or execute removal orders.’” Dep’t of Homeland

Sec. v. Regents of the Univ. of Calif., 591 U.S. 1, 19 (2020) (explaining that the

Supreme Court has “previously rejected as ‘implausible’ the Government’s

suggestion that § 1252(g) covers ‘all claims arising from deportation

proceedings’ or imposes a ‘general jurisdictional limitation’”) (quoting Reno v.

American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999)).

Indeed, the Supreme Court has made clear that Section 1252(g)

“applies” “narrow[ly] … only to three discrete actions that the Attorney

General may take:” the “‘decision or action’ to ‘commence proceedings,

adjudicate cases, or execute removal orders.’” American-Arab Anti-

Discrimination Comm, 525 U.S. at 482. Outside of these three categories, the

Supreme Court has noted that there are “many other decisions or actions that

may be part of the deportation process,” such as “the decisions to open an

investigation, to surveil the suspected violation, to reschedule the deportation

hearing, to include various provisions in the final order that is the product of

the adjudication, and to refuse reconsideration of that order.” Id. In this way,

Section 1252(g) is “not relevant” to the consideration of a court’s jurisdiction to

consider an immigration habeas petition beyond the three enumerated events.

See St. Cyr, 533 U.S. at 311 n.34 (relying on American-Arab Anti-

Discrimination Comm).

A three-justice plurality of the Supreme Court has more recently

affirmed the narrow construction of Section 1252(g). See Jennings v.

Rodriquez, 583 U.S. 281, 294 (2018) (plurality opinion). The plurality

reiterated that the Court “did not interpret [the phrase ‘arising from’] to sweep

in any claim that can technically be said to ‘arise from’ the three listed actions

of the Attorney General. Instead, [the Court] read the language to refer to just

those three specific actions themselves.” Id. at 294.

Here, the Respondents submit that the Department of Homeland

Security commenced removal proceedings against Hu because Hu filed an

asylum application and is currently in removal proceedings. Doc. 9, at 10. But

Hu’s “detention does not arise from the government’s ‘commenc[ement] of

proceedings,’ which begins with the filing of an NTA in an immigration court.”

Mahdawi v. Trump, 136 F.4th 443, 450–51 (2d Cir. 2025) (quoting Ozturk v.

Hyde, 136 F.4th 382, 396–97 (2d Cir. 2025)). Indeed, Respondents did not

detain Hu until more than a year after they initiated her removal proceedings.

Respondents’ jurisdictional argument, regarding Section 1252(g), thus

fails. See Kong v. United States, 62 F.4th 608, 615 (1st Cir. 2023) (“there is no

way to read [Section 1252(g)’s] legislative history as evincing ‘a clear statement

of congressional intent to repeal habeas jurisdiction’ over all detention claims.

To the contrary, § 1252(g) was passed with the understanding that collateral

challenges to the legality of a petitioner’s detention would not constitute

‘cause[s] or claim[s]’ that ‘aris[e] from the decision or action by the Attorney

General to ... execute removal orders.’”) (citation omitted).

Next, Respondents argue that Sections 1252(a)(5) and 1252(b)(9) bar

this Court’s “review of decision to detain and/or remove.” Doc. 9, at 8. Section

1252(a)(5) states that the court of appeals is the “sole and exclusive means for

judicial review of an order of removal entered or issued under any provision of

this chapter” except for subsection (e). Under Section 1252(b)(9):

Judicial review of all questions of law and fact,

including interpretation and application of

constitutional and statutory provisions, arising from

any action taken or proceeding brought to remove an

alien from the United States under this subchapter

shall be available only in judicial review of a final

order under this section. Except as otherwise

provided in this section, no court shall have

jurisdiction, by habeas corpus under Section 2241 of

Title 38 or any other habeas corpus provision, by

section 1361 or 1651 of such title, or by any other

provision of law (statutory or nonstatutory), to

review an order or such questions of law or fact.

