Mukhammadjon Makhmudov v. Pamela Bondi, et al.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

MUKHAMMADJON )

MAKHMUDOV, )

)

Petitioner, )

)

v. ) Case No. CIV-25-1526-G

)

PAMELA BONDI, et al., )

)

Respondents. )

NUNC PRO TUNC REPORT AND RECOMMENDATION

Petitioner Mukhammadjon Makhmudov, a noncitizen,1 seeks a writ of

habeas corpus under 28 U.S.C. § 2241. Doc. 7.2 United States District Judge

Charles B. Goodwin referred the case to the undersigned Magistrate Judge for

initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5.3 Petitioner also

filed an amended application for a temporary restraining order (TRO) seeking

1 This Report and Recommendation “uses the term ‘noncitizen’ as

equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578

n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)).

2 The amended petition, Doc. 7, supersedes the original petition, Doc. 1, as

the operative petition.

3 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

injunctive relief. Doc. 8.4 The Court directed Respondents5 to respond to

Petitioner’s habeas petition and TRO application for a decision on the merits.

Doc. 9. Respondents responded, Doc. 11, and Petitioner replied, Doc. 12. So the

matter is at issue.

For the reasons below, the undersigned recommends the Court grant

Petitioner’s habeas petition, in part, and his TRO application, and order his

immediate release.

I. Factual background and procedural history.

4 “A TRO preserves the status quo and prevents immediate and

irreparable harm until the court has an opportunity to pass upon the merits of

a demand for preliminary injunction.” Flying Cross Check, L.L.C. v. Central

Hockey League, Inc., 153 F. Supp. 2d 1253, 1258 (D. Kan. 2001); Resol. Trust

v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992). “The essence of a [TRO] is its

brevity, its ex parte character, and (related to the second element) its

informality.” Flying Cross Check, 153 F. Supp. at 1258. The Court directed

Respondents to respond to both Petitioner’s TRO application and his habeas

petition in its order for response. See Doc. 9. So, the undersigned construes

Petitioner’s TRO application as a motion for a preliminary injunction. See

Davenport v. Pata, No. CIV-20-358-C, 2021 WL 2371897, at *2 (W.D. Okla.

Feb. 25, 2021), adopted, 2021 WL 2371346 (W.D. Okla. June 9, 2021)

5 Respondents refers to Pamela Bondi, Attorney General of the United

States; Russell Holt, Chicago Field Office Director Immigration and Customs

(ICE) Enforcement and Removal Operations (ERO); Joshua Johnson, Dallas

Field Office Director ICE/ERO; Todd Lyons, Acting Director of ICE; and Kristi

Noem, Secretary of the Department of Homeland Security (DHS), as

Respondent Scarlet Grant is not a federal official. See Doc. 7 & Doc. 11, at 10.

2

Petitioner is a 24-year-old citizen of Uzbekistan who entered the country

on April 18, 2023. Doc. 7, at 17. He “was threatened by the Uzbek government

for his political beliefs.” Id. He applied for asylum in May 2023. Id. And ICE

issued him an employment authorization document. Id.6

Petitioner has been detained by Immigration & Customs Enforcement

(ICE) since November 2025 after being pulled over “while driving his vehicle.”

Id. at 17-18. In December 2025, Petitioner applied for a bond redetermination

hearing, but the Immigration Judge (IJ) determined the court lacked

jurisdiction to hear Petitioner’s request as he is subject to mandatory detention

under 8 U.S.C. § 1225(b)(2)(a). Id. at 18.7 ICE has charged Petitioner as

someone who “entered [the United States] without inspection” under 8 U.S.C.

§ 1182(a)(6)(A)(i). Id. at 4; see § 1182(a)(6)(A)(i) (“An alien present in the

6 Petitioner was released from ICE’s custody, but the parties do not supply

information as to whether this was on his own recognizance or subject to

conditions. Applicable regulations provide that a grant of employment

authorization is “[s]ubject to the restrictions contained in” 8 U.S.C. §§ 1158(d)

and 1226(a). 8 C.F.R. § 208.7(a)(1).

7 In Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), the BIA

held that those who entered the country without admission or parole are

ineligible for a bond hearing and are detained under 8 U.S.C. § 1225(b)(2)(A).

29 I. & N. Dec. at 216. Hurtado is not binding on this Court. See Loper Bright

Enters. v. Raimondo, 603 U.S. 369, 413 (2024) (“[C]ourts need not and under

the APA may not defer to an agency interpretation of the law simply because

a statute is ambiguous.”).

3

United States without being admitted or paroled, or who arrives in the United

States at any time or place other than as designated by the Attorney General,

is inadmissible.”).

II. Petitioner’s claims.

Petitioner raises six grounds for relief:

Grounds One and Two: Violations of the Immigration & Nationality Act

(INA) and relief as a member of the classes certified in Maldonado-

Bautista v. Noem, 2025 WL 3678485 (C.D. Cal. Dec. 18, 2025) and

Mendoza Gutierrez v. Baltasar, 2025 WL 2962908 (D. Colo. Oct. 17,

2025);

Ground Three: Violation of 8 U.S.C. § 1226(a) for unlawful denial of

release on bond;

Ground Four: Violation of ICE’s Bond Regulations, 8 C.F.R. §§ 236.1,

1236.1 and 1003.19 for unlawful denial of release on bond;

Ground Five: Violation of his Fifth Amendment right to due process; and

Ground Six: Violation of the Administrative Procedure Act (APA) – 5

U.S.C. § 706(2)(A).

Doc. 7, at 19-27. In short, he argues that mandatory detention under 8 U.S.C.

§ 1225(b)(2) does not apply to him as he is detained under § 1226(a),

Respondents are violating the INA through his continued detention, and have

violated his due process rights. Id.

Petitioner asks this Court to “declare that [his] re-detention without an

individualized determination violates the Due Process Clause of the Fifth

4

Amendment,” issue a writ ordering Respondents to release him from custody

within three days, and issue an order prohibiting Respondents from

transferring him from the district without the Court’s approval. Id. at 29-30.8

III. Standard of review.

An application for a writ of habeas corpus “is an attack by a person in

custody upon the legality of that custody, and . . . the traditional function of

the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.

475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “is in

custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). “Challenges to immigration detention are

properly brought directly through habeas.” Soberanes v. Comfort, 388 F.3d

1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687-88

(2001)).

“A preliminary injunction is an extraordinary remedy, the exception

rather than the rule.” Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d 1221,

8 In his TRO application, Petitioner largely seeks the same relief, but

requests that the Court order Respondents to provide him with an

individualized bond hearing within seven days rather than three. See Doc. 8,

at 2. He also asks the Court to enjoin Respondents “from relocating [him]

outside of the District of Oklahoma pending final resolution of [his] case” and

“issuance of an order to show cause.” Id. Petitioner’s requests were rendered

moot in the Court’s order for response. See Doc. 9.

5

1232 (10th Cir. 2019). “Because the limited purpose of a preliminary injunction

‘is merely to preserve the relative positions of the parties until a trial on the

merits can be held,’” there are “three types of specifically disfavored

preliminary injunctions . . .: (1) preliminary injunctions that alter the status

quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions

that afford the movant all the relief that it could recover at the conclusion of a

full trial on the merits.” Schrier v. Univ. Of Co., 427 F.3d 1253, 1258-59 (10th

Cir. 2005). “To determine whether an injunction is mandatory or prohibitory,

[courts] look at the substance of the injunction and compare it to the status quo

ante—i.e., the ‘last uncontested period preceding the injunction.’” Evans v.

Fogarty, 44 F. App’x. 924, 928 (10th Cir. 2002) (quoting Dominion Video

Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001)).

A mandatory injunction “compel[s] [the non-moving party] to do something it

was not already doing during the last uncontested period preceding the

injunction.” See Dominion Video, 269 F.3d at 1155.

To succeed on his motion for injunctive relief, Petitioner “needs to prove

four things: (1) that [he is] ‘substantially likely to succeed on the merits,’ (2)

that [he will] ‘suffer irreparable injury’ if the court denies the injunction; (3)

that [his] ‘threatened injury’ (without the injunction) outweighs the opposing

party’s under the injunction, and (4) that the injunction isn’t adverse to the

6

public interest.’” Mrs. Fields, 941 F.3d at 1232. The third and fourth factors,

which assess harm to the opposing party and weighing the public interest,

“merge when the Government is the opposing party.” Nken v. Holder, 556 U.S.

418, 435 (2009). “When called on to resolve a dispute over a statute’s meaning,”

the Court should “seek[] to afford the [statute’s] terms their ordinary meaning

at the time Congress adopted them” and to “exhaust all the textual and

structural clues bearing on the meaning.” Niz-Chavez v. Garland, 593 U.S. 155,

160 (2021) (internal quotation marks omitted). This Court’s “‘sole function’ is

to apply the law as the Court finds it, . . . not defer to some conflicting reading

the government might advance.” Id. (internal citation omitted); see also

Oklahoma v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11

(10th Cir. 2024) (stating that the court “must independently interpret the

statutory phrase irrespective of the parties’ positions”), judgment vacated on

other grounds, 145 S. Ct. 2837 (2025).

IV. Discussion.

A. The Court has jurisdiction to consider the petition.

Respondents maintain Petitioner’s argument is jurisdictionally barred.

Doc. 11, at 20-23. The undersigned disagrees.

Section 1252(a)(5) provides that “a petition for review filed with an

appropriate court of appeals . . . shall be the sole and exclusive means for

7

judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9)

provides another bar to judicial review, specifically for “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” “[e]xcept as otherwise provided in this section.”

Id. § 1252(b)(9). Section 1252(b)(9) is a “jurisdiction-stripping ‘zipper clause,’”

which “channel[s] review of all ‘decisions and actions leading up to or

consequent upon final orders of deportation’ in the courts of appeal, following

issuance of an order of removal.” Mukantagara v. DHS, 67 F.4th 1113, 1115

(10th Cir. 2023) (quoting Reno v. American-Arab Anti-Discrimination Comm.,

525 U.S. 471, 482-85 (1999)).

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 Attorney General to commence proceedings, adjudicate cases, or

execute removal orders.” 8 U.S.C. § 1252(g). The Court reads § 1252(g)

narrowly, Reno, 525 U.S. at 482, as it does not cover “all claims arising from

deportation proceedings” or impose “a general jurisdictional limitation.” Id.

Instead, it “applies only to three discrete actions that the Attorney General

may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases,

or execute removal orders.’” Id.

8

The Court has jurisdiction over the petition as Petitioner is only

challenging the way Respondents are conducting his detention—the lack of a

pre-deprivation bond hearing. See Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th

Cir. 2006) (holding that § 1252(a)(5) does “not eliminate a district court’s

jurisdiction to review habeas petitions challenging an alien’s detention” and

affirming district court’s finding that it had jurisdiction to review a habeas

petition challenging “DHS’s continued detention [of petitioner] without bond

or without providing a bond hearing”).

Likewise, § 1252(b)(9) does not bar this Court’s review. Petitioner does

not ask the Court to review a removal order (which has not been issued), or

Respondents’ decision to detain him or seek his removal. And, by addressing

the petition, the Court is not reviewing any part of Respondents’ process for

determining Petitioner’s eligibility for removal. See Jennings v. Rodriguez, 583

U.S. 281, 294-95 (2018) (holding that § 1252(b)(9) “does not present a

jurisdictional bar” when “detained aliens” “are not asking for review of an order

of removal; they are not challenging the decision to detain them in the first

place or to seek removal; and they are not . . . challenging any part of the

process by which their removability will be determined”).

