Hildenbrand

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KAREN MARIELA AGUAYO MONTES, ) CASE NO. 1:26-CV-00919-SO

)

Petitioner, ) JUDGE SOLOMON OLIVER, JR.

) UNITED STATES DISTRICT JUDGE

v. )

) MAGISTRATE JUDGE

SCOTT A. HILDENBRAND, et al. ) JENNIFER DOWDELL

ARMSTRONG

)

)

Respondents. REPORT AND RECOMMENDATION

)

)

I. INTRODUCTION

Petitioner, Karen Mariela Aguayo Montes (“Ms. Aguayo Montes”) filed a petition for a

writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). In the petition, Ms. Aguayo Montes,

a citizen of Mexico who says she has lived in the United States since she was 10 years old, alleges

that her due process rights are being violated because she is being detained at Geauga County Jail

pending removal proceedings and has not been granted a bond hearing. Ms. Aguayo Montes names

as respondents: Sheriff Scott A. Hildenbrand; Rebecca Adducci; Todd M. Lyons, Acting Director

of U.S. ICE; and Todd Blanche, Acting United States Attorney General.

This matter was referred to me on April 17, 2026 under Local Rule 72.2 to prepare an

expedited report and recommendation on Ms. Aguayo Montes’ petition. (ECF No. 2). On April

24, 2026, Sheriff Hildenbrand filed a motion to dismiss him as a respondent pursuant to Federal

Rule of Civil Procedure 12(b)(6), arguing that he is not a proper respondent. (ECF No. 5). On

April 27, 2026, the remaining Respondents (the “Federal Respondents”) filed an answer and return

reasons set forth below, I recommend that the Court GRANT IN PART Ms. Aguayo Montes’

petition for a writ of habeas corpus. I also recommend that the Court GRANT Sheriff

Hildenbrand’s motion to dismiss, substitute ICE Field Office Director Kevin Raycraft for Rebecca

Adducci, and dismiss the remaining Federal Respondents.

II. FACTUAL AND PROCEDURAL BACKGROND

“For decades, noncitizens already present in the United States at the time of their arrest . .

. have been considered subject to discretionary detention.” Cuyun v. Raycraft, No. 3:25-CV-

02785-JJH, 2026 WL 362791, at *7 (N.D. Ohio Feb. 10, 2026) (report and recommendation)

(citing Inspection and Expedited Removal of Aliens; Conduct of Removal Proceedings; Asylum

Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997)).

In July 2025, however, the Department of Homeland Security (“DHS”) issued an internal

memorandum, entitled “Interim Guidance Regarding Detention Authority for Applications for

Admission.” See Kaur v. Raycraft, No. 4:25-CV-02679, 2026 WL 709728, at *2 and n.4 (N.D.

Ohio Mar. 13, 2026) (discussing memorandum). Under that memorandum, all individuals who

entered the United States without inspection were deemed “applicants for admission” under 8

U.S.C. § 1225(a) and subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A), regardless

of whether an individual was detained upon entry or had been present in the United States for

years. Id.1

On September 5, 2025, the Board of Immigration Appeals (“BIA”) issued its decision in

Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), holding that immigration judges “do[]

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),

1 The policy memorandum does not appear to be publicly available on any government site. See Cuyun, 2026 WL

362791, at *7 n.2. Yet it does not appear that the Federal Respondents have ever denied the existence of the

and must be detained for the duration of their removal proceedings.” Id. at 220.

Ms. Aguayo Montes is a citizen of Mexico who says that she has lived in the United States

since she was 10 years old. On September 3, 2025, Ms. Aguayo Montes was detained by ICE and

placed in removal proceedings. (ECF No. 1, PageID # 4). On the same day, Ms. Aguayo Montes

received a notice to appear before an immigration judge, which stated that she was an “alien

present in the United States who has not been admitted or paroled,” rather than an “arriving alien.”

(ECF No. 6-1). Ms. Aguayo Montes says that she was detained in part because she was facing a

state domestic violence charge. She also says that state prosecutors dismissed the state criminal

case without prejudice.

Ms. Aguayo Montes states that she has an infant child who was born only months before

she was taken into custody. Ms. Aguayo Montes also says that she has been separated from her

infant child since ICE took her into custody. She says that she was breastfeeding the child at the

time she was arrested and that her breasts have hardened since her arrest. She also says that her

child has moved between caretakers since she was taken into custody because the child’s father is

also being detained.

On January 13, 2026, the immigration judge found that Ms. Aguayo Montes was

removable. (ECF No. 1, PageID # 4). Ms. Aguayo Montes filed an appeal with the Board of

Immigration Appeals, which remains pending. Id. at PageID # 4-5. On April 14, 2026, the

immigration judge denied Ms. Aguayo Montes’ custody redetermination request, holding that he

lacked jurisdiction to consider it. (ECF No. 1-2).

On April 17, 2026, Ms. Aguayo Montes filed her 28 U.S.C. § 2241 habeas petition. (ECF

No. 1). Ms. Aguayo Montes raises two grounds for relief, asserting that: (1) her detention has

become unconstitutionally prolonged in violation of the Fifth Amendment to the United States

Constitution; and (2) her continued detention without a bond hearing violates the Immigration and

Nationality Act and the Fifth Amendment. On the same day, the Court referred the matter to me

to prepare an expedited report and recommendation on Ms. Aguayo Montes’ petition. (ECF No.