8 U.S.C. § 1252(b)(9).

The Supreme Court has “described § 1252(b)(9) as a ‘zipper clause’ which

“consolidate[s] ‘judicial review’ of immigration proceedings into one action in

the court of appeals.” St. Cyr, 533 U.S. at 313.5 But the Court has made clear

that “it applies only ‘[w]ith respect to review of an order of removal under

subsection (a)(1).’” Id. (emphasis added). As a result, “§ 1252(b)(9) does not

clearly apply to actions brought pursuant to the general habeas statute, and

thus cannot repeal that statute either in part or in whole.” Id. at 314; see id.

at 302 (noting that the writ of habeas corpus historically “encompassed

detentions based on errors of law, including the erroneous application or

interpretation of statutes”); see also Ozturk, 136 F.4th at 399. Here, Hu is not

challenging an order of removal. Respondents therefore have not shown that

section 1252(b)(9)’s jurisdictional-bar applies to Hu’s petition.

For all of the reasons stated, the Court should find that it possesses

jurisdiction to consider Hu’s Petition challenging the constitutionality of her

detention.

2. Hu is excused from administrative exhaustion

Respondents state that Hu must exhaust her administrative remedies

and assert that she has not done so. Doc. 9, at 12–14. Hu does not disagree that

exhaustion is required and that she has not done so. Rather, Hu argues that

5 Congress amended the Immigration and Nationality Act in response to

St. Cyr, to eliminate habeas as a method to review final orders of removal for

criminal aliens. See REAL ID Act of 2005, Pub. L. 109-13. Div. B, § 106, 119

Stat. 231; Nasrallah v. Barr, 590 U.S. 573, 580 (2020). Importantly, although

“the Real ID Act eliminate[d] a district court’s jurisdiction over habeas

petitions challenging final orders of removal,” it “did not eliminate a district

court’s jurisdiction to review habeas petitions challenging an alien’s

detention.” Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006).

her failure to exhaust should be excused on futility grounds. Doc. 1, at 11,

¶¶45–46; Doc. 10, at 15–16.

“When ‘Congress has not clearly required exhaustion, sound judicial

discretion governs’ whether or not exhaustion should be required.” See

Shearson v. Holder, 725 F.3d 588, 593 (6th Cir. 2013) (citation omitted).

“[E]xhaustion may not be required when the administrative remedy ‘does not

serve the purposes behind the exhaustion doctrine[],’ if the ‘administrative

remedies are inadequate or not efficacious,’ or ‘where pursuit of administrative

remedies would be a futile gesture.’” Id. at 594 (quoting Shawnee Coal Co. v.

Andrus, 661 F.2d 1083, 1093 (6th Cir. 1981)). “Additionally, ‘[e]xhaustion of

administrative remedies may not be required in cases of non-frivolous

constitutional challenges to an agency’s procedures.’” Id. (quoting Bangura v.

Hansen, 434 F.3d 487, 493 (6th Cir. 2006)).

Even assuming that exhaustion is required, Hu has shown that

exhaustion would be futile.

Hu explains that the Board of Immigration Appeals “‘has predetermined

the disputed issue’ by having a ‘clearly stated position’ that [Hu] is not eligible

for the relief sought.” Doc. 10, at 16 (quoting Shearson, 725 F.3d at 594 and

citing Mosqueda v. Noem, No. 5:25-cv-2304, 2025 WL 2591530, at *7 (C.D. Cal.

Sept. 8, 2025); see also Doc. 1, at 11–12, ¶46. This is true; the Board of

Immigration Appeals has determined that petitioners like Hu are not eligible

for bond hearings. See Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 216 (BIA

2025); Matter of Q, 29 I. & N. Dec. 66 (BIA 2025). Exhaustion therefore would

be futile. See Alvaro Ramirez Moreno v. Lynch, No. 4:26-cv-275, 2026 WL

496634, at *3 (N.D. Ohio Feb. 23, 2026) (“This Court cannot think of anything

more clearly amounting to a ‘futile gesture’ than requiring Petitioner to spend

time appealing the Immigration Court’s decision to deny him a bond hearing

to the very agency that passed down that unequivocal directive [in Hurtado]”).

And the fact that Hu has a pending appeal in the Board of Appeals doesn’t

change this result. See Barco Mercado v. Francis, No. 25-cv-6582, -- F.Supp.3d

--, 2025 WL 3295903, at *12 (S.D.N.Y. Nov. 26, 2025) (“To force [Petitioner] to

request a bond hearing from an immigration judge … and then appeal that

denial to the same BIA that has prevented immigration judges from hearing

bond requests in the first place, all before allowing [Petitioner] to seek judicial

review of his [detention]...would be ‘Kafkaesque.’”).

