1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 J.A.C.P., No. 1:25-cv-01354-KES-SKO (HC) 10 Petitioner, ORDER GRANTING MOTION FOR 11 v. PRELIMINARY INJUNCTION 12 MINGA WOFFORD, Mesa Verde ICE Doc. 2 Processing Center Facility Administrator; 13 SERGIO ALBARRAN, Acting Field Office Director of the San Francisco Immigration 14 and Customs Enforcement Office; TODD M. LYONS, Acting Director of United 15 States Immigration and Customs Enforcement; KRISTI NOEM, Secretary of 16 the United States Department of Homeland Security; PAMELA BONDI, Attorney 17 General of the United States, 18 Respondents. 19 20 Petitioner J.A.C.P. is a noncitizen who entered the United States three years ago without 21 lawful admission. On September 18, 2025, Immigration and Customs Enforcement (“ICE”) 22 agents arrested petitioner on a public street without a warrant. Petitioner was denied the 23 opportunity for a bond hearing based on the government’s new interpretation of 8 U.S.C. 24 § 1225(b)(2)(A) as requiring mandatory detention during removal proceedings for all noncitizens 25 charged with entering the United States without lawful admission. The government’s new 26 interpretation of section 1225(b)(2)(A) would subject millions of noncitizens to mandatory 27 detention without the possibility of a bond hearing, regardless of how long they have resided in 28 the United States and without regard to whether they pose any flight risk or danger. On 1 October 8, 2025, an immigration judge found that petitioner was subject to section 1225(b)(2)(A) 2 and was therefore ineligible for release on bond. 3 On October 10, 2025, petitioner filed a petition for writ of habeas corpus, Doc. 1, and a 4 motion for temporary restraining order, Doc. 2, arguing that the immigration judge erred in 5 concluding that he was detained under 8 U.S.C. § 1225(b)(2)(A) as that statute does not apply to 6 him. Petitioner requests that the Court order his release or order respondents to provide him with 7 a bond hearing under 8 U.S.C. § 1226(a). See id. at 20–21. 8 On October 20, 2025, the government filed an opposition, Doc. 10, and on October 22, 9 2025, petitioner filed a reply, Doc. 11. The Court held a hearing on October 27, 2025. At the 10 hearing, the Court raised with the parties whether petitioner’s motion should be converted into a 11 motion for preliminary injunction because the standard is the same and respondents had notice 12 and opportunity to respond through a written opposition and through oral argument at the hearing. 13 See Doc. 10. The parties agreed that the motion should be converted to one for a preliminary 14 injunction. As the parties agree that the motion is ripe for conversion and do not believe that 15 additional briefing is needed, petitioner’s motion is converted to a motion for preliminary 16 injunction. For the reasons set forth below, petitioner’s motion for a preliminary injunction is 17 granted. 18 I. Background1 19 Petitioner fled his home country of Peru because he feared persecution. Doc. 1 at ¶¶ 3, 20 21. He entered the United States in 2021 on foot without lawful admission or inspection. Id. 21 ¶ 28; see Doc. 10-1, Martinez Decl. at ¶¶ 5,7. He has lived in San Mateo, California with his 22 brother and brother-in-law since then. Id. ¶ 28; see Doc. 10-1, Martinez Decl. at ¶ 5. There, he 23 found employment, enrolled in a school to study English, obtained a valid driver’s license, and 24 maintained a clean criminal record. Doc. 1 at ¶ 28. Petitioner has no pending immigration 25 26 1 This section includes information from petitioner’s verified petition and the parties’ other 27 filings. A court “may treat the allegations of a verified . . . petition [for writ of habeas corpus] as an affidavit.” L. v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (citing McElyea v. Babbitt, 833 28 F.2d 196, 197–98 (9th Cir. 1987)). 1 applications.2 Doc. 1 at ¶ 29; see Doc. 10-1, Martinez Decl. at ¶ 6. 2 On September 18, 2025, an ICE agent in civilian clothing stopped petitioner on the street 3 and asked about another individual. Doc. 1 at ¶ 30. Petitioner said he did not know the 4 individual. Id. Other ICE agents with badges and vests then arrived, told petitioner they were 5 ICE agents, and asked petitioner to identify himself and produce his documents. Id. Petitioner 6 showed them his passport Id. The agents confirmed that petitioner was not the person they were 7 looking for, but they asked petitioner if he had a work permit or other documentation of legal 8 presence in the United States. Id. Petitioner confirmed that he did not. Id. ¶¶ 30–31. He 9 admitted to the agents that he had entered the United States without inspection three years earlier. 