2). On April 24, 2026, Sheriff Hildenbrand filed a Rule 12(b)(6) motion to dismiss him as a

respondent. (ECF No. 5). On April 27, 2026, the Federal Respondents filed an answer and return

of writ. (ECF No. 6). On April 29, 2026, Ms. Aguayo Montes filed her traverse. (ECF No. 7).

III. ANALYSIS

Ms. Aguayo Montes seeks a writ of habeas corpus requiring Respondents to either release

her from custody or grant her a bond hearing. In response, the Federal Respondents argue that the

Court lacks jurisdiction over Ms. Aguayo Montes’ petition, that she has failed to exhaust her

claims, and that she is subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A) and thus

not entitled to a bond hearing.2

Ms. Aguayo Montes’ petition is far from the first to raise these issues. Rather, in the months

since DHS’ policy change and the Matter of Yajure Hurtado decision, courts throughout the

country have seen an “overwhelming surge” of habeas petitions raising similar arguments. Millan

v. Voorhies, No. 4:25-cv-02779, 2026 WL 248376, at *9 (N.D. Ohio Jan. 30, 2026) (report and

recommendation) (noting that in the four months since the Matter of Yajure Hurtado decision,

there had been more than 1,000 district court decisions, including more than 200 from district

courts in the Sixth Circuit, addressing similar issues).

Courts have reached differing answers on many of those questions, both nationwide and

within this district. However, a “clear majority” of courts have rejected the Federal Respondents’

arguments and have granted habeas relief to petitioners like Ms. Aguayo Montes. Lopez v. Noem,

No. 3:26 CV 128, 2026 WL 395202, at *10 (N.D. Ohio Feb. 12, 2026). After careful consideration,

I agree with that clear majority. Accordingly, I recommend that the Court grant in part Ms. Aguayo

2 Sheriff Hildenbrand has not responded to Ms. Aguayo Montes’ petition on the merits; instead, he asks only that the

Montes’ petition for a writ of habeas corpus and require Respondents to provide her with a bond

hearing.

A. Proper Respondent

Before turning the substance of the parties’ arguments, I must address the identity of the

proper respondent. Sheriff Hildenbrand has filed a Rule 12(b)(6) motion to dismiss, arguing that

he is not a proper respondent. In addition, the Federal Respondents state in a footnote to their

return of writ that the only proper respondent is ICE Field Office Director Kevin Raycraft, who

should be substituted for Rebecca Adducci as a respondent while all other respondents are

dismissed.

A district court must direct a writ of habeas corpus “to the person having custody of the

person detained.” 28 U.S.C. § 2243. In the immigration context, the Sixth Circuit has held that,

although the warden of the facility where the alien is detained “technically has day-to-day control,”

the “INS District Director for the facility where the petitioner is located has power over alien

habeas petitioners.” Roman v. Ashcroft, 340 F.3d 314, 320 (6th Cir. 2003) (quotations omitted).

Accordingly, “a detained alien generally must designate his immediate custodian—the INS

District Director for the district where he is being detained—as the respondent to his habeas corpus

petition.” Id. at 322.

Relying on Roman, several courts in this district have held that the District Director is the

proper respondent and that other respondents should be dismissed. See Martinez Hernandez v.

Raycraft, No. 3:25-CV-02591-DAR, 2026 WL 698639, at *3 (N.D. Ohio Mar. 12, 2026) (report

and recommendation) (recommending dismissal of respondents other than ICE District Director);

Hu v. Raycraft, No. 4:26-cv-113, 2026 WL 539117, at *1 n.1 (N.D. Ohio Feb. 26, 2026) (report

and recommendation) (same). Ms. Aguayo Montes has not argued to the contrary. I therefore

recommend that the Court grant Sheriff Hildenbrand’s motion to dismiss, substitute Field Director

Kevin Raycraft for Rebecca Adducci, and dismiss all other Federal Respondents.

B. Subject Matter Jurisdiction

“Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the

district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C. § 2241(a).

The writ of habeas corpus is “available to every individual detained in the United States.” Hamdi

v. Rumsfeld, 542 U.S. 507, 525 (2004). Accordingly, the protections of the writ extend to

noncitizens in immigration matters. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). However,

Congress has limited federal court jurisdiction over habeas petitions in the immigration context in

several ways. The Federal Respondents argue that one of those statutory provisions, 8 U.S.C. §

1252(b)(9), deprives the Court of jurisdiction over Ms. Aguayo Montes’ petition. That provision

provides that:

Judicial review of all questions of law and fact, including interpretation and application of

constitutional and statutory provisions, arising from any action taken or proceeding

brought to remove an alien from the United States under this subchapter shall be available

only in judicial review of a final order under this section. Except as otherwise provided in

this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title

28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any

other provision of law (statutory or nonstatutory), to review such an order or such questions

of law or fact.

8 U.S.C. § 1252(b)(9).

§ 1252(b)(9) is an “unmistakable ‘zipper’ clause.” Reno v. American-Arab Anti-

Discrimination Comm., 525 U.S. 471, 483 (1999). “Its purpose is to consolidate ‘judicial review’

of immigration proceedings into one action in the court of appeals . . . .” INS v. St. Cyr, 533 U.S.

