govinfo:USCOURTS-ncwd-3_26-cv-00314-0

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF NORTH CAROLINA 
CHARLOTTE DIVISION 
3:26-CV-00314-MEO 
BAYE SALIOU DIAGNE, 
 
Petitioner, 
 
 v. 
 
MARKWAYNE MULLIN et al., 
 
Respondents. 
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MEMORANDUM & ORDER 
 
THIS MATTER is before the Court on Petitioner Baye Saliou Diagne’s petition 
for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (D oc. No. 1) and Motion for 
Temporary Restraining Order and Preliminary Injunction. (Doc. No. 3). Petitioner 
asserts that he has been illegally detained by the United States Department of 
Homeland Security’s Immigration and Customs Enforcement (“ICE”) since April 21, 
2026. Petitioner filed the present motion for temporary restraining order requesting 
that this Court order his release or direct Respondents to provide a prompt, 
individualized bond hearing consistent wi th 8 U.S.C. § 1226(a). After reviewing the 
parties’ submissions and considering the ar guments at hearing, the Court will deny 
the motion and dismiss the petition without prejudice for failure to exhaust 
administrative remedies. 
I. BACKGROUND 
Petitioner brings this petition agai nst Markwayne Mullin, in his official 
capacity as Secretary of the U.S. Departme nt of Homeland Security (“DHS”); Todd 
Lyons, in his official capacity as Acting Director of ICE; Todd Blanch, in his official 

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capacity as acting Attorney General of the United States; and John Doe, Field Office 
Director for ICE in Charlotte, North Carolina. (Doc. No. 1 at 3–4). 
On January 28, 2022, Petitioner Baye Saliou Diagne, a native and citizen of 
Senegal, illegally entered the United States without inspection or admission. (Doc. 
No. 1 ¶ 16; 7-1 at 2 ¶¶ 4–5; 7-1 at 6–8). That day, United States Customs and Border 
Protection (“CBP”) encountered Petitioner near Eagle Pass, Texas, and took him into 
custody. Id. On January 31, 2022, Petitioner was placed in expedited removal 
proceedings1 through service of a Form I-860 Notice and Order of Expedited Removal. 
(Doc. No. 7-1 at 2 ¶ 6; 7-1 at 10). Petitioner was also provided a Form I-296 Notice to 
Alien Ordered Removed. Id. at 2 ¶ 6; id. at 12. On or about that same day, Petitioner 
made a claim for relief from removal to Senegal. Id. at 2 ¶ 7; id. at 14–17. 
After Petitioner was transferred into the custody of ICE Enforcement and 
Removal Operations (“ICE/ERO”), on March 9, 2022, United States Citizenship and 
Immigration Services (“USCIS”) initiated an interview regarding Petitioner’s claim 
for relief from removal, however, Petitioner’s expedited removal process could not 
move forward due to the unavailability of an interpreter at that interview. 
Id. at 1–2 
¶¶ 1, 9–10. Accordingly, on or about March 11, 2022, USCIS issued a discretionary 
Notice to Appear (“NTA”) and placed Peti tioner into removal proceedings under the 
Immigration and Nationality Act (“INA”) § 240, codified at 8 U.S.C. § 1229a. Id. at 2 
¶ 10; id. at 19, 21–23. The NTA charged Petitioner as inadmissible under 8 U.S.C. § 
1182(a)(7)(A)(i)(I). Id. at 21. On March 16, 2022, Petitioner received and signed an 
 
