Kevin Raul Arteaga Caldera v. Warden, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN RAUL ARTEAGA CALDERA, Case No. 1:26-cv-00442-JLT-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT PETITION FOR WRIT OF HABEAS 13 v. CORPUS

14 WARDEN, et al., (Doc. 1)

15 Respondents. 7-Day Objection Period 16 17 Petitioner Kevin Raul Arteaga Caldera (“Petitioner”), a federal immigration detainee 18 proceeding pro se, initiated this action on January 20, 2026, with the filing of a petition for writ of 19 habeas corpus under 28 U.S.C. § 2241 while in custody of the of Immigration and Customs 20 Enforcement (“ICE”) at the Golden State Annex facility, located in McFarland, California. (Doc. 21 1 ¶ 1). Respondents are the unnamed Warden, Current or Acting Field Office Director of the San 22 Francisco ICE Field Office, Current or Acting Director of ICE, Current or Acting Secretary of the 23 United States Department of Homeland Security (“DHS”), and Current or Acting United States 24 Attorney General (collectively, “Respondents”). See id. 25 For the reasons set forth herein, the undersigned recommends that Petitioner’s petition for 26 writ of habeas corpus be granted, that he be released immediately, and that Respondents be 27 prohibited from re-detaining Petitioner without affording him prior notice and pre-deprivation bond 28 hearing. 1 I. Relevant Background 2 Petitioner is a native and citizen of Mexico who entered the United States at or near San 3 Ysidro, California, on July 15, 2022. (Doc. 1 ¶ 23; Doc. 8-1 at 1). Petitioner alleges he entered the 4 United States while in possession of B2 visa. (Doc. 1 ¶ 23). After entering the United States, 5 Petitioner applied for permanent residence through his spouse, a U.S. citizen whom he married on 6 May 1, 2023. Id. Petitioner was scheduled by U.S. Customs and Immigration Services (“USCIS”) 7 for a residency interview to occur on June 25, 2025, however, USCIS cancelled the interview one 8 week prior. On September 25, 2025, Petitioner’s I-130 petition was approved but his I-485 has not 9 been adjudicated. Id.; (Doc. 8 at 1). 10 Petitioner was arrested by ICE on August 5, 2025. (Doc. 1 at 5). On August 8, 2025, 11 Petitioner was served a Notice to Appear (“NTA”) alleging that he was inadmissible under 8 U.S.C. 12 § 1182(a)(6)(A)(i) and § 1182(a)(7)(A)(i)(I). (Doc. 8-1 at 1). Consistent with the allegations in 13 his petition, Petitioner argued in removal proceedings that he was lawfully admitted to the United 14 States upon his entry near San Ysidro and presentation to immigration officials of a “valid Border 15 Crossing Card or B2 Visitor Visa[.]” (Doc. 8-1 at 1-2). However, the allegations that Petitioner 16 had unlawfully entered the country were sustained by an immigration judge on December 4, 2025. 17 Id. at 2. 18 On February 5, 2025, an immigration judge denied Petitioner’s request for custody 19 redetermination, finding that he lacked jurisdiction over custody redetermination because Petitioner 20 was never inspected and admitted or paroled. (Doc. 8-2 at 1-2) (citing Matter of Hurtado, 29 I&N 21 Dec. 216 (BIA 2025)). 22 Petitioner filed the instant petition for writ of habeas corpus on January 20, 2026, alleging 23 that his ongoing detention for over five months without being afforded a bond hearing violates 24 Petitioner’s constitutional rights. (Doc. 1 ¶ 2-4); see id. at 17-18. Petitioner alleges that he provides 25 economic support to his family, including his wife and one-and-a-half year-old child who are both 26 U.S. citizens. Id. at 7. 27 /// 28 /// 1 II. Governing Authority 2 A. The Writ of Habeas Corpus 3 Writ of habeas corpus relief extends to a person in custody under the authority of the United 4 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 5 shall “award the writ or issue an order directing the respondent to show cause why the writ should 6 not be granted, unless it appears from the application that the applicant or person detained is not 7 entitled thereto.” 28 U.S.C. § 2243. 8 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 9 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 10 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 11 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 12 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 13 detention” in ICE custody). 14 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 15 Two statutes govern the detention and removal of inadmissible noncitizens from the United 16 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 17 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 18 Sept 12, 2025), which the undersigned adopts herein: 19 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 20 The “usual removal process” involves an evidentiary hearing before 21 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 22 § 1229(a), also known as “full removal,” by filing a Notice to Appear with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N. 23 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 24 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 25 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 26 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 27 (citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be released if he or she “demonstrate[s] to the satisfaction of the officer that such release 28 1 would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” Id. (citing 8 C.F.R. 2 § 236.1(c)(8)).