289, 313 (2001). That does not mean, however, that § 1252(b)(9) is all-encompassing. Rather, in

Jennings v. Rodriguez, 583 U.S. 281 (2018), the Court made clear that § 1252(b)(9) has

meaningful limits. There, petitioners argued that they were entitled to periodic bond hearings while

detailed awaiting removal. 583 U.S. at 291. The Jennings plurality “assume[d] for the sake of

argument” that the actions taken to detain aliens without a bond hearing pending removal

constituted “action[s] taken . . . to remove [them] from the United States.” Id. at 292-93. The

plurality also acknowledged that, if removal proceedings had not been initiated, “the aliens would

not be in custody at all.” Id. at 293.

The plurality nonetheless rejected the assertion that such an action “arises from” a removal

proceeding for purposes of § 1252(b)(9), stating that such an expansive interpretation “would lead

to staggering results” and would “make claims of prolonged detention effectively unreviewable.”

Id. Thus, while the plurality did not need to provide a “comprehensive interpretation” of §

1252(b)(9), it held that § 1252(b)(9) “does not present a jurisdictional bar” where the alien is “not

asking for a review of an order of removal . . . not challenging the decision to detain them in the

first place or to seek removal . . . and . . . not even challenging any part of the process by which

their removability will be determined.” Id. at 294-95.

In light of Jennings, most courts in this district have held that § 1252(b)(9) does not deprive

a district court of jurisdiction to consider a petition alleging that the government must grant aliens

like Ms. Aguayo Montes a bond hearing. See Lemus v. Lynch, No. 4:26-cv-203, 2026 WL 496731,

at *3 (N.D. Ohio Feb. 23, 2026) (holding that § 1252(b)(9) “presents no bar” where a petitioner

“only challenges the government’s failure to provide a bond hearing” rather than a removal order,

the initial decision to detain or seek removal, or the process by which removability will be

determined); Gu v. Noem, 3:26-cv-00036, 2026 WL 621356, at *4 (N.D. Ohio Mar. 5, 2026)

(holding that Jennings “resolves [the] argument” against the Federal Respondents’ position

because petitioner was “not challenging the removal proceeding” but rather “the statutory

interpretation regarding his detention and due process rights”); E.V. v. Raycraft, No. 4:25-cv-

2069, 2025 WL 3122837, at *7 (N.D. Ohio Nov. 7, 2025) (“The question of whether statutory

provisions require detention without bond hearings do[es] not ‘arise from’ actions taken to remove

noncitizens.”); Garcia Rodriguez v. Raycraft, No. 4:26-cv-0302, 2026 WL 656956, at *4 (N.D.

Ohio Mar. 9, 2026) (“claims of unconstitutional detention do not constitute a question of law or

fact ‘arising from’ an action taken or proceeding brought to remove an alien”); Lopez, 2026 WL

395202, at *3 (holding that respondents’ “expansive” interpretation was “unsupported by [§

1252(b)(9)’s] plain language and contradicts Supreme Court precedent on this issue”).

The Federal Respondents cite to a decision from this district holding that § 1252(b)(9)

deprives district courts of jurisdiction to hear claims that aliens are entitled to bond hearings,

Amaya-Velis v. Raycraft, 816 F. Supp. 3d 745 (N.D. Ohio 2026). In light of Jennings, however, I

respectfully conclude that Amaya-Veliz is less persuasive than decisions holding that the question

of whether an alien is entitled to a bond hearing does not “arise from” the removal proceeding and

does not fall within the scope of § 1252(b)(9). Other courts in this district have declined to follow

Amaya-Velis on the same grounds. See Lemus, 2026 WL 496731, at *4 (disagreeing with Amaya-

Velis and similar decisions because they “conflate a challenge to detention itself with a challenge

to the lack of a bond hearing”); Kaur, 2026 WL 709728, at *7 (disagreeing with Amaya-Velis). I

recommend that the Court reject the Federal Respondents’ argument that § 1252(b)(9) deprives it

of jurisdiction over Ms. Aguayo Montes’ petition.3

C. Exhaustion

The Federal Respondents next argue that the Court should dismiss Ms. Aguayo Montes’

petition because she failed to exhaust her administrative remedies. If Congress mandates

exhaustion, a court must require a petitioner to exhaust administrative remedies before bringing

suit. See McCarthy v. Madigan, 503 U.S. 140, 144 (1992). “The exhaustion doctrine both allows

agencies to ‘apply [their] special expertise in interpreting relevant statutes’ and promotes judicial

efficiency.” Shearson v. Holder, 725 F.3d 588, 593 (6th Cir. 2013) (quoting Cent. States, Se. &

3 In other cases, the Government has argued that another provision, 8 U.S.C. § 1252(g), also deprives district courts

of jurisdiction over petitions like Ms. Aguayo Montes’. The Federal Respondents have not raised that argument in

Sw. Areas Pension Fund v. 888 Corp., 813 F.2d 760, 764 (6th Cir. 1987)).

The Federal Respondents concede that there is no statute mandating exhaustion here.

“When ‘Congress has not clearly required exhaustion, sound judicial discretion governs’ whether

or not exhaustion should be required.” Shearson, 725 F.3d at 593 (6th Cir. 2013) (quoting

McCarthy, 503 U.S. at 144). “This discretion is referred to as ‘prudential’ exhaustion . . . and such

a court-made exhaustion rule must comply with statutory schemes and congressional intent.”

Lopez, 2026 WL 395202, at *5 (quoting Island Creek Coal Co. v. Bryan, 917 F.3d 738, 746 (6th

Cir. 2019)).

Moreover, “[w]hile a court has discretion to fashion exhaustion requirements, there are

some exceptions to the exhaustion doctrine.” Shearson, 725 F.3d at 594. “For example, exhaustion

may not be required when the administrative remedy ‘does not serve the purposes behind the

exhaustion doctrine[ ],’ if the ‘administrative remedies are inadequate or not efficacious,’ or

‘where pursuit of administrative remedies would be a futile gesture.’” Id. (quoting Shawnee Coal

Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir. 1981)). “Additionally, ‘[e]xhaustion of administrative

remedies may not be required in cases of non-frivolous constitutional challenges to an agency's

procedures.’” Id. (quoting Bangura v. Hansen, 434 F.3d 487, 493 (6th Cir. 2006)). Finally, a court

may waive exhaustion where a “legal question is ‘fit’ for resolution and delay means hardship . . .

.” Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000).

“[T]he Sixth Circuit has not yet decided whether courts should impose prudential

exhaustion in the context of a noncitizen’s habeas petition for unlawful mandatory detention.”

Ramirez Moreno v. Lynch, Case No. 4:26 CV 275, 2026 WL 496634, at *2 (N.D. Ohio Feb. 23,

2026). “In evaluating prudential exhaustion in habeas petitions seeking bond hearings, district

courts in this circuit generally consider three factors[.]” Gu, 2026 WL 621356, at *5; see also

Cuyun, 2026 WL 362791, at *6 (noting that the three-factor test is drawn from Ninth Circuit

caselaw) (citing Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)). Those factors are whether:

(1) the agency has expertise such that agency consideration is necessary to generate a proper record

and reach a decision; (2) relaxation of the exhaustion requirement would encourage petitioners to

deliberately bypass administrative review; and (3) administrative review is likely to enable the

agency to correct mistakes and preclude judicial review. Gu, 2026 WL 621356, at *5.4

Weighing those factors, I conclude that a prudential exhaustion requirement is not

warranted here. First, the question Ms. Aguayo Montes presents is one of pure statutory

interpretation, and no agency expertise or consideration is necessary to generate a proper record.

See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 387 (2024) (interpreting the meaning of

statutes is a judicial function). In addition, waiving exhaustion would not encourage petitioners to

bypass administrative review, as “[t]he Sixth Circuit has repeatedly held [that] the BIA cannot

review constitutional claims . . . .” Gu, 2026 WL 621356, at *6 (citing cases). Finally,

administrative review is unlikely to enable the agency to correct mistakes, as the BIA already held

in Matter of Yajure Hurtado that petitioners like Ms. Aguayo Montes are not entitled to bond

hearings.

Even if a prudential exhaustion requirement were appropriate, I would conclude that

exhaustion should be waived in the circumstances presented here. In light of Matter of Yajure

Hurtado, there is no reason to believe that the agency intends to reconsider its determination that

Ms. Aguayo Montes is not entitled to a bond hearing, and exhaustion would therefore be futile.

See Gu, 2026 WL 621356, at *6-7; Lemus, 2026 WL 496731, at *7 (“there is no question that the

government’s administrative agency has predetermined the disputed issue by having a clearly

stated position that the petitioner is not eligible for the relief sought”) (quotations omitted); Lopez,

4 In Lemus, Chief Judge Lioi held that the three-factor test was “not particularly well suited” to these types of cases,

and instead waived exhaustion on futility and hardship grounds, though Chief Judge Lioi also held that exhaustion

should be waived even if the three-factor test applied. 2026 WL 496731, at *7 n. 5. As discussed below, I alternatively

2026 WL 395202, at *6 (“This Court cannot think of anything more clearly amounting to a ‘futile

gesture’ than requiring Petitioner to spend time appealing the Immigration Court’s decision to

deny her a bond hearing to the very agency that passed down that unequivocal directive.”).

“There also can be no doubt that the legal question is fit for resolution by th[e] Court now,”

as it turns on a matter of pure statutory interpretation. Lemus, 2026 WL 496731, at *8. Moreover,

additional delays would impose a hardship on Ms. Aguayo Montes, who remains detained without

a bond hearing and separated from her infant child. As another court in this Circuit has noted,

“[b]ond appeals before the BIA, on average, take six months to complete.” Lopez-Campos v.

Raycraft, 797 F. Supp. 3d 771, 779 (E.D. Mich. 2025).

In light of those considerations, “the majority of district courts in the Sixth Circuit [] have

concluded that requiring exhaustion would not promote judicial efficiency or protect

administrative authority because it would only delay the resolution of [petitioner’s] legal

questions.” Lemus, 2026 WL 496731, at *7 (quotations omitted) (citing cases); see also Lopez,

2026 WL 395202, at *5 (joining “several other[s] in this circuit” in concluding that exhaustion

was not required).

