SOTO

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PEDRO PABLO RIZO OJEDA, Civil Action No. 26-3217 (ZNQ)

Petitioner,

v. OPINION

LUIS SOTO, et al.,

Respondents.

QURAISHI, District Judge

This matter comes before the Court on Petitioner’s habeas petition challenging his ongoing

immigration detention. (ECF No. 1.) Following an order to answer, the Government filed

responses to the petition (ECF Nos. 7, 11), to which Petitioner replied. (ECF No. 8.) Also before

the Court are Petitioner’s motions seeking a temporary restraining order (ECF No. 2) and for

release pending final relief in this matter. (ECF No. 9.) For the following reasons, Petitioner’s

habeas petition shall be granted, and Petitioner shall be accorded with a bond hearing at which the

Government bears the burden of proof by clear and convincing evidence within ten days.

Petitioner’s motion seeking a temporary restraining order shall be denied as moot, and Petitioner’s

motion seeking release pending final relief in this matter shall be granted.

I. BACKGROUND

Petitioner is a native and citizen of Nicaragua who crossed the southern border of the

Untied States without admission or inspection on or about October 29, 2021. (ECF No. 7-2 at 2-

3.) Petitioner was taken into custody by border patrol officers shortly after crossing, and was

processed for expedited removal pursuant to 8 U.S.C. § 1225(b)(1). (Id. at 3.) Petitioner was

thereafter released on parole on November 11, 2021, pursuant to 8 U.S.C. § 1182(d)(5)(A) pending

proceedings on Petitioner’s expressed fear of return to his home country. (Id.; ECF No. 8-1 at 1.)

Petitioner thereafter remained at liberty in the United States until March 13, 2026, when he was

found not to have a credible fear of removal by immigration officials and was taken back into

custody pursuant to § 1225(b)(1). (ECF No. 7-2 at 3.) Petitioner requested an immigration judge

review the negative credible fear finding, and the immigration judge ultimately affirmed the

negative credible fear finding, and Petitioner was issued a final expedited order of removal on

March 20, 2026. (See ECF No. 7-7.) Petitioner “has no known criminal history.” (ECF No. 7-2

at 3.)

II. LEGAL STANDARD

Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is

in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”

and the custody is allegedly “in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989).

III. DISCUSSION

In his habeas petition, Petitioner seeks to challenge both the expedited removal order issued

against him and to challenge his ongoing detention pursuant to 8 U.S.C. § 1225(b)(1). Turning

first to the issue of the expedited removal order, this Court’s authority to review an expedited

removal order and the proceedings that led to its issuance are exceedingly limited. See Castro v.

United States, 835 F.3d 422, 430 (3d Cir. 2016) (discussing 8 U.S.C. § 1252(e)). Generally, a

district court in habeas review is expressly limited to addressing only three questions: whether the

petitioner is an alien, whether he was ordered removed, and whether he can show he was previously

lawfully admitted for permanent residence, as a refugee, or granted asylum, without that status

being terminated. Id. Where, as here, the petitioner admits he is not an American citizen and does

not assert he was relevantly lawfully admitted – in this case Petitioner admits he crossed the border

without admission or inspection and was caught shortly after– the Court’s jurisdiction is limited

to “whether [an expedited removal order] in fact was issued and whether it relates to the

petitioner.” Id. Thus, a reviewing court can only determine “whether an immigration officer

issued that piece of paper and whether the Petitioner is the same person referred to in that order.”

Id. at 431 (internal quotations omitted). Because Petitioner is not an American citizen, was not

granted permanent residence or asylum, and received a final expedited removal order when the

immigration judge affirmed his negative credible fear finding and returned his case to DHS for the

execution of his removal order, this Court may not look beyond Petitioner’s removal order or

address Petitioner’s claims that the procedures used for that order were improper.1 Id.; see also

Sangare v. Soto, No. 26-758, 2026 WL 575374, at *1-2 (D.N.J. Mar. 2, 2026).