Finally, § 1252(g) does not bar this Court’s review of Petitioner’s

detention. Respondents argue § 1252(g)’s language strips this Court of

9

jurisdiction to review any claim arising from the decision to commence

proceedings against Petitioner—including the “basis” for that decision. Doc. 9,

at 16. But the Supreme Court finds this interpretation “implausible” because

“the mention of three discrete events along the road to deportation was [not] a

shorthand way of referring to all claims arising from deportation proceedings.”

Reno, 525 U.S. at 482. And in Jennings, the Supreme Court reaffirmed this

narrow reading, explaining that Reno “did not interpret [§1252(g)] to sweep in

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

the Attorney General.” 583 U.S. at 294. Because Petitioner is only challenging

his continued detention without a pre-deprivation bond hearing and not the

start of the removal proceeding itself, his claim falls outside the narrow

jurisdictional limitations of § 1252(g). See Tesara v. Wamsley, 2025 WL

3288295, at *3 (W.D. Wash. Nov. 25, 2025) (“Petitioner’s habeas petition does

not seek review of the Government’s decision to commence removal

proceedings or to take an action to remove him from the United States, nor

does he seek to challenge the removal process writ large. . . . Instead, he seeks

judicial review of the procedure by which he was re-detained by an ICE officer

without notice and a hearing before a neutral decisionmaker.”).9

9 This Court, consistent with other district courts throughout the country,

has dispensed with arguments by the Government that 8 U.S.C. § 1252(a)(5),

10

B. Petitioner is not entitled to declaratory relief based on the

class actions he cites.

Petitioner asserts that Bautista, 2025 WL 3678485, binds this Court

because he appears to be a member of the certified “Bond Eligible Class.” See

Doc. 7, at 18-19. The Court finds, however, that Bautista has no impact on this

Court’s habeas decision.

Although that court’s declaratory relief could impact Petitioner as a

potential class member, the court’s habeas corpus relief can only extend to

class members located within the boundaries of the Central District of

California. See Bautista v. Santacruz, 2025 WL 3713987, at *30 (C.D. Cal. Dec.

18, 2025) at *30 (The Court readily admits that federal courts are of limited

jurisdiction. This Court’s jurisdiction to grant habeas relief is limited to those

within the judicial district.” (citing Rumsfeld v. Padilla, 542 U.S. 426, 443

(2004))).

(b)(9) and (g) deprive the Court of jurisdiction when a noncitizen challenges

their detention under § 1225(b)(2)(a). See Cortes v. Holt, No. CIV-25-1176-SLP,

2026 WL 147435, at *2-3 (W.D. Okla. Jan. 20, 2026); Cruz-Hernandez v. Noem,

No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla. Jan. 2, 2026); see also

Hasan v. Crawford, 800 F. Supp. 3d 641, 650 n.7 (E.D. Va. Sept. 19, 2025)

(“Federal courts throughout the country have similarly found that these

jurisdiction-stripping provisions do not deprive the federal courts of

jurisdiction to review a noncitizen’s challenge to the legality of his detention.”

(collecting cases)).

11

“[I]n habeas challenges to present physical confinement,” “jurisdiction

lies in only one district: the district of confinement.” Rumsfeld, 542 U.S. at 435,

443; see also Trump v. J.G.G., 604 U.S. 670, 672 (2025) (quoting Rumsfeld).

Petitioner filed his Petition while detained in the territorial jurisdiction of the

Western District of Oklahoma, and there is no evidence he was ever confined

in the Central District of California. See Doc. 7, at 2, 7. So at no point was

Petitioner—or his custodian at Cimarron Correctional Facility—subject to that

court’s jurisdiction. Without jurisdiction, no court in California can grant

Petitioner habeas corpus relief.

Likewise, Petitioner cites his potential membership in the Gutierrez

class action, where the District of Colorado granted declaratory relief to class

members in the form of a bond hearing, as a basis for declaratory relief. Doc.

7, at 20-21. Because he is subject to the jurisdiction of the Aurora Immigration

Court, he maintains this relief applies. Id. at 22-23. But Petitioner concedes

venue properly lies in this District, see id. at 8, and as explained above, the

Court can only grant habeas relief within this jurisdiction. So, the Court need

not address this issue further. See, e.g., Rachid v. Olson, 2026 WL 228115, at

*2 (S.D. Ind. Jan. 28, 2026) (“[T]he Court finds that Bautista and the

declaratory judgment issued in that case are not binding here, so the Court's

analysis must continue on the merits.”).

12

The Court should therefore deny Petitioner’s request for habeas corpus

relief based on his class membership.10

C. Section 1226 governs Petitioner’s detention.

Petitioner next asserts that Respondents violated the INA by detaining

him under the mandatory detention provision in § 1225(b)(2). Doc. 7, at 22-23.

He argues this provision does not apply to him because he had previously

entered and had been residing in the United States “prior to being

apprehended and placed in removal proceedings by Respondents.” Id. at 22.

So, as someone who is not a recent arrival seeking inspection and admission

into the United States, Petitioner asserts his detention is governed—not by

§ 1225(b)(2)—but by § 1226(a). Id. at 22-23.

The Court’s inquiry “begins with the statutory text” and ends there if it

“is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004).

10 Respondents urge the Court to dismiss Counts I and II of the petition for

“impermissible claim splitting” as Petitioner’s membership in the Bautista and

Gutierrez classes means he is asserting “three effectively identical suits

against the Respondents, based on the same facts and seeking the same relief.”

Doc. 11, at 35-36. The undersigned is not convinced that the declaratory

judgment issued in Bautisa is binding on this Court as the Central District of

California recognized it could not “order nationwide release or bond hearings

for Bond Eligible class members, especially so to those confined outside [the

Central District of California].” 2025 WL 3713987, at *30. Still the Court need

not resolve that question for these purposes because it independently

determines that Petitioner’s detention violates the INA.

