Herrera

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISON

NOLVIN ISMAEL HERRERA, ) CASE NO. 4:26-cv-00125-JRK

)

Petitioner, ) DISTRICT JUDGE JAMES R. KNEPP II

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

SECRETARY OF THE U.S. DEPARTMENT )

OF HOMELAND SECURITY, ET AL., ) REPORT AND RECOMMENDATION

)

)

Respondents.1

I. Introduction and Procedural History

On January 16, 2026, Petitioner Nolvin Ismael Herrera (“Herrera”) filed an application

for a writ of habeas corpus under 28 U.S.C. § 2241. (ECF Doc. 1). On January 21, 2026, the

matter was referred to me for a report and recommended decision. (ECF Doc. 4).

Under 28 U.S.C. § 2243, on January 21, 2026, I ordered Respondents to provide their

written response to the Petition (ECF Doc. 3), which they2 did on January 29, 2026 (ECF Doc.

9). I then held a telephone status conference on February 5, 2026, to permit the parties to present

argument regarding Petitioner’s status at the time of his detention and whether 8 U.S.C.

§§ 1225(b)(2)(A) or 1226(a) properly apply to him. (Non-document entry of Feb. 5, 2026). I

permitted the parties to supplement their briefing, which they did on February 10, 2026. (ECF

Docs. 10, 11). After review, I found Respondents’ submission deficient and ordered they

1 In their brief, Respondents state in a footnote that DHS Secretary Noem and Attorney General Bondi are not proper

respondents here, because only the Field Office Director for ICE may issue a writ of habeas corpus. (ECF Doc. 9, p.

8 n.1). Finding that the Detroit Field Office Director Kevin Raycraft is named as a Respondent and may therefore

issue the writ as to Herrera, I proceed.

2 Respondents Wardens Ed Voorhies and Mike Meintel did not make an appearance or otherwise respond.

supplement with documentation to support on what authority petitioner is being held. (Non-

document entry of Feb. 12, 2026). Respondents supplemented their response that same day by

reaffirming the previously submitted documents and by reasserting out-of-circuit authority for

their position that Petitioner’s detention is lawful under 8 U.S.C. § 1225. (ECF Doc. 12).

Petitioner has moved for sanctions and asks that the Court, strike, make an adverse inference, or

permit cross-examination of the witness, regarding that submission. (ECF Doc. 13).

II. Factual Background3

Herrera is a citizen of Nicaragua. (ECF Doc. 1, Pet., ¶ 25). He was a political protester

and fled Nicaragua’s Ortega regime and lived in Costa Rica with his family for a time. (Id.). He

was attacked in Costa Rica based on anti-Nicaraguan sentiment, and fled that country as well.

(Id.). He entered the United States on June 11, 2022, by crossing at the southern border. (Id.,

¶ 26). He did not enter with inspection at that time. (Id.). On June 12, 2022, he presented to

immigration authorities and was inspected by Customs and Border Patrol (“CBP”) officials at the

Del Rio, Texas port of entry; he claimed asylum and was granted parole into the United States.

(Id., ¶¶ 26-27; ECF Doc. 1-4). At that time, ICE gave Herrera a phone for reporting purposes.

(ECF Doc. 13-2, Herrera Aff., ¶ 1).

He was placed in removal proceedings on August 31, 2022, and given a notice to appear

(“NTA”) in Cleveland immigration court for November 28, 2023. (ECF Doc. 1, Pet., ¶ 28; see

3 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” without converting to summary judgment. Id., quoting Commercial Money

Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007).

also ECF Doc. 9-1). Herrera’s wife and two minor children were inspected and paroled into the

United States on November 10, 2022; the family has been living in Cleveland since. (Id., ¶ 29).

Upon reporting to the Brooklyn Heights, Ohio ICE office, Herrera was required to use the

SmartLink app for his required check-ins. (ECF Doc. 13-2, Herrera Aff., ¶ 2). He was required to

report every Friday by taking a photo in the app, and never missed a check-in. (Id., ¶¶ 3-4). In

addition to the Friday app check-ins, Herrera was required to attend appointments every three or

four months, either by phone or in person at the ICE office. (Id., ¶¶ 3, 5). The app had a calendar

notification system informing him of upcoming appointments and whether they would be by

phone or in-person. (Id., ¶ 5). If the appointment was in person, the ICE agent would generally

sign Herrera’s I-220 form to confirm attendance. (Id.).

Herrera timely applied for asylum on June 2, 2023. (ECF Doc. 1, Pet., ¶ 1). He was

granted work authorization on January 23, 2024, which remains current until January 22, 2029.

(ECF Doc. 1-5). Herrera asserts he has been compliant with all immigration requirements and

has attended all scheduled appointments.4 (ECF Docs. 1, ¶¶ 30, 32; see also ECF Doc. 13-2).

Herrera was detained on December 15, 2025, when he attended a scheduled immigration

appointment. (ECF Doc. 1, ¶ 30). He had been notified via the SmartLink app that his December

15, 2025 appointment had been changed from phone to in-person; when he arrived, he was

accused of missing court and informed that there was an order for his arrest. (ECF Doc. 13-2, ¶¶

6-7). He was then arrested, and his phone and paperwork were confiscated. (Id.).

4 Respondents assert, by way of an unsworn declaration, that Herrera missed his scheduled appointments despite

receiving reminders from the Agency. (ECF Docs. 11-3, 12-1). Despite multiple orders from this Court to support

these unsworn statements, Respondents provide no further detail as to the date of the appointments, any reminders

that were sent, or any supporting documentation to give reason for Herrera’s arrest and detention. (Compare id. with

ECF Doc. 6, non-document entries of Feb. 5, and 12, 2026). Herrera provides an affidavit, stating he has not missed

any appointments, nor did he fail to read any messages sent to him. (ECF Doc. 13-2). I address this point later.

Herrera’s counsel requested a bond hearing on December 16, 2025, but bond was denied

on January 22, 2026 because the immigration judge (“IJ”) determined they were without

jurisdiction to grant bond. (Id., ¶ 31; see also ECF Doc. 10, pp. 4-6). Herrera asserts that the IJ

found in the alternative that he was eligible for bond because he did not present a danger or a

flight risk. (ECF Doc. 10, p. 5).

Herrera now petitions this Court for habeas corpus relief, asserting that he is being

detained unlawfully in contravention to his statutory rights under the Immigration and

Nationality Act (“INA”), and against his due process rights under the U.S. Constitution. (ECF

Doc. 1, ¶¶ 50-59). He requests that this Court assume jurisdiction over his habeas proceedings,

issue a writ for his immediate release, and award attorney’s fees and costs as provided in the

Equal Access to Justice Act (“EAJA”) 28 U.S.C. § 2412. (ECF Doc. 1, pp. 13-14).

III. Legal Standard

The Constitution guarantees that, absent suspension, the writ of habeas corpus is

“available to every individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S.

507, 525 (2004), citing U.S. Const.., Art. I, § 9, cl. 2. Section 2241 of Title 28 confers the federal

courts with the power to issue writs of habeas corpus to persons “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241. The writ is established to

ensure that the government “does not detain individuals except in accordance with law” and

permits all persons to challenge the lawfulness of their confinement, regardless of status. Hamdi,

542 U.S. at 525.

A. Section 2241 Proceedings

Federal district courts are limited in their relief under Section 2241 when considering

immigration cases. See, e.g., Elgharib v. Napolitano, 600 F.3d 597, 607 (6th Cir. 2010) (finding a

district court lacks jurisdiction to consider removal orders); see also 8 U.S.C. § 1252(g) (giving

the Attorney General of the United States exclusive jurisdiction over removal proceedings). This

Court may not grant habeas relief as to the underlying immigration question, i.e., a removal

question. Hamama v. Adducci, 912 F.3d 869, 876 (6th Cir. 2018) (“Congress stripped the courts

of jurisdiction to grant habeas relief in § 1252(g)” for challenges regarding the legality of

removal orders). However, the district court may review whether an alien is lawfully detained;

the Attorney General’s immigration authority5 does not abrogate Section 2241’s authority to

grant the writ within these bounds. 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).