1 The sole exception to this rule would apply only where the petitioner has a viable basis for arguing

that the Suspension Clause requires habeas review beyond that which is permitted by § 1252(e).

Castro, 835 F.3d at 431; see also Osorio-Martinez v. Att’y Gen., 893 F.3d 153, 166-67 (3d Cir.

2018). The Suspension Clause, however, does not apply in this context of an alien who receives

humanitarian parole under § 1182(d)(5)(A) unless that alien has entered into a special relationship

with the United States or a particular state which creates “significant ties to this country” which

would warrant additional procedural protections beyond those normally available to such aliens.

Osorio-Martinez, 893 F.3d at 166-67. Mere presence in the United States for several years after

being paroled is insufficient to create such a relationship, instead something significantly more is

required – such as the granting of Special Immigrant Juvenile States or some similar standing far

beyond prolonged presence. Id. Petitioner has not presented any such special status in his case,

and this Court perceives none from the record, and the Suspension Clause thus does not provide a

greater avenue for review of his expedited removal proceedings and order.

Although this Court cannot review Petitioner’s expedited removal order and proceedings,

this Court does maintain jurisdiction to review claims related solely to the lawfulness of continued

detention without bond pending the execution of that order. In this matter, Petitioner contends that

his continued detention under 8 U.S.C. § 1225(b) is unlawful. The Government instead argues

that he remains subject to § 1225(b)(1) in light of the circumstances of his initial detention and

parole. As this Court has previously explained,

Aliens who attempt to enter the United States illegally and who are

detained shortly after making an unlawful crossing of the border are

“treated as an applicant for admission” and are subject to the terms

of § 1225(b)(1). Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S.

103, 139-40 (2020). As the Third Circuit has explained, “[u]nder 8

U.S.C. § 1225(b)(1) and its companion regulations, two classes of

aliens are subject to [detention and] expedited removal [proceedings

under § 1225(b)(1)] if an immigration officer determines they are

inadmissible due to misrepresentation or lack of immigration

papers: (1) aliens ‘arriving in the United States,’ and (2) aliens

‘encountered within 14 days of entry without inspection and within

100 air miles of any U.S. international land border.” Castro v.

United States Dep’t of Homeland Sec., 835 F.3d 422, 425 (3d Cir.

2016). Aliens subject to this provision will generally be issued an

expedited removal order unless they indicate to immigration officers

that they have a credible fear of persecution should they be deported,

in which case they are referred for further proceedings regarding

their expressed fear. Id. Aliens who are taken into custody under §

1225(b)(1) are subject to mandatory detention throughout their

removal and credible fear proceedings, though the Government may

in its discretion temporarily parole such aliens into the United States

“for urgent humanitarian reasons or significant public benefit.” See

Jennings v. Rodriguez, 583 U.S. 281, 287-88 (2018). Detention

under the statute remains mandatory until the conclusion of the

alien’s removal proceedings, after which an alien would have a final

order of removal, and detention under § 1225(b)(1) ends. Id. at 300-

03.

Arcos Tasigchana v. Soto, No. 25-18252, 2026 WL 266170, at *1 (D.N.J. Feb. 2, 2026).

Aliens subject to expedited removal under 8 U.S.C. § 1225(b)(1) are therefore subject to

mandatory detention throughout their removal proceedings, and are generally not entitled to

release unless the Government chooses to parole them. Id. The parole statute, 8 U.S.C.

§ 1182(d)(5)(A), provides that an alien who is paroled “shall forthwith return or be returned to the

custody from which he was paroled” and continue to be detained pursuant to the original detention

statute. As Petitioner was caught by immigration officials shortly after crossing the border and

was thereafter paroled, he remains properly subject to § 1225(b)(1), and is not entitled to a bond

hearing under that statute. See Arcos Tasigchana, 2026 WL 266170 at *1-2; see also Jennings,

583 U.S. at 297 (until the relevant proceedings under § 1225(b) end “nothing in the statutory text

imposes any limit on the length of detention”).