1 See 8 U.S.C. § 1225(b)(1). 

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Interim Notice Authorizing Parole under 8 U.S.C. § 1182(d)(5)(A), for a period of one 
year.2 Id. at 2 ¶ 11; id. at 25–26. This notice provides that Petitioner’s “parole 
authorization is valid for one year beginning from the date on this notice and will 
automatically terminate upon [his] departur e or removal from the United States or 
at the end of the one-year period unless ICE provides [him] with an extension at its 
discretion.” Id. at 25. On March 18, 2022, Petition er was released from detention 
pursuant to that notice. Id. at 2 ¶ 11. 
Petitioner’s case was scheduled for a master hearing in the San Antonio 
Immigration Court on April 25, 2022. Id. at 3 ¶ 12; id. at 28. On April 26, 2022, 
following the Petitioner’s release on interim parole, DHS filed a Notice to EOIR: Alien 
Address, advising the immigration court of the Petitioner’s address in Winston 
Salem, NC. 
Id. at 3 ¶ 12; id. at 30. The San Antonio Immigration Court changed venue 
to the Charlotte Immigration Court that same day. Id. at 32–33. On April 27, 2022, 
the Charlotte Immigration Court issued a No tice of Hearing setting the Petitioner’s 
case to November 6, 2024. Id. at 3 ¶ 14; id. at 35. 
Almost a year later, on March 13, 2023, Petitioner filed a Form I-589 
Application for Asylum with the Charlotte Immigration Court. (Doc. Nos. 1 ¶ 19; 7-1 
at 3 ¶ 15). On March 16, 2023, Petition er’s humanitarian parole automatically 
terminated. See (Doc. No. 7-1 at 25). On Octobe r 25, 2024, Petitioner, through 
 
2 At the May 29, 2026 hearing, counsel for Petitioner asserted that Petitioner 
presumably did not understand this notice when he signed it because it was not 
translated to Petitioner’s native language . Counsel did not provide any evidence for 
this assertion. 

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counsel, entered written pleadings admitting the allegations and conceding the 
charges of removability in his Notice to Appear. Id. at 3 ¶ 17; id. at 40–45. 
On April 21, 2026, Petitioner reported to the Charlotte, North Carolina, 
ICE/ERO office, as part of their regular reporting requirements. Id. at 3 ¶ 18. 
ICE/ERO apprehended him without incident. Id. At 4:59 p.m. that day, Petitioner 
filed his petition for writ of habeas corpus in this Court. See (Doc. No. 1). At 
approximately 5:30 p.m., ICE/ERO transfe rred Petitioner to the Irwin County 
Detention Center in Ocilla, Georgia, and Petitioner arrived there at or around 12:30 
a.m. on April 22, 2026. (Doc. No. 7-1 at 3 ¶ 18; 
id. at 47–49). 
On April 30, 2026, this case was assigned to the undersigned. On May 6, 2026, 
Petitioner filed a Motion for Temporary Restraining Order and Preliminary 
Injunction, requesting that this Court order Respondents to either immediately 
release Petitioner from custody or direct Respondents to provide a prompt, 
individualized bond hearing consistent with 8 U.S.C. § 1226(a). (Doc. No. 3). On 
Thursday, May 7, 2026, the Court set a hearing on this matter for May 11, 2026. On 
May 11, 2026, prior to the hearing, Respon dents filed a response to Petitioner’s 
motion, asserting that Petitioner was placed in expedited removal proceedings and is 
subject to mandatory detention pursuant to 8 U.S.C. § 1225(b)(1). (Doc. No. 6 at 3). 
At the hearing that same day, the Court granted Respondents’ request for additional 
time to provide the necessary materials and exhibits in this case, and to further brief 
the issues. Petitioner did not oppose that request. 
On May 15, 2026, Respondents filed supplemental factual information, 

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including a Declaration of Daniel Samartin, Deportation Office, ICE/ERO, as well as 
supporting exhibits. (Doc. Nos. 7; 7-1) . On May 18, 2026, Respondents requested 
additional pages for their supplemental br iefing because upon their review of the 
supplemental factual information, they discov ered that Petitioner was no longer in 
expedited removal proceedings, but rather, was purportedly processed for detention 
under § 1225(b)(2) and was and is su bject to mandatory detention under 
§ 1225(b)(2)(A). (Doc. No. 8 at 3). On May 19, 2026, Respondents filed their 
supplemental memorandum in support of that realization. (Doc. No. 9). On May 25, 
2026, Petitioner filed his response to Respondents’ supplemental memorandum, 
arguing that his detention is governed by § 1226(a), and further, that the Government 
violated his statutory and constitutional due process rights when it terminated his 
humanitarian parole. (Doc. No. 10). 3 On May 29, 2026, the Court held a second 
hearing for arguments on the developing issues in this case. 
II. LEGAL STANDARD 
A district court may grant a writ of habeas corpus to any person who 
demonstrates he is “in custody in violation of the Constitution or laws or treaties of 
the United States.” 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has 
served as a means of reviewing the legality of Executive detention, and it is in that 
context that its protections have been strongest.” INS v. St. Cyr , 533 U.S. 289, 301 
 
3 In Petitioner’s response and at the second hearing in this matter, Petitioner asserted 
new arguments in support of his release, primarily, those related to the allegedly 
unlawful termination of his humanitarian parole. (Doc. No. 10 at 6–8). To the extent 
Petitioner wishes to pursue these arguments as a basis for his request for habeas 
relief, Petitioner should raise these claims in an amended petition. 

