# Demba

> District Court, M.D. Pennsylvania · May 20, 2026

URL: https://www.frixlaw.com/law-library/cases/11358676

## Case

- **Full name:** Cheikh Demba v. Craig A. Lowe, Warden, Pike County Correctional Facility, et al.
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 20, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

CHEIKH DEMBA, A240 426 341,

Petitioner, CIVIL ACTION NO. 3:26-cv-00994

v. (SAPORITO, J.)

CRAIG A. LOWE, Warden, Pike
County Correctional Facility, et al.,

Respondents.

MEMORANDUM
On April 17, 2026, the petitioner, appearing through counsel, filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Doc.
1. In this petition, Cheikh Demba, a native and citizen of Mauritania,
challenges the legality of his pre-removal-order immigration detention
without an individualized bond hearing. At the time of filing, Demba was
being held in the custody of United States Immigration and Customs
Enforcement (“ICE”) at Pike County Correctional Facility, located in Pike
County, Pennsylvania.
I. BACKGROUND AND PROCEDURAL HISTORY
Demba initially entered the United States without inspection at or
near Lukeville, Arizona, on or about May 7, 2023. Demba was
apprehended by United States Border Patrol shortly thereafter and

detained for a few days. On May 10, 2023, he was released under the
Agency’s Alternatives to Detention program with instructions to report
to the nearest ICE/ERO office for further processing within 60 days,

pursuant to 8 U.S.C. § 1226(a). Resp. Ex. 1, Doc. 6-2.
After his entry into the United States in May 2023, Demba settled
in Philadelphia, Pennsylvania, where was living until his arrest and

detention. Demba has no criminal history, and he was lawfully and
gainfully employed prior to his arrest and detention. Demba timely
applied for asylum within one year after entering the United States.

On August 7, 2025, Demba complied with instructions to report to
the New York City ERO office for further processing, where he was
arrested by immigration authorities and transported to Pike County

Correctional Facility, where he remains in civil immigration detention.
He has been denied the opportunity to post bond or to be released on
other conditions.

At the time of his arrest and detention, Demba was served with a
Notice to Appear, DHS Form I-862, dated August 7, 2025, which declared
him to be subject to removal as an “alien present in the United States
who has not been admitted or paroled,”1 and which directed him to

appear for a hearing before an immigration judge in New York, New York,
on August 21, 2025. Resp. Ex. 2, Doc. 6-3. On April 15, 2026, Demba’s
asylum application was pretermitted by an immigration judge who

ordered his removal to Uganda. The immigration judge’s decision has
been appealed to the BIA.
II. DISCUSSION
Since the United States began restricting
immigration into this country in the late 19th century,
it has distinguished between those noncitizens seeking
entry into the country and those already residing
within it. Noncitizens “stopped at the boundary line”
who have “gained no foothold in the United States” do
not enjoy the same constitutional protections afforded
to persons inside the United States. But once a
noncitizen enters the United States, “the legal
circumstance changes,” for the constitutional right to
due process applies to all “persons” within our nation’s
borders, “whether their presence here is lawful,
unlawful, temporary, or permanent.” This distinction
between noncitizens who have entered and reside in
the United States and those who have not yet entered
“runs throughout immigration law.”
, 809 F. Supp. 3d 1113 (D. Idaho 2025) (first
quoting , 267 U.S. 228, 230 (1925); and then quoting

1 Notably, a box on the Notice for declaring him to be an “arriving
alien” was checked. Resp. Ex. 2, Doc. 6-3.
, 533 U.S. 678, 693 (2001)) (citations omitted).

Consistent with this distinction, “[t]wo statutory sections govern
the detention of noncitizens prior to a final order of removal: 8 U.S.C.
§ 1225 and 1226.” , 801 F. Supp. 3d 1104, 1111 (E.D. Cal.

Sept. 23, 2025), , No. 25-7429 (9th Cir. Nov. 25, 2025). As
concisely summarized by the Supreme Court: “U.S. immigration law
authorizes the Government to detain certain aliens

into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the
Government to detain certain aliens pending the
outcome of removal proceedings under §§ 1226(a) and (c).”

, 583 U.S. 281, 289 (2018) (emphasis added).
Under § 1225, “an alien who ‘arrives in the United States,’ or ‘is
present’ in this country but ‘has not been admitted,’ is treated as an

‘applicant for admission.’” , 583 U.S. at 287 (quoting 8 U.S.C.
§ 1225(a)(1)). Applicants for admission may be detained pending removal
under two separate provisions: § 1225(b)(1) and § 1225(b)(2).

Section 1225(b)(1) applies to aliens who ( ) are arriving in the
United States, § 1225(b)(1)(A)(i) (the “arriving aliens provision”), or
have been physically present in the United States for less than two years
without being admitted or paroled, § 1225(b)(1)(A)(iii) (the

“designation provision”),2 ( ) are inadmissible either for
misrepresenting a material fact while attempting to gain admission to
the United States or for lacking proper immigration documentation.

8 U.S.C. § 1225(b)(1)(A); § 1182(a)(6)(C) (inadmissibility based
on misrepresentation); § 1182(a)(7) (inadmissibility for lack of
documentation). For these aliens, § 1225(b)(1) provides for expedited

removal proceedings without further hearing or review, unless the alien
expresses a fear of persecution or an intent to apply for asylum, in which
case the alien is subject to mandatory detention pending a final

determination of credible fear of persecution and, if found not to have

2 This so-called “designation provision” further limits this group of
aliens subject to expedited removal proceedings to certain categories of
aliens expressly designated by the Secretary of Homeland Security,
§ 1225(b)(1)(a)(ii), but the current scope of that designation is “the full
scope of statutory authority,” and thus all aliens who have not been
admitted or paroled into the United States and who have not been
physically present in the United States continuously for the two-year
period prior to determination of inadmissibility are subject to expedited
removal under § 1225(b)(1).
, 90 Fed. Reg. 8139 (Jan. 24, 2025);
, 962 F.3d 612, 619–20 (D.C. Cir. 2020) (providing a historic overview
of groups designated under § 1225(b)(1)(a)(ii));
, 805 F. Supp. 3d 48, 62–64 (D.D.C. 2025) (same),
, No. 25-5289 (D.C. Cir. Aug. 11, 2025).
such a fear, until removal. § 1225(b)(1)(B).

, 962 F.3d 612, 618–20 (D.C. Cir. 2020) (summarizing
expedited removal provisions); , 811 F.
Supp. 3d 274, 291–92 (E.D.N.Y. 2025) (same);

, 805 F. Supp. 3d 48, 59–64 (D.D.C. 2025) (same),
, No. 25-5289 (D.C. Cir. Aug. 11, 2025).
Section 1225(b)(2) is a “broader . . . catchall provision” that applies

to other “applicants for admission” who are “seeking admission” to the
United States.3 8 U.S.C. § 1225(b)(2)(A); , 583 U.S. at 287.
Under § 1225(b)(2), an applicant for admission is placed into ordinary

(not expedited) removal proceedings. § 1225(b)(2)(A);
§ 1229a (describing ordinary removal proceedings before an immigration
judge). With limited exceptions, however, an alien is subject to mandatory

detention under § 1225(b)(2) while removal proceedings remain pending.
§ 1225(b)(2)(A); § 1182(d)(5) (authorizing the Secretary of
Homeland Security to grant humanitarian parole to aliens awaiting

removal proceedings); § 1225(b)(2)(C) (providing that aliens arriving on

3 The statute expressly provides that § 1225(b)(2) does not apply to
those to whom § 1225(b)(1) applies, as well as other categories not
relevant here. 8 U.S.C. § 1225(b)(2)(B).
land from a foreign territory contiguous to the United States may be

returned to that foreign territory pending removal proceedings, rather
than be detained); , 809 F. Supp. 3d at 1113 (“Section
1225(b) mandates detention without bond hearings, except for narrow

humanitarian parole.”).
Meanwhile, as noted above, § 1226 “authorizes the Government to
detain certain aliens already in the country pending the outcome of

removal proceedings.” , 583 U.S. at 289. Such aliens who are
already present in the United States may be detained pending removal
under two separate provisions: § 1226(a) and § 1226(c).

Section 1226(a) prescribes a discretionary detention framework for
these aliens when subject to removal proceedings, providing that: “On a
warrant issued by the Attorney General,[4] 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). The statute further provides that
such an alien may be released on bond while removal proceedings remain

4 This statutory authority to issue immigration arrest warrants has
been delegated to a number of supervisory immigration officials listed in
the applicable regulations. 8 C.F.R. § 287.5(e)(2);
§§ 236.1(b), 1236.1(b).
pending. § 1226(a)(2). The relevant implementing regulations provide

that a § 1226(a) detainee may be released on bond upon showing “that
such release would not pose a danger to property or persons, and that the
alien is likely to appear for any future proceeding.” 8 C.F.R. §§ 236.1(c)(8),

1236.1(c)(8). Immigration authorities5 are tasked with an initial bond or
custody determination, §§ 236.1(c)(8), 1236.1(c)(8), after which the
alien may request an individualized bond hearing before an immigration

judge, §§ 236.1(d)(1), 1236.1(d)(1); § 1003.19 (setting out
procedures for the review of bond determinations by immigration judges).
, 586 U.S. 392, 397 (2019) (“If the alien is

detained, he may seek review of his detention by an officer at the
Department of Homeland Security and then by an immigration judge
(both exercising power delegated by the Secretary); and the alien may

secure his release if he can convince the officer or immigration judge that
he poses no flight risk and no danger to the community.”) (citations
omitted). An adverse bond determination by the immigration judge can

be appealed to the Board of Immigration Appeals. 8 U.S.C.

5 The same supervisory immigration officials authorized to issue
arrest warrants. 8 C.F.R. §§ 236.1(c)(8), 1236.1(c)(8).
§§ 236.1(d)(3), 1236.1(d)(3).

, 906 F.3d 274, 275 (3d Cir. 2018) (summarizing § 1226(a)
bond procedures).
Finally, “Section 1226(c) . . . carves out a statutory category of

aliens who may be released under § 1226(a).” , 583 U.S. at
289. This subsection specifies certain criminal histories that require
mandatory detention of aliens who would otherwise be eligible for a bond

hearing under § 1226(a). 8 U.S.C. § 1226(c). Such criminal aliens may
only be released under very narrow circumstances involving a
determination by the Attorney General that the alien’s release is

necessary for witness-protection purposes and the alien does not pose a
flight risk or a danger to the community. § 1226(c)(4);
, 583 U.S. at 289.

The petitioner in this case, Cheikh Demba, has been detained by
immigration authorities without a bond determination pending
disposition of his ordinary, § 1229a removal proceedings.6 In his petition,

6 The parties appear to agree that the petitioner has been putatively
detained without an opportunity for a bond determination pursuant to
§ 1225(b)(2). The respondent has identified no other basis for his
detention. Moreover, the petitioner has not been placed in expedited
Demba argues that, because he was detained within the interior of the

United States, he is not properly subject to mandatory pre-removal-order
detention under § 1225(b)(2). Rather, he contends that he may only be
properly detained under § 1226(a), which requires that he be given an

opportunity for an individualized bond hearing. In addition to this
statutory argument, Demba argues that his pre-removal detention
without an opportunity to be considered for release on bond violates his

Fifth Amendment due process rights.7
The respondent, on the other hand, argues that § 1225(b)(2) does
properly apply to the petitioner, and that it prescribes mandatory

detention. The respondent further argues that applying § 1225(b)(2) here
comports with due process.8
The respondent purports to have detained Demba pursuant to 8

removal proceedings, as would be expected for a § 1225(b)(1) detainee, he
has no criminal record to qualify him for mandatory detention under
§ 1226(c), and immigration officials have refused to give him a bond
hearing, as required under § 1226(a).
7 Having found a statutory basis for relief, we do not reach the
constitutional issues raised by the petitioner as alternative grounds for
relief. , 485
U.S. 439, 445 (1988) (“A fundamental and longstanding principle of
judicial restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of defending them.”).
8 note 7.
U.S.C. § 1225(b)(2), which provides for mandatory detention without the

opportunity for release on bond. The petitioner, however, contends that
he could only be properly detained under 8 U.S.C. § 1226(a), and under
that statute, he is entitled to an individualized bond hearing.

“[F]or section 1225(b)(2)(A) to apply, several conditions must be
met—in particular, an ‘examining immigration officer’ must determine
that the individual is: (1) an ‘applicant for admission’; (2) ‘seeking

admission’; and (3) ‘not clearly and beyond a doubt entitled to be
admitted.’” , 792 F. Supp. 3d 211, 214 (D. Mass. 2025)
(quoting 8 U.S.C. § 1225(b)(2)(A)), , No. 25-1902 (1st Cir.

Dec. 23, 2025); , 2025 WL 3188399, at *6 (citing
); , No. 3:25-CV-02411, 2025 WL
3709045, at *4 (M.D. Pa. Dec. 22, 2025) (citing and );

, No. 4:26-CV-00009, 2026 WL 296215, at *4
(M.D. Pa. Feb. 4, 2026) (citing ). Significantly, “Section
1225(b)(2)(A) applies only to an alien who is an applicant for

admission and ‘seeking admission.’” , 2025 WL 3188399, at *6
(emphasis in original); , 2025 WL 3709045, at
*4 (citing and , 807 F. Supp. 3d 397,
406 (D.N.J. 2025)); , 2026 WL 296215, at *4 (quoting

).
Section 1225 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.” 8 U.S.C. § 1225(a)(1). Meanwhile, the phrase
“seeking admission” is not defined in § 1225, and the courts of this circuit
have construed the plain language of “seeking admission” to describe

“active and ongoing conduct—physically attempting to come into the
United States, typically at a border or a port of entry.” , 2025
WL 3188399, at *6; , 2025 WL 3709045, at *4

(citing ); , 2026 WL 296215, at *4 (citing
). “This reading preserves the distinction between
‘seeking admission’ and the separate term ‘applicant for admission,’

ensuring that each phrase carries independent meaning.” ,
2025 WL 3188399, at *6; , 2025 WL 3709045,
at *4 (quoting ); , 2026 WL 296215, at *4

(quoting ). It also comports with the Supreme Court’s
finding in that Ҥ 1225(b) applies primarily to aliens seeking
entry into the United States.” , 583 U.S. at 297;
, 2025 WL 3709045, at *4 (quoting ); ,

2026 WL 296215, at *4 (quoting and ). “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.” , 2026 WL 296215, at *4;
, 2025 WL 3188399, at *7 (considering the statutory
context of § 1225(b)(2) and concluding that this provision “contemplates

inspection and detention at or immediately following border crossing”).
By contrast, as the Supreme Court has previously recognized,
“§ 1226 applies to aliens already present in the United States.” ,

583 U.S. at 303; , 2026 WL 296215, at *4 (quoting
). “Section 1226(a) 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 it
“permits the Attorney General to release those aliens on bond.” ,
583 U.S. at 303; , 2026 WL 296215, at *4 (quoting

); , 2025 WL 3709045, at *5 (“Unlike
§ 1225(b)(2)(A), § 1226(a) provides for bond or conditional parole.”) (citing
8 U.S.C. § 1226(a)(2)). “[U]nder Section 1226(a) and its implementing
regulations, [an alien discretionarily detained pending removal

proceedings] is entitled to a bond hearing before an Immigration Judge
at which the government must prove by clear and convincing evidence
that he poses a danger to the community[] or . . . that he is a flight risk,

if it seeks to continue detaining him.” , 804 F. Supp. 3d
265, 277 (D. Mass. 2025);9 , 812 F. Supp. 3d 459, 462–
63 (D.N.J. 2025) (“Noncitizens who are arrested after having lived in the

United States for a while do not generally have to be detained. They are
instead entitled to a bond hearing before an immigration court.” (citing
) (citations and footnote omitted)). ,

9 We note that, applying First Circuit precedent, the court
stated that the government may prove that an alien is a danger to the
community by clear and convincing evidence, or that he is a flight risk by
the lesser preponderance-of-the-evidence standard. , 804 F.
Supp. 3d at 277 (citing , 10 F.4th 19, 41 (1st Cir.
2021)). The Third Circuit, however, has held that the government must
prove either dangerousness flight risk by clear and convincing
evidence. , 965 F.3d 203, 213–14 (3d Cir.
2020) (“When the Government seeks to take more than just money from
a party, we typically hold the Government to a standard of proof higher
than a preponderance of the evidence.”);
, 12 F.4th 321, 333 n.9 (3d Cir. 2021) (“[I]t is
a ‘settled rule that when a party stands to lose his liberty, even
temporarily, we hold the Government’ to a ‘clear and convincing evidence’
standard in the context of civil detention . . . .”) (quoting );
, 547 F. Supp. 3d 462, 465 (M.D. Pa. 2021)
(quoting ).
2026 WL 296215, at *4 (“[I]f 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 arrested after having already entered the country,

they are subject to detention under § 1226 and are entitled to a bond
hearing.”).
Here, § 1226(a), not § 1225(b)(2)(A), applies to the detention of

Demba. We find that Demba is no longer seeking admission into the
United States—at the time of his arrest and detention, he was not
actively attempting to come into the United States at a border or port of

entry. Rather, he is already here, having resided within the United States
for an extended period of time. , 2025 WL 3188399, at *1
(finding that petitioner who lived in the United States for almost two

years was not “seeking admission” but “already here”);
, 2025 WL 3709045, at *5 (citing ). Thus, Demba may
only be properly detained pursuant to § 1226(a), and therefore he is

entitled to a bond hearing. , 2026 WL 296215, at *5.
, No. 3:25-cv-2185, 2025 WL 3516865, at *4
(M.D. Pa. Dec. 8, 2025) (“The overwhelming majority of federal district
courts that have addressed this issue have interpreted the INA to find

that persons similarly situated to Petitioner—noncitizens who previously
entered the United States and are currently residing in the United
States—are not subject to the mandatory detention provision of 8 U.S.C.

§ 1225(b)(2)(A) but instead are subject to the discretionary detention
pursuant to 8 U.S.C. § 1226(a) and accordingly are entitled to a bond
hearing.”); at *4 & n.7 (collecting Third Circuit district court cases).10

10 , ___ F.4th ____, 2026 WL
1146044, at *5, 6 (2d Cir. Apr. 28, 2026) (“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. . . . Section 1225(b)(2)(A) applies to those noncitizens who
present themselves at a port of entry for admission, or who cross the
physical border into the United States but are apprehended at the
‘threshold of initial entry.’”);
, ___ F.4th ____, 2026 WL 1223250, at *21 (7th Cir. May 5, 2026)
(“[T]he text, statutory context, legislative history, and long-standing
Executive practice all confirm that § 1225(b)(2)(A) applies to ‘applicants
for admission’ who are seeking lawful entry at the border or ports of entry
and not to noncitizens unlawfully living in the country’s interior.”);
, ___ F.4th ____, 2026 WL 1243395, at *1
(11th Cir. May, 6, 2026) (“The text and statutory structure of the INA,
bolstered by the long history of detention across our immigration laws
and the congressional purpose in passing IIRIRA, yield the conclusion
that no-bond detention generally applies to arriving aliens seeking lawful
entry to the country, and not to aliens who are simply present here.”);
, ___ F.4th ____, at *11, 2026 WL 1283891 (6th
Cir. May 11, 2026) (holding that noncitizens without lawful status who
had lived in the United States for years were not “seeking admission” and
thus were not subject to § 1225(b)(2)(A)’s mandatory detention scheme).
III. CONCLUSION
For the foregoing reasons, the court concludes that the petitioner is

currently detained pursuant to 8 U.S.C. § 1226(a), not 8 U.S.C.
§ 1225(b)(2), and thus he is entitled to an individualized bond hearing.
Accordingly, the petition will be granted, and the government will be

ordered to provide the petitioner with an individualized bond hearing
within twenty-one days or to release him from custody.
An appropriate order follows.

Dated: May 20, 2026
JOSEPH F. SAPORITO, JR.
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11358676. Public record. Not legal advice.