O.G.M.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

O.G.M., No. 4:26-CV-00780

Petitioner, (Chief Judge Brann)

v.

JESSICA SAGE, in her official

capacity as Warden, FCI Lewisburg, et

al.,

Respondents.

MEMORANDUM OPINION

MAY 6, 2026

I. BACKGROUND

O.G.M.,1 currently a detainee of the United States Department of Homeland

Security, Immigration and Customs Enforcement (“ICE”), has filed this 28 U.S.C.

§ 2241 petition seeking his release from ICE custody.2 O.G.M. is currently detained

at the Federal Correctional Institution, Lewisburg located within the Middle District

of Pennsylvania.3

1 O.G.M. has filed a motion to proceed under a pseudonym, Doc. 2, which the Government does

not oppose. See Doc. 9. The motion will therefore be granted, and Respondents will be directed

to substitute any filings that contain personal identifying information with documents that

redact such information.

2 Doc. 1.

O.G.M., a citizen and native of the Bolivarian Republic of Venezuela, entered

the United States of America in April of 2023.4 He has resided in the United States

since that time, and is married to a United States citizen.5 In January of 2025, O.G.M.

applied for Temporary Protective Status (“TPS”) and, on April 27, 2025, his TPS

application was approved, with validity running until October 2, 2026.6

Shortly after taking office, in early February 2025, then Secretary of

Homeland Security Kristi Noem terminated TPS protection for Venezuelans.7 On

October 29, 2025, O.G.M. was directed to present himself for a case review; after

arriving at the appointed time, O.G.M. was arrested by ICE, and has remained in

ICE custody since that date.8

In March of 2026, O.G.M. filed this § 2241 petition seeking release from

custody or a bond hearing on two separate grounds.9 First, O.G.M. argues that he

holds valid TPS and, accordingly, the Government is prohibited by law from

detaining him.10 Second, O.G.M. contends that, because he was detained inside of

the United States, his detention is governed by 8 U.S.C. § 1226(a), and the

Government is incorrect that 8 U.S.C. § 1225(b)—which provides for mandatory

4 Id. at 4.

5 Id.

6 Id. at 10.

7 Id. at 16-17.

8 Id. at 10-11.

9 See Doc. 1.

10 Id. at 15-19.

detention without a bond hearing—applies to him.11 The failure to provide him with

a bond hearing, O.G.M. argues, violates his due process rights.12

Respondents reply that O.G.M.’s TPS has been terminated and, because the

court order directing restoration of that status has been stayed by the Supreme Court

of the United States, O.G.M. is not protected the relevant TPS provisions.13 They

further contend that § 1225(b) applies to all individuals who are not inspected and

lawfully admitted to the country, regardless of whether they manage to enter the

country surreptitiously, and O.G.M. is therefore subject to mandatory detention

without a bond hearing.14 Moreover, Respondents assert that O.G.M.’s continued

detention without a bond hearing does not violate his due process rights.15

O.G.M. has filed a reply brief, rendering this matter ripe for disposition.16 For

the reasons discussed below, the petition will be granted in part.

II. DISCUSSION

O.G.M. brings his claims pursuant to 28 U.S.C. § 2241, which provides, as

relevant here, that it applies to any individual who “in custody for an act done or

omitted in pursuance of an Act of Congress, or an order, process, judgment or decree

of a court or judge of the United States.”17 As the Supreme Court of the United States

11 Id. at 20-31.

12 Id. at 31-32.

13 Doc. 9 at 28.

14 Id. at 29-57.

15 Id. at 57-61.

16 Doc. 13.

17 28 U.S.C. § 2241(c)(2).

has emphasized, when ICE detainees challenge “their confinement” pending

removal, “their claims fall within the ‘core’ of the writ of habeas corpus and thus

must be brought in” a 28 U.S.C. § 2241 petition.18 O.G.M.’s claims are therefore

properly brought in this petition.

The determination of whether O.G.M. is improperly detained requires an

examination of two separate provisions in immigration law: 8 U.S.C. § 1225(b) and

8 U.S.C. § 1226(a). Section 1225(b) provides that “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” pending removal hearings.19 In contrast, 8 U.S.C.

§ 1226(a) states only that “an alien may be arrested and detained pending a decision

on whether the alien is to be removed from the United States.” In accordance with

that language, “[f]ederal regulations provide that aliens detained under § 1226(a)

receive bond hearings at the outset of detention.”20 These two provisions therefore

provide for opposite outcomes: under § 1225(b) O.G.M. may not receive a bond

hearing, but under § 1226(a) he must receive such a hearing. The Court therefore

examines each statute to determine which applies to O.G.M.

18 Trump v. J. G. G., 604 U.S. 670, 672 (2025).

19 8 U.S.C. § 1225(b)(2)(A).