To that end, this Court may still interpret immigration statutes applied against a petitioner

to discern whether the detention is lawful or not. See id.; see also 8 U.S.C. § 1252(e)(5) (stating

that a court’s inquiry is limited to determine whether an order under § 1225(b)(1) was issued and

whether it relates to a petitioner). Congress has further limited habeas review for certain classes

of immigrants, namely, aliens under 8 U.S.C. 1225(b)(1) who are “arriving in the United States

and . . . who have not been admitted or paroled.” For those aliens, § 1252(e)(2) allows habeas

review of three matters: (1) “whether the petitioner is an alien”; (2) “whether the petitioner was

ordered removed”; and (3) whether the petitioner can prove that they have been granted entry as

a lawful permanent resident, refugee, or asylee. 8 U.S.C. §§ 1252(e)(2)(A)-(C).

5 Although authority is statutorily vested in the Attorney General, immigration enforcement, and administration

functions were transferred to the Secretary of Homeland Security by the Homeland Security Act of 2002. Pub. L.

No. 107-296, 116 Stat. 2135 (2002). However, the Attorney General’s discretionary detention authority under

§ 1226(a), delegated to immigration judges, “is shared with [DHS] because officials of that department make the

initial determination whether an alien will remain in custody during removal proceedings.” Matter of D-J-, 23 I. &

N. Dec. 572, 574 n.3 (A.G. 2003).

In no instance may this Court determine whether an alien is in fact inadmissible or

otherwise entitled to relief from removal. E.g., id. § 1252(e)(5).

B. Interpretation of Immigration and Nationality Act Sections 1225(b) and

1226(a)

To begin with general provisions of immigration law, an “alien who arrives at a ‘port of

entry,’ i.e., a place where an alien may lawfully enter, must apply for admission.” Thuraissigiam,

591 U.S. at 108. Aliens who are detained trying to enter elsewhere are treated similarly. Id.,

citing 8 U.S.C. §§ 1225(a)(1), (3). Yet “several classes of aliens are ‘inadmissible’ and therefore

‘removable.’” Id. at 107-08 (2020), quoting 8 U.S.C. §§ 1182, 1229a(e)(2)(A). Among these are

aliens who lack valid documentation “at the time of application for admission.” 8 U.S.C.

§ 1182(a)(7)(A)(i)(I).

The removal process provides for an evidentiary hearing before an immigration judge,

where the alien may challenge their removal, including applying for asylum. Thuraissigiam, 591

U.S. at 108 (internal citations omitted). Should their claim be rejected, the alien may appeal the

removal order to the Board of Immigration Appeals (“BIA”), and may also have a right to review

in a federal court of appeals. Id. While their removal proceedings are being litigated, the alien

will generally be detained. Id. However, the classification of the alien determines whether that

detention is mandatory or discretionary. Compare 8 U.S.C. §§ 1225(b)(2)(A) with 1226(a).

Thus, relevant to the present inquiry are 8 U.S.C. §§ 1225(b) and 1226(a), both of which

govern detention of noncitizens pending removal proceedings. Section 1225 governs the

expedited removal process and requires mandatory detention under its provisions, while § 1226

permits discretionary release from detention for certain aliens.

1. 8 U.S.C. Section 1225(b)

Section 1225 controls the Government’s determination of the admissibility of aliens

seeking to enter the country, which “generally begins at the Nation’s borders and ports of entry.”

Jennings v. Rodriguez, 583 U.S. 281, 287 (2018). This section provides for inspection by

immigration officers, and expedited removal of, certain arriving aliens, i.e., “applicants for

admission” who are “present in the United States who ha[ve] not been admitted or who arrive[]

in the United States.” 8 U.S.C. §§ 1225(a)(1), (3).

During inspection, an immigration officer may determine an alien to be inadmissible and

order they be removed without further hearing or review. Id. § 1225(b)(1)(A)(i). An applicant for

admission is subject to expedited removal if they (1) are inadmissible for lack of a valid entry

document; (2) have not been physically present in the United States continuously for two years

before the determination of inadmissibility;6 and (3) are among those designated for expedited

removal. Thuraissigiam, 591 U.S. at 109, citing 8 U.S.C. §§ 1225(b)(1)(A)(i), (iii)(I)-(II). In

certain circumstances, an applicant can avoid expedited removal by claiming asylum. Id. at 108-

09; see also 8 U.S.C. §§ 1225(b)(1)(A)(ii), 1225(b)(1)(B).

In addition to expedited removal proceedings, Section 1225 carries with it certain

mandatory detention clauses. 8 U.S.C. §§ 1225(b)(1)(B); (b)(2)(A). One section governs the

asylum officers during their interview of aliens seeking asylum, and states that any applicant for

admission who claims asylum “shall be detained” for further consideration of the asylum claim,

or until determination of a credible fear of persecution, or “until removed,” as applicable. 8

U.S.C. §§ 1225(b)(1)(B)(ii); (iii)(IV).

6 This section describes the aliens subject to its provisions as “an alien . . . who has not affirmatively shown, to the

satisfaction of an immigration officer, 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 under this subparagraph.” 8

U.S.C. § 1225(b)(1)(A)(iii)(II).

The second states that, for other aliens who are applicants 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 removal proceedings

under section 1229a, unless an exception applies. 8 U.S.C. § 1225(b)(2)(A). It is this portion of

the statute that is at issue in the months since implementing new DHS policy on January 24,

2025, and since the BIA’s decision in Matter of Yajure Hurtado, discussed infra.

2. 8 U.S.C. Section 1226(a)

Section 1226 generally governs the process of arresting and detaining aliens once inside

the United States. Jennings, 583 U.S. at 288. Under § 1226(a)’s “default rule,” the Attorney

General may issue a warrant for an alien’s arrest, and provide for the alien’s detention pending a

removal decision. Id., citing 8 U.S.C. § 1226(a). Section 1226(a) outlines a framework for

detention: The Attorney General “may continue to detain the arrested alien”; “may release the

alien on bond of at least $1,500” or “may release the alien on conditional parole.” 8 U.S.C.

§ 1226(a)(1)-(2). Release, however, does not permit work authorization. Id. § 1226(a)(3).

The arresting immigration officer makes the initial detention determination. 8 C.F.R.

§§ 1236.1(c)(8), (d)(1). Aliens may appeal that determination in a bond hearing before an

immigration judge. Id. And, under Section 1226(a)’s discretionary framework, the Attorney

General may revoke bond or parole, and may rearrest and detain the alien “under the original

warrant.” 8 U.S.C. § 1226(b).

Congress amended Section 1226 to add mandatory detention for certain criminal aliens,

as codified in Section 1226(c) through the Laken Riley Act. Pub. L. No. 119-1, § 2, 139 Stat. 3, 3

(2025). This section “carves out a statutory category of aliens who may not be released under

§ 1226(a).” Jennings, 583 U.S. at 289. The Attorney General must detain an alien who is (1)

inadmissible because they are in the United States without being admitted or paroled, obtained

documents or admission through misrepresentation or fraud, or lacks valid documentation; and

(2) “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.” 8 U.S.C. §§ 1226(c)(1)(E)(i)-(ii).

In short, as the Court stated in Jennings, “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)[.]” 583 U.S. at 289 (emphasis added).

