Kumar

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

TARUN KUMAR, CASE NO. 3:26-CV-00132-JJH

Petitioner, JUDGE JEFFREY J. HELMICK

vs. MAGISTRATE JUDGE DARRELL A. CLAY

FREDRICK W. STEVENS, IN HIS REPORT AND RECOMMENDATION

OFFICIAL CAPACITY AS SENECA

COUNTY SHERIFF, et al.,

Respondents. 1

On January 20, 2026, Petitioner Tarun Kumar filed a petition under 28 U.S.C. § 2241 for

a writ of habeas corpus. (ECF #1). He is currently detained at the Seneca County Jail in Tiffin,

Ohio. This matter was referred to me for preparation of a Report and Recommendation. (Non-

document entry of Jan. 20, 2026). After review of the record and applicable law, I recommend the

District Court conditionally GRANT the petition.

PROPER RESPONDENT

Initially, Respondents assert the sole proper respondent is Kevin Raycraft, Director of the

ICE Detroit Field Office and request the Court dismiss the other named parties, Fredrick Stevens,

in his capacity official capacity as Seneca County Sheriff; Todd Lyons, in his official capacity as

Acting Director of ICE; Kristi Noem, in her official capacity as Secretary of the Department of

1 On March 23, 2026, Markwayne Mullin replaced Kristi Noem as Secretary of the

Department of Homeland Security. On April 2, 2026, Todd Blanche became Acting Attorney

General of the United States, replacing Pamela Bondi. Under Fed. R. Civ. P. 25(d), the named

successors, Markwayne Mullin and Todd Blanche, are automatically substituted as parties.

Homeland Security (DHS); and Pamela Bondi, in her official capacity as Attorney General of the

United States. (ECF #8 at PageID 57).

In the context of a habeas corpus petition filed by an alien detained in a local detention

facility contracted by ICE, the Sixth Circuit has held that “although the warden of each detention

facility technically has day-to-day control over alien detainees, the [ICE] District Director for the

district where a detention facility is located ‘has power over’ alien habeas corpus petitioners.”

Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003). Therefore, “a detained alien generally must

designate his immediate custodian—the [ICE] District Director for the district where he is being

detained—as the respondent to his habeas corpus petition.” Id.; see also Woldeghergish v. Lynch, No.

1:25-cv-461, 2025 WL 2469584, at *1 (S.D. Ohio Aug. 5, 2025), report and recommendation adopted,

2025 WL 2468042 (S.D. Ohio Aug. 27, 2025).

The Sixth Circuit has also recognized possible exceptions to the immediate-custodian rule,

explaining:

Some courts are also willing to make an exception to the immediate custodian rule

in other extraordinary circumstances. For example, courts have noted the INS’s

ability, as a practical matter, to deny aliens any meaningful opportunity to seek

habeas corpus relief simply by transferring aliens to another district any time they

filed a habeas corpus petition. Chavez-Rivas [v. Olsen], 194 F.Supp.2d [368] at 374 [(D.

N.J. 2002)]. Aliens remaining in detention for extended periods are often transferred

several times during their detention. See Lee v. Ashcroft, 216 F.Supp.2d 51, 55

(E.D.N.Y. 2002) (“[T]he location of custody, and the identity of the day-to-day

custodian, frequently change when detainees are transferred among INS facilities, all

of which are under the control of the Attorney General.”). In light of these transfers,

one court reasoned that an alien may properly name a respondent other than his

immediate custodian because a petition naming a higher-level official, such as the

Attorney General, could be adjudicated without interruption in the event of a

transfer. Arias-Agramonte [v. Comm’r Of I.N.S., No. 00 CIV. 2412(RWS)], 2000 WL

1617999, at *8 [(S.D.N.Y. Oct. 30, 2000)] (explaining that a petition naming only

one’s immediate custodian would be dismissed when the alien was transferred to

another local district).

Roman, 340 F.3d at 325-26 (cleaned up). Thus, “an exception might be appropriate if the INS were

to exercise its transfer power in a clear effort to evade an alien’s habeas petitions.” Id. at 326.

Recently, some district courts in the Sixth Circuit have not dismissed higher-level officials from

similar proceedings to ensure Respondents maintain authority to enforce the court’s grant of

habeas relief. See, e.g., Sanchez Alvarez v. Noem, 807 F.Supp.3d 777, 791 (W.D. Mich. 2025)

(declining to dismiss the Secretary of Homeland Security as respondent); Gimenez Gonzalez v.

Raycraft, 807 F.Supp.3d 755, 762-63 (E.D. Mich. Oct. 27, 2025) (same for the Attorney General);

but see Hango v. McAleenan, No. 1:19-cv-00606, 2019 WL 7944352, at *2-3 (N.D. Ohio Nov. 13,

2019) (granting motions to dismiss Secretary of Homeland Security, Attorney General, and

County Sheriff as respondents leaving the Field Director of the ICE Detroit Field Office as sole

respondent), report and recommendation adopted, 2019 WL 6695829 (N.D. Ohio Dec. 9, 2019).

I recommend the District Court dismiss Seneca County Sheriff Fredrick Stevens. But to

ensure Respondents maintain authority to enforce a grant of habeas relief and order that

Petitioner receive a bond hearing if Petitioner were transferred out of the district under

Respondent Raycraft’s control, I recommend the District Court not dismiss Acting Director Todd

Lyons, Secretary Markwayne Mullin, or Acting Attorney General Todd Blanche as Respondents to

these proceedings.