10 Doc. 1 at ¶ 31; Doc. 10-1, Martinez Decl. at ¶¶ 6–7. The ICE agents then took petitioner into 11 custody and transported him to an ICE office in San Francisco for further processing. Doc. 1 at 12 ¶¶ 30–31; Doc. 10-1, Martinez Decl. at ¶¶ 6–7. After holding him there until late that afternoon, 13 the agents transported him to Fresno, California, and then to Mesa Verde ICE Processing Center, 14 where he remains detained. Doc. 1 at ¶¶ 36–39, 42. 15 On October 8, 2025, petitioner appeared for his first master calendar hearing in 16 immigration court, and he requested that the immigration judge order his release on bond. Doc. 1 17 at ¶ 42. The immigration judge found that she lacked jurisdiction to grant petitioner release on 18 bond, finding that petitioner was detained pursuant to 8 U.S.C. § 1225(b)(2)(A), a statutory 19 provision which mandates detention and does not offer the opportunity for a bond hearing. Id. 20 II. Legal Standard 21 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 22 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689– 23 90 (2008)). “A plaintiff seeking a preliminary injunction must establish that he is likely to 24 succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary 25 relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” 26 Id. at 20 (citing Munaf, 553 U.S. at 689–90; Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 27 2 Petitioner notes that he intends to file an application for asylum and withholding of removal. 28 Doc. 1 at ¶ 29. 1 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–12 (1982)). “Likelihood of 2 success on the merits is a threshold inquiry and is the most important factor.” Simon v. City & 3 Cnty. of San Francisco, 135 F.4th 784, 797 (9th Cir. 2025) (quoting Env’t Prot. Info. Ctr. v. 4 Carlson, 968 F.3d 985, 989 (9th Cir. 2020)). “[I]f a plaintiff can only show that there are serious 5 questions going to the merits—a lesser showing than likelihood of success on the merits—then a 6 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s 7 favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 8 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted). 9 III. Discussion 10 a. Likelihood of Success on the Merits 11 Petitioner argues that the immigration judge erred in concluding that he was mandatorily 12 detained pursuant to 8 U.S.C. § 1225(b)(2)(A). See Doc. 2 at 12–18. This case is one of statutory 13 interpretation, and the Court’s analysis begins with the text of the statute. See Lackey v. Stinnie, 14 604 U.S. 192, 199 (2025). 15 i. Statutory Framework 16 Two statutory sections govern the detention of noncitizens prior to a final order of 17 removal: 8 U.S.C. §§ 1225 and 1226. Section 1225 governs the detention of noncitizens seeking 18 admission into the United States. See Jennings v. Rodriguez, 583 U.S. 281, 289 (2018). As 19 relevant here, section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for 20 admission, if the examining immigration officer determines that an alien seeking admission is not 21 clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding 22 under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). “A noncitizen detained under 23 [s]ection 1225(b)(2) may be released only if he is paroled ‘for urgent humanitarian reasons or 24 significant public benefit’ pursuant to 8 U.S.C. § 1182(d)(5)(A).” Gomes v. Hyde, 25 Civ. 11571, 25 2025 WL 1869299, at *2 (D. Mass. July 7, 2025). “Other than this limited exception[,] . . . 26 detention under § 1225(b)(2) is considered mandatory . . . [and] [i]ndividuals detained under 27 § 1225 are not entitled to a bond hearing.” Lopez Benitez v. Francis, No. 25 CIV. 5937 (DEH), 28 2025 WL 2371588, at *3 (S.D.N.Y. Aug. 13, 2025). 1 While section 1225 “authorizes the Government to detain certain aliens seeking admission 2 into the country,” section 1226 “authorizes the Government to detain certain aliens already in the 3 country pending the outcome of removal proceedings.” Jennings, 583 U.S. at 289 (emphasis 4 added). Section 1226(a) sets out the “default rule” for noncitizens already present in the country. 5 Id. at 288. It provides:
