Kamel

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WALID FARES LEWIZ LEYANI :

KAMEL,

Petitioner CIVIL ACTION NO. 3:26-551

V. (JUDGE MANNION)

CRAIG LOWE, et al.,

Respondents

MEMORANDUM

Pending before the court is petitioner Walid Fares Lewiz Leyani

Kamel'’s petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241.

(Doc. 1). For the reasons stated herein, Kamel’s petition will be GRANTED.

I. BACKGROUND

Petitioner Walid Fares Lewiz Leyani Kamel is a citizen of Egypt. (Doc.

10-2 at 3). On September 18, 2024, Kamel illegally crossed the United

States-Mexico border on foot near Sasabe, Arizona. /d. at 5. About eight

minutes after crossing the border, Kamel was encountered by Border Patrol

and taken into custody. /d. He has since been detained by the Department

of Homeland Security (“DHS”) under 8 U.S.C. §1225(b)(1) as a noncitizen

subject to expedited removal under §235(b)(1) of the Immigration and

Nationality Act (“INA”). /d. He is currently located at the Pike County

Correctional Facility in Lords Valley, Pennsylvania, He has no criminal

history.

While in custody, on January 14, 2025, a Notice to Appear was issued,

charging Kamel with removability under 8 U.S.C. §1182 as an alien present

in the United States without being admitted and not in possession of valid

documentation. (Doc. 10-3).

On September 19, 2025, Kamel was found removable, but granted

asylum because of his status as a Coptic Christian who has suffered

beatings, threats of torture, and attempts at forced conversion at the hands

of extremist Muslims in Egypt. (Doc. 10-5); (Doc. 1, Ff] 9-11). During one

attack, he and his wife were severely beaten to the point that his wife suffered

a miscarriage. (Doc. 1, J 11).

Despite being granted asylum, Kamel has remained detained pending

the disposition of the Government’s appeal of the asylum order to the Board

of Immigration Appeals (“BIA”). (Doc. 10-6). Indeed, on December 17, 2025,

ICE issued a decision, determining that “[e]xceptional circumstances and/or

a legal requirement to detain exists warranting this decision to maintain you

in ICE custody pending the outcome of the DHS appeal before the BIA.”

(Doc. 10-7).

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On March 5, 2026, Kamel filed the present petition for a writ of habeas

corpus, arguing that his continued detention violates the INA as well as the

Fifth Amendment due process clause. (Doc. 1). On April 28, 2026,

Respondents filed their response, arguing that he is properly detained under

8 U.S.C. §1225(b)(1). (Doc. 10). Finally, on May 12, 2026, Kamel filed a reply

to their response. (Doc. 11). The petition is now ripe for disposition.

ll. LEGAL STANDARD

Under 28 U.S.C. §2241, district courts have the authority to grant a writ

of habeas corpus where a petitioner is “in custody under or by color of the

authority of the United States .. . in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. §2241(c)(1), (3).

Furthermore, “[iJt is well established that a federal habeas corpus

petitioner generally has the burden of proving facts entitling him to a

discharge from custody.” Goins v. Brierley, 464 F.2d 947, 949 (3d Cir. 1972).

However, “[w]ith respect to certain factual issues, the burden of proof may

be shifted to the state because of specific policy considerations or because

the available evidence is likely to be in the hands of the state.” /d.

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ill. DISCUSSION

a. Jurisdiction

The court’s authority to hear noncitizen habeas petitions under 28

U.S.C. §2241 is limited is some circumstances by 8 U.S.C. §§1252(g), (b)(9),

and (a)(2)(B)(ii).

§1252(g) states ‘“[e]xcept as provided in this section and

notwithstanding any other provisions of law . . . no court shall have

jurisdiction to hear any cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against any alien

under this chapter.” 8 U.S.C. §1252(g). Here, the court’s jurisdiction is not

barred by §1252(g) as the petition neither challenges the commencement of

removal proceedings, the Attorney General’s decision to adjudicate, nor the

execution of a removal order. See Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 482 (1999) (finding that §1252(g)(2) divests the court

of jurisdiction “only to [these] three discrete actions’).

§1252(b)(9) states “[jJudicial review of all questions of law and fact...

arising from any action taken or proceedings brought to remove an alien from

the United States .. . shall be available only on judicial review of a final order

[of removal].” 8 U.S.C. §1252(b)(9). Here, the court’s jurisdiction is not barred

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by §1252(b)(9) as the petition does not seek review of any law or fact arising

from a removal proceeding. See E.0.H.C. v. Sec’y United States Dept. of

Homeland Sec., 950 F.3d 177, 186 (3d Cir. 2020) (finding that §1252(b)(9)

“does not reach claims that are independent of, or wholly collateral to, the

removal process’).