13

“If the statutory language is plain, [the Court] must enforce it according to its

terms.” King v. Burwell, 576 U.S. 473, 486 (2015). “[O]ftentimes the

‘meaning—or ambiguity—of certain words or phrases may only become evident

when placed in context.’” Id. (quoting FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 132 (2000)). “So when deciding whether the language is

plain, [the Court] must read the words ‘in their context and with a view to their

place in the overall statutory scheme.’” Id. (quoting Brown & Williamson, 529

U.S. at 133).

Section 1225(b)(2)(a) provides that:

[I]n the case of an alien who is an applicant for admission, if the

examining immigration officer determines that an alien seeking

admission is not clearly and beyond a doubt entitled to be

admitted, the alien shall be detained for a proceeding under

section 1229(a) of [Title 8].

8 U.S.C. § 1225(b)(2)(a). This section “authorizes the Government to detain

certain aliens seeking admission into the country.” Jennings, 583 U.S. at 289;

see also Pizarro Reyes v. Raycraft, 2025 WL 2609425, at *5 (E.D. Mich. Sept. 9,

2025) (“[Section] 1225 governs removal proceedings for ‘arriving aliens.’”).

Section 1226(a), on the other hand, “authorizes the Government to

detain certain aliens already in the country pending the outcome of removal

proceedings.” Jennings, 583 U.S. at 289 (emphasis added). “Section 1226(a)

sets out the default rule: The Attorney General may issue a warrant for the

14

arrest and detention of an alien ‘pending a decision on whether the alien is to

be removed from the United States.’” Id. (quoting § 1226(a)).11 “‘Except as

provided in [Section 1226(c)],’ the Attorney General ‘may release’ an alien

detained under § 1226(a) ‘on . . . bond’ or ‘conditional parole.’” Id. (quoting

§ 1226(a)(1)-(2)). Courts have described § 1226(a) as a “catchall” provision

which “capture[s] noncitizens who fall outside of the specified categories” of

§ 1225. Pizarro Reyes, 2025 WL 2609425, at *5.

The resolution of Petitioner’s claim turns, in part, on whether he is a

noncitizen “seeking admission” as that phrase is used in § 1225, or an arrested

and detained noncitizen who—having never sought to obtain lawful status—

falls under § 1226 and may be released on conditional parole or bond pending

the outcome of his removal proceeding.

Under ICE’s new internal guidance:

An ‘applicant for admission’ is an alien present in the United

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

States, whether or not at a designated port of arrival. Effective

immediately, it [sic] the position of DHS that such aliens are

11 The Jennings Court acknowledged § 1226 as the default rule for

detaining and removing noncitizens “already present” in the country.

Jennings, 583 U.S. at 303. The Court did not, however, specify whether the

“already present” rule applied only to persons who had once entered the

country lawfully—as Respondents argue—or to all noncitizens present in the

country whether lawfully admitted—as Petitioner argues. Because Jennings is

not definitive, the Court continues its analysis.

15

subject to detention under [§ 1225(b)(2)(A)] and may not be

released from ICE custody except by [§ 1182] parole. . . . For

custody purposes, these aliens are now treated in the same manner

that ‘arriving aliens’ have historically been treated. The only aliens

eligible for a custody determination and release on recognizance,

bond, or other conditions under [§ 1226(a)] during removal

proceed[ings] are aliens admitted to the United States . . . with the

exception of those subject to mandatory detention under

[§ 1226(c)].

Savane v. Francis, 801 F. Supp. 3d 483, 490 (S.D.N.Y. 2025) (quoting ICE

Memo: Interim Guidance Regarding Detention Authority for Applications for

Admission).

The Court begins with § 1225’s title. “[T]he title of a statute and the

heading of a section are tools available for the resolution of a doubt about the

meaning of a statute.” Dubin v. United States, 599 U.S. 110, 121 (2023)

(internal quotation marks omitted). And “a title is especially valuable where it

reinforces what the text’s nouns and verbs independently suggest.” Id.

(internal quotation marks and alteration omitted).

Section 1225 is titled: “Inspection by immigration officers; expedited

removal of inadmissible arriving aliens; referral for hearing.” (emphasis

added). Use of the term “arriving” to describe noncitizens clarifies that the

section governs the entrance of noncitizens to the United States. Additionally,

its subheadings all relate to “arriving” noncitizens. See, e.g., § 1225(b)(1)

(labeled “Inspection of aliens arriving in the United States and certain other

16

aliens who have not been admitted or paroled” and describing their immediate

removal “without further hearing or review” unless there is a claim for asylum

or a fear of persecution); § 1225(b)(2) (labeled “Inspection of other aliens” and

describing detention of noncitizens “seeking admission”); § 1225(d) (labeled

“Authority Relating to Inspections” and describing the powers of immigration

officers to search and detain vessels and “arriving aliens”). And finally, it is

located between two other sections dealing with the arrival of noncitizens:

§ 1224, “Designation of ports of entry for aliens arriving by aircraft,” and

§ 1225a, “Preinspection at foreign airports.”

Next, the Court looks at the INA’s statutory definitions. See BP Am.

Prod. Co. v. Haaland, 87 F.4th 1226, 1235 (10th Cir. 2023) (analyzing statute

by leaning “on related statutory definitions in the Royalty Management Act.”).

Section 1225(a)(1) defines an “applicant[] for admission” as:

An alien present in the United States who has not been admitted

or who arrives in the United States (whether or not at a designated

port of arrival and including an alien who is brought to the United

States after having been interdicted in international or United

States waters)[.]

8 U.S.C. § 1225(a)(1).

Section 1101(13)(A) of United States Code Chapter 8 provides that “[t]he

terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful

17

entry of the alien into the United States after inspection and authorization by

an immigration officer.”

Respondents contend that Petitioner and other noncitizens who have

entered the country without inspection are applicants for admission under

§ 1225(a)(1), whether or not they are passively residing in the country. Doc. 11,

at 28-29. But while Petitioner may qualify as an “applicant for admission,” that

alone does not make Petitioner “an alien seeking admission.” See Escarcega v.

Olson, No. CIV-25-1129-J, 2025 WL 3243438, at *2 (W.D. Okla. Nov. 20, 2025)

(“[I]f all ‘applicants for admission’ are also ‘seeking admission,’ then

§ 1225(b)(2)(A)’s inclusion of the phrase ‘seeking admission’ would be

redundant and courts should avoid statutory interpretations that ‘make[] any

part [of the statute] superfluous.’” (quoting Fuller v. Norton, 86 F.3d 1016, 1024

(10th Cir. 1996)).12

Section 1225(b)(2)(A) provides that:

Subject to subparagraphs (B) and (C), in the case of an alien who

is an applicant for admission, if the examining immigration officer

determines that an alien seeking admission is not clearly and

12 This Court has rejected the argument that an “applicant for admission”

is synonymous with one “seeking admission,” relying, in part, on the Seventh

Circuit’s decision in Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th

1048, 2025 WL 3552514 (7th Cir. Dec. 11, 2025). See Cortes, 2026 WL 147435,

at *5-6 (“The mere presence of Petitioner in the country does not mean he is

“seeking admission. . . . Accordingly, the Court does not find that Petitioner’s

circumstances fall under the plain language of § 1225(b)(2).”).

18

beyond a doubt entitled to be admitted, the alien shall be detained

for a proceeding under section 1229a of this title.

8 U.S.C. § 1225(b)(2)(A). Courts interpreting this narrowing language have

thus concluded that “a noncitizen who has been present in the country for

multiple years without obtaining any form of citizenship is not ‘seeking

admission’ under § 1225(b)(2)(a).” Cortes, 2026 WL 147435, at *5; see also

Jennings, 583 U.S. at 297 (“[Section] 1225(b) applies primarily to aliens seeking

entry into the United States (‘applicants for admission’ in the language of the

statute).” (emphasis added)).

As noted, the INA defines “admission” as “the lawful entry of the alien

into the United States after inspection and authorization by an immigration

officer.” 8 U.S.C. § 1101(a)(13)(A). “Seeking,” however, is undefined. “When a

term is undefined in a statute, [the Court] must look to its ordinary meaning.”

Rocky Mountain Wild v. Dallas, 98 F.4th 1263, 1291 (10th Cir. 2024).

“‘Dictionary definitions are useful touchstones to determine the ‘ordinary

meaning’ of an undefined statutory term.’” Id. (quoting In re Mallo, 774 F.3d

1313, 1321 (10th Cir. 2014)).

“Seeking” is the present participle of “seek,” which Merriam-Webster

defines as “to resort to,” “go to,” “to go in search of,” “look for,” “to try and

discover,” “to ask for,” “request,” “to try to acquire or gain,” “aim at,” “to make

19

an attempt,” or “try.” Seek, Merriam-Webster, https://www.merriam-

webster.com/dictionary/seeking#dictionary-entry-1 (last visited Mar. 11,

2026). So the use of “seeking” “denotes an active and present effort.” Valverde

v. Olson, 2025 WL 3022700, at *3 (E.D. Wis. Oct. 29, 2025); see also Caballero,

2025 WL 2977650, at *6 (“The plain meaning of the phrase ‘seeking admission’

requires that the applicant must be presently and actively seeking lawful entry

into the United States. The use [of] the present participle in § 1225(b)(2)(A)

‘implies action – something that is currently occurring, and in this instance,

would most logically occur at the border upon inspection.’” (quoting Lopez-

Campos v. Raycraft, 797 F. Supp. 3d 771, 781 (E.D. Mich. 2025))

As a result, a noncitizen seeking admission is a person who, at the time

of his or her detention, is presently pursuing lawful admission into the United

States. See Hernandez v. Baltazar, 2025 WL 2996643, at *5 (D. Colo. Oct. 24,

2025) (“Courts have found that ‘[n]oncitizens who are just ‘present’ in the

country . . ., who have been here for years upon years and never proceeded to

obtain any form of citizenship[,] . . . are not ‘seeking’ admission” under

§ 1225(b)(2)(A).” (quoting Lopez-Campos, 797 F. Supp. 3d at 781)).

Section 1225’s placement in the overall statutory scheme reinforces this

conclusion. See, e.g., King, 576 U.S. at 486 (holding that courts are meant “to

construe statutes, not isolated provisions” (internal quotation marks omitted)).

20

Congress separated the removal of arriving aliens from its more general

section for “Apprehension and detention of aliens” in § 1226. This placement

implies Congress’s enactment of § 1225 was for a specific, limited purpose,

which the Supreme Court underscored in Jennings. See id. 583 U.S. at 289

(noting that § 1225(b)(1) and (b)(2) “authorize[] the Government to detain

certain aliens seeking admission into the country” and that § 1226(a) and (c)

“authorize[] the Government to detain certain aliens already in the country

pending the outcome of removal proceedings”); see also Zadvydas, 533 U.S. at

693 (“The distinction between an alien who has effected entry into the United

States and one who has never entered runs throughout immigration law. . . .

But once an alien enters the country, the legal circumstance changes, for the

Due Process Clause applies to all ‘persons’ within the United States, including

aliens, whether their presence here is lawful, unlawful, temporary, or

permanent.”).

Congress’s recent amendment of § 1226 through the Laken Riley Act

(LRA) also supports the Court’s interpretation. This amendment mandates

that ICE “shall take into custody” any noncitizen who is both inadmissible

under § 1182(a)(6)(A)(i) (“present in the United States without being admitted

or paroled”) and is “charged with, [] arrested for, [] convicted of, [or] admits

having committed” certain crimes. See 8 U.S.C. § 1226(c)(1)(E)(i)-(ii).

21

“Considering that § 1182(a)(6)(A)(i) specifically refers to aliens ‘present in the

United States without being admitted or paroled,’ and that § 1226(c)(1)(E)

requires detention without bond of these individuals if they have also

committed a felony, the recently created statutory exception would be

redundant if § 1225(b)(2) authorized their detention as well. . . . That is,

because an alien present in the United States without admittance would be

unlikely to prove that they are ‘clearly and beyond a doubt entitled to be

admitted,’ ICE would never need to rely on § 1226(c)(1)(E) to detain them.“

Pizarro Reyes, 2025 WL 2609425, at *5 (quoting Gomes v. Hyde, 2025 WL

1869299, at *7 (D. Mass. July 7, 2025)). As this interpretation “would largely

nullify a statute Congress [recently] enacted,” the Court should reject it. Id.

(internal quotation marks omitted); see also Marx v. Gen. Rev. Corp., 568 U.S.

371, 386 (2013) (“[T]he canon against surplusage is strongest when an

interpretation would render superfluous another part of the same statutory

scheme.”).13

13 In Castañon-Nava, the Seventh Circuit concluded Congress “could easily

have included noncitizens who are ‘seeking admission’ within the definition [of

‘applicants for admission’] but elected not to do so.” 161 F.4th 1048, 1061.

Judges in this District have found the Seventh Circuit’s analysis to be

“persuasive.” Maldonado v. Noem, No. CIV-25-1379-J, 2026 WL 160950, at *1

(W.D. Okla. Jan. 21, 2026); Valdez, 2025 WL 3709021, at *2; see also Toledo

Santos v. Grant, No. CIV-25-1433-SLP, 2026 WL 184287, at *2 (W.D. Okla.

Jan. 23, 2026) (noting this Court's decision to apply § 1226 to a similarly

22

Respondents also argue that Petitioner is “seeking admission” to the

United States, because he is an applicant for admission who is also seeking

asylum. Doc. 11, at 19. As a result, Respondents maintain he is subject to the

“mandatory” detention provision of § 1225(b)(2)(A). The Court acknowledges

that Petitioner is positioned somewhat differently from many petitioners in

other cases because he has an active asylum application. Nonetheless, because

of the title of § 1225, which reads“Inspection by immigration officers;

expedited removal of inadmissible arriving aliens; referral for hearing,” and

limiting language within a sub-provision of § 1225 regarding detention of

noncitizens who cannot show they have been in the United States for more

than two years, nearly identical arguments have been rejected by judges in this

District and others.14

situated petitioner “is in accord” with the Seventh Circuit). In contrast, the

Fifth Circuit recently applied § 1225 to a similar habeas challenge. Buenrostro-

Mendez v. Bondi, No. 25-20496, --- F.4th ---, 2026 WL 323330, at *1, *4-9 (5th

Cir. Feb. 6, 2026). For the reasons discussed, the undersigned respectfully

disagrees with the Fifth Circuit’s decision, which is of course, not binding on

this Court. The undersigned instead agrees with this Court, Chief Judge

DeGiusti, Judge Palk, Judge Russell, Judge Heaton, and the overwhelming

number of other courts that recently addressed this question in many well-

reasoned and thorough decisions.

14 See, e.g., Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL 227155, at *3

(W.D. Okla. Jan. 28, 2026) (concluding “a pending asylum application does not

render § 1225(b)(2)(A) applicable to Petitioner”); Li v. Grant, No. CIV-25-

23

So when ICE arrested and detained him, he was not subject to

mandatory detention under § 1225(b)(2)(A). Instead, Petitioner is subject to §

1226, and was “entitled to a prompt bond hearing before an immigration judge

pursuant to § 1226(a).” Cortes, 2026 WL 147435, at *7; see also Caballero, 2025

WL 2977650, at *8 (“The Court joins the numerous courts across the country

that have held that [noncitizens not apprehended at the border, who have been

present in the United States for many years without lawful status] are subject

to the discretionary detention framework of § 1226(a).”).

D. The Court should grant Petitioner’s request for a

preliminary injunction.

1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20, 2026) (finding Ҥ

1225(b)(2)(A) does not apply even though petitioner filed an application for

asylum”); Hernandez v. Baltazar, 2025 WL 2996643, at *5 (D. Colo. Oct. 24,

2025) (the title of § 1225 indicates that the statute governs “arriving”

noncitizens, not those present in the United States already and that Ҥ

1225(b)(1)(A)(iii)(II)’s language explicitly limit[s] mandatory detention to

noncitizens who have been in the U.S. for less than two years”suggests that

§ 1225 is not meant to apply to noncitizens who have been in the U.S. for

significantly longer) (collecting cases); cf. Dubin v. United States, 599 U.S. 110,

120–21 (2023) (the Supreme Court has “long considered” that the title of a

statute and the heading of a section are tools available for resolution of a doubt

about the meaning of a statute). The Court finds the reasoning set forth in

these cases compelling and agrees that § 1225 applies to arriving noncitizens

seeking admission, while § 1226 applies to noncitizens like Petitioner who are

already present in the United States.

24

Petitioner “does not seek relief in the form of another bond hearing” and

instead “requests that the Court order his release from custody, as his

continued confinement, following proceedings that failed to comport with due

process, cannot be cured by further administrative review.” Doc. 7, at 6. He

maintains that “[w]here detention has been maintained in violation of

constitutional requirements, the appropriate remedy is release, not the

repetition of procedures that have already proven inadequate.” Id.

In his TRO application, Petitioner maintains that he had “a protected

liberty interest in his freedom from physical custody” due to his conditional

release. Doc. 8, at 12. He states that “Respondents violated [his] due process

rights when they detained him without notice and without a custody hearing

before a neutral arbiter.” Id. at 17.

“‘In determining the status quo for preliminary injunctions, this [C]ourt

looks to the reality of the existing status and relationship between the parties

and not solely to the parties’ legal rights.’” Schrier, 427 F.3d at 1260 (quoting

Dominion Video Satellite, Inc., 269F.3d at 1155. The status quo is “the last

peaceable uncontested status existing between the parties before the dispute

developed.” Id. (internal quotation marks and citation omitted).

The undersigned determines the last uncontested period before the

dispute developed to be “before [Petitioner] was arrested and was still on

25

parole.” Garcia v. Andrews, 2025 WL 2420068, at *8 (E.D. Cal. Aug. 21, 2025).

So, Petitioner does not seek a disfavored mandatory injunction.

1. Petitioner establishes a likelihood of success on the

merits in that a pre-deprivation hearing was

required.

The undersigned finds that Petitioner establishes a likelihood of success

on the merits because his due process rights were violated when Respondents

re-detained him.

“ICE may release a person on parole.” Id. at *5. “An immigrant who has

been detained at the border, may be paroled for humanitarian reasons or due

to it providing a significant public benefit (8 U.S.C. § 1182(d)(5)(A)) or he may

be conditionally released (8 U.S.C. § 1226(a)).” Id. “To be released on

conditional parole/own recognizance, there must be a finding that the

immigrant does not pose a risk of flight or danger to the community.” Id.;

Pinchi v. Noem, 792 F. Supp. 3d 1025 (N.D. Cal. 2025) (“The regulations

authorizing ICE to release a noncitizen from custody require that the

noncitizen ‘demonstrate to the satisfaction of the officer that such release

would not pose a danger to property or persons’ and that the noncitizen is

‘likely to appear for any future proceeding.’” (quoting 8 C.F.R. § 1236.1(c)(8))).

“Individuals released on parole or other forms of conditional release have

a liberty interest in their ‘continued liberty.’” Iza v. Arnott, 2026 WL 67152, at

26

*3 (W.D. Mo. Jan. 8, 2026) (quoting Morrissey v. Brewer, 408 U.S. 471, 482

(1972)). “The Fifth Amendment’s Due Process Clause forbids the Government

to deprive any person of liberty without due process of law. Freedom from

imprisonment—from government custody, detention, or other forms of physical

restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533

U.S. at 690 (internal quotation marks and alterations omitted); see also Sahil

v. De Anda-Ybarra, 2026 WL 560216, at *3 (D.N.M. Feb. 27, 2026) (finding

“that noncitizens acquire a liberty interest once released from immigration

detention”). Having found that there is a substantial likelihood that Petitioner

will be able to show a protected liberty interest, the Court considers what

process is necessary to ensure any deprivation of that protected interest

accords with the Constitution. “Procedural due process imposes constraints on

government decisions which deprive individuals of ‘liberty’ . . . interests within

the meaning of the Due Process Clause of the Fifth . . . Amendment.” Mathews

v. Eldridge, 424 U.S. 319, 332 (1976). “The fundamental requirement of due

process is the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545,

552 (1965)).

In examining the necessary process, the Court turns to the three factors

set forth in Mathews: (1) “the private interest that will be affected by the official

27

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.” Id. at 335. Petitioner

maintains that these factors weigh in favor of his release. Doc. 8, at 12-17. And

the undersigned agrees.

The Court finds that Petitioner has a significant private interest in

remaining free from detention after having been released from immigration

custody. Respondents do not challenge Petitioner’s assertions that he “resided

in the United States since October 2022, [was] issued a Notice to Appear, and

allowed [] to reside in the country pending removal proceedings. . . . [f]or nearly

three years, [he] lived openly in the interior with the knowledge and

acquiescence of DHS.” Id. at 25. During this time his interest in release grew

even stronger as he worked and presumably “form[ed] the other enduring

attachments of normal life.” Morrissey, 408 U.S. at 482.

Second, the Court considers “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.” Mathews, 424 U.S. at 335.

Petitioner raises the lack of notice and his detention “without a custody

28

hearing before a neutral arbiter.” Doc. 8, at 17. Given the lack of notice and

bond or custody hearing provided to Petitioner, “‘the risk of an erroneous

deprivation [of liberty] is high’ because neither the government nor [Petitioner]

has had an opportunity to determine whether there is any valid basis for [his]

detention.” Pinchi, 792 F. Supp. 3d at 1035 (quoting Singh v. Andrews, 803 F.

Supp. 3d 1035, 1047)). The Court finds there is a substantial likelihood that

Petitioner can show that the erroneous deprivation here is considerable,

particularly where ICE has previously released Petitioner and has not shown

a change in circumstances or otherwise explained why redetention is

necessary. Gualpa-Lumbi v. Hoover, 2026 WL 452351, at *11 (N.D. Ohio Feb.

18, 2026) (“[Petitioner] was previously released and permitted to go about

living for years in the United States during the pendency of his immigration

proceedings before being detained in 2025. . . . [which] show[s] that [Petitioner]

is at risk of being erroneously deprived of his freedom.”).

Finally, the Court finds there is a substantial likelihood that Petitioner

can show that the third Mathews factor favors him as well. See 424 U.S. at 335.

Respondents’ interest in placing Petitioner in detention absent some reason for

doing so is low. While this Court recognizes that the government has an

interest in enforcing immigration laws,” “requiring a pre-deprivation hearing

does not undermine the Government’s interest in enforcing its immigration

29

laws; it merely ensures its enforcement tactics comport with due process.”

Saqib v. Andrews, 2026 WL 350830, at *6 (E.D. Cal. Feb. 9, 2026); Sahil, 2026

WL 560216, at *3. And the Court can discern no significant administrative or

fiscal burden associated with placing the burden on the government to follow

its own regulations. See, e.g., Iza, 2026 WL 67152, at *3 (“An alien’s

opportunity to be heard regarding the revocation of his parole is only

meaningful if the government comports with its own internal standards

regarding parole revocation. DHA has the authority to revoke an alien’s parole

‘at any time’ on a discretionary, but not unlimited, basis.”) (emphasis added)

(quoting Mohammed H. v. Trump, 2025 WL 1692739, at *5 (D. Minn. June 17,

2025)). Especially given “that the Government[] released [Petitioner] for

several years weighs against any potential argument by the Government

regarding this third factor.” Gualpa-Lumbi, 2026 WL 452351, at *11. And, the

effort and costs of providing Petitioner this simple procedural safeguard is

minimal.

On balance, the Court finds that there is a substantial likelihood that

Petitioner, under the three Mathews factors, can show that he was entitled to

a pre-deprivation hearing prior to being re-detained. Having found that there

is a substantial likelihood that Petitioner can show a protected liberty interest,

and that due process requires a pre-deprivation hearing, the Court finds that

30

Petitioner has established a substantial likelihood of success on the merits of

his procedural due process claim. This alone warrants relief, without needing

to assess Petitioner’s substantive due process claim or his INA claim.

2. Petitioner can show irreparable harm.

The irreparable harm factor requires the moving party to show “that

irreparable injury is likely in the absence of an injunction,” not a mere

“possibility of irreparable harm.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008). This factor also leans in Petitioner’s favor as it is well-

established that “[w]hen an alleged constitutional right is involved, most

courts hold that no further showing of irreparable injury is necessary.”

Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1263 (10th Cir.

2016) (internal quotation marks and citations omitted); see, e.g., Sahil v. Anda-

Ybarra, 2026 WL 560216, at *4 (D.N.M. Feb. 27, 2026) (“Having found a

substantial likelihood of success on the merits of Petitioner’s due process claim,

‘no further showing of irreparable injury’ is necessary.”) (quoting Free the

Nipple-Fort Collins, 916 F.3d 792, 805 (10th Cir. 2019)).

3. The balance of equities and public hardship weigh in

Petitioner’s favor.

“[C]ourts ‘must balance the competing claims of injury and must consider

the effect on each party of the granting or withholding of the requested relief.’”

31

Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 531,

542 (1987)). “In exercising their sound discretion, [federal courts] should pay

particular regard for the public consequences in employing the extraordinary

remedy of injunction.” Id. (citation omitted). The undersigned finds the balance

of equities and public interest weigh in Petitioner’s favor.

The public has a “substantial [] interest in having governmental agencies

abide by the federal laws that govern their existence and operations.” Gamez

Lira v. Noem, 2025 WL 2581710, at *4 (D.N.M. Sept. 5, 2025) (citation omitted).

And “[a]ny burden on Respondents to release Petitioner from custody and

provide a pre-deprivation hearing is minimal compared to the harm that

Petitioner suffers due to his continued detention.” Sahil, 2026 WL 560216, at

*4.

E. Petitioner’s APA claim does not lie within habeas.

In Count Six, Petitioner alleges Respondents violated the APA “[b]y

detaining [him] without consideration of [his] individualized facts and

circumstances.” Doc. 7, at 29.

Because Petitioner’s claims for relief “‘necessarily imply the invalidity’

of [his] confinement,” his claims “fall within the ‘core’ of the writ of habeas

corpus and thus must be brought in habeas.” Trump v. J.G.G., 604 U.S. 670,

672 (2025); see also id. at 674 (“[G]iven 5 U.S.C. § 704, which states that claims

32

under the APA are not available when there is another ‘adequate remedy in a

court,’ I agree with the Court that habeas corpus, not the APA, is the proper

vehicle here.”) (Kavanaugh, J. concurring); Soberanes, 388 F.3d at 1310

(“Challenges to immigration detention are properly brought directly through

habeas.” (citing Zadvydas, 533 U.S. at 687). The Court should deny Petitioner’s

request for relief under the APA.

V. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the Court

grant in part Petitioner’s habeas application, Doc. 7, and grant in part

Petitioner’s TRO application, Doc. 8. Specifically, the undersigned

recommends the Court order Respondents to immediately release Petitioner

from their custody. The undersigned further recommends the Court enjoin

Respondents from re-detaining Petitioner without notice and a pre-deprivation

hearing before a neutral decisionmaker. Finally, the undersigned recommends

the Court waive the requirement to post bond.15

15 “The court may issue a preliminary injunction or a temporary

restraining order only if the movant gives security in an amount that the court

considers proper to pay the costs and damages sustained by any party found to

have been wrongfully enjoined on restrained.” Fed. R. Civ. P. 65(c). “However,

the Court has discretion to require only a nominal bond, or no bond at all, in a

case where issues of overriding public concern or important federal rights are

involved.” Ent. Merchants Ass’n v. Henry, No. CIV-06-675 C, 2006 WL 2927884,

at *4 (W.D. Okla. Oct. 11, 2006).

33

The undersigned advises the parties of their right to file an objection to

this Report and Recommendation with the Clerk of this Court by March 18,

2026, in accordance with 28 U.S.C. § 686 and Federal Rule of Civil Procedure

72.16 The undersigned further advises the parties that failure to make timely

objections to this Report and Recommendation waives the right to appellate

review of both factual and legal questions contained herein. Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation

disposes of the issues referred to the undersigned Magistrate Judge in the

captioned matter.

ENTERED this 11th day of March, 2026.

hea “ered _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

16 Given the expedited nature of these proceedings, the undersigned has

reduced the typical objection time to this Report and Recommendation to seven

days. See Fed. R. Civ. P. 72(b)(2) advisory committee’s note to 1983 addition

(noting that rule establishing 14-day response time “does not extend to habeas

corpus petitions, which are covered by the specific rules relating to proceedings

under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484

F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (“The Rules Governing § 2254 Cases

may be applied discretionarily to habeas petitions under § 2241” and that

“while the Federal Rules of Civil Procedure may be applied in habeas

proceedings, they need not be in every instance — particularly where strict

application would undermine the habeas review process’).

34