Otero Escalante v. Bondi
- Eric Tostrud
- 0:25-cv-03051
- U.S. District Court · District of Minnesota
- 21
In Otero Escalante v. Bondi, Judge Tostrud granted in part a petition for a court order challenging immigration detention, ruling that because Jose J.O.E. was arrested and detained under the warrant authority of 8 U.S.C. § 1226, he is entitled to a bond hearing within 7 days rather than being subject to the no-bond mandatory detention rules the government tried to apply under 8 U.S.C. § 1225.
Non-citizens (immigrants) who are arrested and detained by ICE under a warrant citing 8 U.S.C. § 1226, particularly those whom the government subsequently seeks to treat as subject to mandatory no-bond detention under 8 U.S.C. § 1225. Also relevant to immigration practitioners, ICE, and courts handling similar bond-hearing disputes in the District of Minnesota and potentially beyond.
What happened
In Otero Escalante v. Bondi, Jose J.O.E., a Honduran citizen who entered the United States without authorization in 2014, was arrested by Immigration and Customs Enforcement (ICE) in Burnsville, Minnesota on June 23, 2025. ICE arrested him using a warrant and paperwork that explicitly cited 8 U.S.C. § 1226 as the legal authority for his detention. An immigration judge later denied Jose a bond hearing, concluding instead that a different law — 8 U.S.C. § 1225, which applies to people seeking admission and carries no right to a bond hearing — governed his detention. That denial followed new interim policy guidance issued by the Department of Homeland Security in July 2025 directing ICE to treat all people present without authorization as subject to § 1225's mandatory detention rules rather than § 1226's discretionary rules that allow bond hearings.
The court faced a narrow legal question: when a person is arrested and detained under the explicit authority of § 1226, does § 1226's framework — which allows bond hearings — apply, or can the government switch to § 1225's no-bond mandatory detention rules after the fact? The court found that the answer turns on the undisputed facts of how Jose was actually arrested and detained. Every document associated with Jose's arrest — the arrest warrant, the notice of custody determination, and the notice to appear — cited § 1226 as the authority. The government pointed to no evidence that his detention was ever legally reclassified to § 1225, and it cited no authority giving it the unilateral power to make such a change. The court also distinguished the Board of Immigration Appeals' recent ruling in Matter of Q. Li, which addressed people arrested without a warrant, because Jose was arrested with a warrant explicitly under § 1226.
Judge Tostrud also rejected the government's arguments that the court lacked authority to hear the case and that Jose had not yet exhausted all available administrative appeals before coming to federal court. The court found it had jurisdiction because Jose is challenging his detention conditions — not a removal order — and that waiting for the administrative appeals process to run its course would take far too long (an average of 204 days for bond appeals at the Board of Immigration Appeals) and would cause Jose irreparable harm through continued loss of liberty. The petition was granted in part, and the court ordered the government to provide Jose with a bond hearing under 8 U.S.C. § 1226(a) within 7 days of the order.
The detailed version
- Otero Escalante v. Bondi, File No. 25-cv-3051 (ECT/DJF)
- Eric C. Tostrud, United States District Judge
- August 27, 2025 **Ruling:** Petition for writ of habeas corpus (a court order challenging the legality of a person's detention) GRANTED IN PART under 28 U.S.C. § 2241; Respondents ordered to provide a bond hearing under 8 U.S.C. § 1226(a) within 7 days
Background and Facts
Petitioner Jose J.O.E. is a citizen of Honduras 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 as a passenger in a vehicle stopped during "fugitive operations" in Burnsville, Minnesota.
At the time of his arrest, ICE served Jose 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 removal under 8 U.S.C. § 1182(a)(6)(A)(i) (alien present without admission or parole); - A Form I-286 Notice of Custody Determination explicitly stating detention was "[p]ursuant to the authority contained in section 236 [8 U.S.C. § 1226] of the Immigration and Nationality Act."
None of the arrest documents referenced § 1225 as the detention authority.
On July 8, 2025 — after Jose had already been arrested and had filed a motion for a bond hearing — ICE issued "Interim Guidance Regarding Detention Authority for Applicants for Admission" ("Interim Guidance"), prepared in coordination with the Department of Justice. This guidance declared that § 1225, not § 1226, is the applicable detention authority for all "applicants for admission" (a statutory term covering people present without authorization), that such individuals are ineligible for bond hearings, and that ICE would going forward cancel previously issued Form I-286 notices for individuals detained under § 1226 who qualify as applicants for admission.
On July 9, 2025, Immigration Judge Monte Miller denied Jose's bond motion, finding he was an "applicant for admission" subject to mandatory detention under § 1225(b)(2)(A), citing Matter of Q. Li, 29 I&N Dec. 66 (BIA 2025). Judge Miller issued a written order on August 8, 2025 memorializing this reasoning. Jose appealed to the Board of Immigration Appeals (BIA) on July 22, 2025; that appeal remains pending. On July 23, 2025, Jose admitted to the allegations against him and conceded inadmissibility. A merits hearing on removal was scheduled for September 29, 2025.
Procedural History in Federal Court
Jose filed his habeas petition on July 29, 2025, seeking immediate release or, alternatively, a bond hearing. On July 30, he filed an emergency motion for a temporary restraining order (TRO). Magistrate Judge Dulce J. Foster issued a Report and Recommendation recommending the TRO be granted as to preventing transfer outside the District of Minnesota. Judge Tostrud accepted that recommendation on August 4, 2025. Respondents subsequently agreed not to move Jose outside the District of Minnesota until September 5, 2025, or resolution of the habeas matter, whichever came earlier (with a 72-hour notice reservation).
Legal Framework
The two key statutes are:
- 8 U.S.C. § 1226: Governs detention of aliens already in the country during removal proceedings. Under § 1226(a), a non-citizen arrested on a warrant "may" be released on bond of at least $1,500 or conditional parole. Federal regulations require bond hearings at the outset of detention for § 1226(a) detainees. Section 1226(c) mandates detention (no bond) for certain criminal offenders — not at issue here.
- 8 U.S.C. § 1225: Governs "applicants for admission," defined as aliens present without admission or arriving in the United States. Section 1225(b)(2)(A) mandates detention for those not clearly entitled to admission. Neither § 1225(b)(1) nor § 1225(b)(2) provides for bond hearings.
Issues Decided
1. Exhaustion of Administrative Remedies
Respondents argued Jose had to finish his BIA appeal before coming to federal court. The court acknowledged that the exhaustion requirement for § 2241 habeas petitions is judicially created (not required by statute), and is subject to the court's sound discretion, balancing individual interest in prompt judicial access against institutional interests in exhaustion.
The court waived the exhaustion requirement because: - The question presented is a pure question of law on an undisputed factual record — no administrative fact-finding is needed; - BIA appeals of bond decisions took an average of 204 days in 2024, making it highly unlikely the appeal would resolve before Jose's September 29, 2025 removal hearing; - Continued detention without a bond hearing constitutes irreparable harm (loss of liberty); - Resolution of the legal question may reduce future habeas petitions.
The court declined to reach Jose's additional exhaustion arguments (BIA predetermination, lack of BIA jurisdiction over constitutional claims) because the petition was resolved on non-constitutional grounds.
2. Subject-Matter Jurisdiction
Respondents argued three statutory provisions stripped the court of jurisdiction:
- § 1252(a)(5): Makes a petition for review to the court of appeals the sole means of review of a removal order. Not applicable: no removal order has issued and Jose is not challenging a removal order. - § 1252(b)(9): Channels all questions of law and fact relating to a removal order to the court of appeals. Not applicable: Jose challenges his detention, not a removal order or the removal proceedings themselves. - § 1252(g): Strips jurisdiction over claims arising from decisions to "commence proceedings, adjudicate cases, or execute removal orders." The court held this provision is narrow (per Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), and Jennings v. Rodriguez, 583 U.S. 281 (2018)), and does not cover Jose's challenge to his detention conditions. The Eighth Circuit has also recognized an exception to § 1252(g) for pure questions of law. The court followed recent decisions from this district (Aguilar Maldonado v. Olson, 2025) and other courts (Ozturk v. Hyde, 2d Cir. 2025) rejecting these jurisdictional arguments in analogous cases.
3. Merits: Which Statute Governs Jose's Detention?
The court framed the issue narrowly: when a non-citizen is arrested and detained under the explicit authority of § 1226, does § 1226's discretionary bond-hearing framework apply, or does the government's later position that § 1225 governs control?
The court held § 1226 applies, for the following reasons:
- Every document associated with Jose's arrest and detention cited § 1226 as the authority — the arrest warrant, the Form I-286, and the Notice to Appear. - No document referenced § 1225. - Respondents pointed to no record evidence that Jose's detention was reclassified to § 1225 and did not argue they had exercised any available procedural mechanism to change the legal basis of his detention. - The Interim Guidance itself contemplated that ICE would need to take affirmative steps (canceling the Form I-286) to transition individuals from § 1226 to § 1225 detention authority. No evidence showed Jose's Form I-286 was ever canceled. - Matter of Q. Li, 29 I&N Dec. 66 (BIA 2025), on which the immigration judge relied, is distinguishable: that case involved a non-citizen "arrested and detained without a warrant," whereas Jose was arrested on a warrant explicitly citing § 1226.
The court did not decide the broader question of whether the government may lawfully choose § 1225 over § 1226 in the first instance when arresting and detaining a non-citizen, or whether the Interim Guidance is lawful. The ruling is limited to the facts here: Jose was arrested under § 1226, and § 1226's bond-hearing framework therefore applies to him.
Order
- Jose's petition for a writ of habeas corpus is GRANTED IN PART.
- Respondents are ordered to provide Jose with a bond hearing under 8 U.S.C. § 1226(a) within 7 days of the Order.
- Judgment to be entered accordingly.
The petition was not granted in full — Jose also sought immediate release, which the court did not order.
Reviewer note from the AI+
Read the full 21-page opinion on CourtListener, the free public archive maintained by the Free Law Project.