Malih

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

BASSIM MALIH, )

)

Petitioner,

)

)

v.

)

)

SCOTT LADWIG, New Orleans Field Office

Director of Immigration and Customs

) No. 2:26-cv-02150-SHL-cgc

)

Enforcement; U.S. DEPARTMENT OF

)

HOMELAND SECURITY, Enforcement and

)

Removal Operations; U.S. IMMIGRATION

)

AND CUSTOMS ENFORCEMENT,

)

Respondents. )

ORDER GRANTING PETITION

On February 13, 2026, Petitioner Bassim Malih filed the Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2241. (ECF No. 1.) Malih challenges his continued detention in the

West Tennessee Detention Facility as an “arriving alien” without a bond hearing. (ECF No. 1-3

at PageID 16.) He seeks immediate release from Respondents’ custody. (Id.) On February 13,

the Court issued an order requiring Malih to supplement the Petition with additional facts and

directing Respondents to respond. (ECF No. 5.) Malih filed his supplemental facts on February

16. (ECF No. 7.) On February 20, Respondents files their response. (ECF No. 10.) For the

reasons explained below, Malih is entitled to immediate release, and the Petition is GRANTED.

BACKGROUND

Malih, a fifty-one-year-old native and citizen of Syria, is a member of the Druze religious

minority. (ECF No. 7 at PageID 24.) According to Malih, members of this group “are

systematically persecuted by the majority Muslim population,” with no protection from the

Syrian government. (Id. at PageID 25.) “When Mr. Malih was forty-seven years old, the Syrian

armed forces attempted to forcibly conscript him into military service against his will.” (Id.)

Malih was married with two young children in Syria, ages twelve and eight. (Id.) Facing

conscription, he sought safety in the United States, arriving in July 2023. (Id.) Upon his arrival,

he encountered immigration authorities and was released on his own recognizance. (Id.)

Thereafter, he “timely filed a Form I-589, Application for Asylum, Withholding of Removal, and

Convention Against Torture.” (Id.) He was granted work authorization. (Id. at PageID 26.)

Malih states that, for over two years, he “complied with all conditions of his release,” “appeared

for all scheduled check-ins with ICE,” “maintained his residence in Memphis, Tennessee,” and

“obtained lawful employment at a gas station, where he worked consistently and reliably.” (Id.)

He has a “strong support network” provided by his cousin, living in Memphis. (Id.) There is no

indication that he has any criminal history.

On November 18, 2025, during one such routine report to the ICE office, Malih was

arrested. (Id. at PageID 27.) He has been detained at the West Tennessee Detention Facility

ever since. (Id.) Since his detention, Malih has requested a bond hearing in immigration court.

(ECF No. 10-2 at PageID 54–57.) However, the Immigration Judge (“IJ”) denied his request,

citing the recent Board of Immigration Appeals (“BIA”) decision in Matter of Yajure Hurtado,

29 I. & N. Dec. 216, 220 (B.I.A. 2025). (Id.) The present Petition followed, the crux of which

argues that Malih was detained without a bond hearing.

Indeed, under recently adopted guidance from DHS and ICE, Malih is subject to

mandatory detention under 8 U.S.C. § 1225(b)(2)(A) of the INA and was declared ineligible to

be released on bond. Until recently, however, most noncitizens in this situation were given bond

hearings under a different provision, § 1226(a). See Godinez-Lopez v. Ladwig, No. 25-CV-

02962, 2025 WL 3047889, at *1 (W.D. Tenn. Oct. 31, 2025). Section 1226(a) allows

immigration authorities to release immigrants from detention on a bond of $1,500 or more,

unless they require detention for certain reasons. For example, noncitizens with certain criminal

records may not be released on bond. 8 U.S.C. § 1226(c).

Section 1225(b)(2)(A), on the other hand, prohibits a bond for all “applicants for

admission” who are “seeking admission.” “Applicants for admission” has been interpreted to

mean recent arrivals, including those who have not been “physically present in the United States

continuously” for the previous two years. See 8 U.S.C. § 1225(b)(1)(A)(iii)(II) (“An alien

described in this clause is an alien who . . . has not affirmatively shown . . . that the alien has

been physically present in the United States continuously for the 2-year period immediately prior

to the date of the determination of inadmissibility . . . .”).

But, on July 8, 2025, ICE, in coordination with the Department of Justice (“DOJ”), issued

a new policy with a novel interpretation of §§ 1225(b)(2)(A) and 1226(a). Interim Guidance

Regarding Detention Authority for Applicants for Admission, AILA (July 8, 2025),

https://www.aila.org/ice-memo-interim-guidance-regarding-detention-authority-for-applications-

for-admission (“For custody purposes, these aliens are now treated in the same manner that

‘arriving aliens’ have historically been treated.”). The policy reclassified all undocumented

immigrants, even those who have lived in the United States for years, as “applicants for

admission.” And all “applicants for admission” are required to be detained for removal

proceedings without a bond hearing under § 1225(b)(2)(A).

Thus, ICE’s new legal interpretation makes § 1225(b)(2)(A), not § 1226(a), the statute

governing removal proceedings for all immigrants without legal status. As a result, all

undocumented immigrants awaiting removal are detained without a bond hearing. This new

interpretation was later adopted by the BIA in a published decision, Yajure Hurtado, 29 I. & N.

Dec. 216, 220 (B.I.A. 2025).

Malih faces the risk of continued detention without a bond hearing. (ECF No. 1 at

PageID 6.) His Petition alleges violations of Fifth Amendment due process, the Fourth

Amendment protection against unreasonable seizures, and the Eighth Amendment prohibition on

cruel and unusual punishment. (Id. at PageID 6–7.) He seeks his immediate release. (Id.)

In response, Respondents contend that the Fifth Circuit’s recent opinion in Buenrostro-

Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), provides persuasive authority for denying the

petition; that Malih should be treated for due process purposes as if stopped at the border; that no

Fourth Amendment right was violated because his detention was reasonable; and that, if the

Court finds that § 1226(a) applies to him, he should be granted a bond hearing and not

immediately released. (ECF No. 10 at PageID 43–49.)

ANALYSIS

“Habeas relief is available when a person is ‘in custody in violation of the Constitution or

laws or treaties of the United States.’” Lopez-Campos v. Raycraft, No. 25-CV-12486, 2025 WL

2496379, at *3 (E.D. Mich. Aug. 29, 2025) (quoting 28 U.S.C. § 2241(c)(3)). Malih challenges

his detention without bond as violative of his constitutional rights. (ECF 1 at PageID 6–7.) The

Court first interprets the statutes to determine whether §1225 or § 1226 is applicable, and then

analyzes the due process claim.

I. Statutory Interpretation

“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.” Corley v. United States, 556 U.S.

303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). Each word within a statute

must be given “‘its ordinary, contemporary, common meaning,’ while keeping in mind that

‘statutory language has meaning only in context.’” Kentucky v. Biden, 23 F.4th 585, 603 (6th

Cir. 2022) (citation modified) (citing Walters v. Metro. Edu. Enters., Inc., 519 U.S. 202, 207,

(1997)).

Custody over noncitizens during removal proceedings is generally governed by two

statutes, 8 U.S.C. § 1225 (entitled “Inspection by immigration officers; expedited removal of

inadmissible arriving aliens; referral for hearing”) and § 1226 (entitled “Apprehension and

detention of aliens”). Section 1225(b) requires mandatory detention, providing in relevant part:

(b) Inspection of applicants for admission

. . .

(2) Inspection of other aliens

(A) In general

Subject to subparagraphs (B) and (C), 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)(A) (emphasis added). An “applicant for admission” is a noncitizen

“present in the United States who has not been admitted.” 8 U.S.C. § 1225(a)(1). Under this

section, all applicants for admission “shall be detained.” Id. § 1225(b)(2)(A).

Section 1226(a), on the other hand, allows for discretionary detention, providing in

relevant part:

(a) Arrest, detention, and release

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

detained pending a decision on whether the alien is to be removed from the

United States. Except as provided in subsection (c) and pending such

decision, the Attorney General—

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

(2) may release the alien on—

(A) bond of at least $1,500 with security approved by, and

containing conditions prescribed by, the Attorney General .

. . .

8 U.S.C. § 1226(a) (emphasis added). The exception in § 1226(c) prohibits releasing on bond a

noncitizen found to be inadmissible, who also,

is charged with, is arrested for, is convicted of, admits having committed, or admits

committing acts which constitute the essential elements of any burglary, theft,

larceny, shoplifting, or assault of a law enforcement officer offense, or any crime

that results in death or serious bodily injury to another person . . . .

Id. § 1226(c)(1)(E)(ii). “Noncitizens arrested and detained under § 1226 have a right to request a

custody redetermination (i.e., a bond hearing) before an IJ.” Lopez-Campos, 2025 WL 2496379,

at *4 (citing 8 C.F.R. § 1236.1(c)(8), (d)(1)) (citation modified). “The IJ evaluates whether there

is a risk of nonappearance or danger to the community.” Id. (citing Guerra, 24 I. & N. Dec. 37,

40 (B.I.A. 2006)). Thus, except for those noncitizens with a record of certain criminal offenses,

§ 1226(a) allows immigration authorities to choose to release or detain noncitizens, subject to a

hearing before an IJ on the issue.1

Malih argues that ICE’s new interpretation of § 1225(b)(2)(A) violates his rights under

the Fourth, Fifth, and Eighth Amendments. (ECF No. 1 at PageID 6–7.) He argues that 8 U.S.C.

§ 1226(a) applies to his detention because he not an “arriving alien.” (ECF No. 1-3 at PageID

16–17.) He argues that, because he entered the United States over two years ago and was

“apprehended in the interior,” he is not an “arriving alien” and thus § 1226(a) applies. (Id. at

PageID 15.) For these reasons, he seeks his immediate release. (Id. at PageID 17.)

1 See 8 C.F.R. § 1236.1(c)(8), (d)(1) (“Any officer authorized to issue a warrant of arrest

may, in the officer’s discretion, release an alien . . . . After an initial custody determination . . .

the respondent may . . . request amelioration of the conditions under which he or she may be

released. . . . [T]he immigration judge is authorized . . . to detain the alien in custody, release the

alien, and determine the amount of bond, if any, under which the respondent may be released . . .

.”).

Respondents argue that § 1225(b)(2)(A), not § 1226(a), applies to Malih because he

“entered the United States without inspection or parole” and thus remains “an ‘applicant for

admission’ who is treated, for constitutional purposes, as if stopped at the border.” (ECF No. 10

at PageID 44.) As a result, they assert that “he is subject to mandatory detention and not entitled

to a bond hearing.” (Id.) They incorporate by reference their statutory arguments from previous

cases such as Godinez-Lopez, 2025 WL 3047889. (Id. at PageID 44–45.)

The plain text of §§ 1225(b)(2)(A) and 1226(a) do not support Respondents’ contention

that Malih is “seeking admission.” Beginning with the titles, the title of § 1225 is “Inspection by

immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing.”

The title of § 1226(a) is “Apprehension and detention of aliens.” Although titles of statutes are

not controlling, they are “tools available for the resolution of a doubt about the meaning of a

statute.” Dubin v. United States, 599 U.S. 110, 121 (2023) (citation modified). Here, § 1225’s

title describes “arriving aliens” who are placed into “expedited removal” proceedings. But Malih

was not “arriving” when he was detained far away from the United States border, after having

been in this country for over two years. (ECF No. 7 at PageID 25.) Also, the record does not

show that he was eligible for expedited removal proceedings. Thus, the mandatory detention

provision of § 1225 does not apply to him.

Further, the subject matter of § 1225 undercuts Respondents’ reading of the statute.

Section 1225 describes the process of inspecting and removing immigrants actively crossing the

border. See Jennings v. Rodriguez, 583 U.S. 281, 287 (2018) (“That process of decision

[described in § 1225] 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.”). And

Respondents’ reading of § 1225(b)(2)(A) ignores several words and phrases within the statute

itself. “If possible, every word and every provision is to be given effect.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012). But to apply

§ 1225(b)(2)(A) to Malih would render the following underlined words superfluous:

[I]n 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)(A) (emphasis added). The record does not show that Malih was seeking

admission at the time of his detention, and nor does it show that he had received a determination

by an immigration officer that he was “not clearly and beyond a doubt entitled to be admitted.”