For all of the reasons stated, the Court should determine that Hu is not

required to exhaust her administrative remedies.

3. Mandatory detention under 8 U.S.C. § 1225(b) does not apply to Hu

because she is subject to discretionary detention under 8 U.S.C. § 1226(a).

Having concluded that this Court has jurisdiction and that exhaustion

would be futile, I turn to the merits of Hu’s claim.6 The parties dispute whether

Hu falls under 8 U.S.C. §§ 1225(b) or 1226(a). Under Section 1225, a noncitizen

6 Respondents present this issue as a jurisdictional bar. Doc. 9, at 6–8. I

evaluate the issue on the merits, and, to the extent jurisdiction would be

implicated, the outcome here would not bar this Court’s jurisdiction.

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

been admitted,’ is treated as ‘an applicant for admission.’” Jennings, 283 U.S.

at 287. There are two categories of applicants for admission described in

Section 1225, “those covered by § 1225(b)(1) and those covered by § 1225(b)(2).”

Id.

Section 1225(b)(1) covers the “[i]nspection of aliens arriving in the

United States and certain other aliens who have not been admitted or paroled.”

8 U.S.C. § 1225(b)(1). Respondents argue that this provision “authorizes

mandatory detention pending a final determination of credible fear of

persecution and, if found not to have such a fear, until removed.” Doc. 9, at 6

(citing 8 U.S.C. § 1225(b)(1)(B)(iii)(IV)). But Section 1225(b) covers inspections

and describes events occurring at the time the non-citizen arrives in this

country. See also 8 U.S.C. § 1225(b)(1)(A) (“Screening”); § 1225(b)(1)(B)

(“Asylum interviews”). The specific subsection that the Respondents rely on

references mandatory detention in the context of an asylum interview, which is

conducted by an asylum officer when the non-citizen arrives in the United

States. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). Here, there is no evidence showing that

officers conducted an asylum interview with Hu when she arrived at the

border. Indeed, Hu’s Notice to Appear shows that this did not occur. Doc. 1-2,

at 1 (NTA showing the box for this option is unchecked). Hu didn’t express an

intent to apply for asylum until nearly three months after she arrived in this

country. Doc. 9-2. Respondents therefore have not shown that Hu’s detention

is required under Section 1225(b)(1).

As for Section 1225(b)(2)(A), it provides that “in the case of an alien who

is an applicant for admission, if the examining immigration officer determines

that an alien seeking admission is not clearly and beyond a doubt entitled to

be admitted, the alien shall be detained for a proceeding under section 1229a

of this title.” 8 U.S.C. § 1225(b)(2) (emphasis added). By contrast, under Section

1226(a) “an alien may be arrested and detained pending a decision on whether

the alien is to be removed from the United States.” 8 U.S.C. § 1226(a)

(emphasis added). And immigration authorities “may release the alien on …

bond … or … conditional parole.” 8 U.S.C. § 1226(a)(2)(A), (B). Further, 8

U.S.C. § 1229a sets out the manner in which removal proceedings should occur

but does not impose a detention requirement.

Respondents argue that Hu is subject to mandatory detention based on

application of Section 1225(b)(2)(A) because she is an “applicant for

admission.” Doc 9, at 6. They also claim that Hu is subject to detention and

ineligible for a bond hearing under 1229a because she in “currently in removal

proceedings.” Id., at 7. Hu contends that individuals like her “who have not

been inspected and authorized by an immigration officer lack the trait to be

categorized as ‘applicants for admission.’” Doc. 10, at 7.

The heart of the parties’ dispute comes down to Respondents’ contention

that aliens seeking admission are the same as aliens who are applicants for

admission. Doc. 5, at 20. An applicant for admission is defined as “[a]n alien

present in the United States who has not been admitted or who arrives in the

United States (whether or not at a designated port of arrival and including an

alien who is brought to the United States after having been interdicted in

international or United States waters).” 8 U.S.C. § 1225(a)(1). By contrast, the

term seeking admission is not defined by statute. So the Court turns to the

phrase’s plain or “ordinary meaning,” which is often determined with reference

to “grammar and dictionary definitions.” Niz-Chavez v. Garland, 593 U.S. 155,

168–69 (2021).