The Federal Respondents cite to a number of cases from this district dismissing similar

petitions for failure to exhaust. However, “[a] close inspection reveals that all of the decisions . . .

were issued by one of two jurists.” Lemus, 2026 WL 496731, at *6 n.4. After careful consideration,

I conclude that the decisions declining to impose an exhaustion requirement or excusing

exhaustion are more persuasive. I recommend that the Court decline to dismiss Ms. Aguayo

Montes’ petition on exhaustion grounds.

D. 8 U.S.C. §§ 1225(b)(2)(A) and 1226(a)

Turning now to the merits of the parties’ arguments, this case comes down to the interplay

between two different statutory provisions, 8 U.S.C. § 1225(b)(2)(A) and 8 U.S.C. § 1226(a). §

1225(b)(2)(A) provides that, with exceptions not relevant here, “in the case of an alien who is an

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

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

a proceeding under section 1229a of this title.” 8 U.S.C. § 1226(b)(2)(A). § 1226(a), by contrast,

provides that, “[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.” 8

U.S.C. § 1226(a). § 1226(a) further provides that the Attorney General “may release” the alien on

bond. 8 U.S.C. § 1226(a)(2).

Under § 1226(a), detention is discretionary. Under § 1225(b)(2)(A), detention is

mandatory. The question of which provision governs here is thus dispositive of Ms. Aguayo

Montes’ petition. Ms. Aguayo Montes argues that § 1226(a) governs because she is not an alien

“seeking admission” under § 1225(b)(2)(A) as she has been in the country for years and is not

currently “seeking” to enter it. The Federal Respondents, by contrast, argue that all aliens who

enter the United States and have not been admitted are aliens “seeking admission” under §

1225(b)(2)(A).

As always, I start with the text of the relevant statutes, which must be read in context.

United States v. Green, 167 F.4th 832, 851 (6th Cir. 2026). § 1225(b)(2)(A) provides that

“applicant for admission” who is “seeking admission” shall be detained. 8 U.S.C. § 1225(b)(2)(A).

§ 1225(a)(1) defines an “applicant for admission” as “[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 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). “Admission” and “admitted”

mean “with respect to an alien, 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). As an alien present in

the United States who has not been lawfully admitted, Ms. Aguayo Montes is an “applicant for

admission.”

However, § 1225(b)(2)(A) does not say that all applicants for admission must be detained.

It says that an applicant for admission who is “seeking admission” must be detained unless the

application is clearly and beyond a doubt entitled to be admitted. 8 U.S.C. § 1225(b)(2)(A). The

term “seeking admission,” is not defined. “When Congress does not define a term, courts ‘must

give the words their ordinary, contemporary, common meaning, absent an indication Congress

intended them to bear some different import.’” Green, 167 F.4th at 851-52 (quoting Grand

Traverse Band of Ottawa & Chippewa Indians v. US Att’y W. Dist. of Mich., 369 F.3d 960, 967

(6th Cir. 2004)). Dictionaries “often shed light on the ordinary meaning of the term.” Id. at 852.

Merriam-Webster defines the term “seeking” as “to ask for,” “to try to acquire or gain,” or

“to make an attempt.” Merriam-Webster, Seeking, available at https://www.merriam-

webster.com/dictionary/seeking (last accessed May 5, 2026). As a number of courts in this district

have held, the use of the active verb “seeking” implies present action beyond mere presence in the

country. See Lemus, 2026 WL 496731, at *11 (“the government’s interpretation fails to give effect

to Congress’s choice to use the active term ‘seeking’ in describing those immigrants covered by §

1225(b)(2)”); Lopez, 2026 WL 395202, at *8 (“‘Seeking’ requires something more than just

passively being present in the United States”); Gu, 2026 WL 621356, at *8 (“Taken together, the

plain meaning of an ‘alien seeking admission’ is an individual presently asking for, or trying to

presently gain, entry into the United States. That is, an ‘alien seeking admission’ implies the alien

is not already in the United States and is actively seeking to be admitted into the country’s

borders.”).

The Federal Respondents argue that the term “alien seeking admission” is another way to

refer to an “applicant for admission.” But “[i]t is a basic canon of statutory interpretation that

‘[e]very word in the statute is presumed to have meaning’ and that courts should ‘give effect to all

the words to avoid an interpretation which would render words superfluous or redundant.’” In re

Village Apothecary, Inc., 45 F.4th 940, 948 (6th Cir. 2022) (quoting King v. Zamiara, 788 F.3d

207, 212 (6th Cir. 2015); see also TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a cardinal

principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that,

if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’”)

(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).

Congress could have drafted § 1225(b)(2)(A) to say that an applicant for admission must

be detained pending removal proceedings. It did not do so. Instead, Congress said that an applicant

for admission who is seeking admission must be detained. The Federal Respondents’ interpretation

“would require the Court to ignore the specific text Congress used in the statute.” Gu, 2026 WL

621356, at *9; see also Lemus, 2026 WL 496731, at *10 (“this Court will not presume that

Congress intended its words to be redundant or superfluous”).