The language of § 1225(b)(2)(A) makes sense in the context of the border, but not in a situation

like this, when a noncitizen has been physically present, albeit unlawfully, for over two years.

To interpret “alien seeking admission” using its ordinary meaning but outside the context of the

provision, as argued by Respondent, is untenable.

Also, Respondents’ interpretation of § 1225(b)(2)(A) would render § 1226(c)

superfluous. That subsection carves out an exception to the general rule that an arrested

noncitizen is eligible for a bond. Under subsection (c), a noncitizen with a certain criminal

history must be mandatorily detained. 8 U.S.C. § 1226(c)(1)(E)(ii) (“The Attorney General shall

take into custody any alien who . . . is charged with, is arrested for, is convicted of, admits

having committed, or admits committing acts which constitute the essential elements of any

burglary, theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime

that results in death or serious bodily injury to another person . . . .”). But, under Respondents’

reading of § 1225, all arrested noncitizens must be detained without bond. Thus, § 1226(c)

would have no purpose. Yet, courts must “give effect, if possible, to every clause and word of a

statute.” Duncan v. Walker, 533 U.S. 167, 174 (2001). Malih’s reading of the statute is the only

one compatible with the presence of § 1226(c). What is more, Malih has no criminal record in

the United States, so this mandatory detention provision cannot conceivably be applied to him.

See § 1226(c)(1)(E)(ii).

The plain language of § 1226(a) describes Malih’s situation. That section applies to the

“apprehension and detention of aliens,” providing that, upon “a warrant issued by the Attorney

General, an alien may be arrested or detained pending a decision on whether the alien is to be

removed from the United States.” 8 U.S.C. § 1226(a). Malih was charged with being removable

and detained in West Tennessee. Thus, the Attorney General has discretion under this section.

She “may continue to detain [him]” or she “may release [him] on bond.” (Id.) But the Attorney

General may not deny him the bond hearing to which he is entitled. See 8 C.F.R. § 1236.1(c)(8),

(d)(1).

Not only is the plain language of §§ 1225 and 1226 sufficient to support a finding in

Malih’s favor, but the Congressional intent behind § 1226(a) is also supportive. In 2025,

Congress passed the Laken Riley Act, adding a subsection to § 1226(c) to preclude persons with

criminal histories from receiving bond. Pub. L. No. 119-1, 139 Stat. 3 (2025). Congress would

not have added exceptions to the broad rule of § 1226(a) if, as Respondents assert, it intended §

1226(a) to give way to § 1225(b)(2)(A) in all cases. See Shady Grove Orthopedic Assocs., P.A.

v. Allstate Ins. Co., 559 U.S. 393, 400 (2010) (“The fact that Congress has created specific

exceptions to [a rule] hardly proves that the [rule] does not apply generally. In fact, it proves the

opposite.”). On the contrary, Congress’s recent attention to § 1226 points to its approval of the

interpretation prevailing before July 2025. After all, “[i]f § 1225(b)(2) already mandated

detention of any alien who has not been admitted, regardless of how long they have been here,

then adding § 1226(c)(1)(E) to the statutory scheme was pointless.” Lopez-Campos, 2025 WL

2496379, at *8 (quoting Maldonado v. Olsen, No. 25-cv-3142, 2025 WL 237441, at *12 (D.

Minn. Aug. 15, 2025)).

Finally, Respondents point to a recent Fifth Circuit opinion which reached an opposite

conclusion on these issues. (ECF No. 10 at PageID 44–45 (citing Buenrostro-Mendez, 166 F.4th

494).) Particularly relevant to Malih’s arguments, the Buenrostro-Mendez court found that

“seeking admission” is equivalent to being an “applicant for admission.” 166 F.4th at 502–06.

As a result, the Fifth Circuit held that all those who have crossed the border unlawfully fall under

§ 1225, not § 1226, and thus are ineligible for bond hearings. Id. at 508.

Buenrostro-Mendez does not bind this Court, and its reasoning is not persuasive here.