The word “seek” means “to ask for,” “to try to acquire or gain,” or “to

make an attempt.” Seek, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/seek (last visited Feb. 25, 2025). Because the word

seeking is the present participle of the verb seek, its use “‘implies some sort of

present-tense action.’” Curillo v. Noem, No. 1:25-cv-1340, 2025 WL 3235737, at

*5 (W.D. Mich. Nov. 20, 2025) (quoting Martinez v. Hyde, No. CV 25-11613,

2025 WL 2084238, at *6 (D. Mass. July 24, 2025)). “‘Seeking’ requires

something more than just passively being present in the United States.”

Chavez v. Dir. of Detroit Field Off., No. 4:25-cv-2061, 2025 WL 3187080, at *5

(N.D. Ohio Nov. 14, 2025).

And the thing the alien must be seeking is “admission.” Admission is

defined as “lawful entry ... into the United States after inspection and

authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). “Entry” is

not defined but a commonly referenced dictionary says that it means “the act

of entering.” Entry, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/entry (last visited Feb. 25, 2025). And Black’s Law

Dictionary says that in this context, it means “[a]ny entrance of an alien into

the United States, whether voluntary or involuntary.” Entry, Black’s Law

Dictionary (12th ed. 2024).

The Board has long defined “entry” into our country

for immigration purposes to require (1) a crossing

into the territorial limits of the United States; (2)

inspection and admission by an immigration officer

or actual and intentional evasion of inspection; and

(3) freedom from official restraint.

Lopez v. Sessions, 851 F.3d 626, 630 (6th Cir. 2017), abrogated on other grounds

by Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020). Putting all of this together,

seeking admission means presently trying to cross into the United States. See

Campbell v. Almodovar, No. 1:25-cv-09509, 2025 WL 3538351, at *6 (S.D.N.Y.

Dec. 10, 2025) (citing cases), opinion clarified, 2025 WL 3626099 (S.D.N.Y. Dec.

15, 2025). But see Buenrostro-Mendez v. Bondi, No. 25-20496, -- F.4th --, 2026

WL 323330, at *5 (5th Cir. Feb. 6, 2026) (reaching the opposite conclusion).

And Hu was not at the time she was detained trying to cross into the United

States—she had been in the United States for over a year.

Respondents say that their reading is compelled by the Supreme Court’s

decision in Jennings. See Doc. 9, at 6. Other courts have dispatched this

argument:

Binding Supreme Court precedent further supports

the petitioner’s read of the statute. In Jennings v.

Rodriguez, the Supreme Court analyzed Sections

1225, 1226, and 1227 to determine whether

“detained aliens have a statutory right to periodic

bond hearings.” 583 U.S. at 285. The Court made it

clear that “Section 1225 authorizes ‘the Government

to detain certain aliens seeking admission into the

country,’ while Section 1226 ‘authorizes the

Government to detain certain aliens already in the

country pending the outcome of removal

proceedings.’” Sarmiento Guerrero, 2025 WL

3214787, at *5 (quoting Jennings, 582 U.S. at 288)

(emphasis in Sarmiento Guerrero); see also Nielsen

[v. Preap, 586 U.S. 392, 396–97 (2019] (holding that

Section 1226(a) applies to noncitizens “present in

this country”).

The government claims that Jennings stands for the

proposition that “[a]pplicants for admission fall into

one of two categories, ‘those covered by § 1225(b)(1)

and those covered by § 1225(b)(2).’” (ECF No. 8 at 11

(quoting Jennings, 583 U.S. at 287).) The

government’s interpretation is not persuasive,

because it takes the above language out of context.

The quote upon which the government rests its

theory appears in a discussion about “decid[ing] (1)

who may enter the country and (2) who may stay

here after entering.” Jennings, 538 U.S. at 286.

Justice Alito, writing for the majority, explained:

That process of decision generally begins at the

Nation’s borders and ports of entry, where the

Government must determine whether an alien

seeking to enter the country is admissible.