20 Jennings v. Rodriguez, 583 U.S. 281, 306 (2018).

Turning first to 8 U.S.C. § 1225, as the United States Court of Appeals for the

Second Circuit recently observed, to trigger § 1225(b)(2)(A), an individual must be

(1) an applicant for admission, (2) seeking admission, and (3) not clearly and beyond

a doubt entitled to be admitted.21 Consequently, “Section 1225(b)(2)(A) . . . applies

only to a noncitizen who is both an ‘applicant for admission’ and who is ‘seeking

admission.’”22

Section 1225 defines “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).”23 While applicable federal law does not define “alien seeking admission,”

courts construe the plain language of “seeking admission” to describe “active and

ongoing conduct, such as physically attempting to come into the United States at a

border or port of entry.”24

Courts have observed that such a “reading comports with the Supreme Court’s

finding in Jennings v. Rodriguez,”25 wherein the Supreme Court “noted [that]

21 Cunha v. Freden, __ F.3d __, __, No. 25-3141-PR, 2026 WL 1146044, at *5 (2d Cir. Apr. 28,

2026)).

22 Id.

23 8 U.S.C. § 1225(a)(1).

24 Ramirez-Montoya v. Rose, No. 3:25-CV-02411, 2025 WL 3709045, at *4 (M.D. Pa. Dec. 22,

2025) (collecting cases).

25 Id.

§ 1225(b) applies primarily to aliens seeking entry into the United States.”26 That

reading of “seeking admission” further “preserves a distinction between ‘seeking

admission’ and the separate term ‘applicant for admission,’ ensuring that each phrase

carries independent meaning.”27 In sum, a plain reading of § 1225(b) demonstrates

that it applies to individuals who are attempting to enter the United States, not those

already within the country.

With respect to § 1226, the Supreme Court has been explicit that “§ 1226

applies to aliens already present in the United States.”28 That Section “creates a

default rule for those aliens by permitting—but not requiring—the Attorney General

to issue warrants for their arrest and detention pending removal proceedings” and

“permit[ting] the Attorney General to release those aliens on bond.”29 Therefore,

while § 1225 applies to individuals detained while entering or attempting to enter

the country, § 1226 applies generally to those who are detained within the country.30

These definitions create dual tracks: if an individual is detained attempting to

enter the country illegally or while otherwise presenting themselves for inspection

and entry, they are subject to mandatory detention pursuant to § 1225. If they are

26 Jennings, 583 U.S. at 297.

27 Ramirez-Montoya, 2025 WL 3709045, at *4.

28 Jennings, 583 U.S. at 303.

29 Id.

30 See Cunha, __ F.3d at __, 2026 WL 1146044 at *5-6 (“Section 1226(a) plainly applies to

noncitizens, like Petitioner, who are present in the United States, but charged as inadmissible

for entering the country without inspection and admission” while “Section 1225(b)(2) . . .

applies only to (1) noncitizens who are present and have not been admitted, and (2) are

requesting (3) lawful entry into the United States after inspection and authorization”).

arrested after having already entered the country, they are subject to detention under

§ 1226 and are entitled to a bond hearing.

Applying that distinction here, O.G.M. must be detained pursuant to § 1226

and is therefore entitled to a bond hearing. O.G.M. entered the United States in April

of 2023 and, at that time, he could reasonably have been construed as seeking

admission and therefore as an individual governed by § 1225.31 However, he was

not arrested and detained until October of 202532 after having resided “in the United

States for an extended period of time”; accordingly he is no longer seeking admission

and “§ 1226(a), not § 1225(b)(2)(A), applies to” O.G.M. during his detention.33

Because § 1226(a) applies, mandatory detention is not warranted, and he must be

provided with a bond hearing.34

Having determined that O.G.M. is being detained under the wrong section of

immigration law and is improperly being denied a bond hearing, the Court must next

determine whether Respondents’ actions violate O.G.M.’s Fifth Amendment Due

Process rights.35

31 Doc. 1 at 4.

32 Id. at 10-11.

33 Ramirez-Montoya, 2025 WL 3709045, at *5.

34 See, e.g., Patel v. O’Neil, No. 3:25-CV-2185, 2025 WL 3516865, at *5 (M.D. Pa. Dec. 8, 2025)

(finding in similar circumstances that § 1226(a) applies).

35 O.G.M. brings claims under the Fifth Amendment and violations of the Immigration and

Nationality Act (“INA”). Doc. 1 at 36-38. O.G.M. alleges that his detention violates his rights

under § 1254a of the INA related to those who validly hold TPS. Doc. 1 at 36. Both parties

agree that then Secretary Noem terminated TPS as to previously qualifying Venezuelans, and

agree that, in a case filed in the United States District Court for the Northern District of

California, that termination of TPS was twice found invalid and TPS was twice (once on 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.”

That Amendment “applies to all ‘persons’ within the United States, including aliens,

whether their presence here is lawful, unlawful, temporary, or permanent,”36 and

therefore individuals “facing removal are entitled to due process.”37

This Court applies the balancing test developed in Mathews v. Eldridge38 to

determine whether the failure to provide O.G.M. with a bond hearing under

§ 1226(a) violates his due process rights.39 Under that test, courts must consider

three distinct factors: First, the private interest that will be affected by

the official action; second, the risk of an erroneous deprivation of such

motion for a preliminary injunction and once on a grant of summary judgment) ordered

reinstated for certain individuals, which would include O.G.M. Compare Doc. 1 at 15-19, with

Doc. 9 at 9-13. See Nat’l TPS All. v. Noem, 773 F. Supp. 3d 807 (N.D. Cal.), aff’d, 150 F.4th

1000 (9th Cir. 2025); Nat’l TPS All. v. Noem, 798 F. Supp. 3d 1108, 1153 (N.D. Cal. 2025),

aff’d, 166 F.4th 739 (9th Cir. 2026). However, both of those orders were stayed by the Supreme

Court pending resolution of appeals to the United States Court of Appeals for the Ninth Circuit

and any potential petition for certiorari to the Supreme Court. Noem v. Nat’l TPS All., 145 S.

Ct. 2728, 2728-29 (2025); Noem v. Nat’l TPS All., 146 S. Ct. 23, 23-24 (2025). Those stays

remain in effect. The District Court later entered a declaratory judgment finding that

termination of TPS for the relevant Venezuelans was unlawful. Nat’l TPS All. v. Noem, No.

25-CV-01766-EMC, 2025 WL 3539156, at *3 (N.D. Cal. Dec. 10, 2025). This creates a thorny

question as to whether O.G.M. is entitled to release on the basis of his TPS; the declaratory

judgment decision held that the termination of TPS was unlawful, but the Supreme Court has

stayed any coercive effect of the holdings, meaning O.G.M. does not currently hold valid TPS.

Given this, there is good reason to believe that O.G.M. is not entitled to release on the basis of

his prior TPS. See, e.g., Olivero Nava v. Warden Port Isabel Serv. Processing Ctr., No. 1:26-

CV-230, 2026 WL 1018343, at *5-6 (S.D. Tex. Apr. 15, 2026). Nevertheless, because O.G.M.

is entitled to relief on the ground that he has been improperly denied a bond hearing, the Court

declines to wade into this weighty issue at this time.

36 Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

37 Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).

38 424 U.S. 319, 335 (1976).

39 Cf. Sewak v. I.N.S., 900 F.2d 667, 674 (3d Cir. 1990) (applying that test to determine whether

applicable deportation regulations were capable of protecting an individual’s due process

rights).

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

additional or substitute procedural safeguards; and finally, the

Government’s interest, including the function involved and the fiscal

and administrative burdens that the additional or substitute procedural

requirement would entail.40

The first factor weighs heavily in favor of concluding that Petitioners’ actions

have deprived O.G.M. of his due process rights, as “[f]reedom from imprisonment—

from government custody, detention, or other forms of physical restraint—lies at the

heart of the liberty that Clause protects.”41 The second factor likewise favors

O.G.M., since “he is presently and erroneously detained under the mandatory

detention provisions of § 1225, without an opportunity for a bond hearing.”42

Finally, as other courts have observed, the Government does have an interest

in detaining noncitizens to ensure “‘the appearance of aliens at future immigration

proceedings’ and ‘prevent[] danger to the community.’”43 These interests certainly

justify detaining individuals in appropriate circumstances. But they cannot weigh in

favor of Respondents when they are denying wholesale a bond hearing—the very

purposes of which is to establish whether an individual “poses [a] flight risk [or a]

danger to the community.”44 In balancing these three factors then, it is clear that

40 Mathews, 424 U.S. at 335.

41 Zadvydas, 533 U.S. at 690. See also Patel, 2025 WL 3516865, at *6; Ramirez-Montoya, 2025

WL 3709045, at *6.

42 Patel, 2025 WL 3516865, at *6 (quoting Bethancourt Soto v. Soto, No. 25-CV-16200, 2025

WL 2976572, at *8 (D.N.J. Oct. 22, 2025)).

43 Soto, 2025 WL 2976572, at *8 (quoting Zadvydas, 533 U.S. at 690).

44 Ramirez-Montoya, 2025 WL 3709045, at *4 (internal quotation marks omitted).

O.G.M.’s continued detention without a bond hearing violates his due process rights.

Consequently, the Court will grant his § 2241 petition.

III. CONCLUSION

For the foregoing reasons, the Court concludes that Respondents have violated

O.G.M.’s due process rights by detaining him without a bond hearing. Accordingly,

his petition will be granted, and the Government will be required to provide O.G.M.

with a bond hearing or release him from custody.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge