Vargas Lopez v. TrumpVargas Lopez v. Trump
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
In this action for habeas corpus relief pursuant to
I. INTRODUCTION
The Court‘s consideration of this Petition has been hampered by the mistakes made in it. Given inconsistencies, it appears that the Petition was drafted in large part from the pleadings of similar petitioners without fully tailoring it to Vargas Lopez or his circumstances.1 It also
The Court concludes that the mistakes in the Petition, including the failure of Vargas Lоpez to attach certain referenced exhibits, prevent Vargas Lopez from meeting his burden to show he is entitled to habeas relief. The Court concludes further that the Department of Homeland Security (DHS) argued at Vargas Lopez‘s detention hearing in front of the Immigration Judge (IJ) that it wished to detain Vargas Lopez pursuant to
Upon reviewing § 1225 and applicable binding case law, this Court concludes that the DHS properly detained Vargas Lopez under § 1225(b) and that he is not eligible for bond. For this reason, as well as Vargas Lopez‘s failure to present essential evidence, Vargas Lоpez‘s Petition for Habeas Corpus is denied.
A. Factual Background
Vargas Lopez, who is now 34 years old, was born in Guatemala and “came to the United States in 2013.” Filing 1 at 5 (¶ 15); Filing 29 at 2 (also stating that he “came
Vargas Lopez alleges that he “was detained during an enforcement action at Glenn Valley Foods in Omaha, Nebraska on June 10, 2025.” Filing 1 at 7 (¶ 24). This allegation at least suggests that Vargas Lopez was working at Glenn Valley Foods, but there are no allegations about or other evidence showing how he was able to obtain employment without proper documentation. Vargas Lopez alleges that he “was initially detained without bond by DHS ‘[p]ursuant to the authority contained in section 236’ of the INA [
On June 11, 2025, the DHS issued Vargas Lopez a Notice to Appear, informing him that he is “an alien present in the United States who has not been admitted or paroled.” Filing 27-1 at 1. More specifically, DHS alleged as to Vargas Lopez,
- You are not a citizen or national of the United States;
- You are a native of GUATEMALA and a citizen of GUATEMALA;
- You entered the United States at or near UNKNOWN, on or about unknown date;
- You were not then admitted or paroled after inspection by an Immigration Officer.
Filing 27-1 at 1. Consequently, DHS charged Vargas Lopez as an alien “subject to removal” under the following provision:
212(a) (6) (A) (i) of the Immigration and Nationality Act, [
8 U.S.C. § 1182(a)(6)(A)(i) ,] as amended, in that you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.
Filing 27-1 at 1. The Notice to Appear required Vargas Lopez to appear before an IJ in Omaha Nebraska on July 10, 2025. Filing 27-1 at 1. The Notice to Appear indicates that Vargas Lopez “declined to sign” the сertificate of service. Filing 27-1 at 2. The Notice to Appear does not indicate the statutory provision under which Vargas Lopez was originally detained.
On July 10, 2025, the IJ issued an Order of the Immigration Judge in Custody Redetermination Proceedings. Filing 1-2. The IJ‘s Order stated,
The respondent requested a custody redetermination pursuant to
8 C.F.R. § 1236 . After full consideration of the evidence presented, the respondent‘s request for a change in custody status is hereby ordered: [checked box for] Granted. It is ordered that Respondent be: [checked box for] released from custody under bond of $10,000.
Filing 1-2 at 1 The form order shows that DHS reserved its right tо appeal, while Vargas Lopez waived his right to appeal. Filing 1-2 at 2. On July 21, 2025, the IJ filed a Bond Memorandum of the Immigration Judge setting out her full rationale for releasing Vargas Lopez on bond, including
After losing its argument that Petitioner should have been detained under § 1225(b) without the possibility of a bond hearing, on July 10, 2025, the same date as the IJ‘s original Order, Immigration and Customs Enforcement (ICE) counsel filed a Notice of ICE Intent to Appeal Custody Redetermination given that was the only way ICE could continue to detain Vargas Lopez. Filing 1-4; Filing 27-3. Thе Notice stated in part, “filing this form on July 10, 2025 automatically stays the Immigration Judge‘s custody redetermination decision.” Filing 1-4 at 1 (¶ 3) (citing
The stay shall lapse if ICE does not file a notice of appeal along with appropriate certification within ten business days of the issuance of the order of the Immigration Judge, or upon ICE‘s withdrawal of this notice, or as set forth in