Under § 302, 110 Stat. 3009–579, 8 U.S.C. §

1225, an alien who “arrives in the United

States,” or “is present” in this country but “has

not been admitted,” is treated as “an applicant

for admission.” § 1225(a)(1). Applicants for

admission must “be inspected by immigration

officers” to ensure that they may be admitted

into the country consistent with U.S.

immigration law. § 1225(a)(3).

As relevant here, applicants for admission fall

into one of two categories, those covered by §

1225(b)(1) and those covered by § 1225(b)(2).

Id. at 287 (quoting 8 U.S.C. § 1225). Read in context,

the quoted language clearly refers to the “process ...

at the Nation’s borders and ports of entry.” Id.; see

also id. (“As relevant here, applicants for admission

fall into one of two categories ...” (emphasis added)).

Any possible doubt about the Court’s meaning is

erased by the Court's summary:

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).

Id. at 289. Thus, the government's argument that all

“[a]pplicants for admission fall into one of two

categories” under Section 1225 is inconsistent with

the broader statutory scheme and with the Supreme

Court's recent, clear explanation of that statutory

scheme.

Ye v. Maldonado, No. 25-cv-6417, 2025 WL 3521298, at *5 (E.D.N.Y. Dec. 8,

2025).

Tellingly, immigration authorities in Hu’s Notice to Appear alleged, by

checking a box, that she is: “an alien present in the United States who has not

been admitted or paroled.” Doc. 1–2, at 1 (emphasis added). Authorities did not

check the box immediately above that box, which provides “You are an arriving

alien.” Respondents’ choice amounts to a judicial admission that Hu is not an

arriving alien. See Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008)

(explaining that allegations in a Notice to Appear, like those in a complaint,

are judicial admissions); see also Official Comm. of Unsecured Creditors of

Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)

(“the allegations in the Second Amended Complaint are judicial admissions by

which [Plaintiff] was bound throughout the course of the proceeding”) (internal

quotation marks and alterations omitted)); El Paso Nat. Gas Co. v. United

States, 750 F.3d 863, 876 (D.C. Cir. 2014); Keller v. United States, 58 F.3d 1194,

1198 n.8 (7th Cir. 1995).

Under the plain text of Hu’s Notice to Appear, Hu was simply passively

present in the United States without being admitted or paroled––and nothing

more. “[A]s an immigrant arrested and detained while ‘already in the

country[,]’ Jennings, 583 U.S. at 289, [Hu] falls … within § 1226(a)’s default

rule,” Chavez, 2025 WL 3187080, at *4. Section 1226(a) gives immigration

judges broad discretion to permit or deny release on bond and “makes no

distinction between admitted and unadmitted immigrants.” Chavez, 2025 WL

3187080, at *5. The key is that Section 1226(a) makes discretionary bond

available, rather than imposing mandatory detention. Respondents have not

explained to whom they think Section 1226(a) might apply, or why Hu would

not fall under this section.

Because Hu should have been, but was not, considered for release on

bond under Section 1226(a), the Court should grant her petition and order the

immigration court to conduct a bond hearing.

4. Hu has not shown that the Bautista decision is binding on this

Court

In late 2025, a California district court issued a series of orders in a case

similar to this one. See Bautista v. Santacruz, No. 5:25-cv-1873, -- F.Supp.3d -

-, 2025 WL 3713987, at *32 (C.D. Cal. Dec. 18, 2025). The court also certified a

Rule 23(b)(2) Bond Eligible Class for:

All noncitizens in the United States without lawful

status who (1) have entered or will enter the United

States without inspection; (2) were not or will not be

apprehended upon arrival; and (3) are not or will not

be subject to detention under 8 U.S.C. § 1226(c), §

1225(b)(1), or § 1231 at the time the Department of

Homeland Security makes an initial custody

determination.

Id. at *32.

Hu contends that she falls within this class and that this Court “must

apply the Maldonado Bautista final judgment.” Doc. 10, at 10 (emphasis

added). Respondents argue that “a district court in California has no

jurisdiction over custodians located in other districts” and list other reasons

that counsel against applying to Hu’s case the judgment in the California case.

Id. at 10–12.