BACKGROUND

Petitioner is a native and citizen of India and has no criminal history. (ECF #8-1 at PageID

80, 82). He climbed over a border fence and entered the United States on October 7, 2019, near

Calexico, California. (Id.). Shortly after Petitioner crossed the border, a Border Patrol agent

detained him, determined he entered the United States at a time and place other than designated

by the Secretary of DHS, and arrested him for further processing. (Id. at PageID 80-81). On

October 8, at the El Centro Sector Processing Center, Petitioner admitted he crossed the border

without being inspected by an immigration officer at a designated port-of-entry and did not have

the necessary legal documents to enter the country lawfully. (Id. at PageID 81). Petitioner also said

he feared persecution or torture if returned to India. (Id. at PageID 82). The immigration officer

determined Petitioner is inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(l) for not possessing a

valid entry document and should be processed for expedited removal pending a determination

that his fear of persecution or torture is credible. (Id. at PageID 80; ECF #8-2 at PageID 83).

On November 14, 2019, DHS issued a Notice to Appear for regular removal proceedings

under 8 U.S.C. § 1229a after an asylum officer determined Petitioner demonstrated a credible

claim of persecution or torture if returned to India. (ECF #8-4 at PageID 85-86). In the Notice,

DHS classified Petitioner as “an alien present in the United States who has not been admitted or

paroled” and stated he is subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). (Id. at PageID

85). As part of the removal proceedings, Petitioner submitted an I-589 Application for Asylum and

for Withholding of Removal that also sought protection under the Convention Against Torture.

(See ECF #1-1 at PageID 26).

On June 18, 2020, ICE notified the Executive Office for Immigration Review that

Petitioner was released from ICE custody on a $15,000 bond. (ECF #8-3 at PageID 84).

On December 21, 2023, the immigration judge (IJ) granted DHS’s motion to dismiss the

removal proceedings without prejudice. (ECF #1-1 at PageID 26-28). Petitioner appealed that

decision on January 17, 2024, because the dismissal effectively terminated his applications for

relief from removal, including asylum. (ECF #8-5 at PageID 87-92). The Board of Immigration

Appeals (BIA) received Petitioner’s appeal on January 19, 2024. (Id. at PageID 87) (noting “Filed at

BIA on: 1/19/2024”). On March 11, 2026, DHS requested the matter be returned to the IJ for

further proceedings, including “for testimony on his application for relief.” (ECF #12-2 at PageID

123).

According to Petitioner, immigration authorities arrested him on December 17, 2025,

when he stopped at a semi-truck weigh station and has been in ICE custody ever since. (ECF #1 at

PageID 7).

Initially, Petitioner argued he is subject to detention under 8 U.S.C. § 1226(a), not

detention under § 1225(b)(1) or (b)(2), because § 1226(a) applies to noncitizens who, like

Petitioner, have been living in the United States and were charged with inadmissibility under

§ 1182(a)(6)(A)(i). (ECF #1 at PageID 10). He also argued his continued detention without a

hearing to determine whether he can be released on bond violates his right to due process. (Id. at

PageID 22-23).

Respondents oppose the petition. (ECF #8). First, they contend the Court does not have

jurisdiction to review Petitioner’s claims and Petitioner did not exhaust administrative remedies.

(Id. at PageID 57-67). Turning to the merits, Respondents argue Petitioner is properly detained

under § 1225(b)(1)(B)(ii), or alternatively, under § 1225(b)(2). (Id. at PageID 67-72). They assert

that applicants for admission, like Petitioner, may be paroled into the country only for urgent

humanitarian reasons or significant public benefit under § 1182(d)(5). (Id. at PageID 72-73). They

conclude that § 1226 does not affect their authority to detain Petitioner under § 1225 and argue

Petitioner has not demonstrated a violation of his due process rights. (Id. at PageID 73-75).

Noted above, documents attached to Respondents’ opposition show Petitioner was

released from ICE custody on a $15,000 bond in June 2020. (ECF #8-3). In Reply, Petitioner

argues he is subject to detention under 8 U.S.C. § 1226(a), not detention under § 1225(b)(1) or

(b)(2), because ICE released him on bond under § 1226(a) and that provision governs his

detention on re-arrest. (ECF #9 at PageID 98, 100). Petitioner also argues Respondents violated his

right to due process when ICE re-arrested him without holding a pre-deprivation hearing showing

a change in circumstances justifying detention. (ECF #9 at PageID 100).

HABEAS CORPUS JURISDICTION

The Constitution guarantees that the writ of habeas corpus is “available to every individual

detained in the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). The primary habeas

statute explicitly authorizes federal courts, including district courts, the power to issue the writ to

persons “in custody in violation of the Constitution or laws or treatises of the United States.”

28 U.S.C. § 2241(c)(3). True, a district court’s habeas powers are limited in the immigration

context. See Hamama v. Adducci, 912 F.3d 869, 876 (6th Cir. 2018) (explaining “Congress stripped

the courts of jurisdiction to grant habeas relief” for challenges to removal orders). Nevertheless,

“[f]ederal courts have habeas jurisdiction to examine the statutory and constitutional bases for an

immigration detention unrelated to a final order of removal.” Jiang Lu v. U.S. ICE, 22 F.Supp.3d

839, 841 (N.D. Ohio 2014) (citing Denmore v. Kim, 538 U.S. 510, 517-18 (2003) (holding that

while 8 U.S.C. § 1226(e) limits judicial review of discretionary judgments regarding detention and

release, it did not strip the Court of jurisdiction to grant habeas relief in the context of a challenge

to detention under the no-bail provision)); see also Zadvydas v. Davis, 533 U.S. 678, 688 (2001)

(holding that although a court “may not review discretionary decisions made by immigration

authorities, it may review immigration-related detentions to determine if they comport with the

demands of the Constitution”).