3 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 4 Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)). If, at this hearing, the detainee demonstrates by the preponderance of 5 the evidence that he or she is not “a threat to national security, a danger to the community at large, likely to abscond, or otherwise a 6 poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)). 7 Once released, the noncitizen’s bond is subject to revocation. Under 8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s 8 bond or parole ‘at any time,’ even if that individual has previously been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D. 9 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 10 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 11 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 12 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 13 2. Expedited Removal and Mandatory Detention (§ 1225) 14 While “§ 1226 applies to aliens already present in the United States,” 15 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 16 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 17 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 18 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 19 that:

20 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 21 who is arriving in the United States or is described in clause (iii) is inadmissible under section 22 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C) or 1182(a)(7)], the officer shall order the alien 23 removed from the United States without further hearing or review unless the alien indicates either an 24 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 25 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 26 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 27 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 28 designate for expedited removal noncitizens “who ha[ve] not been 1 admitted or paroled into the United States, and who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, 2 that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of 3 the determination of inadmissibility under this subparagraph.” § 1225(b)(1)(A)(iii)(II). 4 To summarize, under § 1225(b)(1), two groups of noncitizens are 5 subject to expedited removal. First, there are “arriving” noncitizens who are inadmissible due to misrepresentation or failure to meet 6 document requirements. The implementing agency regulations define “arriving alien” as applicants for admission “coming or 7 attempting to come into the United States at a port-of-entry.” 8 C.F.R. § 1.2. The second group –designated noncitizens –includes 8 noncitizens who meet all of the following criteria: (1) they are inadmissible due to lack of a valid entry document or 9 misrepresentation; (2) they have not “been physically present in the United States continuously for the 2-year period immediately prior 10 to the date of the determination of inadmissibility”; and (3) they are among those whom the Secretary of Homeland Security has 11 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 1225(b)(1). 12 “Initially, DHS’s predecessor agency did not make any designation 13 [under (3)], thereby limiting expedited removal only to ‘arriving aliens,’” that is, noncitizens encountered at ports of entry. Make the 14 Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS 15 extended by designation expedited removal to noncitizens who arrive by sea and who have been present for fewer than two years, and to 16 noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. Id. This 17 was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to “apply 18 expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 19 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 20 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 21 short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United 22 States.

23 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 24 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 25 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 26 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order 27 the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may 28 be appealed by the applicant to an immigration judge, who must 1 conduct the review “to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the 2 determination.” Id. Detention under § 1225(b)(1) is “mandatory” “pending a final determination of credible fear of persecution and if 3 found not to have such a fear, until removed.” Id. (citing § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under 4 this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until 5 removed.”)

6 [Section] 1225 also contains a provision that applies to applicants for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. 7 This provision, 1225(b)(2), states that, subject to statutory exceptions, “in the case of an alien who is an applicant for admission, 8 if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, 9 the alien shall be detained for a proceeding under section 1229a [full removal proceedings] of this title.” § 1225(b)(2). In other words, 10 noncitizens subject to 1225(b)(2) are not eligible for expedited removal but are subject to mandatory detention while their full 11 removal proceedings are pending. This is in contrast to the default detention regime under § 1226(a), which allows for discretionary 12 release and review of detention through a bond hearing.