The only legal authority that Hu cites to support her argument that this

Court must take action based on the California court’s judgment is Velasco-

Sanchez v. Raycraft, No. 2:25-cv-13730, 2025 WL 3553672, at *2 (E.D. Mich.

Dec. 11, 2025). Doc. 10, at 11. The court in Valasco-Sanchez discussed the

Maldonado Bautista case and agreed with its reasoning regarding the

application of 8 U.S.C. §§ 1225(b) and 1226(a). 2025 WL 3553672, at *2–4. The

court did not find that the judgment in Maldonado Bautista must be applied

in that case. See id. Because Hu has not shown that this Court is bound by the

judgment in Maldonado Bautista, her argument fails.

5. Alternatively, Hu is entitled to relief on her due process claim

Even if the Court finds that Hu is subject to mandatory detention under

Section 1225(b)(2), it should grant her petition and direct the immigration

court to conduct a bond hearing under the Fifth Amendment Due Process

Clause. The Fifth Amendment right to due process applies to all persons,

including noncitizens, who are present in the United States. Zadvydas, 533

U.S. at 693.

Generally, Hu claims that her continued detention absent a bond

hearing represents a violation of her right to due process. Doc. 1, at 14, ¶64;

15, at ¶¶69, 71. She also argues that the Immigration Court has not and cannot

provide her with an asylum hearing because it doesn’t have an interpreter who

speaks the Hebei dialect that Hu speaks. Id. at 14–15, ¶¶65, 69.

Respondents’ counter to Hu’s argument that her detention without bond

violates her due process rights “are tied to her failure to exhaust and are not

plausible because she continues to file motions and appeals of the denial of

bond.” Doc. 9, at 13. But as already explained, Hu’s exhaustion of remedies

would be futile. Respondents assert that Hu is not entitled to a bond hearing

under Section 1225, id., at 14, but this argument fails, as explained above.

Respondents contend that “even considering cases on prolonged

detention,” Hu would not be entitled to a bond hearing and accuse Hu of

purposefully delaying her asylum hearing. Doc. 9, at 14. But the cases they cite

are not on point. Zadvydas concerned detention after an alien receives a final

order of removal. 533 U.S. at 682. Demore concerns mandatory detention for

certain criminal aliens. 538 U.S. at 513. Hu has not received a final order of

removal and no one has alleged that she is a criminal. And Martinez v. Larose,

968 F.3d 555 (6th Cir. 2020), the last case Respondents rely on, Doc. 9, at 14,

is inapplicable. That case concerns an alien with a reinstated removal order

who was subject to detention under 8 U.S.C. § 1231, which is not at issue here.

Martinez, 968 F.3d at 558.

Further, the merits of Gualpa’s due process claim under the applicable

balancing test justify relief. See United States v. Silvestre-Gregorio, 983 F.3d

848, 852 (6th Cir. 2020) (applying the balancing test established in Mathews v.

Eldridge, 424 U.S. 319 (1976)). Under this test the Court weighs: (1) the

private interest that will be affected by the official action; (2) the risk of

erroneous deprivation of that interest; and (3) the government’s interest,

including the fiscal and administrative burdens that the additional or

substitute procedures entail. See Mathews, 424 U.S. at 335.

First, Hu’s liberty is at stake. Second, Respondents’ position has been

inconsistent. Hu was previously released and permitted to go about living for

over a year in the United States during the pendency of her immigration

proceedings before being detained in 2025. These contradictions tend to show

that Hu is at risk of being erroneously deprived of her freedom. The second

factor thus weighs in her favor.

Lastly, based on the information described throughout this

recommendation, Respondents have not and likely cannot show that it has any

significant interest in Hu’s continued detention. Indeed, the fact that they

released Hu for over a year weighs against any potential argument by

Respondents regarding this third factor.

Based on the above, I recommend that that the Court grant Hu’s

Petition and that the immigration court be ordered to conduct a bond hearing.

Conclusion

Because Section 1225(b) is inapplicable to Hu, Respondents may not

now impose mandatory detention pending her removal decision. I recommend

that the District Court grant Hu’s petition and require the immigration court

to conduct a hearing to determine whether, consistent with this Court’s

determination, Hu is entitled to discretionary bond under Section 1226(a).

Dated: February 26, 2026

/s/James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).