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(2001); see Munaf v. Geren, 553 U.S. 674, 693 (2008) (“Habeas is at its core a remedy 
for unlawful executive detention.”). In the immigration context, habeas is “regularly 
invoked on behalf of noncitizens.” St. Cyr, 533 U.S. at 305. But “‘even where a habeas 
court has the power to issue the writ,’ the question remains ‘whether . . . that power 
ought to be exercised.’” Timms v. Johns, 627 F.3d 525, 530 (4th Cir. 2010) (quoting 
Munaf, 553 U.S. at 693). “While habeas corpus is ‘always available to safeguard the 
fundamental rights of persons wrongly incarcerated,’ it ‘is the avenue of last resort.’” 
Id. at 531 (quoting Martin–Trigona v. Shiff, 702 F.2d 380, 388 (2d Cir.1983)). 
III. DISCUSSION 
Petitioner argues that this Court should grant his motion for four reasons: (1) 
Respondents have asserted shifting positions while continuing to detain Petitioner in 
violation of the Fifth Amendment and fundamental principles of due process; (2) 
Petitioner is not subject to mandatory detention under § 1225(b)(2)(A); (3) the Court 
should waive exhaustion of administrati ve remedies because further proceedings, 
specifically a bond hearing, would be futile; and (4) the Court has personal 
jurisdiction over Petitioner’s habeas petition.
 See (Doc. Nos. 4, 10). Respondents 
argue that: (1) this Court lacks jurisdicti on over the warden where Petitioner is 
detained and this Court should transfer th is case to the venue where Petitioner is 
detained; (2) Petitioner should be required to exhaust his administrative remedies 
and request a bond hearing, particularly in light of the Eleventh Circuit’s recent 
opinion; and (3) Petitioner is detained pursuant to the plain language of 
§ 1225(b)(2)(A). 
See (Doc. No. 9). 

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A. Jurisdiction and Venue 
The Court first addresses jurisdiction and venue. The parties do not dispute 
that this Court has jurisdiction to hear Petitioner’s claim. Rather, Respondents argue 
that this Court lacks personal jurisdiction over the Warden of Irwin Detention Center 
in Ocilla, Georgia, where Petitioner is detained. For that reason, Respondents request 
that the Court transfer the Petition to the United States District Court for the Middle 
District of Georgia. (Doc . No. 9 at 24–25). Respondents contend that “the personal 
jurisdiction[] and venue link is so tenuous” that the Court should exercise “traditional 
venue considerations” and transfer this case to the venue where the Warden is 
located. 
Id. at 25. Petitioner opposes transferri ng venue, arguing that this Court 
clearly has habeas jurisdiction such that any request for dismissal or transfer should 
be denied. (Doc. No. 10 at 16–17). The Court agrees with Petitioner. 
District courts may grant writs of h abeas corpus “within their respective 
jurisdictions.” 28 U.S.C. § 2241(a). “Whene ver a § 2241 habeas petitioner seeks to 
challenge his present physical custody within the United States, he should name his 
warden as respondent and file the peti tion in the district of confinement.” Rumsfeld 
v. Padilla, 542 U.S. 426, 447 (2004). In general, “for core habeas petitions challenging 
present physical confinement, jurisdiction lies in only one distri ct: the district of 
confinement.” Id. at 443. “[W]hen the Government moves a habeas petitioner after 
she properly files a petition naming her immediate custodian, the District Court 
retains jurisdiction and may direct the writ to any respondent within its jurisdiction 
who has legal authority to effectuate the prisoner’s release.” 
Rumsfeld, 542 U.S. at 