6 On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to 7 be removed from the United States. . . . [T]he Attorney General-- (1) may continue to detain the arrested alien; and 8 (2) may release the alien on-- (A) bond . . . ; or 9 (B) conditional parole . . . . 10 8 U.S.C. § 1226(a). “Section 1226(a), therefore, establishes a discretionary detention 11 framework.” Lopez Benitez, 2025 WL 2371588, at *3 (internal citations omitted). An 12 immigration officer makes the initial determination to either detain or release the noncitizen, but 13 after that decision has been made, the noncitizen may request a bond hearing before an 14 immigration judge. 8 C.F.R. § 1236.1(c)(8), (d)(1). At any such bond hearing, “the burden is on 15 the non-citizen to ‘establish to the satisfaction of the Immigration Judge . . . that he or she does 16 not present a danger to persons or property, is not a threat to the national security, and does not 17 pose a risk of flight.’” Hernandez v. Sessions, 872 F.3d 976, 982 (9th Cir. 2017) (citing In re 18 Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006)).3 19 ii. Section 1225(b)(2)(A) Does Not Apply to Petitioner. 20 The government argues that the applicable detention authority in this case is 21 section 1225(b)(2)(A), as the immigration judge concluded, because petitioner is an “applicant for 22 admission.” See Doc. 10 at 3. The statute defines an “applicant for admission” as “[a]n alien 23 present in the United States who has not been admitted or who arrives in the United States 24 (whether or not at a designated port of arrival and including an alien who is brought to the United
25 3 The government argues that petitioner was provided a hearing on October 8, 2025, and that is all that is required under § 1226(a). Doc. 10 at 3–4. However, the immigration judge concluded that 26 she did not have jurisdiction to consider petitioner’s bond request, see Doc. 1 at ¶ 42, and 27 therefore did not consider whether petitioner was a flight risk or danger to the community, as required by In re Guerra, 24 I. & N. Dec. 37, 38 (BIA 2006). The hearing therefore did not 28 afford petitioner the procedures of § 1226(a). 1 States after having been interdicted in international or United States waters).” 8 U.S.C. 2 § 1225(a)(1). 3 The government’s argument that section 1225(b)(2)(A) applies to all noncitizens present 4 in the United States without admission is unpersuasive. The government’s proposed 5 interpretation of the statute (1) disregards the plain meaning of section 1225(b)(2)(A); 6 (2) disregards the relationship between sections 1225 and 1226; (3) would render a recent 7 amendment to section 1226(c) superfluous; and (4) is inconsistent with decades of prior statutory 8 interpretation and practice.4 As other courts have concluded, “[f]or section 1225(b)(2)(A) to 9 apply, several conditions must be met—in particular, an ‘examining immigration officer’ must 10 determine that the individual is: (1) an ‘applicant for admission’; (2) ‘seeking admission’; and (3) 11 ‘not clearly and beyond a doubt entitled to be admitted.’” Martinez v. Hyde, No. CV 25-11613- 12 BEM, 2025 WL 2084238, at *2 (D. Mass. July 24, 2025); see also Lopez Benitez, 2025 WL 13 2371588, at *5. As an initial matter, there is no evidence in the record that an “examining 14 immigration officer” made these determinations. 15 The government’s proposed interpretation of the statute ignores the plain meaning of the 16 phrase “seeking admission.” Martinez, 2025 WL 2084238, at *6. “Seeking” means “asking for” 17 or “trying to acquire or gain.” Merriam-Webster Dictionary, https://www.merriam- 18 webster.com/dictionary/seeking. And the use of a present participle, “seeking,” “necessarily 19 4 Other district courts have reached a similar conclusion. See, e.g., Lopez Benitez v. Francis, No. 20 25-Civ-5937, 2025 WL 2267803 (S.D.N.Y. Aug. 8, 2025); Martinez v. Hyde, No. CV 25-11613- BEM, 2025 WL 2084238, at *9 (D. Mass. July 24, 2025); Gomes v. Hyde, No. 1:25-cv-11571- 21 JEK, 2025 WL 1869299, at *8 (D. Mass. July 7, 2025); Vasquez Garcia v. Noem, 2025 WL 2549431 (S.D. Cal. Sept. 3, 2025); Lopez-Campos v. Raycraft, No. 2:25-cv-12486, 2025 WL 22 2496379 (E.D. Mich. Aug. 29, 