8 C.F.R. § 1003.6(c)(4) and (5).
Filing 1-4 at 1 (¶ 4) (citing
The deadlines have expired for briefing on the administrative appeal to the BIA of Vargas Lopez‘s release on bond, Filing 27-4 at 1, but no decision has so far been handed down. On August 28, 2025, the Executive Office for Immigration Review, Omaha Immigration Court, issued a Notice of In-Person Hearing to Vargas Lopez setting his individual hearing before the immigration court in his removal proceedings for October 22, 2025. Filing 27-5 at 1.
In this habeas proceeding, the United States has once again argued what it argued in front of the IJ at Vargas Lopez‘s detention hearing—that Vargas Lopez should have been detained without the possibility of a bond hearing under § 1225(b).
Vargas Lopez alleges that he has remained in civil immigration detention since June 10, 2025. Filing 1 at 5 (¶ 15).
B. Procedural Background
Vargas Lopez filed his Petition for Habeas Corpus in this Court on August 29, 2025. Filing 1. In his Petition, he asserts three causes of action. The First Cause of Action is captioned “Violation of the Due Process Clause of the Fifth Amendment of the United States Constitution.” Filing 1 at 30. It alleges that the automatic stay of his release on bond pursuant to
As required by
A. The Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
B. The Key Statutory Provisions
The issue at the center of this case is the interplay among various statutes in the Immigration and Naturalization Act (INA) to which undocumented aliens present in the United States are subject. The statute under which Vargas Lopez has been charged provides as follows:
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
(i) In general
An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
Pursuant to
(a) Inspection
(1) Aliens treated as applicants for admission
An alien present in the United States who has not been admitted or who arrives in the United Statеs (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.
***
(3) Inspection
All aliens (including alien crewmen) who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.
Section 1225(b)(1) provides for “[i]nspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled.”
According to the Supreme Court, “Section 1225(b)(2) is broader.” Id. Specifically, “[i]t serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1) (with specific exceptions not relevant here).” Id. (citing
(2) Inspection of other aliens
(A) In general
Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond
a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.
On the other hand,
(a) Arrest, detention, and release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General-- (1) may continue to detain the arrested alien; and
(2) may release the alien on--
(A) bond of at least $1,500 with security approved by, and containing conditiоns prescribed by, the Attorney General; or
(B) conditional parole[.]
Vargas Lopez asserts that he was detained under § 1226(a), so he was eligible for release on bond. The Federal Respondents argue that he was instead detained under § 1225(b)(2), so he was never eligible for release on bond. If the Court decides this issue in the Federal Respondents’ favor, Vargas Lopez‘s release on bond was void ab initio, and the Court will never reach the question of whether the automatic-stay provision in
or is ultra vires, even though DHS used that regulation to keep Vargas Lopez in custody after the IJ ordered him released on bond.
C. The Errors in Vargas Lopez‘s Petition Prevent Habeas Relief
As mentioned above, Vargas Lopez bears the burden of demonstrating by a preponderance of the evidence that his detention is unlawful. See Maldonado, 2025 WL 2374411, at *4 (collecting cases). The Court concludes that Vargas Lopez fails to meet his burden to show that he falls under § 1226(a), so his Petition fails regardless of the parties’ arguments about the scope of § 1225(b) and § 1226(a). This is so, because Vargas Lopez‘s argument that he falls within § 1226(a) is his only argument that he is eligible for release on bond.
This Court concludes that as a matter of plain meaning, § 1226(a) states certain requirements for an alien to fall within its scope. The Supreme Court concluded that as a matter of plain meaning,
§ 1226 applies to aliens already present in the United States. 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. Section 1226(a) also permits the Attorney General to release those aliens on bond, “[e]xcept as provided in subsection (c) of this section.”
Jennings, 583 U.S. at 303. Section 1226(a) expressly states, “On a warrant issued by the Attorney Gеneral, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States” and “[e]xcept as provided in subsection (c) and pending such decision, the Attorney General . . . may release the alien on . . . bond . . . or conditional parole. . . .”
