Summary
This Report and Recommendation addresses a habeas corpus petition challenging the petitioner’s ongoing civil immigration detention without a bond hearing. The magistrate judge recommends finding that the district court has jurisdiction under 28 U.S.C. § 2241, excusing prudential exhaustion, and concluding that mandatory detention under 8 U.S.C. § 1225(b)(2) does not apply because the petitioner is subject to discretionary detention under 8 U.S.C. § 1226(a). The document also recommends granting the petition and dismissing certain improperly named respondents.
Topics
Practice areas
Questions Presented
- Whether 8 U.S.C. § 1252(g) or § 1252(b)(9) deprived the district court of habeas jurisdiction over a challenge to ongoing immigration detention.
- Whether prudential administrative exhaustion barred review of Gualpa's § 2241 petition while his bond appeal was pending before the Board of Immigration Appeals.
- Whether Gualpa was subject to mandatory detention under 8 U.S.C. § 1225(b)(2), or instead discretionary detention with eligibility for a bond hearing under 8 U.S.C. § 1226(a).
- Whether continued detention without a bond hearing violated the Fifth Amendment Due Process Clause.
Holdings
- The jurisdiction-stripping provisions of § 1252(g) and § 1252(b)(9) did not bar the district court from considering Gualpa's habeas challenge to the legality of his ongoing detention because he was not challenging a final removal order or the discrete actions of commencing proceedings, adjudicating a case, or executing a removal order.
- Prudential exhaustion did not bar review because Respondents forfeited opposition to Gualpa's futility argument and requiring exhaustion would likely prolong the alleged due-process violation.
- Section 1225(b)(2)'s mandatory-detention provision did not apply to Gualpa because he was not presently seeking admission; he was already in the United States and therefore fell within § 1226(a)'s discretionary-detention framework.
- Even if § 1225(b)(2) applied, Gualpa was entitled to a bond hearing because the government forfeited opposition to his due-process claim and the applicable balancing of liberty, erroneous-deprivation risk, and governmental interests favored a hearing.
Key quotations
“Section 1252(g) “applies” “narrow[ly] … only to three discrete actions that the Attorney General may take:” the “‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’”” (Discussion § 1)
“Putting all of this together, seeking admission means presently trying to cross into the United States.” (Discussion § 3)
“Because Section 1225(b) is inapplicable to Gualpa, Respondents may not now impose mandatory detention pending his removal decision.” (Conclusion)
Factual background
Gualpa entered the United States without inspection in July 2022 and was placed in removal proceedings through a Notice to Appear alleging that he was present without admission or parole. Immigration authorities released him, later issued employment authorization after he applied for asylum, and did not detain him until July 2025. An immigration judge twice concluded that he lacked jurisdiction to set bond. The government did not establish that Gualpa's parole had been revoked before detention and did not address his constitutional due-process claim.
Procedural history
Gualpa entered the United States in 2022, was placed in removal proceedings, released, and later detained by immigration officials in July 2025. An immigration judge twice declined to conduct a bond redetermination, and Gualpa appealed to the Board of Immigration Appeals. He then filed this § 2241 petition in January 2026. Respondents opposed on jurisdictional, exhaustion, and statutory-detention grounds but did not address the due-process claim. The magistrate judge recommended granting the petition and directing an immigration-court bond hearing.
Remand instructions
The magistrate judge recommended that the district court grant the habeas petition and require the immigration court to conduct a hearing to determine whether Gualpa is entitled to discretionary bond under 8 U.S.C. § 1226(a).