Sage

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

GENARO REYES MARIN,

A# 095 054 207,

Petitioner, CIVIL ACTION NO. 3:26-cv-01833

v. (SAPORITO, J.)

JESSICA SAGE, Warden of FCI

Lewisburg, et al.,

Respondents.

MEMORANDUM

On July 1, 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, Genaro Reyes Marin, a native and citizen of El Salvador,

challenges the legality of his pre-removal immigration detention without

an individualized bond hearing. At the time of filing, Reyes Marin was

being held in the custody of United States Immigration and Customs

Enforcement (“ICE”) at FCI Lewisburg, a federal correctional facility

located in Union County, Pennsylvania.

I. BACKGROUND AND PROCEDURAL HISTORY

Reyes Marin initially entered the United States without inspection

via the Texas/Mexico border in 2001. After entering the United States,

Reyes Marin established residence in New York. During the twenty-five

years he has resided in the United States, Reyes Marin has continuously

worked, paid taxes, and supported his family. Reyes Marin previously

received Temporary Protected Status (“TPS”) and employment

authorization from the Department of Homeland Security, permitting

him to work lawfully in the United States for years.

Reyes Marin is the father of a 16-year-old United States citizen son,

M.J.M., who suffers from significant medical conditions, and Reyes

Marin has been an active caregiver and provider for M.J.M. throughout

the child’s life. His longtime partner, M.J.M.’s mother, also suffers from

significant medical conditions, and Reyes Marin has regularly assisted

her in attending medical appointments and caring for their son.

During his twenty-five years residing in the United States, Reyes

Marin has struggled with alcohol dependency. As a result of an alcohol-

related incident in 2007, Reyes Marin pleaded guilty to second degree

harassment, a non-criminal violation under New York law. In 2016, Reyes

Marin was arrested and charged with driving while intoxicated (“DWI”),

and he pleaded guilty to a misdemeanor DWI offense in 2018. In 2023,

Reyes Marin was arrested and charged with DWI for a second time, and

he pleaded guilty to a misdemeanor DWI offense in 2024. Reyes Marin

successfully completed all conditions imposed by the state criminal court,

including probation, fines, alcohol treatment, a driver’s education

program, and the installation of ignition interlock devices.

On September 11, 2025, while he was attending a state probation

appointment for his second DWI conviction, Reyes Marin was

encountered by ICE officers who arrested him and transported him to

Orange County Jail in Goshen, New York, for processing. While there,

Reyes Marin was served with a Notice to Appear, DHS Form I-862, dated

September 12, 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 September 23, 2025. Resp.

Ex. 2, Doc. 7-3.

After a period of detention at Moshannon Valley Processing Center

in Clearfield County, Pennsylvania, Reyes Marin was transferred to FCI

Lewisburg, where he remains in civil immigration detention at this time.

1 Notably, a box on the Notice for declaring her to be an “arriving

alien” was checked. Resp. Ex. 2, Doc. 7-3, at 2.

He has been denied any opportunity to post bond or to be released on

other conditions.

At some point, Reyes Marin filed an application for cancellation of

removal. On November 17, 2025, an immigration judge entered an order

in Reyes-Marin’s removal proceedings denying his application for

cancellation of removal and ordering his removal to El Salvador. Reyes

Marin timely filed an appeal of that decision to the Board of Immigration

Appeals, which remains pending.

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

, 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, Genaro Reyes Marin, has been detained

by immigration authorities without a bond determination pending

disposition of his ordinary, § 1229a removal proceedings.6 In his petition,

Reyes Marin argues that, because he was detained within the interior of

6 The parties do not dispute that the petitioner has been putatively

detained without an opportunity for release on bond pursuant to

§ 1225(b)(2).

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. Reyes Marin further

asserts a claim under the Administrative Procedures Act (“APA”) based

on the agency’s failure to follow its own bond regulations.7 In addition to

these statutory arguments, Reyes Marin argues that his pre-removal

detention without an opportunity to be considered for release on bond

violates his Fifth Amendment due process rights.8

The respondent, on the other hand, argues that § 1225(b)(2) does

properly apply to the petitioner, and that it prescribes mandatory

detention.9 The respondent further argues that applying § 1225(b)(2)

7 Having granted relief on the basis of the petitioner’s primary

statutory claim—that his detention is pursuant to § 1226(a) rather than

§ 1225(b)(2)—we decline to reach the petitioner’s alternative argument

that his detention violates the APA.

8 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.”).

9 We note that the respondent’s answer does not engage with the

petitioner’s APA claim at all. In any event, see note 7.

here comports with due process.10

The respondent purports to have detained Reyes Marin pursuant

to 8 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

10 note 8.

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);11 , 812 F. Supp. 3d 459, 462–

63 (D.N.J. 2025) (“Noncitizens who are arrested after having lived in the

11 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 ).

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)). ,

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

Reyes Marin. We find that Reyes Marin 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, Reyes Marin

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). 12

12 , 175 F.4th 61, 73, 75 (2d Cir.

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.’”);

, 175 F.4th 828, 856 (7th Cir. 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.”);

, 175 F.4th 1258, 1262 (11th Cir. 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

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.

generally applies to arriving aliens seeking lawful entry to the country,

and not to aliens who are simply present here.”);

, 175 F.4th 713, 732 (6th Cir. 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); , 180 F.4th 1226,

1239 (10th Cir. 2026) (“The only time a noncitizen can be said to be

seeking admission is when he is seeking to enter the United States at the

border. Since § 1225(b)(2)(A) applies only to those seeking admission,

§ 1225(b)(2)(A) is likewise limited to the border.” (footnote omitted));

at 1248 (“§ 1225(b)(2)(A) applies at the border while § 1226(a) applies to

the interior.”); , ___ F.4th ____, 2026 WL

2196424, at *10 (9th Cir. July 30, 2026) (“[Section] 1225(b)(2)(A), based

on its text and context, is best construed as applying to aliens entering

the United States at the border. Section 1226, by contrast, is best

understood as governing inadmissible and deportable aliens present in

the interior of the United States.”); , ___ F.4th ____,

2026 WL 2198315, at *17 (7th Cir. July 30, 2026) (holding that, “based on

the INA’s text, structure, and history,” a noncitizen, who entered the

United States without inspection and was detained after living there for

several years, “is present in the United States without admission and is

not ‘seeking admission,’” and he “is therefore not subject to mandatory

detention under 8 U.S.C. § 1225(b)(2)(A) and is eligible for a bond hearing

under 8 U.S.C. § 1226(a)”); , ___ F.4th ____,

2026 WL 2352042, at *11 (1st Cir. Aug. 13, 2026) (“In sum, our careful

study of the disputed statutory texts leads us to join the Second, Sixth,

Seventh, Ninth, Tenth, and Eleventh Circuits in holding that

noncitizens . . . who are present in the United States without admission

are not subject to § 1225(b)(2)(A)’s mandatory detention provision, but

rather, are governed by § 1226.”).

§ 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: August 24, 2026

JOSEPH F. SAPORITO, JR.

United States District Judge