No warrant of any kind for Vargas Lopez‘s arrest has been submitted to the record in this case. Indeed, Vargas Lopez does not allege anywhere in his Petition that he was arrested on a
warrant. Rather, he alleges that his “detention was following a targeted arrest and investigation,” citing the IJ‘s Bond Memorandum. Filing 1 at 8 (citing Filing 1-3).
This failurе of proof of a warrant for Vargas Lopez‘s arrest is fatal to the Second Cause of action. Vargas Lopez has not provided this Court with the documents necessary for Vargas Lopez to be eligible for release on bond under § 1226(a). Therefore, the Court denies Vargas Lopez‘s Second Cause of Action.
D. Vargas Lopez Was Properly Detained Under § 1225(b)(2)
As outlined above, the Court concludes Vargas Lopez‘s petition for habeas corpus fails due to his failure to meet his burden to show that he was detained under § 1226(a) given the mistakes in his Petition. However, in order to expedite any further review of this matter, and in an effort to address Vargas Lopez‘s claims efficiently, the Court alternatively concludes that Vargas Lopez was subject to detention without the possibility of bond under § 1225(b)(2).
1. Sections 1225(b)(2) and 1226(a) Overlap
Vargas Lopez‘s argument that § 1225(b)(2) does not apply to him but § 1226(a) does is premised on the assumption that the two statutes apply to distinct groups of aliens. The Court rejects that assumption.
The Supreme Court stated,
U.S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c).
Jennings, 583 U.S. at 289. This statement does nоt mean that § 1225(b) and § 1226(a) are mutually exclusive.
The Supreme Court interpreted § 1225(b) more specifically as follows:
As noted, § 1225(b) applies primarily to aliens seeking entry into the United States (“applicants for admission” in the language of the statute). Section 1225(b) divides these applicants into two categories. First, certain aliens claiming a credible fear of persecution under § 1225(b)(1) “shall be detained for further consideration of the application for asylum.” § 1225(b)(1)(B)(ii). Second, aliens falling within the scope of § 1225(b)(2) “shall be detained for a [removal] proceeding.” § 1225(b)(2)(A).
Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate detention оf applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and § 1225(b)(2) aliens are in turn detained for “[removal] proceeding[s].” Once those proceedings end, detention under § 1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings.
The Supreme Court then addressed § 1226:
While the language of §§ 1225(b)(1) and (b)(2) is quite clear, § 1226(c) is even clearer. As noted, § 1226 applies to aliens already present in the United States. Section 1226(a) creates a default rule fоr those aliens by permitting—but not requiring—the Attorney General to issue warrants for their arrest and detention pending removal proceedings. Section 1226(a) also permits the Attorney General to release those aliens on bond, “[e]xcept as provided in subsection (c) of this section.” Section 1226(c) in turn states that the Attorney General “shall take into custody any alien” who falls into one of the enumerated categories involving criminal offenses and terrorist activities. § 1226(c)(1).
Jennings, 583 U.S. at 303. The Supreme Court further explained § 1226‘s bond provisions as follows
[A]s noted, § 1226(a) authorizes the Attorney General to arrest and detain an alien “pending a decision on whether the alien is to be removed from the United States.” As long as the detained alien is not covered by § 1226(c), the Attorney General “may release” the alien on “bond . . . or conditional parole.” § 1226(a). Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention. See
8 C.F.R. §§ 236.1(d)(1) ,1236.1(d)(1) .
The Federal Respondents argued at the hearing in this Court that the two statues “overlap” as to aliens they cover, like a “Venn diagram.” In other words, the Federal Respondents argue that some aliens certainly fall within § 1225(b)(2), even if they may also fall within § 1226(a). Under such circumstances, the Federal Respondents argue that they may either 1) detain such alien without the possibility of release on bond under § 1225(b)(2), or 2) detain the alien under § 1226(a) and provide the permissive possibility of release on bond.