13 3. The Government’s Recent Change in Position

14 Until this year, the DHS has applied § 1226(a) and its discretionary release and review of detention to the vast majority of noncitizens 15 allegedly in this country without valid documentation. This practice was codified by regulation. The regulations implementing the Illegal 16 Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens 17 who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible 18 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other 19 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 20 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 21 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . . 22 In 2025, however, the Government’s policy changed dramatically. 23 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 24 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 25 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 26 to expedited removal but to whom expedited removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps 27 to terminate any ongoing removal proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the 28 actions contemplated by the memorandum “in a manner that takes 1 account of legitimate reliance interests,” but states that “the expedited removal process includes asylum screening, which is 2 sufficient to protect the reliance interests of any alien who has applied for asylum or planned to do so in a timely manner.” Huffman 3 Memorandum (Jan. 23, 2025).

4 Since mid-May of 2025, the Department of Homeland Security has made a practice of appearing at regular removal proceedings in 5 immigration court, moving to dismiss the proceedings, and then re- arresting the individual in order to place them in expedited removal 6 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does not dismiss the full removal proceedings, ICE still makes an arrest, 7 apparently in reliance on § 1225(b)(2)’s detention provision. 8 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 9 III. Exhaustion 10 A. Governing Authority 11 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 12 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 13 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 14 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 15 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 16 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 17 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 18 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 19 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 20 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 21 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 22 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 23 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 24 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 25 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 26 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 27 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 28 1 to be disregarded.”). 2 B. Analysis 3 The Court finds that the prudential exhaustion requirement should be waived as it would be 4 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 5 to mandatory detention under § 1225(b) and an immigration judge’s conclusion that he lacked 6 jurisdiction to entertain Petitioner’s request for custody redetermination. See (Doc. 8; Doc. 8-2); 7 Jennings v. Rodriguez, 583 U.S. 281, 282 (2018) (“§§ 1225(b) … do[e]s not give detained aliens 8 the right to periodic bond hearings during the course of their detention.”); Rodriguez Diaz v. 9 Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). In the decision relied upon by the immigration 10 judge (see Doc. 8-2), the BIA held that all noncitizens present within the country without admission 11 are seeking admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. 12 v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 13 2025) (“In addition, pursuit of administrative remedies would almost certainly be futile given the 14 BIA’s recent holding that all noncitizens present in the United States without admission are 15 ‘seeking admission’ for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing 16 Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)). 17 For these reasons, the undersigned recommends that the prudential exhaustion requirement 18 be waived for Petitioner’s claim for habeas corpus relief. See, e.g, Chavez v. Noem, No. 3:25-cv- 19 02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving prudential 20 exhaustion requirement because the BIA “already applied its expertise in deciding and designating” 21 Hurtado as precedential, pursuant to which detainees are subject to mandatory detention without 22 bond under § 1225(b)(2)); J.A.C.P., 2025 WL 3013328, at *7 n.9. 