2025); Kostak v. Trump, No. 3:25-cv-01093-JE, Doc. 20 (W.D. 23 La. Aug. 27, 2025); Doc. 11, Benitez v. Noem, No. 5:25-cv-02190 (C.D. Cal. Aug. 26, 2025); Leal-Hernandez v. Noem, No. 1:25-cv-02428-JRR, 2025 WL 2430025 (D. Md. Aug. 24, 2025); 24 Romero v. Hyde, No. 25-11631-BEM, 2025 WL 2403827 (D. Mass. Aug. 19, 2025); Arrazola- Gonzalez v. Noem, No. 5:25-cv-01789-ODW, 2025 WL 2379285 (C.D. Cal. Aug. 15, 2025); 25 Aguilar Maldonado v. Olson, No. 25-cv-3142, 2025 WL 2374411 (D. Minn. Aug. 15, 2025); Dos Santos v. Noem, No. 1:25-cv-12052-JEK, 2025 WL 2370988 (D. Mass. Aug. 14, 2025); Rocha 26 Rosado v. Figueroa, No. CV 25-02157, 2025 WL 2337099 (D. Ariz. Aug. 11, 2025), report and 27 recommendation adopted 2025 WL 2349133 (D. Ariz. Aug. 13, 2025); Doc. 11, Maldonado Bautista v. Santacruz, No. 5:25-cv-01874-SSS-BFM, *13 (C.D. Cal. July 28, 2025). 28 1 implies some sort of present-tense action.” Martinez, 2025 WL 2084238, at *6. The term 2 “admission” is defined as “the lawful entry of the alien into the United States after inspection and 3 authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). And “entry” has long been 4 understood to mean “a crossing into the territorial limits of the United States.” Hing Sum v. 5 Holder, 602 F.3d 1092, 1100–01 (9th Cir. 2010) (quoting Matter of Pierre, 14 I & N Dec. 467, 6 468 (1973)). To piece this together, the phrase “seeking admission” means that one must be 7 actively “seeking” “lawful entry.” See Lopez Benitez, 2025 WL 2371588, at *7.5 8 However, petitioner is not actively “seeking” “lawful entry” because he already entered 9 the United States three years ago. If anything, petitioner is seeking to remain in the United 10 States. As the Lopez Benitez court noted:
11 [S]omeone who enters a movie theater without purchasing a ticket and then proceeds to sit through the first few minutes of a film would 12 not ordinarily then be described as “seeking admission” to the theater. Rather, that person would be described as already present 13 there. Even if that person, after being detected, offered to pay for a ticket, one would not ordinarily describe them as “seeking 14 admission” (or “seeking” “lawful entry”) at that point—one would say that they had entered unlawfully but now seek a lawful means of 15 remaining there. As § 1225(b)(2)(A) applies only to those noncitizens who are actively “seeking admission” to the United 16 States, it cannot, according to its ordinary meaning, apply to [petitioner], because he has already been residing in the United States 17 for more than two years. 18 Lopez Benitez, 2025 WL 2371588, at *7; see also Lopez-Campos v. Raycraft, No. 2:25-CV- 19 12486, 2025 WL 2496379, at *6 (E.D. Mich. Aug. 29, 2025) (“[S]eeking admission’ implies 20 action – something that is currently occurring, and in this instance, would most logically occur at 21 the border upon inspection.”). 22 While petitioner could be considered an “applicant for admission” because he is an “alien 23
24 5 This understanding is further buttressed by the fact that “lawful entry” may occur only after “inspection and authorization by an immigration officer,” see 8 U.S.C. § 1101(a)(13), a process 25 that typically must occur at the border or other port of entry. See Posos-Sanchez v. Garland, 3 F.4th 1176, 1183 (9th Cir. 2021) (explaining that “inspection and authorization” must “take place 26 at a ‘port of entry’” for one to be considered to have “lawfully entered”). The regulations that set 27 out “inspection procedures” make clear that inspection is a procedure that occurs at ports of entry. See 8 C.F.R § 235.1(a) (“Application to lawfully enter the United States shall be made in person 28 to an immigration officer at a U.S. port-of-entry when the port is open for inspection.”). 