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441. 
When Petitioner filed this Petition, he was in ICE’s custody in Charlotte, North 
Carolina, which is within the Western District of North Carolina. Shortly thereafter, 
the Government moved Petitioner to an ICE detention center in Ocilla, Georgia. 
Petitioner’s transfer outside of this district does not stri p this Court of jurisdiction 
over the Petition because when it was file d, Petitioner was in the custody of ICE in 
this district. Because the Court has jurisdiction to hear this case, it declines to 
undergo the discretionary venue-transfer analysis. 
B. Exhaustion of Administrative Remedies 
The Court next analyzes whether Petiti oner should be required to exhaust 
administrative remedies. The Court empathizes with Petitioner and recognizes the 
hardship this situation imposes upon hi m and his family, especially where he 
received no notice in advance of his de tention. However, the Court agrees with 
Respondents that Petitioner must exhaust his administrative remedies. 
“The doctrine of exhaustion of administ rative remedies is well established in 
the jurisprudence of administrative law and provides that no one is entitled to judicial 
relief for a supposed or threatened injury until the prescribed administrative remedy 
has been exhausted.” 
Miranda v. Garland, 34 F.4th 338, 351 (4th Cir. 2022) (citation 
modified) (quoting McKart v. United States, 395 U.S. 185, 193 (1969)). “Congress may 
codify the doctrine as a jurisdictional bar, and ‘[w]here Congress specifically 
mandates, exhaustion is required.’” Id. (alteration in original) (quoting McCarthy v. 
Madigan, 503 U.S. 140, 144 (1992)). But when Congress declines to statutorily 

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mandate that jurisdictional bar, “sound judicial discretion governs.” Id. 
Generally, “[p]rior to hearing a § 2241 petition, federal courts require 
exhaustion of alternative remedies, including administrative appeals.” Rodriguez v. 
Ratledge, 715 F. App’x 261, 265 (4th Cir. 2017) (p er curiam). This “is a prudential 
restraint, not a statutory requirement. It allows agencies to exercise autonomy and 
discretion and prevents premature judicial intervention.” Id. (citation omitted). 
Similarly, the INA does not require a noncitizen to exhaust administrative remedies 
prior to asserting a constitutional challenge to its immigration detention procedures. 
See Miranda, 34 F.4th at 351 (4th Cir. 2022). Thus, the Court must use its discretion 
in determining whether to require exhaustion in the instant case. 
When deciding whether to require exha ustion, “federal courts must balance 
the interest of the individual in retaining prompt access to a federal judicial forum 
against countervailing institutional interests favoring exhaustion.” McCarthy v. 
Madigan, 503 U.S. 140, 146 (1992). Indeed, “[a]dmi nistrative remedies need not be 
pursued if the litigant’s interests in immediate judicial review outweigh the 
government’s interests in the efficiency or administrative autonomy that the 
exhaustion doctrine is designed to further.” 
Id. “The individual’s interests weigh 
heavily in the following three circumstanc es: (1) when requiring exhaustion may 
prejudice subsequent court action; (2) when an agency’s remedy may be inadequate; 
and (3) when the ‘administrative agency bo d y i s s h o w n t o b e b i a s e d o r t o h a v e 
otherwise predetermined th e issues before it.’” Cavalier Tel., LLC v. Va. Elec. & 
Power Co., 303 F.3d 316, 323 (4th Cir. 2002) (first quoting Volvo GM Heavy Truck 

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Corp. v. Dep’t of Labor, 118 F.3d 205, 211 n.8 (4th Cir. 1997), then citing McCarthy, 
503 U.S. at 147–48). 
Petitioner’s counsel informed the Court at the hearing that Petitioner had not 
yet requested a bond hearing. Instead, Petitioner argues that the Court should not 
require him to make such a request or otherwise exhaust administrative remedies 4 
because further bond proceedings would be futile. (Doc. No. 10 at 13–16). Petitioner 
asserts that overwhelming evidence shows that the bond hearings occurring where 
Petitioner is detained are futile, however, Petitioner has failed to submit any specific 
evidence in this case other than presenting the conclusions of other district courts 
that a bond hearing would be futile. 
See id. Respondents contend that the Court 
should require Petitioner to exhaust his administrative remedies by requesting a 
bond hearing, particularly where, as here, he is detained in a jurisdiction in which he 
will likely receive a bond hearing if so requested. (Doc. No. 9 at 24). 
At this stage, the Court is wary of disrupting the administrative process when 
Petitioner has not even requested a custody hearing. Requiring Petitioner to proceed 
through the administrative process “allows the agency with subject-matter expertise 
 
4 “When an alien has an opportunity to raise a claim in administrative proceedings 
but does not do so, he fails to exhaust his administrative remedies as to that claim.” 
Etienne v. Lynch , 813 F.3d 135, 138 (4th Cir. 2015) (addressing circuit court 
reviewability); Id. at 141 (“[E]xhaustion of administrative remedies means using all 
steps that the agency holds out, and doing so properly .” (citation modified) (quoting 
Woodford v. Ngo, 548 U.S. 81, 90 (2006))); see 8 Gordon et al., Immigration Law and 
Procedure § 104.02 (2026) (“Exhaustion is satisfied when an issue is raised before the 
Board of Immigration Appeals (BIA) by anyone in the litigation, whether it is the 
petitioner, the government, another party, or the BIA itself.”); see also Lizama v. 
Holder, 629 F.3d 440, 448–49 (4th Cir. 2011) (concluding the petitioner exhausted the 
issue when he raised it in his notice of appeal and the BIA addressed it in its decision). 

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to retain primary responsibility over the area; it avoids unnecessary litigation; and it 
creates a record in case judicial review is necessary.” Williams v. Reed, 604 U.S. 168, 
184 (2025) (Thomas, J., joined by Alito, J., Gorsuch, J., Barrett, J., dissenting). 
Turning to Petitioner’s interests, wh ile the Board of Immigration Appeals 
(“BIA”) has shown its predetermination of the issues Petitioner seeks to litigate, see 
Matter of Yajure Hurtado , 29 I. & N. Dec. 216 (BIA 2025) , Petitioner is detained in 
the Eleventh Circuit, which has recently rejected the BIA’s interpretation and “limits 
no-bond detention to applicants for admission who are ‘seeking admission.’” 
Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami, 175 F.4th 1258, 1262 (11th Cir. 
2026). Indeed, the “BIA . . . is obliged to apply the precedent of the relevant court of 
appeals in cases arising within the associated circuit — even if the Attorney General 
or the BIA itself disagrees with that precedent.” 
Garcia v. Garland, 73 F.4th 219, 230 
n.7 (4th Cir. 2023); see also Nguyen v. U.S. Att’y Gen. , 482 F. App’x 501, 503 (11th 
Cir. 2012) (“We are bound by that prior panel decision of this Circuit . . . . And, for 
cases arising in the Eleventh Circuit, so is the BIA.” (citations omitted)); Stevens v. 
Osuna, 877 F.3d 1293, 1303 (11th Cir. 2017) (“ Immigration Judges are also bound 
both by agency precedent and by preced ent established by the federal appellate 
courts.” (citation omitted)). 
Thus, it appears that requiring “administrative review of the controlling legal 
question is likely to result in an agency decision that honors the law” in the Eleventh 
Circuit where Petitioner is detained. See, e.g., Biswas v. Mullin , No. 1:26-CV-1514, 
2026 WL 1506015, at *3 (W.D. Mich. May 29, 2026) (dismissing habeas petition for 

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failure to exhaust administrative remedi es because a request for a bond hearing 
would not be futile, where the petitioner is detained in the Sixth Circuit, which means 
the petitioner will likely be afforded a bond hearing pursuant to § 1226(a)). And based 
on the Eleventh Circuit’s interpretation of the law, the Court does not find that a 
request for a bond hearing by Petitioner would be futile. See Hernandez Alvarez, 175 
F.4th at 1285. Additionally, as is the case here, “[r]equiring exhaustion is particularly 
appropriate when the administrative remedy may eliminate the necessity to decide 
constitutional questions.” Am. Fed’n of Gov’t Emps. v. Nimmo , 711 F.2d 28, 31 (4th 
Cir. 1983) (citing Aircraft & Diesel Equip. Corp. v. Hirsch , 331 U.S. 752, 772–73 
(1947)). 
For these reasons, Petitioner must purs ue the administrative remedies that 
are available to him, including requesting a custody hearing before an immigration 
judge. Should he not receive the remedy he seeks, he is free to file another habeas 
petition with a full administrative record for a court to consider. 
IV. CONCLUSION 
IT IS, THEREFORE, ORDERED that Petitioner’s Motion for Temporary 
Restraining Order and Preliminary Injunction (Doc. No. 3) is DENIED and the 
Petition is DISMISSED without prejudice for lack of exhaustion of administrative 
remedies. 
SO ORDERED. 
Signed: June 6, 2026 

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