First, because it conflates the terms “seeking admission” with “applicant for admission,” it

renders the two phrases redundant. The canon against surplusage, and common sense, dictate

that these terms should have different meanings because the statute includes them both in the

same provisions and even in the same sentences. See Buenrostro-Mendez, 166 F.4th at 510

(Douglas, J., dissenting) (quoting Scalia & Garner, supra, at 170). Second, the holding in

Buenrostro-Mendez makes superfluous the existence of § 1226(c)(1), a part of the Laken Riley

Act, which lists certain crimes that render an applicant ineligible for a bond hearing. If a

criminal record makes a bond hearing impossible, it makes little sense that all bond hearings for

unlawful entrants are impossible. See Buenrostro-Mendez, 166 F.4th at 512 (Douglas, J.,

dissenting).

Thus, given the plain language of §§ 1225 and 1226, the arrest and detention of an illegal

immigrant who has been continuously present in the United States for over two years is governed

by § 1226(a), and is subject to the discretionary bond process in that provision.

II. Due Process

The Fifth Amendment protects every person from being “deprived of life, liberty, or

property, without due process of law.” U.S. Const. amend. V. “The Due Process Clause extends

to all ‘persons’ regardless of status, including non-citizens (whether here lawfully, unlawfully,

temporarily, or permanently).” Lopez-Campos, 2025 WL 2496379, at *9 (citing Zadvydas v.

Davis, 533 U.S. 678, 690 (2001)). In the context of civil immigration detention, the Sixth Circuit

applies the balancing test from Mathews v. Eldrige, 424 U.S. 319 (1976), to evaluate the level of

process owed a noncitizen. See, e.g., United States v. Silvestre-Gregorio, 983 F.3d 848, 852 (6th

Cir. 2020). Those factors include (1) “the private interest that will be affected by the official

action,” (2) “the risk of an erroneous deprivation of such interest,” and (3) “the Government’s

interest, including the function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335.

Malih argues that Respondents violated the Due Process Clause of the Fifth Amendment

by detaining him without a bond hearing. (ECF No. 1 at PageID 6.) Respondents, however,

assert that Malih’s due process rights were not violated because, without a lawful entry, he

should be “‘treated’ for due process purposes ‘as if stopped at the border.’” (ECF No. 10 at

PageID 46 (quoting Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139 (2020)).)

Here, because § 1226(a) applies to Malih, he is owed the process given to him under that

statute. As for the Mathews factors, (1) Malih has a strong private liberty interest, (2) there is a

high risk of erroneous deprivation if no IJ evaluates his risk of flight and danger to the

community, and, (3) given Malih’s clean criminal record, it will be difficult for the Government

to demonstrate an interest in his detention. Indeed, before he was apprehended, Malih was

present in the United States for over two years, is employed, has family ties in Memphis, and is

awaiting an asylum determination. (ECF No. 7 at PageID 25–27.) These facts indicate his ties

to the United States, his desire to remain, and his expectation that he would remain free from

government custody.

As a result, his detention without bond violated his liberty interest, which cannot be

casually tossed aside. Thus, Malih is entitled to immediate release. See Villafranca Lara v.

Ladwig, No. 26-CV-02079-SHL-tmp, 2026 WL 401204, at *10 (W.D. Tenn. Feb. 12, 2026)

(“Because ICE purported to detain [petitioner] under § 1225(b)(2)(A), which includes no

provision for a bond hearing, the Court will not now order a bond hearing under § 1226(a).”).

Accordingly, his detention under the mandatory detention framework of § 1225(b)(2)(A) violates

his due process rights. Thus, consistent with the Court’s decision in Godinez-Lopez, and after

consideration of the record, Malih’s petition is GRANTED.2

CONCLUSION

For the reasons stated above, the Petition is GRANTED. Respondents are ordered to

release Malih immediately. Respondents are ENJOINED from pursuing Malih’s detention

under 8 U.S.C. § 1225(b)(2)(A). Respondents are further ORDERED to file a Status Report

with this Court on or before March 13, 2026, to certify compliance with this Order.

IT IS SO ORDERED, this 9th day of March, 2026.

s/ Sheryl H. Lipman

SHERYL H. LIPMAN

CHIEF UNITED STATES DISTRICT JUDGE

2 Because the Petition is granted on other grounds, the Court need not reach the questions

of whether Malih’s detention violated the Fourth or Eighth Amendments.