§1252(a)(2)(B)(ii) prohibits district courts from reviewing discretionary

detention choices of the Attorney General or Secretary of Homeland

Security. 8 U.S.C. §1252(a)(2)(B)(ii). Here, the court’s jurisdiction is not

barred by §1252(a)(2)(B)(ii) as the petition does not challenge a

discretionary detention choice. See Patel v. O’Neil, 2025 WL 3516865, at *3

(M.D.Pa. Dec. 8, 2025) (“section 1252(a)(2)(B)(ii) is inapposite because the

Respondents’ ‘statutory detention power is “not a matter of discretion” to

which §1252(a)(2)(B)(ii) applies”) (internal citations omitted).

Finally, courts considering the issue of whether a petitioner is being

wrongfully detained without a bond hearing “have almost universally held

that they have jurisdiction,” and, therefore, that §§1252(g), (b)(9), and

(a)(2)(B)(ii) do not apply. Pate/, 2025 WL 3516865 at *3.

b. Exhaustion of administrative remedies

“A petitioner challenging agency action must generally first exhaust

administrative remedies; however, in habeas proceedings, ‘exhaustion

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exists as a judicially created doctrine applied at the Court's discretion.” Vadel

v. Lowe, 2025 WL 3772059, at *3 (M.D.Pa. Dec. 31, 2025) (quoting

Kashranov v. Jamison, 2025 WL 3188399, at *3 (E.D.Pa. Nov. 14, 2025)).

Here, further administrative review would be pointless, as Kamel is detained

under 8 U.S.C. §1225(b), which precludes immigration judges from holding

a bond hearing. See id.; see also Matter of Yajure Hurtado, 29 |. & N. Dec.

216 (BIA 2025) (holding that an immigration judge “has no authority to

consider bond requests for any person who entered the United States

without admission’).

c. 8 U.S.C. §1226(a) applies to Kamel

Kamel argues that his detention under §1225(b) violates the INA and

his procedural due process rights because he has been granted asylum, and

that he should, therefore, be released or provided with a bond hearing.

Respondents, on the other hand, argue that Kamel was properly detained

under 8 U.S.C. §1225(b)(1) and remains properly detained while DHS’

appeal of the asylum order remains pending. While the court agrees that

Kamel’s detention was initially proper under §1225(b)(1), it disagrees that his

deterition rernains under the provision following the asylum order.

Section 1225(b)(1) explicitly applies to “aliens arriving in the United

States and certain other aliens who have not been admitted or paroled.”

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Where a detainee was “encountered within 14 days of entry without

inspection and within 100 air miles of any U.S. international land border,” he

is treated as an arriving alien who was not admitted or paroled. Castro v.

United States Department of Homeland Security, 835 F.3d 422, 425 (quoting

8 U.S.C. §1225(b)(1)(A)(i), (iii)). Section 1225(b)(1) explicitly applies to

“aliens arriving in the United States and certain other aliens who have not

been admitted or paroled.” Here, Kamel indisputably fell into that category.

However, once he was granted asylum, his detention was no longer proper

under §1225(b)(1) and instead converted §1226(a).

By way of analogy, courts nationwide, including this court, have been

dealing with the issue of whether a noncitizen habeas petitioner who has

been residing in the United States for some time is subject to the mandatory

detention provision of §1225(b)(2)(A). In Cunha v. Freden, the United States

Court of Appeals for the Second Circuit considered the issue and ruled that

it is “clear that Section 1226(a) governs detention of noncitizens like

Petitioner. Section 1225(b)(2)(A) does not apply to such noncitizens, who

are present in the United States after entering the country without inspection

and admission, and who were not apprehended while entering the country

or shortly thereafter.” 2026 WL 1146044, *2 (2d Cir. Apr. 28, 2025). In

reaching this conclusion, the court noted that its “holding is consistent with

the decisions of over 370 district judges across the Nation who (as of mid-

February 2026) have also rejected the government’s position. In other words,

over ninety percent of district judges have sided with Petitioner.” /d. at *4.

Recently, both the Sixth and Eleventh Circuits have ruled in line with the

Second Circuit. See Lopez-Campos v. Raycraft, 2026 WL 1283891 (6th Cir.

May 11, 2026); see also Hernandez Alvarez v. Warden, Federal Detention

Ctr. Miami, 2026 WL 1243395 (11th Cir. May 6, 2026). The undersigned has

consistently joined in this consensus interpretation.

For §1225(b)(2)(A) to apply: “(1) there must be an ‘examining

immigration officer’ who determines; (2) that an ‘applicant for admission’; (3)

is ‘seeking admission’; and (4) ‘not clearly and beyond a doubt entitled to be

admitted.” Bethancourt v. Soto, 2025 WL 2976572, at *5 (D.N.J. Oct. 22,

2025) (citing 8 U.S.C. §1225(b)(2)(A)).

The consensus view of the courts is that “seeking admission” requires

“active and ongoing conduct, such as physically attempting to come into the

United States at a border or port of entry.” Gonzalez Centeno v. Lowe, 2026

WL 94642, at *3 (M.D.Pa. Jan. 13, 2026) (quoting Quispe v. Rose, 2025 WL

3537279, at*5 (M.D.Pa. Dec. 10, 2025)); see also Cunha, 2026 WL 1146044

at *8 (“When the statute says, ‘alien seeking admission,’ it therefore refers to

a noncitizen who is seeking admission right now, not one who sought

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admission in the past but no longer is”) (emphasis in original). An individual

affirmatively “seeking admission” should not be confused as being the same

as an “applicant for admission.” See Patel, 2025 WL 3516865 at *5 (finding

that such an interpretation of “seeking admission” violates the rule against

surplusage). Therefore, because “seeking admission” applies to individuals

in an affirmative act, §1225(b)(2)(A) does not apply to “noncitizens . . . who

have resided in the United States for years.” /d. Furthermore, while the “entry

fiction” doctrine “allows the government to treat physical entrants as if still

‘on the threshold’ if they are ‘detained shortly after lawful entry’. . . no one

could seriously contend that it applies to a noncitizen like [the petitioner] who

has been living in the United States for [an extended period of time]. Under

settled Supreme Court precedent, ‘aliens who have once passed through our

gates, even illegally, may be expelled only after proceedings conforming to

traditional standards of fairness encompassed in due process of law.”

Cunha, 2026 WL 1146044 at *15 (emphasis in original).

While Kamel is detained pursuant to §1225(b)(1), this plain language

analysis of §1225(b)(2) is instructive. Section 1225(b)(1) explicitly applies to

“aliens arriving in the United States and certain other aliens who have not

been admitted or paroled.” Kamel can no longer be deemed “arriving in the

United States,” nor can he be deemed “not admitted.” His asylum application

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was granted on September 19, 2025. (Doc. 10-5). He is now an asylee. In

other words, he has been granted admission. The fact that the Government

has appealed the asylum decision does not change that reality. At least for

the time being, he is legally an asylee. If the Board of Immigration Appeals

(“BIA”) later reverses that determination (and the Circuit Court affirms the

BIA), then he will no longer be an asylee. However, his asylee status is not

nullified by a pending appeal.

As for §1226(a), it allows for the Attorney General to arrest and detain

a noncitizen “pending a decision on whether the alien is to be removed from

the United States.” 8 U.S.C. §1226(a). Pending that decision, the Attorney

General “(1) may continue to detain the arrested alien; and (2) “may release

the alien on. . . bond of at least $1,500 with security approved by, and

containing conditions prescribed by, the Attorney General; or . . . conditional

parole.” 8 U.S.C. §1226(a)(1)-(2).

Here, Kamel was properly detained under §1225(b)(1) until he was

deemed an asylee. (Doc. 10-5). It defies the plain language of the statute to

continue to consider him either as an “arriving alien” or as an “applicant for

admission” as defined by §1225(b)(1). Accordingly, §1226(a) applies.

af.

d. Kamel’s detention under 8 U.S.C. §1225(b) violates due

process and warrants release

The Fifth Amendment protects against deprivation “of life, liberty, or

property without due process of law. U.S. Const. amend. V. This protection

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

their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas

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

To determine whether a habeas petitioner's detention under §1225(b)

violates due process, courts weigh three factors: (1) “the private interest that

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

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

of additional or substitute procedural safeguards”; and (3) “the Government's

interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirements would

entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Application of the factors reveals a clear violation of due process. First,

the “most elemental of liberty interest[s]—the interest in being free from

physical detention”—is implicated. Hamdi v. Rumsfeld, 542 U.S. 507, 529

(2004). Second, Kamel’s erroneous detention under §1225(b) comes with a

lack of procedural safeguards, including the opportunity for a bond hearing,

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which makes it extraordinarily difficult to challenge his detention. Cunin v.

McShane, 2025 WL 3542999, at *2 (M.D.Pa. Dec. 10, 2025) (“There is a

certainty—not merely a risk—that the failure to grant [petitioner] a bond

hearing would unlawfully deprive him of the opportunity to make the case for

his release and incarcerate him indefinitely”). Third, while the Government

has an interest in detaining noncitizens “to ensure [their] appearance . . . at

future immigration proceedings and to prevent danger to the community,”

there is no such need here. Quispe, 2025 WL 3537279 at *7 (citing

Zadvydas, 533 U.S. at 690). Kamel has been granted asylum. An appeal of

that decision is pending. Given that his ability to lawfully reside in the United

States hangs in the balance, Kamel has a strong incentive to appear at future

immigration proceedings. Moreover, reason dictates that an individual who

fled his home country of Egypt and made the desperate attempt at crossing

the United States-Mexico border on foot in order to escape potential death

due to his religious beliefs needs no incentive to continue to appear at

immigration proceedings and comply with any requirements imposed upon

him. Furthermore, the circumstances of his coming to the United States are

strong evidence that he is not a flight risk, and he has no criminal history. A

finding that he is a danger to the community would be baseless. Thus, upon

weighing of the Mathews factors, the court finds that Kamel’s continued

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detention under §1225(b) violates his procedural due process rights,

warranting release.

The court also notes that even if Kamel is properly detained under

§1225(b)(1), his detention still violates due process both for the same

reasons as stated, and because his detention has become unreasonably

prolonged and indefinite. He has been detained for approximately twenty

months, including eight months after being granted asylum. The asylum

appeals process may take years, and indefinite detention under these

circumstances would violate due process. Moreover, ICE’s December 17,

2025, decision determining that “[e]xceptional circumstances and/or a legal

requirement to detain exists warranting this decision to maintain you in ICE

custody pending the outcome of the DHS appeal before the BIA,” (Doc. 10-

7), is an internal policy determination premised on the faulty conclusion that

Kamel’s detention remains under §1225(b)(1). It is not binding on this court.

Finally, the court notes that historically detainees were typically released

from detention immediately following an order granting them asylum relief,

even where an appeal occurred, unless exceptional circumstances dictated

otherwise. See e.g., Immigration and Customs Enforcement Memorandum,

Feb. 20, 2004, https://www.ice.gov/doclib/foia/policy/memoDetPolicyAsylum

ICE_Appealed_02.20.2004. pdf. (“In general, it is ICE policy to favor release

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of aliens who have been granted protection relief by an immigration judge,

absent exceptional concerns such as national security issues or danger to

the community and absent any requirement under law to detain”). The court

is not suggesting that internal ICE policies cannot change, nor that it can

dictate such policies. Rather, the court notes this change simply to

demonstrate its general lack of understanding as to why Kamel remains in

detention.

e. EAJA fees and costs

Kamel will be permitted to file a motion for costs and fees pursuant to

the Equal Access to Justice Act (“EAJA”) within thirty days of the entry of this

judgment. See Michelin v. Warden Moshannon Valley Correctional Center, -

-F.4"-.. 2026 WL 263483 (3d Cir. Feb. 2, 2026) (holding that a petition for a

writ of habeas corpus from immigration detention under §2241 is an EAJA

“civil action,” entitling petitioners to attorneys’ fees and costs if the

Government's position was not “substantially justified”).

IV. CONCLUSION

For the foregoing reasons, Kamel’s petition for a writ of habeas corpus

under 28 U.S.C. §2241 will be GRANTED. Respondents will be ordered to

immediately release Kamel and will be permanently enjoined from re-

detaining him under 8 U.S.C. §1225(b). Respondents will also be temporarily

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enjoined from re-arresting Kamel for a period of 14 days to ensure that this

habeas remedy is effective. If Respondents later detain Kamel under 8

U.S.C. §1226, they will be required to provide him with notice and, within 10

days, a bond hearing before an immigration judge, who shall provide an

individualized assessment as to whether he poses a flight risk or a danger to

the community. If Kamel is re-detained under §1226 and Respondents fail to

schedule a timely bond hearing, he will be permitted to reopen this matter.

Finally, Respondents will be directed to file a declaration or affidavit pursuant

to 28 U.S.C. §1746 confirming that Kamel has been released from custody.

An appropriate order shall issue.

United States District Judge

pate; sok!

26-551-01

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