C. Changing DHS policy and Matter of Yajure Hurtado

As above, Section 1225 controls border inspection processes and the expedited removal

of “arriving aliens.” “Expedited removal proceedings do not include the right to appeal to an IJ,

the BIA [Board of Immigration Appeals], or (aside from two narrow exceptions) a judicial

court.” E.V. v. Raycraft, No. 4:25-CV-2069, 2025 WL 2938594, at *2 (N.D. Ohio Oct. 16, 2025);

see also, e.g., 8 U.S.C. §§ 1225(b)(1), (c); 1252(a)(2)(A), (e). “Noncitizens are eligible for

expedited removal if they are: (1) ‘arriving in the United States,’ that is, appearing at a port of

entry; or (2) have ‘not been admitted or paroled into the United States’ and they cannot

affirmatively show that they have been ‘physically present in the United States continuously for

the 2-year period immediately prior to the date of the determination of inadmissibility.’” E.V.,

2025 WL 2938594, at * 2, quoting 8 U.S.C. § 1225(b)(1). The DHS Secretary, as delegated by

the Attorney General, has the authority to designate the population of noncitizens within the

second category who are subject to expedited removal. Id., citing 8 U.S.C.

§ 1225(b)(1)(A)(iii)(I).

Until January 2025, DHS had designated two classes in addition to “arriving aliens” as

subject to expedited removal: (1) aliens arriving by sea within the last two years, and (2) aliens

apprehended within 100 miles of an international border and within 14 days of entry. Id., citing

to Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of

the Immigration and Nationality Act, 67 Fed. Reg 68924, 68924 (Nov. 13, 2002) and

Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48877 (Aug. 11, 2004).

In January 2025, DHS implemented a new policy, now applying expedited removal

proceedings to aliens “who are encountered anywhere in the United States more than 100 air

miles from a U.S. international land border, and who have been continuously present in the

United States for at least 14 days but less than two years.” Designating Aliens for Expedited

Removal, 90 Fed. Reg. 8139-01 (Jan. 24, 2025). Under this policy, DHS argues that all such

aliens are “arriving aliens” and subject to expedited removal.7 E.V., 2025 WL 2938594, *2.

Then on September 5, 2025, the BIA issued an interim decision in the Matter of Yajure

Hurtado, determining that aliens seeking admission are subject to mandatory detention under 8

U.S.C. § 1225(b)(2)(A) and immigration judges lack jurisdiction to make bond determinations

under this statute. Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025).

On November 20, 2025, a federal district court in California found that DHS’s policy of

applying 8 U.S.C. § 1225(b)(2)(A) against all classes of immigrants and denying bond

proceedings as described in Matter of Yajure Hurtado was arbitrary and capricious, and vacated

7 It appears that this policy has been applied more broadly in practice; in an earlier case before this Court, DHS has

argued that a person who had been continuously present in the United States since 2001 was also an “arriving alien”

and subject to § 1225(b)’s mandatory detention and expedited removal proceedings. E.g., Chavez v. Dir. of Detroit

Field Off., No. 4:25-CV-2061, 2025 WL 3187080, at *1 (N.D. Ohio Nov. 14, 2025).

that policy. Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, 2025 WL 3713987, at *15-21

(C.D. Cal. Dec. 18, 2025), judgment entered sub nom. Maldonado Bautista v. Noem, No. 5:25-

CV-01873-SSS-BFM, 2025 WL 3678485 (C.D. Cal. Dec. 18, 2025). In addition to vacating the

policy under the APA and rendering it a nullity, that court also certified a nationwide Bond

Eligible class. Bautista, 2025 WL 3713987, at *32. The Bond Eligible Class includes:

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.8

Id.

IV. Discussion

With these foundational principles described, I turn to Herrera’s federal habeas corpus

petition.

A. This Court has jurisdiction over habeas corpus petitions, including

Herrera’s.

I first address Respondents’ argument that this Court is without jurisdiction to determine

Herrera’s habeas corpus petition. (ECF Doc. 9, pp. 9-13).

As their first point on the matter, Respondents argue that 8 U.S.C. § 1252(g) bars

jurisdiction over claims “‘arising from’” the Secretary of Homeland Security’s decision to

“‘commence proceedings, adjudicate cases, or execute removal orders against any alien.’” (Id. at

p. 9, quoting 8 U.S.C. § 1252(g) (emphasis omitted)). Respondents state that judicial review of

Herrera’s claim is unavailable because this Court is without authority to review any claim that

8 Herrera asserts that he is eligible for release on bond as both a member of the Bond Eligible Class designated in

Bautista and also because that court vacated the DHS policy as not in accordance with law. (ECF Doc. 1, ¶ 45).

However, as discussed in more detail infra, Herrera is entitled to relief on the merits of his own petition and I make

such recommendation without finding it necessary to consider whether he is a member of the Bautista Bond Eligible

Class.

might be related to his underlying removal proceedings. (Id.). In support, they cite several cases

from outside the Sixth Circuit, which are not binding on this Court. (Id., citing, e.g., Alvarez v.

ICE, 818 F.3d 1194, 1203 (11th Cir. 2016); Tazu v. Att’y Gen. U.S., 975 F.3d 292, 298 (3d Cir.

2020); Valencia-Mejia v. United States, No. CV 08–2943 CAS (PJWx), 2008 WL 4286979, at *4

(C.D. Cal. Sept. 15, 2008)).

Respondents’ expansive reading of Section 1252 to bar federal courts of jurisdiction to

consider habeas petitions is inapplicable in the Sixth Circuit, and cuts against Supreme Court

precedent. See Rosales-Garcia v. Holland, 322 F.3d 386, 394 (6th Cir. 2003) (describing that

IIRIRA did not bar the district courts of jurisdiction to consider habeas petitions); see also

Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (same). As addressed above, federal district courts

may consider a federal habeas petition under 28 U.S.C. § 2241 without disturbing the petitioner’s

underlying immigration case or the Secretary’s executable removal orders. This Court does not

have jurisdiction over the petitioner’s underlying immigration case and it cannot decide whether

to detain under an immigration statute. See, e.g., Hamama, 912 F.3d at 876 and Hamama v.

Adducci, 946 F.3d 875, 877 (6th Cir. 2020) (“Hamama II”). The Sixth Circuit has stated that

1252(g)’s jurisdictional bar prevents a district court from enjoining or restraining the operation of

one of the covered statutes, even in the habeas context. Hamama II, 946 F.3d at 877.

But 1252(g) does not prevent a district court’s review of the lawfulness of the alien’s

detention itself. As applied in the Sixth Circuit, the jurisdictional bar in § 1252(g) does not

abrogate § 2241’s authority to grant the writ where the immigrant’s detention was unlawful. See,

e.g., Enriquez-Perdomo v. Newman, 54 F.4th 855, 863 (6th Cir. 2022); see also Thuraissigiam,

591 U.S. at 117. With respect to removal orders, federal district courts have no jurisdiction to

consider the decision to “execute removal orders.” 8 U.S.C. 1252(g). But the Sixth Circuit

interprets 1252(g) “as referring to executable removal orders—that is, existing and enforceable

removal orders subject to execution.” Enriquez-Perdomo, 54 F.4th at 863. When an alien

otherwise may lawfully be in the United States, the removal order is not subject to execution, and

a federal district court is not barred by 1252(g). Id. The Sixth Circuit did not limit this reading

only to enforceable removal orders and stated that principles of statutory construction favor

judicial review of administrative action even in immigration cases, because the statutory scheme

as a whole supports the availability of limited habeas review. Id. at 863 n.6.

Further supporting the Sixth Circuit’s interpretation of Section 1252 is Respondents’ next

argument. Respondents argue that 8 U.S.C. § 1252(b)(9) and § 1252(a)(5) also bar this Court’s

review of Herrera’s claims. (ECF Doc. 9, pp. 9-11). Applying simple principles of statutory

interpretation leads to the conclusion that Section 1252(g)’s exclusive jurisdiction provision

would render superfluous the other provisions limiting this Court’s review. E.g., 8 U.S.C.

§§ 1252(a)(5); (b)(9); (e). A too-expansive reading of § 1252(g) to bar all federal district court

review of any claim that arises from immigration actions would swallow other provisions of that

act that also place limits on a federal court’s review. Enriquez-Perdomo, 54 F.4th at 863 n.6; see

also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 487 (1999).

First, Section 1252(b)(9). Respondents state that because Herrera is challenging the basis

on which he is detained, Section 1252(b)(9) requires he raise his claims before the Sixth Circuit,

not before this Court. (ECF Doc. 9, pp. 9-11).

But Section 1252(b)(9)’s “zipper clause” does not apply to bar the district court’s

jurisdiction over Herrera’s claims. The Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”) authorizes noncitizens to obtain direct “review of a final order of

removal” in a court of appeals. 8 U.S.C. § 1252(a)(1). In this context, a “final order of removal”

is a “final order ‘concluding that the alien is deportable or ordering deportation.’” Nasrallah v.

Barr, 590 U.S. 573, 579 (2020), quoting 8 U.S.C. § 1101(a)(47)(A). The relevant subsection here

states that judicial review of all questions of law and fact “arising from any action taken or

proceeding brought to remove an alien from the United States” is not available in federal habeas

review. 8 U.S.C. § 1252(b)(9). Section 1252(a)(5) provides that a petition for review must be

filed with the appropriate court of appeals as the “sole and exclusive means for judicial review of

an order of removal.”

The IIRIRA provides for expedited judicial review of final orders of removal by

“consolidating” the alien’s “various challenges arising from the removal proceedings” in a

petition for review by the courts of appeals and “eliminating review in the district courts.”

Nasrallah, 590 U.S. at 580 (internal quotations and marks omitted). Thus the “rulings that affect

the validity of the final order of removal merge into the final order of removal for purposes of

judicial review” under Section 1252(b)(9)’s direct review consolidation provisions. Nasrallah,

590 U.S. at 982. Orders that do not affect the validity of the final order of removal do not merge

into the final order of removal and are therefore not subject to 1252(b)(9)’s limitations.

Nasrallah, 590 U.S. at 982 (applying to Convention Against Torture orders).

To support their position, Respondents again highlight the circuit split present in the

interpretation of Section 1252’s jurisdictional provisions. (ECF Doc. 9, pp. 9-11, citing to, e.g.,

Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008); Khalil v. President, United States, __

F.4th__, 2026 WL 111933 (3d Cir. Jan. 15, 2026)). And despite some split within this judicial

district, see Amaya-Velis v. Raycraft, 2026 WL 100596, at *3 (N.D. Ohio Jan. 14, 2026), contra

Lopez v. Noem, No. 3:26 CV 128, 2026 WL 395202, at *2-4 (N.D. Ohio Feb. 12, 2026), the Sixth

Circuit has not yet changed its position. The Sixth Circuit recently stated that an alien petitioner

challenging their detention must do so in the district court in the first instance, and that the Sixth

Circuit is without jurisdiction to consider challenges to an alien’s detention even where a

challenge to the alien’s removal is pending before it. See Perez v. Bondi, 160 F.4th 710, 713 n.1

(6th Cir. 2025) (“while [Petitioner’s] request for an emergency stay of removal . . . was pending

with our court . . . our court denied [Petitioner]’s emergency motion for release from detention,

finding that first-instance review of his challenge to detention lies within the district court’s

jurisdiction, not the court of appeals.”).

Herrera’s challenge in his federal habeas petition is not directed to his removal

proceedings – it is axiomatic that habeas petitions are directed to the legality of the confinement

itself. This Court is vested with the power to issue the writ for all persons, including non-

citizens, who are “in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241. Herrera is not challenging matters that would merge into any final

order of removal, nor is he asking this Court to decide matters related to his pending immigration

claims. Rather, Herrera challenges the legality of his confinement itself, a matter which this

Court has jurisdiction to decide. Dornveil v. Noem, No. 4:25-CV-1809, 2025 WL 2720786, at *3

(N.D. Ohio Sept. 24, 2025) (exercising jurisdiction over detention-based claims because they did

not challenge the petitioner’s removal proceedings).

Next, Respondents assert that “Petitioner claims that this Court has jurisdiction under 8

U.S.C. § 1252(e)(2).” (ECF Doc. 9, p. 13, citing ECF Doc. 1, Pet., ¶ 8). Section 1252(e)(2), as

Respondents correctly note, states the limitations on this Court’s review: whether Herrera is an

alien, whether he was ordered removed, and whether he has been lawfully admitted and such

status has not been terminated. (ECF Doc. 9, p. 13). And I agree with Respondents that those

three issues are not directly challenged by this petition. (See id.; see also ECF Doc. 1, ¶ 8). But

this Court has other avenues for its jurisdiction. In that same paragraph, Herrera asserts: “This

Court has subject matter jurisdiction under 28 U.S.C. § 2243 (habeas corpus), 28 U.S.C. § 1331

(federal question), and Article I, § 9, cl. 2 of the United States Constitution (Suspension Clause).

Under 8 U.S.C. § 1252(e)(2), this Court has habeas authority to determine whether Petitioner

was ordered removed under 8 U.S.C. § 1225(b)(1).” (ECF Doc. 1, Pet., ¶ 8). Herrera’s assertion

of habeas authority under 1252(e)(2) does not invalidate the others which provide this Court with

subject matter jurisdiction. Herrera challenges the lawfulness of his confinement, as is proper in

habeas review, (id., ¶¶ 14-16; 50-59) and this Court has jurisdiction to consider his petition.

I therefore recommend the District Court exercise jurisdiction over Herrera’s federal

habeas petition.

B. The deficiencies in Respondents’ documents in support of Herrera’s arrest

and detention warrant remedy.

Having established this Court’s jurisdiction, I take the time now to address the

deficiencies in Respondents’ supporting documents and Petitioner’s motion for sanctions (ECF

Doc. 13).

In my initial order on January 21, 2026, I ordered Respondents to show cause and support

the lawfulness of Herrera’s custody (ECF Doc. 6); during the February 5, 2026 status conference,

I questioned Respondents on the same matter and ordered them to supplement with documents to

support Herrera’s arrest and detention (non-document entry of Feb. 5, 2026); and still finding the

submissions deficient, I again ordered Respondents to provide this Court with documents

supporting Herrera’s arrest and detention (non-document entry of Feb. 12, 2026). My order on

February 12, 2026 specifically directed Respondents to provide supporting documentation with

“detail as to the date of noncompliance [of Herrera’s immigration appearances] or copies of the

messages sent to Petitioner regarding that noncompliance and his violation of the terms of his

alternative to detention release.” (Id.). The only document Respondents provided that gives any

reasoning to Herrera’s arrest is an unsworn declaration from an ICE agent that states “[t]he

Petitioner was taken into custody by ICE after he failed to report for his scheduled check-in and

failed to respond to the message he was sent regarding his missed check-in. By failing to report

and respond to the message, the petitioner violated the terms of the Alternative to Detention

(ATD) he was released under.” (ECF Docs. 11-3, 12-1 (duplicate), ¶¶ 5-6). Respondents never

swore to the contents of this statement, have not given the date Herrera purportedly failed to

appear as required, and have not given a copy of the reminder message sent to him. Respondents

have not even given any arresting documents. By his account, Herrera was simply arrested and

imprisoned, without warning and without prior violation. (ECF Doc. 1, Pet., ¶¶ 2,9 30). Herrera’s

arrest occurred as he was attempting to comply with the requirements of his release, as the

government itself asks of him. (Id.). Because Respondents cannot support their version of events,

Herrera has moved for sanctions. (ECF Doc. 13).

At this stage, I construe the facts in Herrera’s favor. Without Respondents providing a

sworn statement at minimum, or other contemporaneous documentation of Herrera’s

noncompliance with the conditions of his ATD, or other circumstances supporting his arrest and

detention, Herrera’s version of events has the right of it. Moreover, unlike Respondents, he has

provided a sworn statement of the circumstances of his arrest. (ECF Doc. 13-2). I also note that

in his affidavit, Herrera asserts that Respondents have within their custody a purported order for

his arrest, certain of Herrera’s immigration paperwork, and his phone containing an app with

record of his appointment and messages. (Id.). Despite being within Respondents’ control, none

of this has been presented to the court.

9 The petition states both August 15 and December 15, 2025 as the date of Herrera’s arrest. (ECF Doc. 1, Pet., ¶¶ 2,

30). The parties confirmed that the correct date of his arrest was December 15, 2025.