2. Vargas Lopez May Be Detained under 1225(b)(2) Even If He is Also Subject to 1226(a)
In the present case, the United States argued at the detention hearing in front of the IJ that Vargas Lopez should be detained under § 1225(b)(2). The IJ acknowledged this. Filing 1-3 at 1. Despite this, the IJ concluded that Vargas Lopez was subject to § 1226(a) and eligible for release on bond. The IJ‘s conclusion that Vargas Lopez was detained under § 1226(a) has now had its reasoning overruled by a decision of the BIA that is binding upon the IJ in this case:
Section 236 [
8 U.S.C. § 1226 ] does not purport to overrule the mandatory detention requirements for arriving aliens and applicants for admission explicitly set forth in section 235(b)(1) and (2) of the INA,8 U.S.C. § 1225(b)(1) ,(2) . Thus, while an inadmissible alien who establishes that he or she has been present in the United States for over 2 years is not subject to the expedited removal process, the alien nevertheless “shall be detained for a proceeding under section 240.” INA § 235(b)(2)(A),8 U.S.C. § 1225(b)(2)(A) .
Matter of Yahure Hurtado, 29 I&N Dec. 216, 219–220 (BIA 2025). In Hurtado, the BIA held as follows:
Under the plain reading of the INA, we affirm the Immigration Judge‘s determination that he did not have authority over the bond request because aliens who are present in the United States without admission are applicants for admission
as defined under section 235(b)(2)(A) of the INA,
8 U.S.C. § 1225(b)(2)(A) , and must be detained for the duration of their removal proceedings.See Jennings, 583 U.S. at 300[.]
Although the reasoning in Hurtado is binding upon the IJ, and in the judgment of this Court the IJ‘s detention in this case will certainly be specifically overruled by the BIA when the BIA decides the DHS‘s appeal of Vargas Lopez‘s release on bond, the Hurtado decision is not binding upon this Court in this habeas action. Thus, the legal question this Court must decide is whether Vargas Lopez is an alien who may be and was detained under § 1225(b)(2). If Vargas Lopez may be and was properly detained under § 1225(b)(2), he was nоt eligible for a bond hearing in front of the IJ, and he is not entitled to habeas relief in this Court.
The Court concludes that Vargas Lopez is an alien within the “catchall” scope of § 1225(b)(2) subject to detention without possibility of release on bond through a proceeding on removal under § 1229a.
Vargas Lopez might fall within the scope of § 1226(a), he certainly fits within the language of § 1225(b)(2) as well. The Court concludes that the plain language of § 1225(b)(2) and the “all applicants for admission” language of Jennings permit the DHS to detain Vargas Lopez under § 1225(b)(2).
This reading of the overlapping relationship betweеn § 1225(b) and § 1226(a) is not only consistent with the plain language of the two provisions but consistent with the interpretation of the two provisions under Jennings. First, § 1226 does not contain language limiting its application “to aliens already present in the United States.” Compare Jennings, 583 U.S. at 289 (stating that United States immigration law “authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c).“); id. at 303 (“As noted, § 1226 applies to aliens already present in the United States.“), with
The DHS sought to detain Vargas Lopez pursuant to § 1225(b)(2). Vargas Lopez is properly detained under § 1225(b)(2). This section does not allow for release on bond. Vargas Lopez‘s habeas petition is denied.
E. The Court Does Not Reach the Challenges to the Automatic Stay
Not only does the Court deny Vargas Lopez‘s Second Cause of Action in his Petition, but the Court denies his other causes of action as moot. That is because the determination that Vargas Lopez was not an alien within the scope of § 1226 means that he was never eligible for release on bond, and Vargas Lopez‘s release on bond was void ab initio.
The Court would have had considerable doubt that the automatic stay in
III. CONCLUSION
Upon the foregoing,
IT IS ORDERED that Vargas Lopez‘s Petition for Writ of Habeas Corpus is denied.
Dated this 30th day of September, 2025.
Even if Vargas Lopez is subject to § 1226(a) in addition to § 1225(b), this Court sees no reason why the DHS may not choose to detain Vargas Lopez under the statute that does not allow for release on bond, § 1225(b). Indeed, in the area оf immigration where the executive has considerable discretion, the executive may choose to pursue this civil action in any manner allowed by applicable law.
BY THE COURT:
Brian C. Buescher
United States District Judge