Respondents assert four provisions of the INA bar judicial review of Petitioner’s claims:

8 U.S.C. §§ 1252(e)(2), 1252(e)(3), 1252(g), and 1252(b)(9). I address each provision in turn.

I. 8 U.S.C. § 1252(e)(2)

Section 1252(e) governs judicial review of orders under § 1225(b)(1). 8 U.S.C. § 1252(e).

Section 1225(b)(1) outlines the procedure for expedited removal. The expedited removal

procedure requires an immigration officer to order an “applicant for admission”2 removed from

the country without further hearing or review. 8 U.S.C. § 1225(b)(1)(A)(i). An applicant is subject

to expedited removal if the applicant (1) is inadmissible because he lacks a valid entry document;

(2) has not “been physically present in the United States continuously for the 2-year period

immediately prior to the date of the determination of inadmissibility”; and (3) is among those

whom the Secretary of DHS has designated for expedited removal. Id. §§ 1225(b)(1)(A)(i),

(iii)(I)-(II).

Under § 1252(e)(2), judicial review of any determination made under § 1225(b)(1) is

limited to determinations of whether (A) the petitioner is an alien; (B) the petitioner was ordered

removed under such section; and (C) whether petitioner can show he has been granted entry as

lawful permanent resident, refugee, or asylee. Id. §§ 1252(e)(2)(A)-(C). Thus, whether the Court

has subject-matter jurisdiction over the petition turns on the statutory basis for Petitioner’s

detention. For the reasons set forth below, I recommend the Court find Petitioner is subject to

2 “Applicant for admission” is “[a]n alien present in the United States who has not

been admitted or who arrives in the United States (whether or not at a designated port of arrival . .

.).” 8 U.S.C. § 1225(a)(1).

detention under § 1226(a), not § 1225(b) and thus the Court’s review of the petition is not limited

by § 1252(e)(2).

II. 8 U.S.C. § 1252(e)(3)

Section 1252(e)(3), titled “Challenges on validity of the system,” states:

Judicial review of determinations under § 1225(b) of this title and its implementation

is available in an action instituted in the United States District Court for the District

of Columbia, but shall be limited to determinations of—

(i) whether such section, or any regulation issued to implement such section,

is constitutional; or

(ii) whether such a regulation, or a written policy directive, written policy

guideline, or written procedure issued by or under the authority of the

Attorney General to implement such section, is not consistent with

applicable provisions of this subchapter or is otherwise in violation of law.

8 U.S.C. § 1252(e)(3)(A).

Here, Petitioner is not challenging a determination made under § 1225(b) or its

implementation, but that the statute does not apply to him at all. The question does not require

the Court to evaluate the “validity of the system,” but to determine which detention provision

applies to Petitioner. See Coronado v. Sec., Dep’t of Homeland Sec., No. 1:25-cv-831, 2025 WL

3628229, at *6 (S.D. Ohio Dec. 15, 2025). For those reasons, I find the Court’s review is not

precluded by § 1252(e)(3).

III. 8 U.S.C. § 1252(g)

Next, Respondents invoke § 1252(g), which limits the jurisdiction of federal courts as

follows:

Except as provided in this section and notwithstanding any other provision of law

(statutory or non-statutory,) including [28 U.S.C. § 2241], or any other habeas corpus

provision . . . no court shall have jurisdiction to hear any cause or claim by or on

behalf of an alien arising from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal orders against an alien

under this chapter.

8 U.S.C. § 1252(g). Respondents argue because the decision to detain an alien pending removal

proceedings arises from the decision to commence removal proceedings against an alien, § 1252(g)

bars review of Petitioner's detention-based claims. (ECF #8 at PageID 61).

Both the Supreme Court and the Sixth Circuit have rejected Respondents’ expansive

interpretation of § 1252(g). In Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482

(1999), the Supreme Court held the provision does not cover “the universe of deportation claims,”

but “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. at 482 (emphasis

in original). In Jennings v. Rodriguez, 583 U.S. 281 (2018), a plurality of the Supreme Court

reaffirmed § 1252(g)’s narrow scope: “[In Reno,] [w]e did not interpret this language to sweep in

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

General. Instead, we read the language to refer to just those three specific actions themselves.” Id.

at 294 (plurality op.). The Sixth Circuit also distinguishes challenges to noncitizen removal from

challenges to noncitizen detention. See Hamama, 912 F.3d at 877 (noting a “district court’s

jurisdiction over the detention-based claims is independent of its jurisdiction over removal-based

claims”). Thus, if a petitioner “raise[s] a challenge that [does] not require the district court to

address the merits of [their] order of removal,” § 1252(g) does not strip the district court of

jurisdiction. Elgharib v. Napolitano, 600 F.3d 597, 605 (6th Cir. 2010) (citation omitted).

Here, Petitioner does not challenge the commencement of removal proceedings against

him, the adjudication of his case before the immigration court, or the execution of an order of

removal. Instead, he challenges his continued detention without bond pending removal

proceedings because the detention provision under which he is detained does not apply to him.