In light of § 1225(b)(2)(A)’s plain language, “[t]he vast majority of courts” including

“almost every district court within the Sixth Circuit” have rejected the Federal Respondents’

interpretation. Lemus, 2026 WL 496731, at *12; see also Lopez, 2026 WL 395202, at *10 (“this

Court joins the clear majority of courts across the country that have refused to read words out of

the statute, ignore superfluous language, downplay Supreme Court dicta, and disregard long-

standing principles of immigration law”); Millan, 2026 WL 248376, at *9 (“Overwhelmingly

district courts have disagreed with the agency’s interpretation of Section 1225(b)(2)(A)’s

mandatory detention scheme”); Kaur, 2026 WL 709728, at *12 (“the Court joins the

overwhelming majority of courts across the country in concluding that § 1226(a) applies to

Petitioner”).

The structure of the relevant provisions further weighs against the Federal Respondents’

interpretation. In Jennings, the Court described § 1226(a) as a “default rule” that permits detention

of certain “alien[s] present in the country,” including “aliens who were inadmissible at the time of

entry or who have been convicted of certain criminal offenses since admission.” 583 U.S. at 288.

By contrast, the Court noted that § 1225(b) “applies primarily to aliens seeking entry into the

United States . . . .” Id. at 297. While not a direct holding of the Court and not dispositive, “[t]he

Supreme Court’s analysis in Jennings thus supports [the] reading that § 1225(b)(2) applies to

immigrants seeking to lawfully enter the United States, while § 1226(a) provides a default rule

applicable to immigrants detained in the United States, regardless of whether they were originally

admitted.” Lemus, 2026 WL 496731, at *11.

Two other considerations further buttress that conclusion. First, § 1225 is entitled

“Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral

for hearing.” 8 U.S.C. § 1225. “The use of ‘arriving aliens’ strongly corroborates that it applies to

aliens who are in the act of arriving in the United States.” Gu, 2026 WL 621356, at *10. By

contrast, § 1226 uses the broader title, “Apprehension and detention of aliens.” 8 U.S.C. § 1226.

“Although section headings cannot limit the plain meaning of a statutory text, they supply cues as

to what Congress intended.” Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 583 U.S. 366, 380

(2018) (citations and internal quotations omitted).

In addition, subsequent legislative history counsels against interpreting § 1225(b)(2)(A) as

applying to aliens already present in the United States, regardless of whether those aliens are

actively seeking admission. In 2025, Congress passed the Laken Riley Act, Pub. L. No. 119-1,

139 Stat. 3 (2025). The Laken Riley Act added 8 U.S.C. § 1226(c)(1)(E), which provides that the

Attorney General “shall take into custody” an alien who is inadmissible under several provisions,

including 8 U.S.C. § 1182(a)(6)(A), if the alien is charged with, arrested for, convicted of, or

admits to, certain felonies. § 1182(a)(6)(A), in turn, provides that an alien is inadmissible if the

alien is present in the United States without being admitted or paroled, or if the alien arrives in the

United States at a time or place other than as designated by the Attorney General. 8 U.S.C. §

1182(a)(6)(A). If aliens who are present in the United States without being admitted or paroled are

already subject to mandatory detention under § 1125(b)(2)(A), it would render that portion of §

1226(c)(1)(E) superfluous. See Gu, 2026 WL 621356, at *10-11; Lemus, 2026 WL 496731, at *12;

Cuyun, 2026 WL 362791, at *10 (noting that accepting the Federal Respondents’ argument would

potentially render the Laken Riley Act’s amendments adding § 1226(e) “entirely unnecessary”).

For all these reasons, I reject the Federal Respondents’ interpretation of §§ 1225(b)(2)(A)

and 1226(a). Notably the Second Circuit recently did the same. See Cunha v. Freden, --- F.4th ---

, 2026 WL 1146044 (2nd Cir. Apr. 28, 2026). The Cunha court held that the Government’s “novel”

interpretation of §§ 1225(b)(2)(A) and 1226(a) “defies their plain text” and that a contrary reading

“is dictated by the plain text of these provisions, and further confirmed by the statute’s context,

structure, history, and purpose.” Id. at *2. The court also held that interpreting § 1225(b)(2)(A) as

not applying to aliens who are already in the country and are not actively seeking admission

“comports with the Supreme Court’s established understanding of Section 1225 and 1226” and

“reflects Executive Branch practice over thirty years and across five Presidential administrations.”

Id. Finally, the court held that, “even if the government’s newfound interpretation of Section

1225(b)(2)(A) were plausible . . . [it] would nonetheless reject it based on [the court’s] obligation

to construe these statutes in a manner that would avoid the serious constitutional questions

attendant to what would be the broadest mass-detention-without-bond mandate in our Nation's

history for millions of noncitizens.” Id.

The Seventh Circuit reached a similar conclusion at the preliminary injunction stage in a

case challenging an alleged policy of arresting noncitizens without a warrant. See Castañon-Nava

v. United States Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) (holding that the

Government was not likely to succeed on argument that § 1225(b)(2)(A) mandated detention of

aliens arrested within country because, among other things, government’s interpretation “would

render § 1225(b)(2)(A)’s use of the phrase ‘seeking admission’ superfluous, violating one of the

cardinal rules of statutory construction”).