I therefore accept as true that Herrera was trying to submit to an immigration

appointment when he was arrested and placed into custody. Because I have construed the facts as

favorable to Petitioner and find that he was compliant with appointments as scheduled,

Respondents’ unsworn declaration has no adverse impact on Herrera. I therefore deny the motion

for sanctions (ECF Doc. 13) as moot.

But simply construing the facts in Herrera’s favor is small remedy. At bottom, the writ

centers on the lawfulness of a person’s imprisonment and prevents a person from being detained

in violation of the Constitution and laws of the United States. 28 U.S.C. § 2241(c)(3). And as is

discussed in greater detail later, those same Constitutional protections “prevent[] the government

from engaging in conduct that ‘shocks the conscience’ or interferes with rights ‘implicit in the

concept of ordered liberty.’” Rosales-Garcia v. Holland, 322 F.3d 386, 410-11 (6th Cir. 2003),

quoting United States v. Salerno, 481 U.S. 739, 746 (1987). And the concept of the government

taking any person into custody without warning, reason, or any documentation to support their

arrest is abhorrent to the Constitution.

Our immigration laws do not supersede the Constitution’s protection of a person’s liberty

interest. See Zadvydas, 533 U.S. at 690. Rather, immigration proceedings are civil, not criminal,

and there is no “special justification” to allow for detention simply on the basis of that person’s

status as an alien. Id. As the Court has stated, an alien’s Constitutional liberty interest is not

diminished by their lack of a legal right to “live at large” in the United States while their

immigration proceedings are pending. Id. at 696 (internal marks omitted); see also e.g., 8 U.S.C.

§§ 1225(b)(2)(A); 1226(a); (c) (describing certain permissible detention provisions within

immigration law). Rather, due process protects the alien’s liberty interest in remaining in the

United States with “supervision under release conditions that may not be violated.” Zadvydas,

533 U.S. at 696.

And here, the government has violated its own Constitutional principles by arresting and

detaining Herrera without substantiating a reason, despite Herrera’s compliance with release

conditions. And despite the statement to Herrera that there was an order for his arrest (ECF Doc.

13-2, Herrera Aff., ¶ 7), Respondents have produced no such order. This is a grave error and

warrants remedy equal to its weight. That the government cannot arrest and detain individuals,

notwithstanding immigration status, without proper support and documentation, is fundamental

to our Constitutional order. Favorable construction, sanctions, nor discretionary bond

proceedings cannot provide sufficient remedy if the error occurred, as here, by an unlawful

arrest.

For reasons discussed in greater detail throughout this Report and Recommendation, I

recommend the District Court grant the writ and order Herrera’s immediate release.

C. Administrative exhaustion is not required here.

Respondents argue that Herrera must exhaust his administrative remedies before seeking

habeas relief. (ECF Doc. 9, pp. 13-14). Respondents assert that, since the IJ issued an order

denying release on January 22, 2026, that the appropriate remedy is for him to appeal that

decision with the BIA, not here. (Id. at p. 14; ECF Doc. 9-5).

No applicable statute requires administrative exhaustion here; the decision is left to this

Court’s discretion. “When Congress has not clearly required exhaustion, sound judicial

discretion governs whether or not exhaustion should be required.” Shearson v. Holder, 725 F.3d

588, 593 (6th Cir. 2013) (internal quotation and marks omitted). The Sixth Circuit has not yet

determined whether administrative exhaustion should be required in the context of a noncitizen’s

habeas petition challenging the administration’s policy of mandatory detention. Gil Pirona v.

Noem, No. 1:25-CV-1571, 2025 WL 3687339, at *2 (W.D. Mich. Dec. 19, 2025). Courts within

the Sixth Circuit have applied the following test to determine whether prudential exhaustion

should apply:

(1) agency expertise makes agency consideration necessary to generate a proper

record and reach a proper decision;

(2) relaxation of the requirement would encourage the deliberate bypass of the

administrative scheme; and

(3) administrative review is likely to allow the agency to correct its own mistakes

and to preclude the need for judicial review.

Mendoza v. Raycraft, No. 4:25CV2183, 2025 WL 3157796, at *9 (N.D. Ohio Nov. 12, 2025),

quoting Puga v. Cherthoff, 488 F.3d 812, 815 (9th Cir. 2007).

Applied to Herrera’s case, these factors weigh against requiring Herrera exhaust his

administrative remedies before review in this Court.

As discussed above, a habeas petition in a federal district court is distinct from that

petitioner’s proceedings in immigration court. Because a habeas petition challenges the

lawfulness of the petitioner’s confinement, it does not reach questions regarding the petitioner’s

immigration proceedings and therefore does not require agency consideration to generate a

record on which it might reach its decision. See Zadvydas, 533 U.S. at 687-88 (describing that

habeas petitions challenge an alien’s custody and do not reach questions within the province of

the administrative agency). With this petition, Herrera challenges the lawfulness of his custody,

not the immigration court’s determinations in his removal proceedings. See 28 U.S.C. 2241. And

the record here is complete for purposes of that consideration. (ECF Docs. 1, 9-13 and

attachments). Herrera affirms that he was compliant with the conditions imposed on him by

immigration authorities until he was suddenly detained while in the act of complying with those

requirements. (E.g., ECF Doc. 13-2). The materials submitted by Respondents do not refute

Herrera’s version of events.

Herrera’s petition asserts legal claims directed to his confinement and development of the

record in Herrera’s immigration case is not required for this Court to reach its decision on his

habeas petition – and such development would be imprudent and unnecessarily muddy the

waters between Herrera’s removal proceedings in immigration court and his habeas proceedings

here. The first factor is not met.

The same reasoning applies for the second factor. A habeas petition under these

conditions serves a distinct purpose and is not intended to bypass the administrative scheme of

Herrera’s removal proceedings. The question of Herrera’s removal is not at issue here; the

question before this Court is whether he is lawfully detained or whether he has received due

process for that detention. If his arrest and detention is improper, and if the policy described in

Yajure Hurtado is improperly applied to him, then appeal of the January 22, 2026 bond hearing

to the BIA will not cure the error. These questions fall squarely for federal courts to determine,

not administrative agencies, and thus is not addressed within the administrative scheme. See

Zadvydas, 533 U.S. at 692 (stating, “the Constitution may well preclude granting an

administrative body the unreviewable authority to make determinations implicating fundamental

rights.” (internal quotations and marks omitted)). A habeas petition arises from separate rights

under the Constitution and does not bypass the administrative scheme. Therefore, the second

factor is not met.

The third factor is also not met. Certainly, where administrative channels are available, a

habeas petitioner should first attempt those channels before seeking relief in the district court.

And if Herrera had been lawfully detained, given a discretionary bond hearing under § 1226 and

been denied on the merits of that claim, then certainly, he should have to seek appeal before the

BIA before challenging the lawfulness of his detention here.

But that is not what has occurred. Herrera has asserted that he was arrested without

warning and despite compliance with the conditions of his ATD. (ECF Doc. 13-2). And

Respondents’ present conduct has not shown that they will correct their own mistakes when

afforded the opportunity. Despite repeated directives for Respondents to provide support for

Herrera’s initial arrest and detention on December 15, 2025, Respondents did not do so.

(Compare generally Docket with ECF Docs. 11, 12 and attachments). Even though these

documents are within Respondents’ control – and documents should be available to the

government for any arrest it makes – they provide no more than an unsworn declaration, without

even a date provided for their assertion of Herrera’s noncompliance. (See id.). Agency error

occurred at the moment of Herrera’s unlawful arrest, and requiring Herrera to appeal his bond

denial to the BIA will not result in the agency correcting its mistakes.

Also at issue here is whether or not the correct law – and consequently, the correct

detention scheme – is applied to Herrera, and the due process protections attendant on that

application. Herrera asserts that even were his arrest and detention lawful, he is subject to

discretionary bond under Section 1226(a). But as Respondents continually assert, and as the IJ

determined at Herrera’s bond hearing, Herrera is subject to mandatory detention under Section

1225(b)(2)(A) and the IJs are without jurisdiction to consider otherwise. (ECF Docs. 9, pp. 16-

23; ECF Doc. 9-5). Therefore, appeal of his bond proceedings is not likely to result in the agency

correcting its mistakes where the error lies in the agency’s application of law. This is particularly

apparent where the agency has not corrected its errors in these proceedings.

Other Courts within this judicial district have also looked to the futility of requiring a

petitioner to exhaust to the very agency enforcing the erroneous directive. Lopez v. Noem, No.

3:26 CV 128, 2026 WL 395202, at *6 (N.D. Ohio Feb. 12, 2026) (“The Petition is just one—of

what the Court can only estimate are thousands—of petitions seeking analogous relief because of

BIA's and ICE's recent interpretative shift. . . . 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 her a bond hearing to the very agency that passed down that

unequivocal directive.”). In the past months since Yajure Hurtado was decided, the agency has

presented its “clearly stated position” and predetermined the result; exhaustion would be futile.

E.g., Contreras-Lomeli v. Raycraft, No. 2:25-CV-12826, 2025 WL 2976739, at *4 (E.D. Mich.

Oct. 21, 2025). Requiring Herrera to exhaust to the very agency that has ignored the same

directive in hundreds of district court cases is a futility.

The third factor is not met here.

I therefore recommend the District Court not require prudential exhaustion and consider

the merits of Herrera’s petition.

D. Section 1225(b)(2)(A) does not apply to Herrera.

I turn to whether § 1225(b)(2)(A) or § 1226(a) applies to Herrera, and whether the

Government may now apply Matter of Yajure Hurtado in his case to divest the immigration

courts of jurisdiction to consider discretionary detention.

In the months since Matter of Yajure Hurtado was decided, an overwhelming number of

habeas petitions have surged in district courts across the country. By last count, over 1,000

district court decisions have been issued, with more than 200 of them issuing from courts within

the Sixth Circuit. Matter of Yajure Hurtado citing references, Westlaw (filtered by jurisdiction)

(last accessed Jan. 28, 2026). Overwhelmingly, courts across the country, including the Seventh

Circuit and numerous district courts within the Sixth Circuit, have disagreed with the agency’s

interpretation of Section 1225(b)(2)(A)’s mandatory detention scheme to apply to all immigrants

who have applied for admission but have not reached a final determination on the merits. See id.;

see also Castanon-Nova v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025).

The courts agreeing with Respondents’ interpretation of the statutory text are in the minority, and

the only circuit court to agree at the time of this writing, is not binding here. See Buenrostro-

Mendez v. Bondi, No. 25-20496, 2026 WL 323330, at *4 (5th Cir. Feb. 6, 2026).

The district courts in the Sixth Circuit have provided thorough discussion of the

principles of statutory interpretation, the statutory scheme of each section, Congressional intent,

and the ways in which the Government’s proposed interpretation is inappropriate. See, e.g., Gil

Pirona, 2025 WL 3687339, at *3-*6 (W.D. Mich. Dec. 19, 2025); Pizarro Reyes v. Raycraft, No.

25-CV-12546, 2025 WL 2609425, (E.D. Mich. Sept. 9, 2025) and Singh v. Lewis, No. 4:25-CV-

96-RGJ, 2025 WL 2699219, (W.D. Ky. Sept. 22, 2025). A recent decision within this District

found the same. See Lopez-Lopez, 2026 WL 395202, *7 (describing at least 350 decisions as of

November 26, 2025, and agreeing that the “clear majority” favors similar petitioners’ statutory

interpretation). I agree with these courts’ interpretation of the statutory text. In the interest of

judicial economy, I follow Singh in incorporating their reasoning by reference. Singh, 25 WL

2699219, at *3.

I now turn to which statute is appropriately applied to Herrera. Herrera alleges that even

though he initially crossed the southern border without presenting for inspection, the next day, he

presented for inspection by immigration authorities and was paroled into the United States. (ECF

Docs. 1, Pet., ¶¶ 27, 42, 1-4 (stating he entered on June 11, 2022 at 21:30 hours and was paroled

into the United States on June 12, 2022); see also ECF Doc. 10, pp. 2-4). Because of this,

Herrera asserts he is no longer an “arriving alien” under the statute – he was lawfully living

within the United States, had work authorization, and was pursuing his asylum claim, making 8

U.S.C. § 1226(a) applicable to him. (Id.; see also, e.g., Pet. ¶¶ 28, 34, 36, 40-42).

The Government’s arguments that 1225(b)(2) now applies to Herrera do not hold weight.

In essence, Respondents state that because Herrera has not yet been conferred status, he

continues to be an “arriving alien” for as long as his immigration case is pending, because he has

not yet been “admitted,” and parole does not qualify as admission.10 (ECF Doc. 9, pp. 16-23).

But Respondents’ arguments for applying 1225(b)(2)(A) against Herrera are not well taken. (See

id.).

As Respondents correctly state, “Jennings found that 8 U.S.C. § 1225(b) ‘applies

primarily to aliens seeking entry into the United States (‘applicants for admission’ in the

language of the statute).’” (ECF Doc. 9, p. 20, quoting Jennings, 583 U.S. at 297). Respondents

also argue,

Section 1225(a) defines “applicant for admission” to encompass an alien who either

“arrives in the United States” or who is “present in the United States who has not

been admitted.” 8 U.S.C. § 1225(a)(1). And “admission” under the INA means not

physical entry, but lawful entry after inspection by immigration authorities. 8

U.S.C. § 1101(a)(13)(A); Mejia Olalde v. Noem, 2025 WL 3131942, at *3 (E.D.

Mo. Nov. 10, 2025).

10 Respondents also argue that DHS has the sole discretion to authorize release from detention under 8 U.S.C.

§ 1225(b) and permit humanitarian parole under 8 U.S.C. 1182(d)(5). (ECF Doc. 9, p. 23). Respondents also caution

that “[p]arole is not a bond hearing, and the two should not be conflated.” (Id.). I agree that parole and release on

bond are distinct issues. However, other courts within this Circuit have found that improper revocation of

humanitarian parole violates a habeas petitioner’s due process and counsels immediate release. E.g., Pernia v.

Raycraft, No. 1:26-CV-35, 2026 WL 279323, at *5 (W.D. Mich. Feb. 3, 2026). Therefore, humanitarian parole (and

any revocation) may be relevant to this Court’s consideration of a habeas petition. Furthermore, as I later conclude,

§ 1225(b) does not apply to Herrrera, and the attendant parole provisions thereunder no longer apply. Respondents’

arguments regarding parole are therefore inapposite.

(ECF Doc. 9, p. 21) (emphasis added). Respondents continue that, according to Agency

interpretation, “‘many people who are not actually requesting permission to enter the United

States in the ordinary sense are nevertheless deemed to be “seeking admission” under the

immigration laws.’” (Id. at p. 22, quoting Matter of Lemus-Losa, 25 I & N. Dec. 734, 743 (BIA

2012)).

But this Court is not bound by Agency interpretation or Respondents’ policy preference.

Loper Bright, 603 U.S. at 403; (C.f. ECF Doc. 9, p. 22 (“To be sure, the Government previously

operated under a different understanding of Section 1225(b)(2)(A), such that aliens present in the

United States who had entered without admission instead were detained under Section

1226(a).”). And previous Agency interpretation has the right of it. Herrera was not present in the

United States without permission. (E.g., ECF Doc. 1-4). Herrera was granted entry into the

United States by a CBP officer, after presenting for inspection and successful completion of an

interview. (Id.).

Section 1225(a) states that “an applicant for admission” – someone who “has not been

admitted or who arrives in the United States,” is required to be inspected by an immigration

officer, describe their purposes for seeking admission, and whether they are otherwise

inadmissible. 8 U.S.C. §§ 1225(a)(1),(3),(5). Section 1225(b)(2)(A), which Respondents now

seek to apply against Herrera, states that “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. . . .” On this basis, Respondents have detained Herrera and assert that IJs are

without jurisdiction to consider discretionary bond. (E.g., ECF Docs. 9, 11, 12).

