Otero Escalante v. Bondi

Background

Jose J.O.E. is a Honduran citizen who entered the United States without inspection near McAllen, Texas, on or about February 1, 2014. He had no criminal record and no prior contact with immigration authorities until June 23, 2025, when ICE officers arrested him in Burnsville, Minnesota during "fugitive operations." At the time of arrest, the government served him with:

- A Form I-200 Warrant for Arrest, directed to officers authorized under 8 U.S.C. § 1226; - A Form I-862 Notice to Appear, charging him with being present without admission or parole under 8 U.S.C. § 1182(a)(6)(A)(i); - A Form I-286 Notice of Custody Determination stating he was being detained "pursuant to the authority contained in section 236 [8 U.S.C. § 1226] of the Immigration and Nationality Act."

None of these documents referenced 8 U.S.C. § 1225 as the basis for his detention. Jose was held at the ICE detention center in Albert Lea, Minnesota.

The Two Statutory Frameworks at Issue

Section 1226 authorizes arrest and detention of non-citizens already present in the United States pending a decision on removal. Under § 1226(a), the Attorney General may release such a person on bond or conditional parole. Federal regulations implementing § 1226(a) provide for bond hearings at the outset of detention, at which an immigration judge evaluates whether release is appropriate.

Section 1225 applies to "applicants for admission" — persons present in the United States who have not been admitted. Section 1225(b)(2)(A) mandates detention for removal proceedings without providing for bond hearings. As the Supreme Court has noted, "neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings." Jennings v. Rodriguez, 583 U.S. 281, 297 (2018).

The Interim Guidance and the Immigration Judge's Ruling

On July 8, 2025 — after Jose's arrest — ICE issued "Interim Guidance Regarding Detention Authority for Applicants for Admission" to all ICE employees. The Interim Guidance stated that DHS had reconsidered its legal position and determined that § 1225, not § 1226, is the applicable detention authority for all "applicants for admission" (a category that includes persons who entered without authorization). It further stated that such persons are ineligible for bond hearings and that ICE would stop issuing Form I-286 custody determinations (which are tied to § 1226) going forward. The Guidance also stated that for detainees who had already received an I-286 under § 1226, ICE would "affirmatively cancel" it.

On July 9, 2025, Immigration Judge Monte Miller denied Jose's request for a bond hearing, finding Jose was an "applicant for admission" subject to § 1225(b)(2)(A), and thus ineligible for a bond hearing. On August 8, 2025, Immigration Judge Miller issued a written order explaining that he lacked jurisdiction to redetermine bond under § 1226 because § 1225 governed Jose's detention.

Jose appealed that ruling to the Board of Immigration Appeals (BIA) on July 22, 2025; that appeal remained pending at the time of this order. On July 23, 2025, Jose admitted to the factual allegations and conceded the single charge of inadmissibility at a removal hearing. A merits hearing on his application for relief from removal was scheduled for September 29, 2025.

Procedural History in Federal Court

Jose filed a Verified Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 on July 29, 2025, seeking either immediate release or, alternatively, an order requiring a bond hearing. The petition alleged six counts, including claims under § 1226, the Fifth Amendment Due Process Clause, federal regulations, and the Administrative Procedure Act (APA). He also filed an emergency motion for a temporary restraining order (TRO) seeking to prevent the government from moving him out of the District of Minnesota and to compel a bond hearing.

Magistrate Judge Dulce J. Foster recommended granting the TRO as to transfer and ordering further briefing on the bond hearing issue. The district court accepted that recommendation on August 4, 2025, enjoining transfer until August 19, 2025. Respondents then agreed not to transfer Jose until September 5, 2025 or resolution of the habeas matter, whichever came first, subject to a reservation to seek court permission in unforeseen circumstances.

Jurisdictional and Exhaustion Issues

Exhaustion of Administrative Remedies

Respondents argued that Jose was required to exhaust his administrative remedies (i.e., wait for the BIA appeal to conclude) before bringing this federal court action. The court acknowledged that exhaustion for habeas petitions under § 2241 is judicially created — not statutorily required — and thus governed by sound judicial discretion, balancing the petitioner's interest in prompt federal access against institutional interests in exhaustion.

The court declined to require exhaustion for three reasons:

Subject-Matter Jurisdiction

Respondents argued that three provisions of 8 U.S.C. § 1252 stripped the court of jurisdiction:

- § 1252(a)(5): Makes a court of appeals petition for review the "sole and exclusive means" of reviewing a removal order. The court found this inapplicable because no removal order had been issued and Jose was not challenging one. - § 1252(b)(9): Channels all questions of law and fact related to a removal order to the court of appeals. The court found this inapplicable for the same reason — Jose's claims do not challenge removal proceedings themselves. - § 1252(g): Bars jurisdiction over claims arising from the government's decision to "commence proceedings, adjudicate cases, or execute removal orders." The court found this inapplicable because Jose challenges his detention conditions, not those three specific actions. The Eighth Circuit has carved out an exception to § 1252(g) for purely legal questions, which this case presents.

Merits: Which Statute Governs Jose's Detention?

The court framed the merits question narrowly: given that Jose was arrested on a § 1226 warrant and detained under § 1226's authority (as reflected in all his arrest and custody documents), does § 1226's discretionary detention scheme — which entitles him to a bond hearing — apply, or does § 1225's mandatory detention scheme apply instead?

The court held that § 1226 applies, for the following reasons:

No record evidence of § 1225 authority. Every document generated at the time of Jose's arrest — the warrant, the custody determination, the notice to appear — cited § 1226. Respondents pointed to no evidence that he was arrested or detained under § 1225.

The Interim Guidance supports this conclusion. The Interim Guidance itself acknowledges that Form I-286 (the § 1226 custody determination form) applies only to § 1226 detentions and states that ICE will "affirmatively cancel" previously issued I-286 forms for detainees who should be reclassified under § 1225. There is no record evidence that Jose's Form I-286 was ever canceled. The Interim Guidance therefore implicitly confirms that until such a cancellation occurs, a detainee holding an I-286 is detained under § 1226.

No procedural authority to retroactively change the legal basis of detention. Respondents did not argue they had exercised any recognized procedural right to change the statutory basis of Jose's arrest and detention after the fact, nor did they cite authority permitting such a unilateral change.

Matter of Q. Li is distinguishable. Respondents cited Matter of Q. Li, 29 I&N Dec. 66 (BIA 2025), in which the BIA held that an applicant for admission "arrested and detained without a warrant" is subject to § 1225(b) and ineligible for bond under § 1226(a). The court found this inapplicable because Jose was arrested on a warrant citing § 1226 — a factually distinct situation that the BIA decision does not address.

Disposition

The court granted the petition in part and ordered Respondents to provide Jose with a bond hearing under 8 U.S.C. § 1226(a) within 7 days of the order. The court did not reach the constitutional claims or the APA claims, resolving the case on non-constitutional statutory grounds.