The Federal Respondents rely on the Fifth Circuit’s recent contrary decision in Buenrostro-

Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). There, the court held, in a split decision, that

“being an ‘applicant for admission’ is not a condition independent from ‘seeking admission.’” Id.

at 502. The court also held that, to the extent that interpretation rendered the term “seeking

admission” redundant, “‘redundancies are common in statutory drafting’” and do not give a court

license to rewrite the statutory text. Id. at 503 (quoting Barton v. Barr, 590 U.S. 222, 239 (2020)).

One judge dissented, concluding that the majority “disregard[ed] the ordinary tools of

statutory interpretation based on speculation” about what would best honor Congress’ goals in

passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Id.

at 516 (Douglas, J., dissenting). The dissent also criticized the majority for upending settled

understandings of immigration law. The dissent stated that “[t]he Congress that passed IIRIRA

would be surprised to learn it had also required the detention without bond of two million people”

and that “[f]or almost thirty years there was no sign anyone thought it had done so, and nothing in

the congressional record or the history of the statute’s enforcement suggests that it did.” Id. at 508.

The dissent concluded that “Congress did not secretly require two million noncitizens to be

detained without bond, when nothing like this had ever been done before, and the whole history

of American immigration law suggested it would not be.” Id. at 516.

The Federal Respondents also rely on the Eighth Circuit’s recent decision in Avila v. Bondi,

170 F.4th 1128 (8th Cir. 2026). The Avila court “agree[d] with the Fifth Circuit that the ordinary

meanings of the phrases ‘applicant for admission’ and ‘seeking admission’ are the same.” Id. at

1134. The court also concluded that “[i]f Congress wanted to make clear that ‘seeking admission’

was an independent requirement in the statute, it could have easily done so.” Id. at 1134. But

“[s]ince the structure of the text does not indicate that this phrase has a standalone meaning, merely

using it as a synonym for something else does not make it surplusage.” Id. at 1135.

In response, the dissent faulted the majority for altering settled understandings, stating that

“[a]ll three branches of government understood the IIRIRA to maintain the distinction between

unadmitted noncitizens in the interior and those arriving at the border for detention purposes.” Id.

at 1140 (Erickson, J., dissenting). The dissent further noted that “[f]ive presidential

administrations, including the first Trump administration, and most immigration judges interpreted

§ 1225 to apply only to those arriving at the border,” stating that “[t]his conduct is something

courts ought to consider.” Id.

While Buenrostro-Mendez and Avila support the Federal Respondents’ position, I, like

other courts in this district, respectfully disagree with their reasoning, which effectively writes the

term “seeking admission” out of the statute. See Gu, 2026 WL 621356, at *12 (“as this Court sees

it, the . . . Buenrostro-Mendez decision[] require[s] a linguistic leap the Court cannot make”);

Lemus, 2026 WL 496731, at *13 (“Respectfully, this Court disagrees with the Fifth Circuit and

other courts adopting the government’s interpretation”); Martinez Hernandez, 2026 WL 698639,

at *14 (holding that Buenrostro-Mendez, as non-controlling precedent, did not change court’s

analysis). I find the Second Circuit’s opinion in Cunha and the dissenting opinions in Buenrostro-

Mendez and Avila more persuasive on both statutory interpretation and historical practice.

In sum, I recommend that the Court join the majority of courts in this district, this circuit,

and nationwide, and hold that § 1225(b)(2)(A) does not apply to aliens who are passively present

in the United States and are not “seeking admission.” I also recommend the Court hold that Ms.

Aguayo Montes is not subject to mandatory detention under § 1225(b)(2)(A), and is, instead,

subject to § 1226(a), which allows for discretionary bond.

E. Due Process

That leaves only Ms. Aguayo Montes’ claim that her constitutional due process rights are

being violated because Respondents continue to detain her without granting her a bond hearing

even though she is detained under § 1226(a).

The Fifth Amendment to the United States Constitution provides that no person shall “be

deprived of life, liberty, or property, without due process of law . . . .” U.S. CONST., amend. V.

“[T]he Fifth Amendment entitles aliens to due process of law in the context of removal

proceedings.” A.A.R.P. v. Trump, 605 U.S. 91, 94 (2025) (quoting Trump v. J.G.G., 604 U.S. 670,

673 (2025) (per curiam)).

In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court set forth three factors a

court must consider in evaluating procedural due process claims: (1) “the private interest that will

be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through

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

safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal

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

Id. at 334-35.

All three factors weigh in favor of Ms. Aguayo Montes. With respect to the first factor,

“[f]reedom from imprisonment—from government custody, detention, or other forms of physical

restraint—lies at the heart of the very liberty that the [Due Process] Clause protects.” Zadvydas,

533 U.S. at 690. The failure to grant Ms. Aguayo Montes a bond hearing when she is subject only

to discretionary detention under § 1226(a) thus infringes on a vital private interest.

With respect to the second factor “many district courts have found that an individualized

bond hearing ensures that immigration judges can assess whether noncitizens pose a flight risk or

a danger to the community, thereby mitigating the erroneous deprivation of noncitizens’ liberty

interests.” E.V., 2025 WL 3122837, at *12 (citing cases).