But here, Herrera has submitted for inspection to an immigration officer, was paroled into

the United States, and timely applied for asylum. (ECF Doc. 1, Pet., ¶¶ 27-28). He complied with

all requirements asked of him until he was detained – arguably, detained while complying with

those very requirements. (E.g., id., ¶¶ 27, 30). As such, his entry into the United States was done

after inspection by an immigration officer, and was lawful. (ECF Doc. 1-4). Thus, by

Respondents’ own arguments, Section 1225 no longer applies to him.

This Court and others have rejected the notion that Thuraissigiam’s statement “aliens

who arrive at ports of entry—even those paroled elsewhere in the country for years pending

removal—are treated for due process purposes as if stopped at the border,” 591 U.S. at 139,

extends to treating all aliens as continually “arriving” when applying § 1225(b)(2)(A) against

them. E.V. v. Raycraft, No. 4:25-CV-2069, 2025 WL 2938594, at *3 (N.D. Ohio Oct. 16, 2025),

citing Coal. for Humane Immigrant Rights v. Noem, No. 1:25-cv-00872-JMC, 2025 WL

2192986, at *3 (D.D.C. Aug. 1, 2025), appeal pending 25-5289 (D.C. Cir. Aug. 11, 2025)); see

also Make the Rd. New York v. Noem, No. 25-CV-190 (JMC), 2025 WL 2494908, *12 n.15

(D.D.C. Aug. 29, 2025). Those cases look to the plain meaning of the term “arrive” to determine

the label of “arriving alien” is inapplicable to someone who previously reached a port of entry,

underwent inspection, and then was paroled into the country. E.V., 2025 WL 2938594, at *3. As

this Court has stated, “‘the only way to make sense of the statutory scheme Congress created is

to see that parolees fall under neither [provision of Section 1225(b)(1)]. Any other result

conflicts with other aspects of the statute and regulations, Congress’s evident purpose, and the

ordinary meaning of the statute’s words.’” Id., quoting Coalition, 2025 WL 2192986, at *39.

Furthermore, Herrera’s case is easily distinguished from the reasoning in Thuraissigiam:

he was permitted into the United States after presenting to immigration authorities, where he was

released into the United States on parole under standard removal proceedings to seek asylum

more formally, which he has since done. It is a “settled proposition that noncitizens on the

threshold of initial entry stand on a different footing than those who have passed through our

gates.” Make the Rd. New York v. Noem, No. 25-CV-190 (JMC), 2025 WL 2494908, at *11

(D.D.C. Aug. 29, 2025). Because Herrera entered the United States and was granted parole under

Section 1182(d)(5), he is not subject to the expedited removal or detention provisions described

in Section 1225; he must be afforded process according to Section 1226(a). (ECF Doc. 1-4; see

also Gil Pirona, 2025 WL 3687339, at *4 (W.D. Mich. Dec. 19, 2025)).

District courts in the Sixth Circuit and across the country agree in the application of

Section 1226(a) in cases like Herrera’s, including Pizarro Reyes, 2025 WL 2609425, at *7-9

(holding that the text, legislative history, and agency guidance support the argument that § 1226,

not § 1225 applies); Lopez-Campos, v. Raycraft, No. 2:25-CV-12486, 2025 WL 2496379 (“the

Court finds that Lopez-Campos is not subject to the provisions of Section 1225(b)(2)(A). Rather,

he clearly falls under the provision of Section 1226(a), and is subject to the discretionary bond

determination outline therein.”); Kozubaev v. Lynch, No. 1:25-CV-1873, 2026 WL 116797, at *2

(W.D. Mich. Jan. 15, 2026) (“The Court concludes that § 1226(a), not § 1225(b)(2)(A), governs

noncitizens, such as Petitioner, who have resided in the United States and were already within

the United States when apprehended and arrested . . . .”) (collecting cases); Baabekov v. Raycraft,

No. 1:26-CV-37, 2026 WL 183515, at *2 (W.D. Mich. Jan. 23, 2026) (same).

The Government may not now make a redetermination and reinterpret the statute against

Herrera, particularly where it has done so without affording him due process, as I discuss next.

I therefore determine Section 1226(a) is properly applicable to Herrera.11

11 With this determination, I find it unnecessary to consider whether Herrera is a member of the Bond Eligible Class

in Bautista and decline to apply it here. (ECF Doc. 1, ¶¶ 1-10; see also Bautista v. Santacruz, No. 5:25-CV-01873-

SSS-BFM, --- F. Supp. 3d ----, 2025 WL 3289861, at *11 (C.D. Cal. Nov. 20, 2025) (order granting partial summary

judgment to named Plaintiffs-Petitioners); Maldonado Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, --- F.

Supp. 3d ----, 2025 WL 3288403, at *9 (C.D. Cal. Nov. 25, 2025)). As discussed herein, Herrera is entitled to, at

E. Herrera’s continued detention violates his Due Process and Equal Protection

rights and counsels granting the writ.

Having determined that Section 1226(a) applies to Herrera, I turn to whether his

detention without discretionary bond denies him due process.

The Due Process Clause extends to all persons regardless of status, including non-

citizens. A.A.R.P. v. Trump, 605 U.S. 91, 94 (2025); Yick Wo v. Hopkins, 118 U.S. 356, 369

(1886). “[O]nce an alien enters the country . . . the Due Process Clause applies to all ‘persons’

within the United States, including aliens, whether their presence here is lawful, unlawful,

temporary, or permanent.” Zadvydas, 533 U.S. at 693. Herrera is thus still afforded constitutional

protections regardless of his immigration status.

1. Substantive Due Process

As a general matter, substantive due process protects individuals from arbitrary

government action that infringes on their fundamental rights, including the right to liberty.

Rosales-Garcia v. Holland, 322 F.3d 386, 408 (6th Cir. 2003). In the immigration context, “an

alien’s status as removable is alone insufficient to outweigh his constitutionally protected liberty

interest.” Id. “[S]ubstantive due process prevents the government from engaging in conduct that

shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” United

States v. Salerno, 481 U.S. 739, 746 (1987) (internal quotations and marks omitted).

And here the government has engaged in conduct that offends the concept of ordered

liberty. Herrera is detained without explanation. No arresting documents have been provided, no

violation of his ATD is subustantiated, nor have Respondents given support for Herrera’s arrest

and detention on December 15, 2025. Such action by the government does not merely “interfere”

minimum, consideration for release on bond under 8 U.S.C. § 1226(a) – the same relief he requests as a putative

member of that class. (ECF Doc. 1, ¶¶ 26-31). But given the errors present at the inception of Herrera’s arrest and

detention, putative class membership, and simple discretionary bond under 1226(a) is insufficient relief.

with “implicit” liberty rights. Id. Liberty itself – for Herrera or for any other person in the United

States – is extinguished if the government is permitted to detain a person without cause. In itself,

this is an unconstitutional act and requires immediate remedy.

2. Procedural Due Process

Procedural due process requires the government provide adequate safeguards to ensure

against arbitrary deprivation of an individual’s liberty interest, including the ability to challenge

the basis for detention. See Lopez-Campos, 2025 WL 2496379, at *10. It is permissible for

immigrants to be detained pending their removal proceedings, even under a mandatory detention

structure. See Demore v. Kim, 538 U.S. 510, 531 (2003) (upholding the constitutionality of

mandatory detention under Section 1226(c) for certain criminal aliens during removal

proceedings, where such detention is brief and serves the legitimate government purposes of

ensuring the alien’s presence at removal hearings and protecting the public from potential harm).

Thus, the BIA’s decision in Matter of Yajure Hurtado does not violate an alien’s due process

rights in the abstract. See, e.g., Azalyar v. Raycraft, No. 1:25-CV-916, 2026 WL 30741, at *4

(S.D. Ohio Jan. 2, 2026). With respect to procedural due process, the issue before this Court is

“whether those policies have been applied in an unconstitutional manner.” Id. (internal

quotations and marks omitted).

When considering Herrera’s continued detention, he has been afforded some minimal

process – but that process itself was erroneously based on the wrong statute. (ECF Docs. 9-5, 11,

12). When given a bond hearing – after filing his present petition – the IJ denied bond as without

jurisdiction, i.e., the IJ believed they were bound by the mandatory detention scheme of Section

1225(b)(2)(A). (See ECF Doc. 9-5). Yet Respondents’ own arguments here point to a

misapplication of these same statutory provisions in Herrera’s case. He was initially granted

permission to remain in the United States, applied for asylum, and was granted parole. (ECF

Docs. 1-4, 1-5, 1-6, 1-7). For Herrera’s bond proceedings to comply with procedural due process,

they must be made under 1226(a)’s discretionary scheme. Therefore, the blanket application of

Section 1225(b)(2)(A)’s mandatory detention against Herrera where Section 1226(a)’s

discretionary detention provisions should apply does create a due process violation.

To determine the adequacy of process in the context of civil immigration detention, the

Court must weigh: (1) the private interest that will be affected by the official action; (2) the risk

of an erroneous deprivation of such interest through the procedures used, and the probable value,

if any, of additional or substitute procedural safeguards; and (3) the United States’ interest,

including the function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976);

see also United States v. Silvestre-Gregorio, 983 F.3d 848, 852 (6th Cir. 2020) (applying the

Mathews test).

a. Private interest

It is undisputed that Herrera has a significant private interest in not being detained.

Indeed, freedom from detention is one of the “most elemental of liberty interests.” Hamdi v.

Rumsfeld, 542 U.S. 507, 529 (2004). “Freedom from imprisonment—from government custody,

detention, or other forms of physical restraint—lies at the heart of the very liberty that [the Due

Process Clause] protects.” Zadvydas, 533 U.S. at 690. And to be arrested and detained without

the government first establishing proper process infringes on Herrera’s constitutional rights while

his immigration proceedings are being decided. See Singh, 2025 WL 2699219, at *4 (finding the

first Mathews factor favored petitioner where continued detention infringed on his liberty

interest). This factor favors Herrera.

b. Risk of Error

The second Mathews factor also favors Herrera, because, as above, he has been held in

mandatory detention through a misapplication of Section 1225(b)(2)(A)’s mandatory detention

provisions against him. And “when a particular statute delegates authority to an agency

consistent with constitutional limits, courts must respect the delegation, while ensuring that the

agency acts within it.” Loper Bright, 603 U.S. at 413. Other district courts confronted with

similar issues as are present here have determined that there is a significant risk of error in the

misapplication of these provisions, particularly where, as here, the petitioner has a pending

asylum claim. Make the Rd. New York, 2025 WL 2494908, at *14-18.

In Herrera’s case, immigration officials, vested with authority delegated by Congress to

the Attorney General and DHS, granted Herrera humanitarian parole and lawful entry into the

United States after inspection. (ECF Doc. 1-4). That parole may be revoked and require Herrera

to leave the United States and thereafter seek entry anew. See 8 U.S.C. § 1182(d)(5)(A). But the

government may not retroactively choose to revoke the lawfulness of his entry and withdraw the

discretionary bond procedures provided under 1226(a) to people who have been granted lawful

entry. See Jennings, 583 U.S. at 303 (“As noted, § 1226 applies to aliens already present in the

United States.”). The unilateral decision by the BIA to use Matter of Yajure Hurtado to extend a

different statute to Herrera’s circumstances despite Supreme Court precedent stating otherwise

now leaves his liberty interest at risk. The Government Respondents may not now extend the

bounds of their authority to apply Section 1225(b)(2)(A) against him, and this Court must ensure

proper application of the laws against Herrera.

This misapplication may also have an adverse effect on Herrera’s removal proceedings,

because “noncitizens cannot be in two parallel paths of removal proceedings.” Sanchez

Ballestros v. Noem, No. 3:25-CV-594-RGJ, 2025 WL 2880831, at *3 (W.D. Ky. Oct. 9, 2025). If

an alien is first placed in full removal proceedings, they cannot later be subjected to expedited

removal under Section 1225(b)(1). Id. (collecting cases).

Even so, the issue of erroneous application of 1225(b)(2)(A) against Herrera is secondary

here. As has been discussed exhaustively throughout this Report and Recommendation, Herrera

has a liberty interest in remaining in the United States under his ATD conditions, as long as he is

compliant with those conditions. See Zadvydas, 533 U.S. at 696. And on balance, the evidence

demonstrates that Herrera was complaint with his ATD conditions, and the government acted

against him. (Compare, e.g., ECF Doc. 13-2 with ECF Docs. 11-3, 12-1). Error here has already

occurred, and continues for as long as Herrera is detained.

c. The United States’ Interest

The final Mathews factor concerns the United States’ interest in the proceedings, as well

as any financial or administrative burdens associated with permissible alternatives. Matthews,

424 U.S. at 335. In making this consideration, I recognize that the United States has an interest in

meaningful immigration laws that advance its stated policies. I cannot, however, countenance the

Government Respondents’ position that Herrera is now subject to Section 1225(b)(2)(A), may

also be subject to expedited removal under that Section, and is subject to continued detention

when his arrest and detention was in error from the start. The United States has an interest in

consistent application of its laws and ensuring that those laws are applied under the proper

means. And Respondents, speaking for one branch of government, may not choose unilaterally

whether and how to apply duly enacted laws. See Lopez-Campos, 2025 WL 2496379, at *10.

Nor have Respondents shown that it would be burdensome to apply Section 1226(a) in

cases like Herrera’s. That statute permits for an alien’s arrest and detention pending the removal

decision. 8 U.S.C. § 1226(a)(1) (“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.”). Proper application of Section 1226 affords Herrera only the fundamental constitutional

right to due process given to all persons within the United States, whether their presence here is

lawful, unlawful, temporary, or permanent. Zadvydas, 533 U.S. at 693. Therefore, the final factor

also weighs in Herrera’s favor.

For all of these reasons, I find that Respondents have not substantiated Herrera’s initial

arrest and detention, and have further compounded the error by misapplying Section

1225(b)(2)(A)’s mandatory detention requirement against him. Accordingly, and because

Respondents have not provided valid documents supporting his initial detention, I recommend

that Herrera be afforded immediate release.

V. Conclusion and Recommendation

Because Section 1225(b)(2)(A) is inapplicable to Petitioner, Respondents may not now

impose mandatory detention against him pending his removal decision under Section

1225(b)(2)(A) and Matter of Yajure Hurtado. I further find that Respondents have not

sufficiently supported the lawfulness of Herrera’s initial detention, nor does statutory

interpretation or court precedent counsel his detention. I therefore recommend the District Court

grant the writ as to Petitioner and order his immediate release.

] SU

Dated: February 27, 2026

Reuben J. Sheperd

United States Magistrate Judge

34

Objections, Review, and Appeal

Within 14 days after being served with a copy of this report and recommendation, a party

may serve and file specific written objections to the proposed findings and recommendations of

the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28

U.S.C.§ 636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo

by the assigned district judge.

* * *

Failure to file objections within the specified time may result in the forfeiture or waiver

of the right to raise the issue on appeal either to the district judge or in a subsequent appeal to the

United States Court of Appeals, depending on how or whether the party responds to the report

and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be

specific and not merely indicate a general objection to the entire report and recommendation; “a

general objection has the same effect as would a failure to object.” Howard v. Sec’y of Health

and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus on specific

concerns and not merely restate the arguments in briefs submitted to the magistrate judge. “A

reexamination of the exact same argument that was presented to the Magistrate Judge without

specific objections ‘wastes judicial resources rather than saving them, and runs contrary to the

purpose of the Magistrates Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2

(W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections may in rare

cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-

79 (6th Cir. 2019).