1 present in the United States who has not been admitted,” as defined at 8 U.S.C. § 1225(a)(1), the 2 government has failed to show that, over 3 years after he entered the country, petitioner was 3 actively “seeking admission.” The government’s “selective reading of the statute . . . ignores its 4 ‘seeking admission’ language.” Martinez, 2025 WL 2084238, at *6. As the Lopez Benitez court 5 noted: “If, as the government argues, [section] 1225(b)(2)(A) was intended to apply to all 6 ‘applicant[s] for admission,’ there would be no need to include the phrase ‘seeking admission’ in 7 the statute.” Lopez Benitez, 2025 WL 2371588, at *6.6 The rule against surplusage counsels that 8 “‘every clause and word of a statute’ should have meaning.” See United States, ex rel. Polansky 9 v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023) (quoting Montclair v. Ramsdell, 107 U.S. 10 147, 152 (1883)); League of California Cities v. Fed. Commc’ns Comm’n, 118 F.4th 995, 1019 11 (9th Cir. 2024) (“The rule against surplusage generally prohibits [a court] from interpreting [a 12 statute] in a way that ‘mak[es] a part of it unnecessary.’” (quoting NLRB v. Aakash, Inc., 58 F.4th 13 1099, 1105 (9th Cir. 2023)). The government’s position would make the “seeking admission” 14 language meaningless and violate the rule against surplusage. Martinez, 2025 WL 2084238, at 15 *6; Lopez Benitez, 2025 WL 2371588, at *6. 16 The government’s argument also disregards the context of sections 1225 and 1226 and the 17 broader statutory scheme. As the Supreme Court noted in Jennings, section 1225 applies “at the 18 Nation’s borders and ports of entry, where the Government must determine whether an alien 19 seeking to enter the country is admissible.” Jennings, 583 U.S. at 287. Section 1225 “authorizes 20 the Government to detain certain aliens seeking admission into the country,” whereas 21 section 1226 “authorizes the Government to detain certain aliens already in the country pending 22 the outcome of removal proceedings.” Id., 583 U.S. at 289 (emphasis added). 23 “It is a fundamental canon of statutory construction that the words of a statute must be 24 read in their context and with a view to their place in the overall statutory scheme.” Davis v.
25 6 “That is, rather than stating that mandatory detention is required for any ‘applicant for admission, if the examining immigration officer determines that an alien seeking admission is not 26 clearly and beyond a doubt entitled to be admitted,’ the statute would instead provide for 27 mandatory detention for any ‘applicant for admission, if the examining immigration officer determines that [the] alien seeking admission is not clearly and beyond a doubt entitled to be 28 admitted.’” Lopez Benitez, 2025 WL 2371588, at *6 (quoting 8 U.S.C. § 1225(b)(2)(A)). 1 Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989). The title of section 1225 is “Inspection 2 by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing.” 3 8 U.S.C. § 1225. “Inspection” is a process that occurs at the border or other ports of entry. See 4 Posos-Sanchez v. Garland, 3 F.4th 1176, 1183 (9th Cir. 2021) (explaining that “inspection and 5 authorization” must “take place at a ‘port of entry’” for one to be considered to have “lawfully 6 entered”); 8 C.F.R § 235.1(a) (“Application to lawfully enter the United States shall be made in 7 person to an immigration officer at a U.S. port-of-entry when the port is open for inspection.”). 8 The title of section 1225 also refers to “expedited removal,” which applies to a noncitizen “who is 9 arriving in the United States” and “is inadmissible.” See 8 U.S.C. § 1225(b)(1)(A). Additionally, 10 section 1225(a)(2) prohibits the admission of “stowaways”—noncitizens “who obtain[] 11 transportation without the consent of the owner . . . of any vessel or aircraft through concealment 12 aboard such vessel or aircraft,” 8 U.S.C. § 1101(a)(49)—who would be discovered at the border 13 or a port of entry. 8 U.S.C. § 1225(a)(2).7 14 The third problem with the government’s argument is that application of section 15 1225(b)(2)(A) to noncitizens already in the country would render superfluous a recent 16 amendment to section 1226(c). See Gomes, 2025 WL 1869299, at *5. Although section 1226(a) 17 sets out a discretionary detention scheme, section 1226(c) provides an exception which mandates 18 detention for noncitizens who have committed certain crimes. See 8 U.S.C. § 1226(c)(1)(E). 19 Section 1226(c)(1)(E), which was added to the statute in 2025 by the Laken Riley Act, mandates 20 detention for any noncitizen (i) who is inadmissible under section 1182(a)(6)(A)(i) as an “alien 21 present in the United States without being admitted or paroled,” and (ii) who “is charged with, 22 arrested for, convicted of, or admits” to committing certain crimes. 8 U.S.C. § 1226(c)(1)(E) 23 (emphasis added); see Gomes, 2025 WL 1869299, at *5 (explaining statutory section). 