23 IV. Discussion 24 Petitioner asserts a single cause of action in his petition for violation of procedural due 25 process under the Fifth Amendment to the U.S. Constitution. See (Doc. 1 at 17-18). However, 26 because the substance of his allegations necessarily requires the Court to determine what statutory 27 detention regime governs, and because Respondents contest the applicable statutory scheme, the 28 undersigned construes Petitioner’s claim as seeking relief for Respondents’ misapplication of 1 mandatory detention in his case. 2 A. Statutory Scheme: 8 U.S.C. § 1226(a) Applies 3 Respondents contend that Petitioner is an “applicant for admission” within the meaning of 4 8 U.S.C. § 1225(a) and is subject to mandatory detention by ICE under § 1225(b)(2)(A) during the 5 pendency of his removal proceedings. (Doc. 8 at 3-5). Respondents argue that “Petitioner’s prior 6 release in the discretion of DHS does not have the effect of having converted petitioner’s presence 7 into the United States into an ‘admission.’” Id. at 3. Although Respondents contend throughout 8 their opposition to the petition that Petitioner is detained under § 1225(b), Respondents also 9 inexplicably argue that Petitioner, “as a noncitizen who entered the United States and has now filed 10 an application for adjustment of status, … is an applicant for admission detained in accord with § 11 1226.” Id. 12 Notwithstanding Respondents’ contention that Petitioner was previously released in the 13 discretion of DHS, based on the allegations of the petition and the record summarized above, the 14 Court presumes that Petitioner was first arrested and detained by immigration authorities (ICE) 15 upon the reported date of his arrest on August 5, 2025, resulting in his current term of detention. 16 See (Doc. 1 ¶ 23); (Doc. 8 at 2). Petitioner was issued a NTA following his arrest by ICE and 17 placed in removal proceedings. See (Doc. 8 at 2); (Doc. 8-1 at 1-2). 18 Section 1225 governs the detention of noncitizens “seeking admission” into the United 19 States. See Jennings, 583 U.S. at 289; see id. at 282 (“§§ 1225(b) … do[e]s not give detained aliens 20 the right to periodic bond hearings during the course of their detention.”). In contrast, § 1226 sets 21 forth a “default rule” for noncitizens already present within the United States. Id. at 288. Relevant 22 here, § 1225(b)(1) applies to aliens “arriving in the United States” or aliens who have “not been 23 admitted or paroled into the United States” and have not “affirmatively shown, to the satisfaction 24 of an immigration officer, that the alien has been physically present in the United States 25 continuously for the [two]-year period immediately prior to the date of the determination of 26 inadmissibility.” 8 U.S.C. § 1225(b)1)(A)(i), (iii)(II). 27 Section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for 28 admission, if the examining immigration officer determines that an alien seeking admission is not 1 clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding 2 under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). For § 1225(b)(2)(A) to apply, an 3 examining immigration officer must determine that the individual is (1) an “applicant for 4 admission,” (2) “seeking admission,” and (3) “not clearly and beyond a doubt entitled to be 5 admitted.” See Lepe v. Andrews, 801 F. Supp. 3d 1104, 1113 (E.D. Cal. 2025) (citing Martinez v. 6 Hyde, 792 F. Supp. 3d 211, 214 (D. Mass. 2025)). 7 Here, Petitioner already was present and had resided in the United States for over three 8 years following his entry in July 2022 when he was first arrested and detained by ICE on August 9 5, 2025. Moreover, Respondents do not argue, nor do the records show, that Petitioner has not 10 been physically present in the United States continuously for the two-year period immediately prior 11 the date of the determination of inadmissibility under § 1225(b) to lawfully place him in removal 12 proceedings and mandatory detention under that statutory regime. See 8 U.S.C. § 1225(b). 