Summary
This Report and Recommendation addresses a 28 U.S.C. § 2241 habeas petition challenging the detention of Bhupa Raj Pandey, a Nepalese noncitizen, under 8 U.S.C. § 1225(b)(2). The magistrate judge recommends that detention is instead governed by 8 U.S.C. § 1226(a), entitling Petitioner to an individualized bond hearing before an immigration judge within seven business days or release. The recommendation declines to reach Petitioner’s remaining constitutional, Administrative Procedure Act, equal protection, and Suspension Clause claims.
Topics
Practice areas
Questions Presented
- Whether Pandey's immigration detention was governed by the mandatory-detention provision in 8 U.S.C. § 1225(b)(2)(A) or by the discretionary detention and bond-hearing framework in 8 U.S.C. § 1226(a).
- Whether Pandey was entitled to an individualized bond hearing under § 1226(a).
- Whether the court had jurisdiction to consider Pandey's challenge to the legality of his immigration detention.
- Whether the court should reach Pandey's remaining due process, Administrative Procedure Act, equal protection, and Suspension Clause claims after recommending relief under § 1226(a).
Holdings
- Because Pandey had effected entry into the United States more than two years before his detention and was not presently seeking admission at the border, his detention was governed by 8 U.S.C. § 1226(a), not the mandatory-detention provision in § 1225(b)(2)(A).
- Pandey was entitled to an individualized bond hearing before a neutral immigration judge under 8 U.S.C. § 1226(a).
- The report recommended finding no jurisdictional bar to considering Pandey's challenge to the legality of his continued detention.
Key quotations
“[B]ased on the plain language of § 1225(b)(2)(A), the phrase ‘seeking admission’ only applies to noncitizens who are presently and actively seeking lawful entry into the United States at the border.” (9)
“When Petitioner was detained after residing in the country for over two years, he was not subject to mandatory detention under § 1225(b)(2)(A). Instead, Petitioner is subject to § 1226, and “is entitled to a prompt bond hearing before an immigration judge pursuant to § 1226(a).”” (10)
Factual background
Pandey, a citizen of Nepal, entered the United States around June 10, 2023, applied for affirmative asylum, and allegedly participated in removal proceedings while released. After a controlled-substance possession charge was refused for felony prosecution, he was released on a personal-recognizance bond on January 2, 2026. ICE placed a hold on him and took him into custody on January 4, 2026; Respondents stated that he was then placed in removal proceedings and charged as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) and (a)(7)(i)(I).
Procedural history
Pandey filed a § 2241 habeas petition challenging his detention under the Immigration and Nationality Act and asserting constitutional and Administrative Procedure Act claims. The Government responded and Pandey replied. The magistrate judge recommended granting the petition in part, ordering an individualized bond hearing under 8 U.S.C. § 1226(a) within seven business days or release, and declining to reach the remaining claims.
Remand instructions
No remand was ordered. The report and recommendation recommends that Respondents provide an individualized bond hearing before a neutral immigration judge under 8 U.S.C. § 1226(a) within seven business days of adoption of the report and recommendation or otherwise release Pandey; certify compliance through a status report; avoid re-detaining him without a pre-deprivation hearing; provide the order to counsel for the warden; and file a notice of compliance.