24 If every “applicant for admission”—which is defined, as relevant here, as an “alien 25 present in the United States who has not been admitted,” see 8 U.S.C. § 1226(a)(1)—is already 26 7 There are no similar references in section 1226. See 8 U.S.C. § 1226. Section 1226 references 27 circumstances that logically would occur inside the country, such as the detention of certain “criminal aliens” upon their release from a correctional facility and the issuance of detainers to 28 “State [or] local officials.” See 8 U.S.C. § 1226(c)(1), (3). 1 subject to mandatory detention under section 1225(b)(2)(A), as the government contends, there 2 would have been no need for the new section 1226(c)(1)(E), which mandates detention for every 3 noncitizen who is “present in the United States without being admitted or paroled” and who has 4 been “charged with, arrested for, or admits to” committing certain crimes, see 8 U.S.C. 5 § 1226(c)(1)(E). Reading section 1225 as the government proposes would thus render section 6 1226(c)(1)(E) superfluous. See Gomes, 2025 WL 1869299, at *5; Lopez Benitez, 2025 WL 7 2371588, at *7; Romero v. Hyde, No. CV 25-11631-BEM, 2025 WL 2403827, at *11 (D. Mass. 8 Aug. 19, 2025); Maldonado v. Olson, No. 25-CV-3142 (SRN/SGE), 2025 WL 2374411, at *12 9 (D. Minn. Aug. 15, 2025) (“The Court will not find that Congress passed the Laken Riley Act to 10 ‘perform the same work’ that was already covered by § 1225(b)(2).”). 11 “When Congress acts to amend a statute, [the Court] presume[s] it intends its amendment 12 to have real and substantial effect.” See Stone v. I.N.S., 514 U.S. 386, 397 (1995); Marx v. Gen. 13 Revenue Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against surplusage is strongest when an 14 interpretation would render superfluous another part of the same statutory scheme.”). Section 15 1226(c)(1)(E) is a detention provision; it has no other purpose. See 8 U.S.C. § 1226(c)(1)(E). If 16 all noncitizens present in the United States without lawful admission were subject to mandatory 17 detention under section 1225(b)(2)(A) already—as the government argues—section 18 1226(c)(1)(E) would be superfluous. Maldonado, 2025 WL 237441, at *12 (“If § 1225(b)(2) 19 already mandated detention of any alien who has not been admitted, regardless of how long they 20 have been here, then adding § 1226(c)(1)(E) to the statutory scheme was pointless.”). 21 The government does not argue that any detention provision other than section 22 1225(b)(2)(A) applies to petitioner, and it appears that the only provision that could have applied 23 is the “default rule” of section 1226(a), which “authorizes the Government to detain certain aliens 24 already in the country pending the outcome of removal proceedings.” Jennings, 583 U.S. at 288– 25 89. The government previously applied section 1226(a) to noncitizens, such as petitioner, who 26 entered the country without admission. See Matter of Yajure Hurtado, 29 I&N Dec. 216 n.6 27 (B.I.A. 2025) (“We acknowledge that for years Immigration Judges have conducted [section 28 1226(a)] bond hearings for aliens who entered the United States without inspection.”); Inspection 1 and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal 2 Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997) (“Despite being 3 applicants for admission, aliens who are present without having been admitted or paroled 4 (formerly referred to as aliens who entered without inspection) will be eligible for bond and bond 5 redetermination.”); Martinez, 2025 WL 2084238, at *6. While divining the meaning of a statute 6 belongs to the “independent judgment” of the courts, “‘the longstanding practice of the 7 government’—like any other interpretive aid—‘can inform [a court’s] determination of what the 8 law is.’” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 385–86, 412 (2024) (quoting NLRB v. 9 Noel Canning, 573 U.S. 513, 525 (2014)). The Court finds that the government’s longstanding 10 practice, under which section 1226(a), and not section 1225(b)(2)(A), would have applied to 11 petitioner’s circumstances, is consistent with the text and statutory scheme. See, e.g., Lopez 12 Benitez, 2025 WL 2371588, at *8 (reaching same conclusion).8 13 The argument that section 1225(b)(2)(A) applies to petitioner also disregards the different 14 due process considerations at issue for noncitizens encountered at the border or ports of entry, 15 versus for noncitizens who have established residence in this country. As the court in Romero 16 noted, applying section 1225 to those stopped at the border and section 1226 to those already in 17 the country
18 is consistent with the long history of our immigration laws and with the Constitution. “[O]nce an alien enters the country, the legal 19 circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their 20 presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693, 121 S. Ct. 2491, 150 L. Ed.2d 21 653 (2001). “It is therefore reasonable to read these statutes ‘against [that] backdrop.’” Hewitt v. United States, 145 S. Ct. 2165, 2173 22 (2025)). 23 Romero, 2025 WL 2403827, at *12–13; cf. Lopez-Campos, 2025 WL 2496379, at *9–10 (finding 24 that the government’s application of section 1225(b)(2)(A) in similar circumstances violated 25 detainee’s due process rights). 26
27 8 The fact that the government’s new interpretation of the statute conflicts with years of prior interpretation also supports that petitioner has, at a minimum, shown that there are serious 28 questions going to the merits of its claims regarding the statute’s interpretation. 1 In sum, the Court concludes that petitioner is likely to succeed on the merits of his claim 2 that he is not subject to mandatory detention under section 1225(b)(2)(A).9 3 b. Irreparable Harm 4 Turning to the second Winter factor, petitioner has established that he will be irreparably 5 harmed absent a preliminary injunction. “The government has taken the position that in the 6 absence of preliminary injunctive relief, it remains free to subject [petitioner] to mandatory 7 detention under section 1225(b)(2), a provision that is not applicable to [him], and provide [him] 8 with no additional process to challenge [his] detention.” Valencia Zapata v. Kaiser, No. 25-CV- 9 07492-RFL, 2025 WL 2741654, at *12 (N.D. Cal. Sept. 26, 2025). “Obviously, the [unlawful 10 deprivation] of liberty is a . . . severe form of irreparable injury.” Ferrara v. United States, 370 F. 11 Supp. 2d 351, 360 (D. Mass. 2005). Thus, the misapplication of section 1225(b) causes 12 “immediate and irreparable injury.” Doc. 11 at 9, Maldonado Bautista v. Santacruz, No. 5:25-cv- 13 01874-SSS-BFM (C.D. Cal. July 28, 2025); Valencia Zapata, 2025 WL 2741654, at *12. 14 c. Balance of Hardships and Public Interest 15 When the government is the nonmoving party, “the last two Winter factors merge.” Baird 16 v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (internal citations omitted). In immigration court,
17 9 The government also argues that the appropriate remedy, if the immigration judge erred, is an appeal to the Board of Immigration Appeals (“BIA”), rather than a habeas petition in this Court. 18 Doc. 10 at 4. This appears to be an argument that petitioner should be required to exhaust his 19 administrative remedies. In a case such as this one, the “exhaustion requirement is prudential, rather than jurisdictional,” and therefore may be waived “if ‘administrative remedies are 20 inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void.’” Hernandez v. 21 Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). As explained in section III.b., petitioner has established a likelihood that he will 22 suffer irreparable injury without a temporary restraining order. Given that showing of irreparable 23 harm, and where several additional months may pass before the BIA renders a decision on a pending appeal, the Court waives any prudential exhaustion requirement. See Rodriguez v. 24 Bostock, 779 F. Supp. 3d 1239, 1254 (W.D. Wash. 2025) (waiving prudential exhaustion requirement in similar circumstances); Marroquin Ambriz v. Barr, 420 F. Supp. 3d 953, 962 25 (N.D. Cal. 2019). In addition, pursuit of administrative remedies would almost certainly be futile given the BIA’s recent holding that all noncitizens present in the United States without admission 26 are “seeking admission” for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained. Matter 27 of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025). In light of the statutory interpretation of § 1225(b) and § 1226 addressed above, the Court finds the BIA’s decision in Matter of Yajure 28 Hurtado unpersuasive. 1 custody hearings are routine and impose a “minimal” cost. Doe v. Becerra, No. 2:25-cv-00647- 2 DJC-DMC, 2025 WL 691664, at *6 (E.D. Cal. Mar. 3, 2025). Faced with a choice “between 3 [these minimally costly procedures] and preventable human suffering,” the Court concludes “that 4 the balance of hardships tips decidedly in [petitioner’s] favor.” Hernandez, 872 F.3d at 996 5 (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)). 6 The public interest also weighs in petitioner’s favor. “The public has a strong interest in 7 upholding procedural protections . . ., and the Ninth Circuit has recognized that the costs to the 8 public of immigration detention are staggering.” Diaz v. Kaiser, No. 3:25-CV-05071, 2025 WL 9 1676854, at *3 (N.D. Cal. June 14, 2025) (citing Jorge M.F. v. Wilkinson, No. 21-CV-01434-JST, 10 2021 WL 783561, at *3) (N.D. Cal. Mar. 1, 2021). 11 d. Remedy 12 The purpose of a preliminary injunction is to return the parties to the status quo ante, 13 which is “not simply [] any situation before the filing of a lawsuit, but instead [] ‘the last 14 uncontested status which preceded the pending controversy.’” GoTo.com, Inc. v. Walt Disney 15 Co., 202 F.3d 1199, 1210 (9th Cir. 2000). The government argues that petitioner was detained 16 pursuant to section 1225(b)(2)(A) and has denied that petitioner was detained under section 1226, 17 the only provision that could apply. But “detention under section 1225(b)(2) was improper.” 18 Chogllo Chafla v. Scott, No. 2:25-CV-00437-SDN, 2025 WL 2688541, at *11 (D. Me. Sept. 22, 19 2025). Thus, the last uncontested status would be the moment before petitioner was unlawfully 20 detained under that provision. 21 Moreover, the government did not comply with the express terms of section 1226 when it 22 detained petitioner, so the Court cannot conclude that he is now detained on that basis. “Issuance 23 of a warrant is a necessary condition to justify discretionary detention under section 1226(a).” 24 Chogllo Chafla, 2025 WL 2688541, at *11. “Section 1226(a) plainly states: ‘On a warrant 25 issued by the Attorney General, a [noncitizen] may be arrested and detained . . . .” Chogllo 26 Chafla, 2025 WL 2688541, at *11 (quoting 8 U.S.C. § 1226(a)). “As such, it follows that absent 27 a warrant a noncitizen may not be arrested and detained under section 1226(a).” Id. “To put it 28 simply, [petitioner’s] detention[] [is] improper because there is no evidence in the record that [he 1 | was] arrested pursuant to a warrant.” Jd. “Since the Government did not comply with the plain 2 | language of section 1226(a), [petitioner’s] immediate release is justified.” Id.; Chiliquinga 3 | Yumbillo v. Stamper, No. 2:25-CV-00479-SDN, 2025 WL 2783642, at *5 (D. Me. Sept. 30, 4 | 2025) (reaching the same conclusion). 5 If the government seeks to re-detain petitioner, it must provide no less than seven (7) 6 | days’ notice to petitioner and must hold a pre-deprivation bond hearing before a neutral arbiter 7 | pursuant to section 1226(a) and its implementing regulations, at which petitioner’s eligibility for 8 | bond must be considered. 9 IV. Conclusion and Order 10 Accordingly, petitioner’s motion for preliminary injunction, Doc. 2, is GRANTED. The 11 | Court ORDERS that respondents release petitioner immediately. If the government seeks to re- 12 | detain petitioner, it must provide no less than seven (7) days’ notice to petitioner and must hold a 13 || pre-deprivation bond hearing before a neutral arbiter pursuant to section 1226(a) and its 14 | implementing regulations, at which petitioner’s eligibility for bond must be considered. 15 The security bond requirement of Federal Rule of Civil Procedure 65(c) is waived. Courts 16 || regularly waive security in cases like this, and the government has not established a need to 17 || impose a security bond. 18 Petitioner may file a brief on the merits within 30 days. Respondents may file an 19 | additional brief related to the merits of the petition within 30 days thereafter, and petitioner may 20 | file a reply brief within 15 days of respondents’ brief. Alternatively, the parties may stipulate to a 21 | different briefing schedule or to submitting the petition on the merits based on the current record. 22 93 | SO ORDERED. _ 24 Dated: _ October 27, 2025 4h 35 UNITED STATES DISTRICT JUDGE
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