13 Aside from arguing that noncitizens such as Petitioner who unlawfully enter the United 14 States without inspection are subject to mandatory detention under § 1225(b), Respondents assert 15 that Petitioner additionally qualifies as an “applicant for admission” because he “he has taken 16 affirmative steps to obtain admission” through applying for adjustment of residency status. (Doc. 17 8 at 4). But § 1225(b) attaches only where the noncitizen is “seeking admission.” The mere fact 18 that Petitioner has an approved Form I-130 and was scheduled for an adjustment of status interview 19 does not change the fact that he already resided in the United States and, thus, neither is “seeking 20 admission” nor subject to inspection within the meaning of § 1225(b)(2)(A). See Diaz v. Albarran, 21 No. 3:25-cv-09837-JSC, 2025 WL 3496686, at *3 (N.D. Cal. Dec. 5, 2025) (rejecting government’s 22 position that petitioner is an applicant for admission “‘twice over’ because he (1) is present without 23 having been admitted or paroled[] and (2) has a pending application to adjust his status to that of a 24 permanent resident”; finding that § 1226 governs immigration arrests conducted within the interior 25 of the United States); Torres v. Bondi, No. 25-cv-02457-BAS-MSB, 2025 WL 3214773, at *4 (S.D. 26 Cal. Nov. 18, 2025) (finding detention of a petitioner with longstanding residency in the United 27 States, an approved Form I-130, and a scheduled adjustment of status interview is governed by § 28 1226); accord Ortiz v. Chestnut, No. 1:26-cv-01167-DC-SCR (HC), 2026 WL 508419, at *4 (E.D. 1 Cal. Feb. 24, 2026) (same). 2 Based on these facts, the plain language of § 1225(b) demonstrates that it is inapplicable to 3 Petitioner. Petitioner is not “arriving” in the United States but rather arrived here in July 2022 4 before he was arrested in August 2025. Further, Respondents have not shown that an examining 5 immigration officer made any determination under § 1225(b)(2)(A) that Petitioner is “seeking 6 admission” and “not clearly and beyond a doubt entitled to be admitted.” See Lepe, 801 F. Supp. 7 3d at 1113. Indeed, the NTA referenced in the record that was issued to Petitioner indicates that 8 upon his arrest, Petitioner was placed into removal proceedings, and Respondents do not contend 9 or show that Petitioner properly was placed in expedited removal under § 1225, further illustrating 10 that DHS chose to place Petitioner in removal proceedings with greater procedural protections than 11 a noncitizen in expedited removal proceedings. See Garcia v. Chestnut, No. 1:25-cv-01907-JLT- 12 CDB, 2025 WL 3771348, at *8 (E.D. Cal. Dec. 31, 2025) (citing Mata Velasquez v. Kurzdorfer, 13 No. 25-cv-493-LJV, 794 F. Supp. 3d 128, 143 (W.D.N.Y. 2025) (“Because DHS chose to place 14 Mata Velasquez in section 240 proceedings instead of pursuing expedited removal in the first 15 instance—even though it was not required to do that—the government vested Mata Velasquez with 16 the rights that Congress guaranteed non-citizens in those proceedings.”). 17 Under these circumstances, and having determined that the mandatory detention framework 18 under § 1225(b) does not apply to Petitioner, the undersigned finds that § 1226(a) provides the 19 proper framework for noncitizens already residing in the United States. See, e.g., Garcia v. Noem, 20 803 F. Supp. 3d 1064, 1076-77 (S.D. Cal. 2025). In Garcia, three petitioners entered the United 21 States and resided in the country for some time before they were arrested and placed into 22 immigration detention in June and July 2025. Id. at 1070. These petitioners, like Petitioner here, 23 were charged by ICE with inadmissibility as being present in the United States without being 24 admitted or paroled. Id. The Garcia court found that § 1225(b) did not apply to these petitioners 25 because they were not “seeking admission” within the meaning of that statute and that the 26 petitioners’ detention therefore was governed by § 1226(a), including for discretionary detention 27 and a bond determination hearing. Id. at 1076-78; see Martinez, 792 F. Supp. 3d at 221 (“[S]ection 28 1225 governs detention of non-citizens ‘seeking admission into the country,’ whereas section 1226 1 governs detention of non-citizens ‘already in the country.’”) (citing Jennings, 583 U.S. at 288-89). 2 Other courts likewise have found that the text of sections 1225 and 1226, coupled with 3 application of commonly used canons of statutory interpretation, legislative history, and ICE’s 4 historical practices predating DHS’s recent shift in policy, weigh in favor of finding that section 5 1226(a)’s discretionary framework governs the detention of noncitizens who, like Petitioner, is 6 already in the country when encountered by immigration authorities. See Rodriguez v. Bostock, 7 802 F. Supp. 3d 1297, 1336 (W.D. Wash. 2025); Otero v. Robbins, et al., No. 1:25-cv-1790 CSK, 8 2025 WL 3704453, at *5 (E.D. Cal. Dec. 22, 2025) (collecting cases, adopting the reasoning of the 9 Lepe court, and finding that “[t]his Court agrees with and joins the majority of courts nationwide, 10 including the Eastern District of California, in rejecting respondents’ interpretation of Sections 11 1225 and 1226”); Morales-Flores v. Lyons, No. 1:25-cv-01640-TLN-EFB, 2025 WL 3552841, at 12 *3 (E.D. Cal. Dec. 11, 2025) (collecting cases and noting “Courts nationwide, including this one, 13 have overwhelmingly rejected respondents’ arguments and found DHS’s new policy unlawful”); 14 J.Y.L.C. v. Bostock, No. 3:25-cv-02083-AB, 2025 WL 3169865, at *2 (D. Or. Nov. 12, 2025) (citing 15 cases and noting that this conclusion is “consistent with the holdings of dozens of district courts 16 across the country”); Barco Mercado v. Francis,-- F. Supp. 3d --, 2025 WL 3295903, at *4 17 (S.D.N.Y. Nov. 26, 2025) (noting that this statutory interpretation “has been challenged in at least 18 362 cases in federal district courts,” with the challengers having prevailed “either on a preliminary 19 or final basis, in 350 of those cases decided by over 160 different judges sitting in about fifty 20 different courts”). 21 Having found that Petitioner unlawfully is detained by Respondents without affording him 22 a custody redetermination to which he is entitled under § 1226(a), the undersigned addresses below 23 the relief that should be awarded. 24 B. Remedy 25 “Under § 1226(a) and its implementing regulations, a detainee may request a bond hearing 26 before an IJ at any time before a removal order becomes final.” Rodriguez Diaz, 53 F.4th at 1197 27 (citing 8 C.F.R. §§ 236.1(d)(1), 1003.19). “If at this hearing the detainee demonstrates by the 28 preponderance of the evidence that he is not a threat to national security, a danger to the community 1 at large, likely to abscond, or otherwise a poor bail risk, the IJ will order his release.” Id. (internal 2 quotation and citations omitted). 3 During his detention, Petitioner requested custody redetermination as provided for under 4 section 1226(a) that was denied based on a finding that the immigration judge “lacks jurisdiction 5 over the request for custody redetermination.” (Doc. 8-2 at 1) (citing Matter of Yajure Hurtado, 6 29 I&N Dec. 216 (BIA 2015)). 7 While Respondents maintain that Petitioner was detained pursuant to § 1225, they have 8 neither argued nor proffered facts in support of any argument that Petitioner is a flight risk or danger 9 to the community. Given that Respondents do not assert any other basis for Petitioner’s detention, 10 the appropriate remedy is Petitioner’s immediate release. See Ortiz, 2026 WL 508419, at *4 (citing 11 Lepe, 801 F. Supp. 3d at 1119). Further, because Petitioner never has been afforded a custody 12 redetermination, the undersigned will recommend that Respondents may not seek to re-detain 13 Petitioner without first providing him at least seven days’ notice and thereafter holding a pre- 14 deprivation bond hearing before a neutral arbiter pursuant to section 1226(a) and its implementing 15 regulations, at which Petitioner’s eligibility for bond must be considered. See Lepe, 801 F. Supp. 16 3d at 1120. 17 V. Conclusion and Recommendation 18 Accordingly, IT IS HEREBY RECOMMENDED that: 19 1. Petitioner’s petition for writ of habeas corpus (Doc. 1) be GRANTED. 20 2. Respondents be ORDERED to immediately release Petitioner. 21 3. Respondents be ORDERED to not re-detain Petitioner without first providing him at 22 least seven days’ notice and thereafter holding a pre-deprivation bond hearing before a 23 neutral arbiter pursuant to section 1226(a) and its implementing regulations, at which 24 Petitioner’s eligibility for bond must be considered. 25 4. The Clerk of the Court be DIRECTED to enter judgment in favor for Petitioner and 26 close this case. 27 These findings and recommendations will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 1 | after being served with these findings and recommendations, the parties may file written objections 2 | with the Court. Although this objection period is shorter than provided by Local Rule, such an 3 | adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 4 | Constitution by Respondents, and the fact that the parties have extensively briefed the issues 5 | involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 6 || may require a response within a shorter period if exigencies of the calendar require.”). Any 7 | objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 8 | Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 9 | The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 10 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 11 || and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 12 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 13 | these findings and recommendations under 28 U.S.C. § 636(b)(1I)(C). The parties are advised that 14 | failure to file objections within the specified time may result in the waiver of rights on appeal. 15 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 16 | 1394 (9th Cir. 1991)). 17 | ITIS SO ORDERED. 18 | Dated: _March 10, 2026 | Wr ba 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 14