Although Petitioner is subject to mandatory detention under § 1225(b)(1), Petitioner also

argues that his prolonged detention without bond violates his rights to Due Process. As this Court

recently explained,

Although aliens subject to detention under § 1225(b)(1) “have only

those rights regarding admission that Congress has provided by

statute” and the Due Process clause does not provide for detailed

review of those statutory proceedings, see Dep’t of Homeland Sec.

v. Thuraissigiam, 591 U.S. 103, 140 (2020), it does not follow that

the Due Process clause is silent as to the rights of aliens to liberty

following prolonged detention, especially where that alien was

previously permitted to be at liberty on parole for a considerable

period.

Courts in this District have long presumed that aliens subject

to prolonged detention under the statute have a liberty interest in

release from detention which requires a bond hearing. See, e.g.,

Tuser E. v. Rodriguez, 370 F. Supp. 3d 435, 442-43 (D.N.J. 2019).

In so doing, courts have analogized mandatory detention under

1225(b) to the similar mandatory detention required for aliens who

have qualifying criminal convictions under 8 U.S.C. § 1226(c). See

German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203,

210-13 (3d Cir. 2020). In German Santos, the Court of Appeals held

that where an alien is subject to prolonged detention under the

statute, that detention will eventually reach a point where it

essentially becomes arbitrary in light of the purposes and

presumptions underlying the statute. Id. In the context of those with

criminal convictions subject to detention under § 1226(c), detention

“becomes more and more suspect after five months and in most

cases will become “unreasonable sometime between six months and

one year.” Michelin v. Warden Moshannon Valley Corr. Ctr., 169

F.4th 418, 433-34 (3d Cir. 2026). Once the length of detention

becomes suspect, a reviewing court must consider the length of

detention and likelihood of lengthy continued condition, the

similarity of Petitioner’s conditions of confinement to criminal

detention, and the Petitioner’s responsibility for the length of his

own detention in determining whether detention has become

arbitrary in light of the purposes of § 1226(c). German Santos, 965

F.3d at 211. Where those factors indicate that detention has become

arbitrary, the alien is entitled to a bond hearing at which the

Government bears the burden of proving that further detention is

necessary by showing that the Petitioner is a danger or flight risk by

clear and convincing evidence. Id. at 213-14.

This Court agrees that, at a certain point, detention under §

1225(b)(1) will become so prolonged that it becomes arbitrary and

Due Process will require a bond hearing. Tuser E., 370 F. Supp. 3d

442-43. The question that remains, then, is at what point detention

will become suspect. Although in the § 1226(c) context, detention

will become arbitrary only after cresting five months, that length of

time is based on the concept that the court can essentially presume

that an alien convicted of qualifying crimes is a flight risk or danger

to the community for the length of time it ordinarily would take to

complete removal proceedings. German Santos, 965 F.3d at 209-

10. The alien’s criminal history is in that context providing the basis

for the presumption which places a limits on his liberty interests in

the § 1226(c) context.

Aliens detained under § 1225(b)(1) are not held based on a

criminal history[.] The statute instead relies chiefly on the

presumption that an alien with no clear right to admission into the

United States is a flight risk and may therefore be detained for the

relatively limited period of time required for him to receive an

expedited order of removal. See, e.g., 8 U.S.C. § 1225(b)(1)(A).

Such proceedings are clearly intended to be considerably shorter

than the general removal proceedings to which criminal aliens

already in the United States are subject under § 1226(c), and the

presumptive basis for mandatory detention under the statute is

considerably weaker than that applicable to criminal aliens as it is

based solely on the lack of legal status rather than past misdeeds. It

therefore follows that detention under § 1225(b)(1) should become

suspect far sooner than detention under § 1226(c).

Martinez Olivo v. Soto, No. 26-2122, 2026 WL 1265500, at *2-3. In light of the lesser justification

for prolonged detention under § 1225(b)(1), this Court has found that detention in a jail-like

detention facility for several months following a lengthy period of parole within the United States

is sufficient to warrant the granting of a bond hearing. Id.

