Said

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:25-cv-938-MOC

MOSTAFA SAID, )

)

Petitioner, )

)

vs. ) MEMORANDUM OF

) DECISION AND ORDER

)

KRISTI NOEM, in her official capacity )

as Secretary of Homeland Security, et al., )

)

Respondents. )

___________________________________ )

THIS MATTER is before the Court on Petitioner’s Second Emergency Motion for

Temporary Restraining Order and Preliminary Injunction, [Doc. 22], which the Court construes as

a motion for preliminary injunction.

I. BACKGROUND AND PROCEDURAL HISTORY

Petitioner Mostafa Said (“Petitioner”) is a native and citizen of Egypt. He fled Egypt due

to persecution and entered the United States on September 9, 2024, without inspection. [Doc. 1 at

¶¶ 1, 15]. On Friday, November 21, 2025, during a routine ISAP1 check-in, Petitioner was detained

by ICE Enforcement and Removal Operations (ERO) in Charlotte, North Carolina, without

warning and without a custody redetermination hearing (“bond hearing”).2 [Id. at ¶¶ 27, 29; Doc.

1 “ISAP” refers to the U.S. Immigration and Customs Enforcement’s (ICE) Alternatives to

Detention-Intensive Supervision Appearance Program.

2 In Matter of Yajure-Hurtado, 29 I&N Dec. 216 (BIA 2025), the Board of Immigration Appeals

(BIA) held that individuals who entered without inspection are “applicants for admission” subject

to mandatory detention under 8 U.S.C. § 1225(b)(2)(A) for the duration of their removal

proceedings. 29 I&N at 220. The United States has adopted this position to categorically deny

bond eligibility to noncitizens like Petitioner.

1-7 at ¶ 5]. The same day, Petitioner, through his attorney Amro Elsayed, filed a Petition for Writ

of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the “Petition”), seeking release from ICE custody

or, alternatively, a bond hearing under 8 U.S.C. § 1226(a) on the grounds that his ongoing detention

violates the Immigration and Nationality Act (INA), §§ 236 and 241, 8 U.S.C. §§ 1225 and 1226,

and his constitutional due process rights.3 [See Doc. 1].

On November 25, 2025, Petitioner filed a motion for preliminary injunctive relief, asking

the Court to order Respondents to provide him with an individualized bond hearing pursuant to 8

U.S.C. § 1226(a) or release Petitioner from custody under reasonable conditions of supervision

(“First TRO Motion”). [Doc. 3]. Petitioner further asked the Court to enjoin Respondents from

denying bond eligibility on the sole basis that Petitioner is detained pursuant to 8 U.S.C. §

1225(b)(2) and the BIA’s decision in Yajure-Hurtado. [Id. at 1–2]. On December 17, 2025, after

full briefing and a hearing on the matter, the Court concluded that preliminary injunctive relief

was warranted. [Doc. 18 (“First TRO Order”)]. As further set forth in the Court’s Order, the Court

found that Petitioner was likely to succeed on the merits of his claim that his mandatory detention

under § 1225(b) is unlawful and/or violates his procedural due process rights. [See id.].

The Court ordered Respondents to hold a bond hearing pursuant to 8 U.S.C. § 1226(a)

within 48 hours of the Court’s Order and enjoined Respondents from denying bond on grounds

that Petitioner is detained pursuant to 8 U.S.C. § 1225(b). [Id.]. The bond hearing was timely

held, but Petitioner was not released on bond because he had “not met his burden to show that he

would not be a significant flight risk.” [Doc. 19 at 1, 4].

3 Petitioner also sought the issuance of a temporary restraining order prohibiting Respondents from

removing or transferring Petitioner outside the jurisdiction of this Court or the United States

pending adjudication of this case, which the Court granted on November 25, 2025, and extended

on December 9, 2025. [Id.; Doc. 12 at 3]. This temporary restraining order expired on December

23, 2025. [See Doc. 12].

On February 3, 2026, Petitioner filed a Second Emergency Motion for Temporary

Restraining Order and Preliminary Injunction (“Second TRO Motion”), seeking immediate release

from custody under reasonable conditions of supervision or, alternatively, release on bond; for the

Court to continue an Immigration Court hearing scheduled for February 5, 2026, on the

Department of Homeland Security’s (“DHS”) motion to pretermit Petitioner’s asylum application;

and to enjoin Respondents from rearresting Petitioner should he be released on bond or under

conditions of supervision. [Doc. 22]. As grounds, Petitioner argued among other things that he

was being detained without a constitutionally adequate bond hearing. [See Docs. 22, 22-1 to 22-

6, 23]. Given the immediacy of the February 5 hearing and based on the representations made by

Petitioner regarding the conduct of the bond hearing, the Court granted Petitioner’s Second TRO

Motion, in part, ordering that the February 5 hearing be continued and enjoining the Immigration

Court from issuing, enforcing, or executing any order of removal until this habeas action is fully

adjudicated. [Doc. 24 at 11 (“Second TRO Order”)]. The Court ordered Respondents to respond

to the Second TRO Motion [id. at 11] and the Petitioner to reply [Doc. 26].

After the matter was fully briefed, the Court set the matter for hearing on February 19,

2026. [Doc. 28; 2/19/2026 Minute Entry]. Before the hearing, Petitioner filed additional exhibits

to his Second TRO Motion and Respondents moved to file the audio file of the subject bond

hearing.4 [Docs. 29, 30].

At the hearing, the Court played the recording of the bond hearing, which lasted about 25

minutes. Prior to and in connection with the bond hearing, Petitioner submitted to the Immigration

Court seven declarations from community members, including attestations by several individuals,

including Petitioner’s cousin, willing to ensure Petitioner’s appearance at all scheduled hearings;

4 The Court will grant this motion, as the audio file was introduced into evidence and played at the hearing.

and documentary evidence of Petitioner’s moral character and compliance. [Doc. 23-1 at 2-3;

Doc. 22-1 at ¶ 7; Doc. 23 at 8; see Doc. 22-2]. In one such declaration, the affiant also attested to

expertise in smartphone applications and that he would ensure Petitioner installed and properly

used the ISAP smartphone application for timely check-ins, location verification, video calls, and

notifications. [Doc. 22-2 at ¶¶ 6–7]. These materials also included two declarations from

paralegals of Petitioner’s counsel’s law firm who attested that their office was never notified of

any violations by Petitioner of his ISAP compliance requirements, including ICE check-in and

monitoring program requirements. [Doc. 22-2 at 41, ¶ 4: Hernandez Dec.; Doc. 22-2 at 42, ¶¶ 5,

7: McNaught Dec.]. One employee also attested that, if Petitioner ever failed to comply with any

requirement, such noncompliance could likely be attributed to technical errors. [Doc. 22-2 at 41,

¶ 4].

The bond hearing proceeded as follows. [Doc. 32-1: Bond Hearing Tr.]. After the

Immigration Judge James Ward (the “IJ”) advised Petitioner’s counsel that no Arabic-Egyptian

interpreter was available, counsel waived an interpreter for the hearing on Petitioner’s behalf. The

DHS argued that it was Petitioner’s burden to show he did not pose a flight risk and that, based on

the Guerra factors, Petitioner does pose such a risk. The DHS argued that Petitioner had a limited

presence in the United States, having arrived just last year, and that he had committed several ISAP

violations demonstrating noncompliance with ICE requirements. [Id. at 5]. The DHS presented a

log dated November 21, 2025, reflecting that Petitioner missed Biometric Check-ins on December

30, 2024, and September 15, 2025, and that on five (5) other occasions Petitioner’s location was

not received (the “Log”). [See Doc. 32-1 at 4 (Exhibit 3); see Doc. 8-1 at 19].

After noting that he was familiar with the contents of Petitioner’s “well-filed documents,

including your request” for a bond hearing, the IJ turned to Petitioner. [Id. at 5]. Petitioner

clarified that the DHS, not Petitioner, had filed the bond redetermination hearing request.

Petitioner argued that he has been in the United States for over a year, that he has committed no

criminal conduct or violations of the law in the United States or elsewhere, that he has obtained a

work permit and has an extended network of friends and community; and that he had filed

numerous declarations from friends and family and community members attesting to Petitioner’s

good moral character. [Id. at 5–6, 7].

Petitioner asked IJ Ward to disregard the evidence of the alleged ISAP violations because

the Log is hearsay from a private contractor. Counsel argued that he was never informed of any

violations by Petitioner. [Id. at 6]. Petitioner further argued that, to the extent there was any

violation, it resulted from a technical issue only. Counsel posited that Petitioner “probably” failed

to properly share his location from his phone in the manner requested. [Id.]. Petitioner further

argued that he did not miss the biometric check-ins listed on the Log. Rather, Petitioner’s cousin

drove Petitioner from Winston-Salem to Charlotte for the check-in both times, but they were told,

“We’re too busy,” and to return the next day, which they did. [Id.]. Petitioner further argued that

he has complied with all immigration proceedings and every ICE check-in. [Id. at 6–7]. Petitioner,

however, did not submit any declarations before the hearing attesting to the circumstances of these

alleged missed check-ins.

The IJ then offered to take no action at the bond hearing and to allow Petitioner more time

to investigate and refute the ISAP violations, which the IJ said were “concerning” to him. [Id. at

7]. The IJ stated that he needed to determine whether Petitioner would be able to comply with

bond and “it’s looking like he’s had some problems.” [Id.]. Petitioner declined, stating that this

Court ordered that the hearing must be conducted within 48 hours of the Court’s Order. [Id.]. The

IJ responded that they had conducted the hearing, and he was “going to give [Petitioner] more

time.” [Id. at 8]. Petitioner again declined, citing this Court’s “very strict” time limit. [Id.].

The IJ stated that he would make a decision based only on the evidence before him and

that Petitioner’s arguments “are not evidence, unfortunately.” [Id. at 10–11]. The following

exchange occurred:

MR. ELSAYED TO JUDGE

Okay. May – before, your honor, we continue, what’s the

court’s position – can I know what the court’s position in the bond?

Is it going to be denied, or are we going to set the high bond?

JUDGE TO MR. ELSAYED

Well, I don’t – I – I’m still listening to your arguments, so.

MR. ELSAYED TO JUDGE

Because this is – if the court’s going to deny the bonds, then,

I’m going to move forward – just like submit this – more evidence.

If the court’s considered the high bond, that’s fine with me, your

honor. We can move forward and – with the appeal.

…

JUDGE TO MR. ELSAYED

Yeah. I’m going to find, at this time, that I don’t have – it’s

the [Petitioner’s] burden to establish he’s not a danger – excuse me

– a flight risk. I – first of all, I find that he’s not a danger to person

or property. There’s no criminal history here. I – there’s good

letters of support. My concern is flight risk. And if I release him on

bond, he’s going to be under the supervision of ICE. And the

Department filed, in Exhibit 3, violations – lots of violations, in a

relatively short period of time. Now, look – again, I don’t know the

– you know, what happened with these, but I just have a violations

log that shows that he was in violation. So, to me, that demonstrates

a risk of flight that I’m not willing to release him on until I have

more information on that. So, I’m going to --

MR. ELSAYED TO JUDGE

Okay.

JUDGE TO MR. ELSAYED

-- deny bond…

[Id. at 11-12]. Petitioner then moved to continue the matter to file more evidence to oppose the

Log. [Id. at 12-13]. The IJ explained that he relies on documents like the Log, which “seems to

be an official document,” “all the time.” [Id. at 13]. The IJ further explained that if Petitioner

were to bring in evidence that refutes the Log, he would take it into consideration, but he was

going to deny bond that day. [Id.]. The IJ also found as follows:

[B]ecause of the strict timeframe – and I don’t know if this will hold

up in the next hearing, but I’m going to find if you have additional

evidence that was not available to you at the time – because this was

short-set – that if you provide some additional evidence, I’ll find that

that’s a material change in circumstances, because you didn’t have

the time to produce the evidence from the district court, where some

of these things were already discussed. So, I find that that’s a

material change in circumstances, and I would re-hear your bond, if

it comes before me. I’m going to put that in an order, but I don’t

know – I mean, another judge may find differently, but I think that

with the short timeframe, the inability to have that, that that

precluded you from providing the evidence that was necessary.

[Id. at 13–14; see id. at 25 (“… I find, as a matter of law, that you can re-file your bond request,

and this would be a material chance [sic] in circumstances because you didn’t have that available

to you at – for – at this hearing.”)].

After the IJ denied bond, Petitioner’s attorney sought to introduce live testimony of

Petitioner’s cousin regarding having taken Petitioner to the two alleged missed biometric check-

ins. [Id. at 14]. DHS opposed the introduction of further evidence, arguing that the IJ had already

issued his ruling and that Petitioner was given a chance withdraw the motion. [Id. at 15]. Petitioner

reminded the IJ that he could not withdraw a motion he did not file. [Id. at 15–16]. The IJ stated

that he “noticed that afterwards” and agreed that Petitioner “[couldn’t] really withdraw it.” [Id. at

16]. After a five-minute recess, the IJ returned, noted again that he was denying bond, found that

the evidence before him was closed and declined to hear the cousin’s testimony, noting there was

no notice of it, and admonished Petitioner that if there are ISAP violations, “you should know that

that information has to be provided. It’s your burden to establish he’s not a risk of flight.” [Id. at

18, 21].

Petitioner then attempted to draw the IJ’s attention to the Declarations of counsel’s

paralegals “talking about this violation is untrue” and suggested that the IJ had not reviewed the

materials submitted by Petitioner. [Id. at 22–23]. The IJ responded that he did take into

consideration that the paralegals were never informed of the violations but “when [he] reviewed

this evidence yesterday,” he did not see any evidence that the violations were inaccurate. [Id. at

24–25].

After listening to the recording of the bond hearing, the Court heard the parties’ arguments

regarding Petitioner’s pending motion for injunctive relief. Petitioner argued that IJs generally are

being given guidance and instruction not to release noncitizens like Petitioner. Counsel stated that

he was forced to waive an interpreter on Petitioner’s behalf because the bond hearing would have

been continued without such waiver. Petitioner’s counsel stated that, in the over 500 immigration

hearings he had attended, this was the first in which a translator was unavailable. Petitioner argued

that the IJ refused to hear from the Petitioner and his cousin, who was present to testify that DHS’s

claim of ISAP violations was false. Petitioner’s counsel pointed to inconsistencies on the Log and

posited that it had been fabricated. Petitioner’s counsel explained that Petitioner does not drive for

fear of breaking the law and that his cousin drives him from Winston-Salem to Charlotte for check-

ins, returning the next day when the lines are too long to complete the check-in. Petitioner argued

that the IJ never asked him why he failed to share his location or otherwise gave him an opportunity

to be heard. Moreover, Petitioner appeared at the bond hearing by WebEx, but he could not testify

because there was no translator. Furthermore, Petitioner argued that there is no regulation

requiring that any request for rehearing would be heard by the same IJ and a different IJ would not

entertain a material change in circumstances claim.

In response, Respondents argued that the IJ was patient, gave Petitioner a chance to present

evidence, and offered to continue the bond hearing for Petitioner to obtain more evidence, but

Petitioner wanted a decision. Respondents further argued that, after the IJ’s decision, Petitioner

sought to reopen evidence and offer testimony of Petitioner’s cousin without notice to the

government in a manner inconsistent with immigration procedure. Respondents further argued

that there is no constitutional issue before the Court and that the IJ’s discretionary decision is not

subject to review.

As for injunctive relief, Respondents argued that due process was provided and that

Petitioner, therefore, has failed to show a likelihood of success on the merits, that he is unlikely to

suffer irreparable harm as to the conduct of the bond hearing “because of the way the immigration

judge handled the hearing,” and that the balance of equities and the public interest, which merge

when the government is a party, weigh against further injunctive relief.

Petitioner disagreed, arguing that he was unable to present evidence at the hearing and that

Petitioner’s cousin was present to testify regarding the alleged ISAP violations. Petitioner also

argued that he eventually sought to continue the hearing, but that IJ Ward had already denied bond

and, therefore, denied Petitioner’s request. Petitioner also noted that, even though IJ Ward offered

to re-hear the bond motion after affording Petitioner more time, the motion to re-hear would go

before a different IJ who would not be inclined to follow IJ Ward’s ruling and find a substantial

change in circumstances.

Respondents asked to file a transcript of the bond hearing and to thereafter file a

supplemental brief with the Court. These have been filed. [Doc. 32-1; Doc. 33]. Respondents

largely repeat their previous arguments in this matter. They contend that the bond hearing

complied with due process, that IJ Ward exercised his broad discretion to determine that Petitioner

failed to carry his burden of proving he is not a flight risk, that §§ 1226(e) and 1252(b)(9) prohibit

this Court’s review of IJ Ward’s decision to deny bond, and that Petitioner has failed to show he

is entitled to injunctive relief. [Doc. 33].

Petitioner replied. [Doc. 34]. Petitioner maintains that he was denied a constitutionally

adequate bond hearing under § 1226(a) and labeled a “flight risk” based on the unsubstantiated

Log. [Id. at 5–6]. Petitioner again argues that the Log was not authenticated nor was there any

foundation laid at the bond hearing “necessary to verify its reliability.” [Id. at 5 n.4]. Petitioner

points to the fact that the Log indicates that he is in expedited removal under § 1225(b)(1), when

he has in fact been in full removal proceedings under § 1229a since November 2024. [Doc. 34 at

6, 8]. Petitioner contends that IJ Ward should have required the DHS to authenticate the Log or

address “this critical inconsistency” before relying on it. [Id. at 6–8]. Petitioner also argues that

IJ Ward failed to meaningfully apply the Guerra framework, which does not include violation of

ISAP reporting conditions as a relevant factor. [Id. at 10–11].

Of particular note, Petitioner states that he appeared at a second bond hearing on February

23, 2026, before a different Immigration Judge, IJ Harness, where bond was again denied. [Id. at

6; Doc. 34-1]. In her Order, IJ Harness noted her consideration of this Court’s Second TRO Order,

especially the due process requirements in immigration bond hearings and the preliminary finding

that the evidence relied on by IJ Ward “could not, as a matter of law, establish that Petitioner posed

a flight risk.” [Doc. 34-1 at 1–2]. She also noted that she considered “all evidence submitted into

the record (see Exs. 1–6) as well as the sworn testimony of [Petitioner] and his cousin, Mohamed

Elmahdy,” and the parties’ arguments. [Id. at 2]. IJ Harness noted that her bond determination

was guided by the nonexclusive Guerra factors and that she may also consider “an alien’s character

and potential eligibility for relief as factors in determining the necessity for or the amount of the

bond.” [Id. at 3 (citing Matter of Andrade, 19 I&N Dec. 488, 489–90 (BIA 1987))]. Moreover, IJ

Harness provided that “[i]n assessing these factors, the Immigration Judge may base his decision

on ‘any information that is available to the Immigration Judge or that is presented to him or her by

the alien or [DHS].’” [Id. (quoting 8 C.F.R. § 1003.19(d))].

In determining that Petitioner was not eligible for bond because he failed to meet his burden

to show that he would not be a significant flight risk, IJ Harness found and concluded as follows:

Here, as previously found by the IJ on December 19, 2025, the

undersigned IJ finds that there is nothing in the record to indicate

that [Petitioner] would be a danger to community if he were to be

released on bond. However, as also previously found by the IJ on

December 19, 2025, the IJ finds [Petitioner] is not eligible for bond

because he has failed to meet his burden to show that he would not

be a significant risk of flight.

The Court recognizes that [Petitioner] has some positive factors in

this case. [Petitioner] has expressed a fear of returning to Egypt and

timely filed an I-589 application. He has received employment

authorization to allow him to legally work in the U.S. while this

application is pending. He has provided documentation and

testimony from his U.S. citizen (USC) cousin who is willing and

able to sponsor [Petitioner] to ensure that he appears for future

proceedings and would not become a public charge. He also

provided numerous letters from other friends and family members

who attested to his good character. He has also provided the court

with a fixed address where he would be residing with his cousin and

his cousin’s wife, and has no known criminal history. See Exh. 3.

However, there are also many negative factors in [Petitioner’s] case.

[Petitioner] has been present in the U.S. for less than 18 months and

has no significant family ties to the U.S. that would enable him to

reside permanently in the U.S. in the future (i.e., no USC or LPR

spouse, parent, or child). While [Petitioner] filed a Form I-589

application for relief with the immigration court, this relief remains

speculative and there is a pending motion to pretermit the

application pursuant to the Asylum Cooperative Agreement (ACA)

with Uganda. Further while [Petitioner] has employment

authorization and submitted letters from friends and family

indicating that he had steadily worked in the U.S. since arriving, he

did not provide a letter from his employer or proof of stable

employment (i.e., no paystubs or other documentation verifying

employment). [Petitioner] has also provided no proof of property

ownership or other asset ownership in the U.S. Finally, there is

credible evidence in the record to reflect that [Petitioner] previously

failed to appear for scheduled ICE supervision appointments. While

this may not have been the reason why [Petitioner’s] prior grant of

parole from DHS was terminated, it is still relevant to the

consideration of whether [Petitioner] is a flight risk for bond

purposes.

Therefore, despite the positive equities as stated supra, the Court

finds that [Petitioner] has not met his burden to demonstrate to the

Court that he is not a significant flight risk if given a bond. There

has been no material change in circumstances since bond was denied

on December 19, 2025.

[Doc. 34-1 at 3–4 (internal citation omitted)]. Petitioner claims that IJ Harness’ Order

“contradicted statements made during the proceedings.” [Doc. 34 at 6]. That is, Petitioner’s

counsel identified “significant errors” in the Log, including the statement that Petitioner had been

placed in expedited removal proceedings, which is “demonstrably incorrect.” [Id. at 6]. Petitioner

posits that the Log “may not even correspond to Petitioner.” [Id. at 6]. Petitioner, however, does

not otherwise take issue with this second bond redetermination hearing. [See Doc. 34].

This matter is now ripe for adjudication.

II. ANALYSIS

A. Jurisdiction

Respondents argue that 8 U.S.C. §§ 1226(e), 1252(b)(9), and 1252(g) deprive this Court

of jurisdiction over Petitioner’s challenge to the constitutionality of his bond hearing. [Doc. 25 at

2-5].

Section 1226(e) provides:

The Attorney General’s discretionary judgment regarding the

application of this section shall not be subject to review. No court

may set aside any action or decision by the Attorney General under

this section regarding the detention of any alien or the revocation or

denial of bond or parole.

8 U.S.C. § 1226(e). This provision does not preclude challenges to “the extent of the

Government’s detention authority under the statutory framework as a whole.” Jennings v.

Rodriguez, 583 U.S. ---, 138 S.Ct. 830, 841 (2018). Nor does it “limit habeas jurisdiction over

constitutional claims or questions of law.” Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011);

see also Kim v. Demore, 538 U.S. 510, 517, 123 S.Ct. 1708 (2003) (“Section 1226(e) contains no

explicit provision barring habeas review.”). “[C]laims that the discretionary process itself was

constitutionally flawed are cognizable in federal court on habeas because they fit comfortably

within the scope of § 2241.” Singh, 638 F.3d at 1202. Moreover, “‘where Congress intends to

preclude judicial review of constitutional claims its intent to do so must be clear,’” Kim, 123 S.Ct.

at 1714 (quoting Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047 (1988)), and “where a

provision precluding review is claimed to bar habeas review, the Court has required a particularly

clear statement that such is Congress’ intent,” id. (citing INS v. St. Cyr, 533 U.S. 289, 308–09,

121 S.Ct. 2271 (2001)).

Because Petitioner here asks the Court to consider whether the IJ violated his due process

rights in the conduct of the bond hearing, § 1226(e) does not deprive this Court of jurisdiction over

the present motion.

Section 1252(b)(9), the so-called “zipper clause,” provides:

Judicial review of all questions of law and fact, including

interpretation and application of constitutional and statutory

provisions, arising from any action taken or proceeding brought to

remove an alien from the United States under this subchapter shall

be available only in judicial review of a final order under this

section. Except as otherwise provided in this section, no court shall

have jurisdiction, by habeas corpus … or by any other provision of

law …, to review such an order or such questions of law or fact.

8 U.S.C. § 1252(b)(9). The Supreme Court has cautioned against an overly broad application of

Section 1252(b)(9), see Jennings v. Rodriguez, 583 U.S. 281, 292–94, which only regards review

of orders of removal, see Casa De Maryland v. U.S. Dep’t of Homeland Sec., 924 F.3d 684, 697

(4th Cir. 2019) (citation omitted) (finding § 1252(b)(9) applies only to review of an order of

removal under § 1252(a)(1)). Petitioner here is challenging his unlawful detention without a

constitutionally adequate bond hearing, which does not fall within the scope of § 1252(b)(9). As

such, Respondents’ argument that this Court lacks jurisdiction under § 1252(b)(9) is without merit.

Finally, Respondents’ argument under § 1252(g) is also without merit. Section 1252(g)

provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any

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

proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8

U.S.C. § 1252(g). The Supreme Court has determined that this section “applies only to three

discrete actions that the [Secretary of Homeland Security] may take: her ‘decision or action’ to

‘commence proceedings, adjudicate cases, or execute removal orders.’” Reno v. Am.-Arab Anti-

Discrimination Comm., 525 U.S. 471, 119 S.Ct. 936 (1999). The Supreme Court has rejected as

“implausible” an attempt to convert § 1252(g) into a broad bar on judicial review of all

immigration-related claims. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1,

19 (2020). Most importantly here, § 1252(g) does not strip federal courts of jurisdiction over

habeas challenges by confined noncitizens. See Zadvydas v. Davis, 533 U.S. 678, 688 (2001)

(providing that § 1252(g), which applies to decisions “to commence proceedings, adjudicate cases,

or execute removal orders” did not preclude habeas proceedings “as a forum for statutory and

constitutional challenges to post-removal-period detention”); Suri v. Trump. No. 25-1560, 2025

WL 1806692, at *7 (4th Cir. July 1, 2025) (“Because § 1252(g) simply doesn’t extend to habeas

challenges to present immigration confinement, courts routinely exercise jurisdiction over such

challenges.”). As such, § 1252(g) does not undermine the Court’s jurisdiction over the present

challenge.

B. Exhaustion

Respondents argue that Petitioner should be required to appeal the IJ’s denial of bond to

the Board of Immigration Appeals (BIA) before seeking relief with this Court. [Doc. 25 at 6-7].

There is, however, no exhaustion provision in § 1226(a). See McCarthy v. Madigan, 503 U.S.

140, 144, 112 S.Ct. 1081 (1992) (“Where Congress specifically mandate” exhaustion of

administrative remedies, “exhaustion is required.”). “[W]here Congress has not clearly required

exhaustion, sound judicial discretion governs.” Id.; see also Miranda v. Garland, 34 F.4th 338,

351 (4th Cir. 2022) (recognizing that in the absence of a statutory exhaustion provision, “the

district court [has] discretion to decide if administrative exhaustion [is] required”).

When discretionary, exhaustion may be excused when “the legal question is ‘fit’ for

resolution and delay means hardship … or when exhaustion would prove ‘futile[.]’” Shalala v. Ill.

Council on Long Term Care, 529 U.S. 1, 13, 120 S.Ct. 1094 (2000) (citations omitted). “[A]n

administrative remedy may be inadequate where the administrative body is shown to be biased or

has otherwise predetermined the issue before it.” McCarthy, 503 U.S. at 148, 112 S.Ct. 1081

(citation omitted). Here, any additional delay necessarily means substantial hardship for the

Petitioner and the result of any appeal appears predetermined in any event. As such, the Court

will not require Petitioner to appeal to the BIA for another review before proceeding here. See 8

C.F.R. §§ 236.1(d), 1003.19(f).

Because the Court has jurisdiction over Petitioner’s challenge to his current detention

without a constitutionally adequate bond hearing and because the Court will not require exhaustion

of any administrative remedies under the circumstances here, the Court turns to the merits of the

pending motion.

B. Preliminary Injunction

To obtain a preliminary injunction, the plaintiff must establish (1) that he is likely to

succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary

relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public

interest. Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir.

2009); see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21, 129 S.Ct. 365 (2008). When the

constitutional violation is “likely,” several of these factors are satisfied. Leaders of a Beautiful

Struggle v. Balt. Police Dep’t, 2 F.4th 330, 346 (4th Cir. 2021) (en banc). That is, when “there is

a likely constitutional violation, the irreparable harm factor is satisfied” because “the loss of

constitutional freedoms, ‘for even minimal periods of time, unquestionably constitute irreparable

injury.’” Id. (quoting Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (internal

quotation omitted)). The final two factors are satisfied when there is a likely constitutional

violation because “the public interest favors protecting constitutional rights” and “a state is in no

way harmed by issuance of a preliminary injunction which prevents the state from enforcing

restrictions likely to be found unconstitutional.” Id. (quoting Centro Tepeyac v. Montgomery

Cnty., 722 F.3d 184, 191 (4th Cir. 2013)). Thus, where a constitutional violation is “likely,” the

inquiry collapses into the first factor, the likelihood of success on the merits. See Mahmoud v.

McKnight, 2023 WL 5487218, at *14 (D. Md. Aug. 24, 2023), affirmed 102 F.4th 191 (4th Cir.

2024).

Currently, Petitioner asks the Court to immediately release him on bond or subject to

reasonable conditions of supervision and enjoin Respondents from pretermitting Petitioner’s

asylum application or executing any removal order until this case is finally adjudicated. As

grounds, Petitioner contends that he was denied bond or release on conditions under § 1226(a)

without due process.5

The Fifth Amendment entitles all “persons” to due process of law. U.S. Const. amend. V

(“No person shall be … deprived of life, liberty, or property, without due process of law….”). No

one disputes that the Fifth Amendment entitles noncitizens like Petitioner to due process of law.

Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439 (1993); see Kim, 538 U.S. at 523, 123 S.Ct.

1708. As such, the Due Process Clause protects noncitizens, whether their presence is lawful,

unlawful, temporary, or permanent. Zadvydas, 533 U.S. at 693, 121 S.Ct. 2491.

“To determine whether civil detention violates a detainee’s Fifth Amendment procedural

due process rights, courts apply the familiar three-part test articulated in Mathews v. Eldridge.

Hasan v. Crawford, 800 F. Supp. 3d 641, 659 (E.D. Va. 2025) (citing Mathews v. Eldridge, 424

U.S. 319 (1976)). Mathews requires courts to weigh three factors: (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 Government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entail.” 424

U.S. at 335–36. At minimum, procedural due process requires “the opportunity to be heard ‘at a

5 On initial and expedited consideration of Petitioner’s arguments and materials, the Court granted

a temporary restraining order without a response from the Respondents. [Doc. 24]. The Court

now has the benefit of their response, Petitioner’s reply, the arguments of the parties at the hearing

in this matter, an audio recording and transcript of the bond hearing at issue, and supplemental

briefing. [See Docs. 25, 27, 29, 32-1, 33, 34].

meaningful time and in a meaningful manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S.

545, 552, 85 S.Ct. 1187 (1965)). Moreover, “due process is flexible and calls for such procedural

protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.

2593 (1972).

Even where detention is allowed, due process requires “adequate procedural protections”

to ensure that the government’s asserted justification for physical confinement “outweighs the

individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S.

at 690, 121 S.Ct. 2491 (internal quotation marks omitted). In immigration bond hearings, due

process requires the IJ to consider all relevant evidence proffered by the detainee to assess flight

risk or danger. See Singh, 638 F.3d at 1204–05 (requiring “adequate procedural protections” to

present one’s case in bond hearings, including consideration of evidence). Furthermore, due

process requires adequate translation of the proceedings so that the noncitizen is not deprived of

“an opportunity to be heard at a meaningful time and in a meaningful manner, meaning he did not

receive a full and fair hearing on [his] claims.” Singh v. Holder, 699 F.3d 321, 335–36 (4th Cir.

2012) (internal quotation marks omitted). Majia-Velasquez v. Garland, 26 F.4th 193, 205 (4th Cir.

2022) (due process requires translator at immigration proceedings where substantive matters, such

as evidence presentation or witness cross-examination, are involved).

At an individualized bond hearing for non-criminal noncitizens pursuant to 8 U.S.C. §

1226(a), the burden of proof is on the noncitizen to “demonstrate to the satisfaction of the officer

that such release would not pose a danger to property or persons, and that the alien is likely to

appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8); see also In re Guerra, 24 I&N Dec. 37,

40 (BIA 2006). In making this determination, an IJ “must consider whether an alien who seeks a

change in custody status is a threat to national security, a danger to the community at large, likely

to abscond, or otherwise a poor bail risk.” In re Guerra, 24 I&N Dec. 40 (citation omitted).

Immigration Judges may look to a number of factors in determining

whether an alien merits release from bond, as well as the amount of

bond that is appropriate. These factors may include any or all of the

following: (1) whether the alien has a fixed address in the United

States; (2) the alien's length of residence in the United States; (3) the

alien's family ties in the United States, and whether they may entitle

the alien to reside permanently in the United States in the future; (4)

the alien's employment history; (5) the alien's record of appearance

in court; (6) the alien's criminal record, including the extensiveness

of criminal activity, the recency of such activity, and the seriousness

of the offenses; (7) the alien's history of immigration violations; (8)

any attempts by the alien to flee prosecution or otherwise escape

from authorities; and (9) the alien's manner of entry to the United

States.

Id. The IJ may base its determination on “any information that is available to the Immigration

Judge or that is presented to him or her by the alien or [DHS].” 8 C.F.R. § 1003.19(d). “The

Federal Rules of Evidence do not apply in immigration proceedings, and evidentiary

determinations are limited only by due process considerations.” Anim v. Mukasey, 535 F.3d 243

(4th Cir. 2008).

As to the bond hearing before IJ Ward, the Court finds that Petitioner’s due process rights

were violated. Weighing the Mathews factors, Petitioner’s interest in freedom from civil

incarceration is obvious and substantial. As for the second factor, the procedures used caused a

pronounced increased risk of deprivation of Petitioner’s liberty interest, which could be readily

ameliorated with additional procedural safeguards. That is, due to the strict time limit imposed by

this Court, Petitioner was constrained to waive an interpreter and therefore the ability to testify

and understand the proceedings. Moreover, as recognized by the IJ, Petitioner was unable to gather

and/or give proper notice of evidence to refute the Log, which appears to be the sole basis of the

IJ’s decision to deny bond. Additionally, the IJ asked if Petitioner wanted to move to continue the

hearing to allow more time, which Petitioner could not do because the DHS filed the motion.

Petitioner could easily be allowed sufficient, reasonable time before a custody determination

hearing to gather evidence and to have an interpreter available to enable Petitioner to testify and

to understand the proceedings. Without this time, Petitioner was denied the opportunity to be heard

at a meaningful time and in a meaningful manner. The Court, of course, recognizes that

Petitioner’s counsel waived an interpreter before the hearing proceeded. But he did so on the

reasonable though mistaken belief that failing to do so would have caused a violation of this

Court’s Order. Had the Court known that such additional time was necessary to protect Petitioner’s

due process rights, the Court would have allowed more time and made clear that a continuance at

Petitioner’s request or to have an interpreter present would not have contravened the Court’s order.

Finally, the fiscal and administrative burden of these simple, additional procedural safeguards

under the circumstances here are not only relatively minimal but were invited by the IJ who

conducted the hearing.

For these reasons, Petitioner was prevented from being heard at a meaningful time and in

a meaningful manner before he was denied bond or release on supervisory conditions and his

liberty further restrained.

The inquiry, however, does not end there. Petitioner has since been provided a second

custody redetermination hearing. Petitioner does not contend that this second bond hearing

violated his due process rights or otherwise seek any relief relative thereto. Rather, Petitioner

intimates only that IJ Harness should have addressed the Log’s “critical discrepancy” or required

the DHS to authenticate it. Moreover, it appears that the second bond hearing comported with due

process in any event. IJ Harness heard testimony from Petitioner’s cousin and Petitioner himself,

presumably with the assistance of an interpreter. IJ Harness reviewed the record before her and

weighed the information presented relative to the nonexclusive Guerra factors. [See Doc. 34-1 at

3–4]. Furthermore, she was within her discretion to consider the Log.6 See 8 C.F.R. § 1003.19(d).

While this Court would likely have reached a different conclusion as to Petitioner’s risk of flight,

the Court is constrained not to second-guess and substitute its own judgment for that of the

Immigration Judge. See 8 U.S.C. § 1226(e).

In reaching this conclusion, the Court is not at all unsympathetic to Petitioner. It certainly

seems that the balance of factors here would have previously been deemed insufficient to support

a flight-risk finding. The balance, however, does not land so disproportionally that the Court can

conclude that the second bond hearing was a sham or that Petitioner’s due process rights were

necessarily violated. While the Court would have ordered that a second bond hearing comporting

with due process be conducted, such hearing has already occurred and Petitioner does not contend,

nor does the limited record support, that his due process rights were violated in its conduct. The

Court, therefore, will deny Petitioner’s motion for preliminary injunctive relief as moot.

III. CONCLUSION

In sum, although Petitioner was denied due process at his court-ordered bond hearing, he

has since received a second bond hearing which appears to have been conducted in accordance

with Petitioner’s due process rights. The Court, therefore, will deny Petitioner’s pending motion

for injunctive relief as moot. The Court will, however, extend its order enjoining the Immigration

Court from issuing, enforcing, or executing any order of removal until this habeas action is fully

6 To be sure, the Court is not convinced that there is anything “critical” regarding the discrepancy

between Petitioner’s actual removal status and the status listed on the Log, which appears to be

nothing more than an administrative error. While Petitioner contends that the Log is a fabrication,

on the one hand, he twice brought his cousin to testify regarding the circumstances of the two

alleged missed check-ins and submitted an affidavit of another individual who would ensure

Petitioner installed and properly used the ISAP smartphone application for timely check-ins,

location verification, video calls, and notifications. [See Doc. 22-2 at ¶¶ 6–7].

adjudicated pending further orders of this Court.

IT IS THEREFORE ORDERED THAT:

1. Petitioner’s Emergency Motion for Temporary Restraming Order and Preliminary

Injunction [Doc. 22] is DENIED as moot in accordance with the terms of this Order.

2. Respondents’ Motion to Allow Filing of an Audio File of the Immigration Court Bond

Hearing [Doc. 30] is GRANTED.

3. The Immigration Court remains ENJOINED from issuing, enforcing, or executing any

order of removal until this habeas action is fully adjudicated pending further orders of

the Court.

IT IS SO ORDERED.

Signed: April 2, 2026

i )

EBL evr

Max O. Cogburn i yg

United States District Judge Fe gat

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