(ECF #9 at PageID 95-100). His claims thus fall outside the narrow scope of § 1252(g).

IV. 8 U.S.C. § 1252(b)(9)

Last, Respondents contend § 1252(b)(9) channels judicial review of Petitioner’s claims to

the court of appeals, not the district court. (ECF #8 at PageID 62). That provision states:

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 [8 U.S.C.

§§ 1151-1382] shall be available only in judicial review of a final order under this

section. Except as otherwise provided, no court shall have jurisdiction, by habeas

corpus under [28 U.S.C. § 2241] or any other habeas provisions, by section 1361 or

1651 of such title, or by any other provisions of law (statutory or non-statutory), to

review such an order or such questions of law and fact.

8 U.S.C. § 1252(b)(9). In conjunction with 8 U.S.C. § 1252(a)(5), which provides that a petition-

for-review filed with an appropriate court of appeals is the exclusive means for judicial review of an

order of removal, Respondents assert “any issue—whether factual or legal—arising from any removal-

related activity can be reviewed only through the [petition-for-review] process.” (ECF #8 at PageID

62) (citing J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016)) (emphasis in original). Citing

Jennings, Respondents argue those provisions “divest district courts of jurisdiction to review both

direct and indirect challenges to removal orders, including decisions to detain for purposes of

removal or for proceedings.” (ECF #8 at PageID 64).

Respondents’ argument is unavailing. First, Jennings does not interpret § 1252(b)(9) so

expansively to channel every challenge to a noncitizen’s detention into the petition-for-review

process. Indeed, the Supreme Court recognized that reading the provision to include every

decision challenging detention, as Respondents assert here, would bring about absurd results:

Interpreting “arising from” in this extreme way would also make claims of prolonged

detention effectively unreviewable. By the time a final order of removal was

eventually entered, the allegedly excessive detention would have already taken place.

And of course, it is possible that no such order would ever be entered in a particular

case, depriving that detainee of any meaningful chance for judicial review.

Jennings, 583 U.S. at 293. And while Respondents would have the Court read Jennings to preclude

the district court from hearing every challenge to a noncitizen’s detention simply because the

noncitizen is in removal proceedings, that is a significant departure from the Supreme Court’s

holding. The Jennings Court declined to provide a comprehensive interpretation of the scope of

§ 1252(b)(9), but determined the provision does not bar district court jurisdiction when the

petitioner does not “ask[] for review of a removal order,” “challeng[e] the decision to detain them

in the first place or to seek removal,” or challenge the process to determine removability. Id. at

294-95 (emphasis supplied). Here, Petitioner does not ask this Court to review a removal order,

challenge the decision to initially detain him in 2019 and place him in removal proceedings, or

challenge the process to determine removability. Instead, Petitioner contends he is unlawfully

detained without a bond hearing.

Respondents rely on the Third Circuit’s recent decision in Khalil v. President, United States,

164 F.4th 259 (3rd Cir. 2026) (per curiam). In Khalil, the petitioner, a lawful permanent resident,

advocate for Palestinian human rights, and outspoken critic of “Israel’s military operation in

Gaza,” challenged both the basis for removability and his detention pending removal proceedings

after the Secretary of State determined he was removable under 8 U.S.C. § 1227(a)(4)(C) because

his presence and activities in the country would have potentially serious adverse foreign policy

consequences for the United States. 164 F.4th at 266. After the government detained petitioner

and served him with a Notice to Appear, he sought habeas relief in federal court, challenging his

detention as impermissibly punitive, the lawfulness of removal, and governmental misconduct

under the First and Fifth Amendments, the Administrative Procedures Act, and Supreme Court

precedent. Id. at 276; see also id. at 266. The Third Circuit held that § 1252(b)(9) stripped the

district court of jurisdiction over the petition, finding that his detention-based challenge was

“inextricably linked” to his removal-based challenges. Id. at 274.

That is not the case here. Petitioner’s challenge to his detention is not “inextricably linked”

his removal proceedings. His argument that he is unlawfully detained without a bond hearing

under § 1225 does not repackage an argument about removal; in fact, his petition does not

challenge removal proceedings at all. For those reasons, Khalil is distinguishable and § 1252(b)(9)

does not apply. Other district courts in and outside of the Sixth Circuit have reached the same

conclusion. See Singh v. Stevens, ___ F.Supp.3d ____, 2026 WL 456489, at *3 (N.D. Ohio Feb. 18,

2026); Coronel-Hernandez v. Woosley, No. 4:26-cv-20, 2026 WL 227011, at *2-3 (W.D. Ky. Jan. 28,

2026); Giyosov v. Jamison, No. 26-0298, 2026 WL 209839, at *3-4 (E.D. Penn. Jan. 27, 2026).

Ultimately, the District Court should reject Respondents’ assertion that jurisdiction to

grant habeas relief is lacking.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Respondents next argue the Court should dismiss the petition because Petitioner has not

yet requested a bond redetermination hearing before an IJ and therefore has not exhausted his

administrative remedies.

Generally, a party must exhaust administrative remedies before seeking relief from the

federal courts. McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). “Exhaustion of administrative

remedies serves numerous purposes, including protecting the authority of administrative agencies,

limiting interference in agency affairs, and promoting judicial efficiency by resolving potential

issues and developing the factual record.” Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003).

Exhaustion is required when Congress specifically mandates it, but when no statute requires a

petitioner to administratively exhaust his remedies (as is the case here), the decision to require

exhaustion is within the sound discretion of the court. McCarthy, 503 U.S. at 144; see also Shearson

v. Holder, 725 F.3d 588, 593 (6th Cir. 2013); Perkovic v. I.N.S., 33 F.3d 615, 619 (6th Cir. 1994)

(concluding exhaustion requirements not written into the text of the statute are prudential).

District courts in this Circuit have widely recognized that “[t]he Sixth Circuit has not

decided whether courts should impose administrative exhaustion in the context of a noncitizen's

habeas petition for unlawful mandatory detention.” Pizarro Reyes v. Raycraft, No. 25-cv-12546, 2025

WL 2609425, at *3 (E.D. Mich. Sept. 9, 2025) (collecting cases). Nor has the Sixth Circuit

formally adopted a standard for deciding when prudential exhaustion applies. But many courts in

this Circuit have applied the three-factor test used in Puga v. Chertoff, 488 F.3d 812 (9th Cir.

2007). There, the court applied its own prudential exhaustion standard in the immigration

context, requiring prudential exhaustion when:

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

and reach a proper decision; (2) relaxation of the requirement would encourage the

deliberate bypass of the administrative scheme; and (3) administrative review is likely

to allow the agency to correct its own mistakes and to preclude the need for judicial

review.

Puga, 488 F.3d at 815. If a petitioner does not exhaust prudentially required administrative

remedies, then “a district court ordinarily should either dismiss the petition without prejudice or

stay the proceedings until the petitioner has exhausted remedies.” Leonardo v. Crawford, 646 F.3d

1157, 1160 (9th Cir. 2011).

Nonetheless, even if the factors weigh in favor of requiring exhaustion, a court may waive

the prudential exhaustion requirement if “administrative remedies are inadequate or not

efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will

result, or the administrative proceedings would be void.” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th

Cir. 2004) (citation omitted); see Shearson, 725 F.3d 588.

Here, the first Puga factor favors waiving the exhaustion requirement. Whether an alien is

detained under § 1226(a) and thus entitled to a bond hearing rather than mandatory detention

under § 1225(b)(2)(A) is principally a legal question of statutory interpretation that does not

require the record that would be developed by appealing to the BIA. See McKart v. United States,

395 U.S. 185, 197-98 (1969) (explaining that a case’s focus on issue of statutory interpretation that

did not implicate agency’s expertise favored excusing exhaustion). Moreover, as recently

determined, courts are not bound by and are not required to give deference to an agency’s

interpretation of a statute. See Loper Bright Enter. v. Raimondo, 603 U.S. 369, 413 (2024) (noting

that “Courts must exercise their independent judgment in deciding whether an agency has acted

within its statutory authority.”).

Second, it does not appear that relaxing the exhaustion requirement on this particular legal

question would encourage the deliberate bypass of the administrative scheme because resolution of

the underlying question will provide definitive guidance for future administrative proceedings.

Once the legal question is resolved, the issue should cease to arise. See Rodriguez v. Bostock, 779

F.Supp.3d 1239, 1251-52 (W.D. Wash. 2025).

Finally, it is doubtful that IJ or BIA review of Petitioner’s custody would allow the agency

to correct its own mistakes and preclude the need for judicial review. In Matter of Yajure Hurtado,

29 I&N Dec. 216, 220 (BIA 2025), the BIA affirmed the IJ’s determination that he “did not have

authority over [a] bond request because aliens who are present in the United States without

admission are applicants for admission as defined under . . . 8 U.S.C. § 1225(b)(2)(A), and must

be detained for the duration of their removal proceedings.” That decision, not binding on judicial

courts but binding on the agency and immigration courts, conclusively rejects Petitioner’s

arguments in this case. Thus, an appeal to the BIA would not preclude the need for judicial review

but simply delay it.

Alluded to above, an appeal to the BIA would be a futile gesture. The IJ and the BIA are

bound by the decision in Yajure Hurtado, so there is no room for those administrative bodies to

reach any conclusion other than that the IJ lacks authority to consider Petitioner’s custody

redetermination request. See Houghton v. Shafer, 392 U.S. 639, 640 (1968) (in view of Attorney

General’s submission that the challenged rules of the prison were “validly and correctly applied to

petitioner,” requiring administrative review through a process culminating with the Attorney

General “would be to demand a futile act”).

The factors weigh against requiring administrative exhaustion and, in the alternative,

requiring administrative exhaustion would be futile. See Puerto-Hernandez v. Lynch, 808 F.Supp.3d

802, 814 (W.D. Mich. 2025); Velasco-Sanchez v. Raycraft, No. 2:25-cv-13730, 2025 WL 3553672, at

*5 (E.D. Mich. Dec. 11, 2025). For those reasons, I recommend the District Court waive the

prudential exhaustion requirement.

MERITS REVIEW

The INA governs the detention and removal of noncitizens. At issue is whether Petitioner

is properly subject to detention under 8 U.S.C. § 1225(b) of the INA and therefore ineligible for a

custody redetermination before an IJ. Described more fully below, Petitioner was detained shortly

after crossing the border and was initially considered for removal under the expedited removal

proceedings of § 1225(b)(1) but was placed in regular removal proceedings under 8 U.S.C.

§ 1229a following a positive credible-fear determination.

I. Statutory Basis for Detention

Answering the question before the Court boils down to the interpretation of §§ 1225 and

1226. “A statute should be construed so that effect is given to all its provisions.” Hibbs v. Winn,

542 U.S. 88, 101 (2004) (citation omitted); see Corley v. United States, 556 U.S. 303, 314 (2009); see

also Kentucky v. Biden, 23 F.4th 585, 603 (6th Cir. 2022) (noting that courts “must give effect to the

clear meaning of statutes as written”) (citation omitted). “When interpreting a statute, the inquiry

‘begins with the statutory text, and ends there as well if the text is unambiguous.’” See In re Vill.

Apothecary, Inc., 45 F.4th 940, 947 (6th Cir. 2022) (citation omitted). But “the meaning—or

ambiguity—of certain words or phrases may only become evident when placed in context.” King v.

Burwell, 576 U.S. 473, 486 (2015) (quotation omitted). “[T]he words of a statute must be read in

their context and with a view to their place in the overall statutory scheme.” Roberts v. Sea-Land

Servs., Inc., 566 U.S. 93, 101 (2012) (citation omitted). The Court must also “use every tool at [its]

disposal to determine the best reading of the statute.” Loper Bright, 603 U.S. at 400. Importantly,

the title of the statute and the heading of a section within the statute are instructive for resolving

doubt about the meaning of the statute. Lopez-Campos v. Raycraft, 797 F.Supp.3d 771, 780) (E.D.

Mich. 2025); see also Dubin v. United States, 599 U.S. 110, 120-21 (2023) (“[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

the statute.”) (internal quotations and citations omitted).

Section 1225 applies to “applicants for admission,” defined as any “alien present in the

United States who has not been admitted or who arrives in the United States.” 8 U.S.C.

§ 1225(a)(1). Under § 1225(b)(1), applicants for admission who are inadmissible are removed

“without further hearing or review” under an expedited removal process unless the noncitizen

“indicates either an intention to apply for asylum . . . or a fear of persecution” in which case the

noncitizen is referred for an asylum interview. Id. §§ 1225(b)(1)(A)(i)-(ii). If the asylum officer

concludes the noncitizen does not have a credible fear of persecution, “the officer shall order the

[noncitizen] removed from the United States without further hearing or review,” and the

noncitizen must be detained until removed. Id. §§ 1225(b)(1)(B)(iii)(I) and (IV). But if the officer

finds the noncitizen has a credible fear of persecution, “the [noncitizen] shall be detained for

further consideration of the application for asylum” during regular removal proceedings under

§ 1229a. Id. § 1225(b)(1)(B)(ii); 8 C.F.R. 208.30(f). Under § 1225(b)(2)(A), “in the case of an alien

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

seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be

detained for a proceeding under [§ 1229a].”

There is a limited exception to detention under § 1225(b): the Attorney General may “for

urgent humanitarian reasons or significant public benefit” temporarily parole noncitizens detained

under § 1225(b)(1) and (b)(2). 8 U.S.C. § 1182(d)(5)(A). Parole from custody under

§ 1182(d)(5)(A) is not considered an “admission” of the noncitizen; such parole “employs a legal

fiction whereby noncitizens are physically permitted to enter the country but are nonetheless

‘treated’ for legal purposes ‘as if stopped at the border.’” Martinez v. Hyde, 792 F.Supp.3d 211, 216

(D. Mass. 2025) (citation omitted). A noncitizen paroled into the country is still treated as an

applicant for admission subject to the expedited removal process under § 1225(b)(1). See

8 U.S.C. § 1182(d)(5)(A). And when the purpose of parole, in the opinion of the Secretary of

Homeland Security, has been served, the noncitizen must return to the custody from which he was

paroled. Id. In effect, once parole ends, the noncitizen is subject to detention under § 1225(b). See

id. (after returned to custody, “his case shall continue to be dealt with in the same manner as that

of any other applicant for admission to the United States”).

Section 1226 is described as the “default rule” for detaining noncitizens already present in

the United States, Jennings, 583 U.S. at 288, pending the outcome of the standard removal process

under § 1229a, Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). It provides, “[o]n

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

decision on whether the alien is to be removed from the United States” and, except as provided in

§ 1226(c), the Attorney General may detain or release the alien on bond or conditional parole.

8 U.S.C. §§ 1226(a)(2)(A)-(B). The Attorney General may also revoke bond or conditional parole

at any time and detain the noncitizen. Id. § 1226(b). The pertinent regulations state that an officer

may release the noncitizen if the noncitizen demonstrates his release would not pose a danger to

property or persons and he is likely to appear for any future proceeding. 8 C.F.R. § 1236.1(c)(8).

Relevant here, noncitizens detained under § 1226 have a right to request a custody

redetermination (i.e., a bond hearing) before an IJ. See 8 C.F.R. §§ 1236.1(c)(8), (d)(1).

According to Respondents, Petitioner “remains subject to mandatory detention” because

an officer determined he had a credible fear of persecution and must be detained for further

consideration of his application for asylum. (ECF #8 at PageID 68) (citing 8 U.S.C.

§ 1225(b)(1)(B)(ii)). In the alternative, Respondents contend Petitioner is subject to mandatory

detention because he is an applicant for admission who is seeking admission and is not clearly and

beyond a doubt entitled to be admitted and therefore must be detained for a proceeding under

8 U.S.C. § 1229a until removal proceedings have concluded. (ECF #8 at PageID 72, citing

§ 1225(b)(2)(A)). Petitioner argues he is subject to detention under § 1226(a) because ICE released

him from custody on bond in June of 2020, consistent with its discretion to do so under

§ 1226(a)(2)(A). Curiously, although Respondents are aware that Petitioner was released, as

evidenced by Respondents’ attached documentation showing ICE released Petitioner from custody

on a bond, they do not acknowledge in their opposition brief that Petitioner was released and

remained on bond for over five years or address the effect of his release on the status of his current

detention.

Petitioner was initially detained under § 1225(b)(1)(B)(ii) after an immigration officer

determined he had a credible fear of persecution if returned to India and placed him in regular

removal proceedings under § 1229a. (ECF #8-4 at PageID 85-86). Petitioner was then released

from ICE custody in June 2020 on a $15,000 bond (ECF #8-3 at PageID 84), consistent with the

discretionary release provision under § 1226(a)(2)(A). Petitioner’s prior release on bond carries

legal significance. DHS’s decision to release Petitioner consistent with § 1226(a) is strong evidence

the Department intended to detain him under § 1226(a) and not § 1225(b). See Luna Sanchez v.

Bondi, No. 1:25-cv-018888, 2025 WL 3191922, at *4 (E.D. Va. Nov. 14, 2025). Citing De Andrade

v. Moniz, 802 F.Supp.3d 325, (D. Mass. 2025), Petitioner contends that once a noncitizen is

released on bond under § 1226(a), the government cannot arbitrarily re-detain him under §

1225(b). (ECF #9 at PageID 96). In De Andrade, DHS detained a noncitizen close to the border

under § 1225(b), released him under § 1226(a), and years later re-detained him. 802 F.Supp.3d at

333. The court found that by releasing the noncitizen under § 1226(a) “the government failed to

reserve its right to treat petitioner ‘in the same manner as that of any other applicant for admission

to the United States,’” as would be the case if petitioner was released on humanitarian parole

under § 1182(d)(5)(A). Id. at 332. The court went on to explain:

The act of [conditional] parole extinguished the legal fiction that a noncitizen who is

physically present in the United States has, in fact, not effected an entry into the

United States. And once having entered, petitioner can no longer be treated as an

“applicant for admission” subject to expedited removal and mandatory detention

under § 1225. He must be treated like any other unlawfully “present” noncitizen—

and the lawfulness of his detention is governed by 8 U.S.C. § 1226.

* * *

Congress provided a mechanism for paroling applicants for admission into the

United States without changing their status. See 8 U.S.C. § 1182(d)(5)(A). The

government elected not to use that mechanism. It cannot now turn back the clock,

and neither can the Court.

Id. at 332-33. Other courts considering factually similar situations have come to the same

conclusion. See Loja v. FCI Berlin, Warden, 808 F.Supp.3d 227 (D.N.H. 2025); Quinteros Moran v.

Joyce, No. 25 Civ. 9645, 2025 WL 3632895 (S.D.N.Y. Dec. 15, 2025); Portillo-Argueta v. Simon, No.

1:25-cv-2285, 2026 WL 184194 (E.D. Va. Jan. 23, 2026). This line of reasoning is persuasive and

supports the conclusion that Petitioner, previously released on bond under § 1226(a) and re-

detained years later, is not subject to mandatory detention under § 1225(b).

For those reasons, I recommend the District Court find that Petitioner is not subject to

detention under § 1225(b)(1)(B)(ii) or § 1225(b)(2)(A), is being held under § 1226(a), and is

eligible for a custody redetermination hearing before an IJ.

II. Due Process

Now I address whether Petitioner’s continued detention is a violation of due process. The

Fifth Amendment guarantees freedom from deprivation of life, liberty, or property without due

process of law. U.S. Const. amend. V. Immigration detention implicates significant liberty

interests under the Due Process Clause. Zadvydas, 533 U.S. at 690-92 (applying the Due Process

Clause in the immigration-detention context). The Due Process Clause extends to all “persons”

regardless of status, including noncitizens. A.A.R.P. v. Trump, 605 U.S. 91, 94 (2025); Zadvydas,

533 U.S. at 693 (the Due Process Clause of the Fifth Amendment “covers noncitizens, whether

their presence here is lawful, unlawful, temporary, or permanent”). To determine whether a civil

detention violates a noncitizen’s due process rights, courts apply the three-part balancing test in

Mathews v. Eldridge, 424 U.S. 319 (1976). Under that test, a court must weigh: (1) the private

interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards; and (3) the United States’ interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute procedural requirement would

entail. Id. at 335; see also Azalyar v. Raycraft, 814 F.Supp.3d 926, 933-35 (S.D. Ohio 2026) (applying

Mathews to the immigration-detention context). Here, Respondents very briefly address the Due

Process claim, stating that “Petitioner’s due process rights are protected by the immigration

statutes” and he “has not shown that those protections are insufficient,” but they present no

argument related to the Mathews balancing test. (ECF #8 at PageID 74-75).

1. Private interest

The private interest at stake here “is the most elemental of liberty interests—the interest in

being free from physical detention by one’s own government.” Hamdi, 542 U.S. at 529; Zadvydass,

533 U.S. at 690 (“Freedom from imprisonment—from government custody, detention, or other

forms of physical restraint—lies at the heart of the very liberty interest that [the Due Process

Clause] protects.”). As numerous other courts have found, individuals released from civil

immigration custody have a protectable liberty interest in remaining so. See, e.g., Azalyar, 814

F.Supp.3d at 933-34; Zapata v. Kaiser, No. 25-cv-7492, 2025 WL 2578207, at *3 (N.D. Cal. Sept. 5,

2025) (collecting cases); cf. Ordonez-Lopez v. United States Dep’t of Homeland Sec., No. EP-25-CV-470,

2025 WL 3123828, at *3 (W.D. Tex. Nov. 7, 2025) (“[N]oncitizens acquire a protectable liberty

interest when they spend years establishing a life in the interior of the United States, regardless of

their citizenship status.”). Courts can also consider the noncitizen’s condition of confinement to

determine if the conditions are indistinguishable from criminal incarceration. Martinez v. Noem,

No. 5:25-cv-1007, 2025 WL 2598379, at *2 (W.D. Tex. Sep. 8, 2025).

Petitioner was released on bond after an immigration officer necessarily determined he was

not a flight risk or a danger to property or persons. (ECF #1 at PageID 2). Petitioner then spent

more than five years at liberty in the United States and worked as a truck driver before

immigration officials detained him at a weigh-in station. (Id.). As such, he possesses a significant

private interest in his freedom from detention. Respondents do not contend the conditions of

Petitioner’s confinement at the Seneca County Jail differ in any material way from criminal

incarceration. I find this factor weighs in favor of Petitioner.

2. Risk of Erroneous Deprivation

The second factor concerns the risk of erroneous deprivation of that private interest

through the procedures used, and the probable value, if any, of additional or substitute procedural

safeguards. Mathews, 424 U.S. at 335. Petitioner has not received a redetermination hearing before

an IJ. Respondents assert Petitioner is not eligible for a bond redetermination hearing because he

is subject to mandatory detention. (ECF #8 at PageID 72). But prior to the most recent detention,

Petitioner was released on bond after an immigration officer necessarily determined he was not a

flight risk or a danger to property or persons and Respondents have not demonstrated otherwise.

A re-detention, without any individualized assessment, leads to a high risk of erroneous

deprivation of an individual’s liberty interest. Munoz Materano v. Arteta, 804 F.Supp.3d 395, 419

(S.D.N.Y. 2025) (holding that “re-detention without an individualized assessment” establishes a

“high risk of erroneous deprivation” of a protected liberty interest). This factor also favors

Petitioner.

3. Government Interest

The last Mathews factor concerns the government’s interest in the procedure, as well as any

financial or administrative burdens associated with permissible alternatives. Mathews, 424 U.S. at

335. As other district courts in the Sixth Circuit have recognized, the government has a strong

interest in ensuring noncitizens do not harm their community and appear for future immigration

proceedings. Edahi v. Lewis, No. 4:25-cv-129, 2025 WL 3466682, at *14 (W.D. Ky. Nov. 27, 2025);

Puerto-Hernandez, 808 F.Supp.3d at 819 (citation omitted). But affording a noncitizen an

individualized custody redetermination hearing, where the noncitizen may be released only if he

shows he is not a danger to property or persons and will likely appear for future proceedings,

preserves the government’s interests rather than impeding them. Petitioner lived and worked in

the United States for five years before immigration officers took him into custody. He did not have

a criminal history at the time he crossed the border into the country and Respondents do not

claim he has since been accused, charged, or convicted of any criminal offenses. On balance, the

factors weigh in favor of affording Petitioner an individualized custody redetermination hearing.

Accordingly, I conclude the District Court should find that § 1226(a), not § 1225(b),

applies and so Petitioner’s current detention under § 1225(b) violates his Fifth Amendment right

to due process.

CONCLUSION AND RECOMMENDATION

After review of the applicable law and the parties’ arguments, I conclude Petitioner is not

subject to detention under § 1225(b) and his continued detention without the possibility of a

custody redetermination hearing violates his right to due process. I therefore recommend the

District Court GRANT the petition and require Respondents to hold a custody redetermination

hearing within seven business days of the Court’s judgment on this Report and Recommendation

for the Immigration Judge to determine whether Petitioner represents a danger to property or

persons or poses a risk of flight.

Dated: April 27, 2026

} } }

DARRELLA.CLAY — —t™”

UNITED STATES MAGISTRATE JUDGE

24

OBJECTIONS, REVIEW, AND APPEAL

Within 14 days after being served with a copy of this Report and

Recommendation, a party may serve and file specific written objections to the

proposed findings and recommendations of the Magistrate Judge. Fed. R. Civ.

P. 72(b)(2); 28 U.S.C. § 636(b)(1); Local Civ. R. 72.3(b). Properly asserted

objections shall be reviewed de novo by the assigned district judge.

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

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

subsequent appeal to the United States Court of Appeals, depending on how or

whether the party responds to the Report and Recommendation.

, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be specific and not

merely indicate a general objection to the entirety of the Report and

Recommendation; “a general objection has the same effect as would a failure to

object.” , 932 F.2d 505, 509 (6th Cir.

1991). Objections should focus on specific concerns and not merely restate the

arguments in briefs submitted to the Magistrate Judge. “A reexamination of the

exact same argument that was presented to the Magistrate Judge without specific

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

the purpose of the Magistrates Act.’” , No. 1:17-CV-00186, 2018

WL 3018175, at *2 (W.D. Ky. June 15, 2018) (quoting , 932 F.2d at 509).

The failure to assert specific objections may in rare cases be excused in the interest

of justice. , 924 F.3d 868, 878-79 (6th Cir. 2019).