Like the petitioner in Martinez Olivo, Petitioner in this matter has been detained in a jail-

like detention facility for several months after a lengthy period of parole without any evidence of

criminality or other violations during that parole. Despite the immigration judge’s decision in

Petitioner’s credible fear proceedings, the Government has not provided the Court clear evidence

that Petitioner’s detention is likely to end in the near future or that Petitioner’s expedited removal

order is likely to culminate in Petitioner’s removal in the near future, nor has the Government

provided any evidence that Petitioner is responsible for any delays in his proceedings or in

prolonging his own detention. In light of these facts, this Court finds that Petitioner’s detention is

sufficiently prolonged that the presumption that his lack of status renders him a flight risk is no

longer sufficient to satisfy Due Process as a basis for continued detention without bond.

Petitioner’s continued mandatory detention without a bond hearing has therefore become

sufficiently prolonged as to be arbitrary, and he is entitled to a bond hearing at which the

Government bears the burden of establishing that he is a flight risk or danger to the community by

clear and convincing evidence. German Santos, 965 F.3d at 213-14. Petitioner’s habeas petition

shall therefore be granted, and he shall be provided such a bond hearing within ten days.2

2 Should Petitioner be granted release on bond, such a release shall not be construed as an

admission into the United States for immigration purposes, and such release provides no legal

status to remain in the United States which Petitioner did not already possess. Release on bond

would also not prevent the Government from eventually taking Petitioner into custody for the

Petitioner’s motion seeking a temporary restraining order shall be denied as moot in light of the

granting of this relief.

In addition to his habeas petition and temporary restraining order motion, Petitioner has

also filed a motion for release pending final relief in this matter pursuant to Lucas v. Hadden, 790

F.2d 365, 367-68 (3d Cir. 1986), and its progeny. (ECF No. 9.) Under Lucas, this Court has the

authority to grant a litigant release on bail pending final habeas relief where the petitioner raises

“substantial constitutional claims upon which he has a high probability of success, and . . . when

extraordinary or exceptional circumstances exist which make the grant of bail necessary to make

the habeas remedy effective.” In re Souels, 688 F. App’x 134, 135 (3d Cir. 2017) (quoting

Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992)).

In this matter, Petitioner presented a substantial claim for relief as he has shown that his

continued detention without bond under § 1225(b)(1) has become so prolonged as to become

arbitrary, and has shown a high probability of success on the merits of that claim for the reasons

detailed above. Petitioner has additionally shown that he has been subject to extraordinary

circumstances in his detention as the terms and conditions of his confinement of late have been

severe – including exposure to tear gas without cause and medical and respiratory distress resulting

from that exposure. (See ECF No. 9 at 7.) Petitioner has also reported harsh conditions including

spoiled food, water fountains with tainted water, and a lack of sufficient hygiene products. (Id. at

7-8.) In light of these circumstances, this Court finds that Petitioner has shown sufficient

extraordinary circumstances to warrant a grant of release on bail pending final habeas relief. The

purposes of executing a final removal order once the Government has secured a travel document

for Petitioner. Because the Government does not contend that Petitioner is subject to detention

under 8 U.S.C. § 1231(a), the Court need not and does not decide whether the Government has the

authority to detain Petitioner under that statute at this time.

Court will therefore grant Petitioner’s motion, and will order the Government to release Petitioner

from detention under an order of supervision until such time as his bond hearing can be completed.

IV. CONCLUSION

For the reasons expressed above, Petitioner’s habeas petition (ECF No. 1) is GRANTED,

and Petitioner shall be provided a bond hearing at which the Government bears the burden of

demonstrating danger or flight risk by clear and convincing evidence within ten days. Petitioner’s

motions seeking a temporary restraining order (ECF No. 2) is DENIED WITHOUT

PREJUDICE as moot, and Petitioner’s motion seeking release pending final relief (ECF No. 9)

is GRANTED. An appropriate order follows.

Date: June 15, 2026

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE