govinfo:USCOURTS-kywd-4_26-cv-00052-0

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
OWENSBORO DIVISION 
 
BRENDA FLOR MARTINEZ HERRERA, Petitioner,  
  
v. Civil Action No. 4:26-cv-52-DJH 
  
SAMUEL OLSON, Field Office Director, 
Chicago Field Office, Immigration and 
Customs Enforcement et al., 
 
 
Respondents. 
 
*  *  *  *  * 
 
MEMORANDUM OPINION AND ORDER 
 
Petitioner Brenda Flor Martinez Herrera, a noncitizen resident of Illinois currently detained 
in the Western District of Kentucky, seeks a writ of habeas corpus pending removal proceedings.  
She alleges that her detention by immigration authorities violates the Immigration and Nationality 
Act and the Due Process Clause of the Fifth Amendment.  (Docket No.  1)  The parties agreed to 
forgo a show-cause hearing given the absence of a material factual dispute (see D.N. 6), and they 
have submitted briefing setting out their respective legal arguments (D.N.  9; D.N.  10).  After 
careful consideration, the Court will grant Herrera’s petition for the reasons explained below. 
I. 
 Herrera is a thirty-three-year-old citizen of Peru.  (D.N.  1, PageID. 2 ¶ 1; D.N.  9-1, 
PageID.59, 62)  She entered the United States on April 14, 2023.  (D.N. 1, PageID.8 ¶ 27; D.N. 9-
1, PageID.59)  On April 17, 2023, she was detained by immigration authorities and issued a Notice 
and Order of Expedited Removal, which she “[r]efused to [s]ign.”  (D.N. 9-2, PageID.67; see id., 
PageID.66)  That document charged Herrera as  inadmissible as “an immigrant not in possession 
of a . . . valid entry document” pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I).  (D.N. 9-2, PageID.66)  
Only t he section of the Notice and Order of Expedited Removal titled “Determination of 
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Inadmissibility” was signed by an immigration officer.1  (See id.)  A separate notice also designated 
Herrera as an “arriving alien in proceedings under [8 U.S.C. § 1225(b)(1)] or [8 U.S.C. § 1229a].”2  
(Id., PageID.68)  She was deemed “subject to removal”  pursuant to 8 U.S.C. §  1225(b)(1).  (See 
D.N. 9-1, PageID.60) 
On April 19, 2023, Herrera was “released on a grant of humanitarian parole pursuant to 8 
U.S.C. § 1182(d)(5)(A).”3  (D.N. 1, PageID.8 ¶ 27; see D.N. 1-4, PageID.22)  The parole was valid 
for one year and “automatically terminate [d] . . . at the end of the one -year period.”  (D.N.  1-4, 
PageID.22)  Herrera applied for asylum in May 2023.  (D.N. 1, PageID.9 ¶ 28)  On June 9, 2025, 
her asylum application was dismissed.  (See D.N. 1-6, PageID.28)  U.S. Immigration and Customs 
Enforcement (ICE) authorities re-detained Herrera on January 26, 2026,  while she was attending 
a “required check-in.”  (D.N. 1, PageID.9 ¶ 31)  Herrera was detained pursuant to an administrative 
 
1 Because the section of the same document titled “Order of Removal Under Section 235(b)(1) of 
the [Immigration and Nationality] Act” was not filled out or signed by an immigration officer (see 
D.N. 9-2, PageID.66), Herrera was not ordered removed from the United States.  See Rodriguez-
Acurio v. Almodovar , No.  2:25-cv-6065 (NJC), 2025 WL  3314420, at *3 (E.D.N.Y. Nov. 28, 
2025) (“Because the ‘Order’ portion of the form is blank [,] there is no dispute Rodriguez-Acurio 
was not ordered removed.”).  Section 235 of the Immigration and Nationality Act is codified at 8 
U.S.C. § 1225.  Hyppolite v. Noem, No. 25-CV-4304 (NRM), 2025 WL 2829511, at *2 (E.D.N.Y. 
Oct. 6, 2025).   Respondents’ description of the Notice and Order of Expedited Removal is 
consistent with the observation that Herrera was not ordered removed.  ( See D.N. 9, PageID.52–
53 (“On April 17, 2023, Petitioner was issued but refused to sign a Notice and Order of Expedited 
Removal, indicating that she was inadmissible due to her lack of necessary documents permitting 
entry into the United States.” (citing D.N. 9-2, PageID.66–67)) 
2 The document cites section 240 of the Immigration and Nationality Act, which is codified at 8 
U.S.C. § 1229a and governs “[t]he ‘usual removal process’” in which “a noncitizen may ‘attempt 
to show that he or she should not be removed.’”  Rodriguez-Acurio, 2025 WL  3314420, at *8 
(quoting Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020)). 
3 Parole under 8 U.S.C. §  1182(d)(5)(A) “permits a noncitizen to physically enter the [United 
States] . . . subject to a reservation of rights by the Government that it may continue to treat the 
noncitizen ‘as if stopped at the border.’”  Lopez Benitez v. Francis , 795 F. Supp. 3d 475, 484 
(S.D.N.Y. 2025) (quoting Thuraissigiam, 591 U.S. at 139). 
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arrest warrant authorizing her detention under 8 U.S.C. § 1226.4  (D.N. 9-3, PageID.70)  She states 
that after she was detained, she was “forced to sign a document  [indicating] that she accepted to 
be removed from the United States” but “does not know .  . . whether what she signed was an 
expedited order of removal.”  (D.N.  1, PageID.9 ¶  32)  On January 29, 2026, she requested a 
credible-fear interview  with an asylum officer .5  (See D.N. 1-7, PageID.30)  Herrera remains 
detained at the Grayson County Detention Center.6  (Id.; D.N. 1-2, PageID.18) 
 Herrera seeks a writ of habeas corpus against Chicago ICE Field Office Director Samuel 
Olson, Acting Director of ICE Todd Lyons, Department of Homeland Security Secretary Kristi 
Noem, U.S. Attorney General Pamela Bondi, and Grayson County Jailer Jason Woosley.  (D.N. 1, 
PageID.4–5 ¶¶ 11–15)  Herrera alleges that her detention violates the Immigration and Nationality 
Act and due process under the Fifth Amendment.  (See id., PageID.12–13 ¶¶ 41–46)  Herrera asks 
the Court to order her immediate release.  (See id., PageID.13)  Respondents argue that Herrera is 
lawfully detained under 8 U.S.C. § 1225(b)(1).7  (See D.N. 9, PageID.53–57) 
 
4 The warrant cited section  236 of the Immigration and Nationality Act (D.N.  9-3, PageID.70), 
which is codified at 8 U.S.C. §  1226.  Barrera v. Tindall , No.  3:25-cv-541-RGJ, 2025 
WL 2690565, at *1 n.1 (W.D. Ky. Sep. 19, 2025). 
5 The record does not reflect that Herrera has received a credible-fear interview.  ( See D.N. 1, 
PageID.3 ¶ 6; D.N. 9, PageID.55 n.3; D.N. 10, PageID.81) 
6 On February 3, 2026, the Court granted in part Herrera’s motion for a temporary restraining order 
and stay of removal and enjoined Respondents “from removing Herrera from the United States, 
deporting Herrera, or transferring Herrera from her current detention facility pending resolution of 
her habeas petition.”  (D.N. 5, PageID.48) 
7 Respondents do not contest that the Court has jurisdiction to review Herrera’s petition ( see 
generally D.N. 9).  See Lopez v. Olson , No. 3:25-cv-654-DJH, 2025 WL  3217036, at *2 (W.D. 
Ky. Nov. 18, 2025) (“[28 U.S.C. §  2241] confers jurisdiction [on district courts] to hear habeas 
corpus challenges to the legality of a noncitizen’s detention.” (citing Rasul v. Bush, 542 U.S. 466, 
483–84 (2004))); see also Salgado Bustos v. Raycraft , No. 25-13202, 2025 WL  3022294, at *4 
(E.D. Mich. Oct. 29, 2025) (“The Court finds that it has jurisdiction over Salgado Bustos’ habeas 
petition which challenges Respondents’ authority to detain him under § 1225(b) where at the time 
of his arrest he had been admitted or paroled into the United States, had lived continuously in the 
country for over two years, and was not at a port of entry.”).  Nor do Respondents argue whether 
Herrera must exhaust administrative remedies.  (See generally D.N. 9)  Therefore, the Court will 
not address these issues. 
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II. 
A. Immigration and Nationality Act 
Herrera asserts that because she was paroled, her “detention under the expedited removal 
statute is unlawful.”  (D.N. 1, PageID.8 ¶ 24)  She specifically argues that she “is subject to full 
removal proceedings within §  1229a and detention under §  1226.”  (D.N.  10, PageID.76)   
Respondents argue that Herrera is lawfully detained under 8 U.S.C. §  1225(b)(1) because “the 
expiration of [her] parole . . . did not change [the Department of Homeland Security’s] detention 
authority” and that upon the expiration of her parole, Herrera “was required to be restored to the 
status [s]he had been in at the time of [her] parole —mandatory detention pursu ant to 8 U.S.C. 
§ 1225(b)(1).”  (D.N. 9, PageID.56 (internal quotation marks and citation omitted)) 
Section 1225(b)(1) governs “[i]nspection of aliens arriving in the United States and certain 
other aliens who have not been admitted or paroled.”  §  1225(b)(1).  “Section 1225(b) requires 
mandatory detention” for noncitizens subject to expedited removal under §  1225(b)(1).  
Rodriguez-Acurio, 2025 WL 3314420, at *10.  Section 1225(b)(1) states in relevant part: 
 (A) Screening 
(i) In general 
If an immigration officer determines that an alien .  . . who is arriving in the 
United States or is described in clause  (iii) is inadmissible under 
section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien 
removed from the United States without further hearing or review unless the 
alien indicates either an intention to apply for asylum  . . . or a fear of 
persecution. 
 
. . . . 
 
(II) Aliens described 
An alien described in this clause is an alien .  . . who has not been admitted or 
paroled into the United States, and who has not affirmatively shown, to the 
satisfaction of an immigration officer, that the alien has been physically present 
in the United States continuously for the 2-year period immediately prior to the 
date of the determination of inadmissibility under this subparagraph. 
 
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§ 1225(b)(1)(A)(i), (iii)(II).  Thus, § 1225(b)(1) “governs noncitizens: (1)  who are inadmissible 
for lack of proper entry documents . . . and (2) who fall within either [§ 1225(b)(1)(A)(i) (as aliens 
“arriving in the United States”) or (iii)(II)].’”  Rodriguez-Acurio, 2025 WL 3314420, at *10 (citing 
§ 1225(b)(1)(A)(i), (iii)(II)). 
Noncitizens detained under §  1225(b)(1) “may be temporarily released on parole ‘for 
urgent humanitarian reasons or significant public benefit,’ pursuant to Section 1182(d)(5)(A).”  Id. 
at *11 (quoting Jennings v. Rodriguez, 583 U.S. 281, 288 (2018)).  “Parole is ‘not [to] be regarded 
as an admission of the alien[,] and when the purposes of such parole .  . . have been served,’ 
Section 1182(d)(5)(A) mandates that ‘the alien shall forthwith return or be returned to the custody 
from which [s]he was paroled.’”  Id. (omission and first and second alterations in original) (quoting 
§ 1182(d)(5)(A)).  Thereafter, a parolee’s “case shall continue to be dealt with in the same manner 
as that of any other applicant for admission to the United States.”  § 1182(d)(5)(A).  An “applicant 
for admission” is “[a]n alien present in the United States who has not been admitted.”  
§ 1225(a)(1). 
Here, Respondents do not argue whether § 1225(b)(1)(A)(i) or (iii)(II) authorizes Herrera’s 
detention; instead, they maintain that Herrera “was subject to expedited removal” because she was 
“determined to be inadmissible due to her lack of necessary documents.”  (D.N. 9, PageID.54; see 
id., PageID.53 –57)  As explained above, however, whether a noncitizen lacks valid entry 
documents is only part of the analysis for whether §  1225(b)(1) authorizes mandatory detention.  
The Court will thus address § 1225(b)(1)(A)(i) and § 1225(b)(1)(A)(iii)(II). 
As previously noted, §  1225(b)(1)(A)(i) authorizes expedited removal and mandatory 
detention of noncitizens who are “arriving in the United States.”  §  1225(b)(1)(A)(i).  The 
Immigration and Nationality Act “does not define ‘arriving’ for purposes of ” § 1225(b)(1)(A)(i).  
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Coal. for Humane Immi grant Rts. v. Noem , 805 F. Supp. 3d 48, 62 (D.D.C. 2025) .  “When 
interpreting a statutory term Congress did not define, courts first look to the term’s ordinary 
meaning.”8  Id. at 90 (citation omitted); see United States v. Fitzgerald, 906 F.3d 437, 442 (6th Cir. 
2018).  “[T]he plain meaning of the word ‘arriving’ is being ‘in the process of reaching’ a 
destination.”  Rodriguez-Acurio, 2025 WL 3314420, at *20 (quoting Coalition, 805 F. Supp. 3d at 
90).  “The words ‘arriving,’ ‘arrival,’ and ‘arrive’ in Section 1225 appear to refer to a process that 
occurs upon physical entry into the United States, ‘not an interminable .  . . status’ that attaches to 
a noncitizen upon arrival.”  Id. (omission in original) (quoting Coalition, 805 F. Supp. 3d at 90).  
Here, Herrera was not “arriving in the United States” when she was re-detained on January 26, 
2026.  § 1225(b)(1)(A)(i).  At that point, she had resided in the United States for nearly three years.  
See Rodriguez-Acurio, 2025 WL 3314420, at *21 (“When ICE arrested [Rodriguez-Acurio] . . .—
more than four years after she entered the United States —Rodriguez-Acurio was not then, nor is 
she now, in the process of ‘arriving’ in the United States.”  (citation omitted)); Coalition, 805 F. 
Supp. 3d at 90–91 (observing that §  1225(b)(1)(A)(i) “would not naturally be read to refer to 
someone who previously reached the United States via a port of entry, underwent inspection at that 
port of entry, and then was paroled into the United States”).  Thus, Herrera is not subject to 
expedited removal and mandatory detention as a noncitizen ‘arriving in the United States.’” 
 Section 1225(b)(1)(A)(iii)(II) requires detention of noncitizens who “ha[ve] not been 
admitted or paroled into the United States”  and have not “been physically present in the United 
 
8 Although Department of Homeland Security regulations define “arriving alien,” see 8 C.F.R. 
§ 1.2, they do not define “arriving in the United States.”  Courts interpreting the phrase “arriving 
in the United States” in § 1225(b)(1)(A)(i) have thus not found the regulatory definition of 
“arriving alien” dispositive or instructive.  See Coalition, 805 F. Supp. 3d at 92; Rodriguez-Acurio, 
2025 WL 3314420, at * 19–21; see also Loper Bright Enters . v. Raimondo, 603 U.S. 369, 394 
(2024) (holding that “courts must exercise independent judgment in determining the meaning of 
statutory provisions”). 
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States continuously for the 2 -year period immediately prior to the date of the determination of 
inadmissibility.”  § 1225(b)(1)(A)(iii)(II).  Courts have thoroughly examined the phrase “who has 
not been .  . . paroled into the United States” to conclude that § 1225(b)(1)(A)(iii)(II) does not 
“authorize[] expedited removal and the detention of noncitizens who .  . . were paroled into the 
United States under Section  1182(d)(5)(A).”  Rodriguez-Acurio, 2025 WL  3314420, at *14 ; see 
id. at *15–16; see also Coalition , 805 F. Supp. 3d at 83 –89 (analyzing text, statutory context, 
regulations, and caselaw to conclude that § 1225(b)(1)(A)(iii)(II) “does not authorize designation 
for expedited removal of any noncitizen who has, at any point in time, been paroled into the United 
States”).  Parole “permit[s] [the noncitizen] to move from the border to the interior of the country” 
and thus “serve[s] to do exactly what its plain text conveys —‘parole [ the noncitizen] into the 
United States ’ and out of expedited removal. ”  Rodriguez-Acurio, 2025 WL  3314420, at *17 
(emphasis omitted) (quoting § 1182(d)(5)(A)); see also Coalition, 805 F. Supp. 3d at 87 (“[P]arole 
operates . . . as a method of entry, not a status.”) .  Accordingly, “Section 1182(d)(5)(A) suggests 
that rather than reverting to any prior status, a noncitizen whose parole has expired is treated like 
the vast majority of undocumented immigrants currently living in [the United States] who are not 
subjected to expedited removal.”  Rodriguez-Acurio, 2025 WL 3314420, at *17 (citation omitted).  
Consistent with these observations, Herrera  is not subject to expedited removal and ma ndatory 
detention under § 1225(b)(1)(A)(iii)(II) because she was paroled into the United States before her 
re-detention.9  (D.N. 1-4, PageID.22) 
 
9 In light of this conclusion, the Court need not consider whether Herrera had “ been physically 
present in the United States continuously for the 2-year period immediately prior to the date of the 
determination of inadmissibility.”  §  1225(b)(1)(A)(iii)(II); see Salgado Bustos , 2025 
WL 3022294, at *7 ( “Because the Court finds Respondents ’ reliance on the expedited removal 
process here improper due to Salgado Bustos ’ prior parole status, there is no need to address the 
second prong of 18 U.S.C. § 1225(b)(1)(A)(iii)(II).”). 
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Respondents maintain that “when Petitioner’s parole was terminated, Petitioner was 
required to be restored to the status [s]he had been in at the time of [her] parole —mandatory 
detention pursuant to 8 U.S.C. § 1225(b)(1).”  (D.N. 9, PageID.56 (internal quotation marks and 
citation omitted))  Department of Homeland Security regulations state that “upon expiration of 
humanitarian parole under Section  1182(d)(5)(A), the noncitizen ‘shall be restored to the status 
that he or she had at the time of parole’ and that “[a]ny further inspection or hearing [following 
expiration of parole] shall be conducted under [8 U.S.C. § 1225 or § 1229a].”  Rodriguez-Acurio, 
2025 WL 3314420, at *18 (first and second alterations in original) (emphasis omitted) (quoting 8 
C.F.R. § 212.5(e)(2)(i)).  As an initial matter, Respondents do not explain how  Herrera can be 
“restored to the status” of “mandatory detention.”  (D.N.  9, Page ID.56)  In support of  that 
proposition, they cite Chanaguano Caiza v. Scott , No. 1:25-cv-00500-JAW, 2025 WL 3013081 
(D. Me. Oct. 28, 2025).  In that case, the court concluded that the petitioner was “restored to 
detention under” § 1225(b)(2).  Id. at *7.  But the court did not explain how a noncitizen can be 
“restored to detention” pursuant to 8 C.F.R. § 212.5(e)(2)(i).  See id. at *6–7.  Moreover, the case 
is distinguishable because the parties there disputed whether the petitioner was detained under a 
different statutory provision, § 1225(b)(2).  See id. at *6.  In any event, 8 C.F.R. § 212.5(e)(2)(i) 
does not provide that a noncitizen is treated as if “still at the border,” and thus subject to mandatory 
detention, upon the expiration of parole.  Rodriguez-Acurio, 2025 WL 3314420, at *17; see id. at 
*18.  Section 1182(d)(5)(A) “may permit [Herrera]  to be returned to ICE custody, but her case, 
which necessarily includes the procedures required before detention, ‘shall continue to be dealt 
with in the same manner as that of any other applicant for admission.’”  Id. at *18 (quoting 
§ 1182(d)(5)(A)).  “[A]ny other applicant for admission residing in the United States for [nearly] 
three years would be detained under Section  1226” and thus entitled to a bond hearing.   Id. 
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(citations omitted); see Lopez Benitez, 795 F. Supp. 3d at 497; see also Jennings, 583 U.S. at 288 
(observing that “once inside the United States .  . . , an alien present in the country may still be 
removed” under § 1226).  Respondents’ treatment of Herrera is consistent with this understanding 
because an administrative arrest warrant was issued authorizing her re-detention under § 1226 (see 
D.N. 9-3, PageID.70).  See Rodriguez-Acurio, 2025 WL 3314420, at *18. 
“Sections 1225 and 1226 are ‘mutually exclusive—a noncitizen cannot be subject to both 
mandatory detention under § 1225 and discretionary detention under § 1226.’”  Id. at *24 (quoting 
Lopez Benitez, 795 F. Supp. 3d at 485).  In accordance with its prior decisions, the Court concludes 
that Herrera is detained under § 1226 and is thus entitled to a bond hearing.  See Singh v. Lewis, 
No. 4:25-cv-133-DJH, 2025 WL  3298080, at *5 (W.D. Ky. Nov. 26, 2025); Lopez, 2025 
WL 3217036, at *3; Alonso v. Tindall, No. 3:25-cv-652-DJH, 2025 WL 3083920, at *8 (W.D. Ky. 
Nov. 4, 2025). 
B. Due Process 
 Herrera asserts that her detention violates due process under the Fifth Amendment.  ( See 
D.N. 1, PageID.12–13 ¶¶ 44–46)  Although Respondents do not contest this claim (see generally 
D.N. 9), the Court will nevertheless address it. 
The Fifth Amendment’s Due Process Clause extends to all persons, including noncitizens, 
regardless of immigration status and in the context of removal proceedings.  Plyler v. Doe, 457 
U.S. 202, 210 (1982) (citations omitted); A.A.R.P . v. Trump, 605 U.S. 91, 94 (2025) (per curiam) 
(citation omitted).  To determine whether civil detention violates a petitioner’s due process rights, 
the Court applies the three-part balancing test set out in Mathews v. Eldridge, 424 U.S. 319 (1976).  
Alonso, 2025 WL 3083920, at *8 (citing Barrera, 2025 WL 2690565, at *6).  Under that test, the 
Court weighs 
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(1) the private interest that will be affected by the official action; (2)  the risk of an 
erroneous deprivation of such interest through the procedures used, and the 
probable value, if any, of additional or substitute procedural safeguards; and (3) the 
United States’ interest, including the function involved and the fiscal and 
administrative burdens that the additional or substitute procedural requirement 
would entail. 
 
Barrera, 2025 WL 2690565, at *6 (citing Mathews, 424 U.S. at 335). 
 
 Like the petitioners in Barrera and other cases recently before the Court, Herrera “has a 
significant private interest in not being detained.”  Id.; see Singh, 2025 WL 3298080, at *6; Alonso, 
2025 WL 3083920, at *9.  Moreover, “the risk of erroneously depriving [Herrera] of [her] freedom 
is high if the [immigration judge] fails to assess [her] risk of flight and dangerousness.”  Lopez-
Campos v. Raycraft, 797 F. Supp. 3d  771, 785 (E.D. Mich. 2025) ; see 8 C.F.R. § 1236.1(c)(8), 
(d)(1).  Finally, the Court “recognizes that the United States does have a strong interest in ensuring 
noncitizens do not harm their community and that they appear for future immigration 
proceedings.”  Barrera, 2025 WL 2690565, at *7 (citation omitted).  But a “routine bond hearing 
before an [immigration judge]” presents “minimal” fiscal and administrative burdens, and “there 
is an established process for doing so that [the Department of Homeland Security] can readily 
follow here.”  Hyppolite, 2025 WL 2829511, at *15.  Thus, because all three Mathews factors 
weigh in Herrera’s favor, the Court concludes that her detention violates due process.  See Singh, 
2025 WL 3298080, at *5–6; Barrera, 2025 WL 2690565, at *6–7. 
III. 
For the reasons set forth above, and the Court being otherwise sufficiently advised, it is 
hereby 
 ORDERED as follows: 
(1) Herrera’s petition for a writ of habeas corpus (D.N. 1) is GRANTED.  Respondents 
are DIRECTED to immediately release Herrera, and, in the event she is arrested and re-detained, 
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provide her with a bond hearing before a neutral Immigration Judge in accordance with 8 U.S.C. 
§ 1226(a).  Respondents SHALL certify compliance with the Court’s Order by a filing on the 
docket no later than March 2, 2026.
(2) Herrera’s motion for a temporary restraining order (D.N. 3) is DENIED as moot.
(3) Upon receipt of the notice of compliance, this matter will be CLOSED.
February 27, 2026
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