With respect to the final factor, the government certainly has an interest in enforcing

immigration laws. “[T]hat does not, however, translate into an interest in detaining Petitioner[]

without a bond hearing.” Id. Indeed, “any burdens imposed by providing due process were

mandated by law” and the Federal Respondents “cannot claim complying with the law as stated is

overly burdensome.” Gu, 2026 WL 621356, at *14.

The Federal Respondents argue that Ms. Aguayo Montes’ due process rights have not been

violated because § 1225(b)(2) does not permit a petitioner to be released on bond. For the reasons

discussed above, however, Ms. Aguayo Montes is detained under § 1226(a), not § 1225(b)(2), and

detention under § 1226(a) is discretionary, not mandatory.

The Federal Respondents also cite Demore v. Kim, 538 U.S. 510 (2003), for the proposition

that statutory provisions denying bond during administrative removal proceedings do not violate

the due process clause. Demore involved § 1226(c), which provides that the Attorney General

“shall take into custody any alien” who is removable because the alien has been convicted of

certain crimes. 8 U.S.C. § 1226(c). The Court held that § 1226(c) did not violate the due process

clause because “Congress, justifiably concerned that deportable criminal aliens who are not

detained continue to engage in crime and fail to appear for their removal hearings in large numbers,

may require that persons such as respondent be detained for the brief period necessary for their

removal proceedings.” Demore, 538 U.S. at 513.

As several courts in this district have held, Demore does not control the due process inquiry

where a petitioner is not detained under § 1226(c). See Rodriguez v. Greene, No. 4:26-cv-0333,

2026 WL 574961, at *11 (N.D. Ohio Mar. 2, 2026) (“Since Petitioner does not fall under the ambit

of section 1226(c), Demore is clearly distinguishable.”); Hu, 2026 WL 539117, at *10 (holding

that Demore was “not on point” because it concerned “mandatory detention for certain criminal

aliens” and petitioner did not fall within its scope); Hernandez-Cine v. Voorhies, No. 4:26-cv-421,

2026 WL 972364, at *5 (N.D. Ohio Apr. 10, 2026) (holding that Demore is “narrower than

[Respondents] claim[]” and was inapplicable where petitioner did not have criminal arrests or

convictions). I agree with those well-reasoned decisions and hold that Demore does not alter the

analysis where, as here, a petitioner is purportedly detained under § 1225(b)(2)(A) rather than §

1226(c).5

Accordingly, I recommend that the Court grant in part Ms. Aguayo Montes’ petition for a

writ of habeas corpus and order the Federal Respondents to provide her with a bond hearing within

7 days of the Court’s order on this report and recommendation.6

IV. RECOMMENDATION

For all the reasons set forth above, I RECOMMEND that the Court grant Sheriff

Hildenbrand’s motion to dismiss (ECF No. 5). I further recommend that the Court substitute Field

Director Kevin Raycraft for Rebecca Adducci as a respondent and dismiss all other Federal

Respondents. Finally, I RECOMMEND that the Court GRANT IN PART Ms. Aguayo Montes’

Petition (ECF No. 1) and ORDER the Federal Respondents to provide her with a bond hearing

under 8 U.S.C. § 1226(a) within seven (7) days of the adoption of this Report and

Recommendation.

Dated: May 6, 2026 /s Jennifer Dowdell Armstrong

Jennifer Dowdell Armstrong

U.S. Magistrate Judge

5 Ms. Aguayo Montes states that ICE took her into custody after she was charged with domestic violence under state

law. She also says that state prosecutors dismissed the charges against her without prejudice. The Federal Respondents

do not dispute that assertion in their return of writ. Nor do they cite to § 1226(c) or argue that Ms. Aguayo Montes is

subject to mandatory detention in light of her domestic violence charge.

6 In her petition, Ms. Aguayo Montes asks the Court to order Respondents to either release her or to grant her a bond

hearing. In her traverse, Ms. Aguayo Montes focuses primarily on her argument that the Court should grant her a bond

hearing. Under the circumstances presented here, granting Ms. Aguayo Montes a bond hearing is more appropriate

than ordering her immediate release. Accordingly, I recommend that the Court deny the petition to the extent Ms.

NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b) within

fourteen (14) days after being served with a copy thereof, and failure to file

timely objections within the fourteen (14) day period shall constitute a

waiver of subsequent review, absent a showing of good cause for such

failure. Such party shall file with the Clerk of Court, and serve on the

Magistrate Judge and all parties, written objections which shall specifically

identify the portions of the proposed findings, recommendations, or report to

which objection is made and the basis for such objections. Any party may

respond to another party’s objections within fourteen (14) days after being

served with a copy thereof. The District Judge to whom the case was assigned

shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made and may

accept, reject, or modify, in whole or in part, the findings or recommendations

made by the Magistrate Judge. The District Judge need conduct a new hearing

only in such District Judge’s discretion or where required by law, and may

consider the record developed before the Magistrate Judge, making a

determination on the basis of the record. The District Judge may also receive

further evidence, recall witnesses or recommit the matter to the Magistrate

Judge with instructions.

Id. (emphasis added).

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

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

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

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

specific and not merely indicate a general objection to the entirety of the report and

recommendation; a general objection has the same effect as would a failure to object. Howard v.

Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, 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

Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, *2 (W.D. Ky. June 15, 2018)

(quoting Howard). The failure to assert specific objections may in rare cases be excused in the

interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).