Immigrant applying for legal status loses right to bond hearing under federal law.

Record source: CourtListener

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION at Covington ELIOTH EMMANUEL SALAZAR ) ORTIZ, ) ) Petitioner, ) Civil Action No. 2:26-cv-00180-SCM ) v. ) MEMORANDUM OPINION AND ) ORDER MARKWAYNE MULLIN, et al., ) ) Respondents. ) ) *** *** *** *** The Petitioner, Elioth Emmanuel Salazar Ortiz, is a Mexican citizen and U Visa applicant who is detained by United States Immigration and Customs Enforcement at the Kenton County Detention Center. [Dkt. 1 at 2–3]. The Petitioner filed a Petition for a Writ of Habeas Corpus seeking immediate release or, in the alternative, a bond hearing. [Id. at 17–18]. The Petitioner later filed a Motion to Expedite, [Dkt. 7], and most recently filed a Petition for a Writ of Mandamus, [Dkt. 10]. For the following reasons, the Petitioner’s Petition will be denied and his related Motion to Expedite will therefore be denied as moot. I. Facts The Petitioner is a citizen of Mexico who is charged with being removable by reason of not possessing a valid travel document or valid identification at the time of his application for admission to the United States. [Dkt. 1-2 at 1, 4]. He is currently held in the Kenton County Detention Center in Covington, Kentucky, under federal custody and is subject to removal proceedings. [Dkt. 1 at 2–4]. The Petitioner presented himself on November 15, 2022, at the San Ysidro port of entry, at which time he was detained by the Department of Homeland Security, issued a Notice to Appear, and subsequently released on parole. [Id. at 2, 9–10; Dkt. 1-2]. The Petitioner was designated as an “arriving alien” when he presented himself at the port of entry. [Dkt. 1 at 9, 17]. He ultimately applied for asylum relief, withholding of removal, and protection under the Convention Against Torture. [Id.at 2, 4]. The Petitioner’s application for asylum and withholding of removal was denied on September 12, 2024. [Id. at 4]. The Petitioner later filed an application for a U Visa1 on February 5, 2026. [Id.]. The Petitioner has been detained since approximately March 18, 2026, when he was taken into custody at an immigration appointment related to his U Visa application. [Id.]. II. Analysis This case highlights the absurd results compelled by the Sixth Circuit’s opinion in Lopez-Campos v. Raycraft, 175 F.4th 713 (6th Cir. 2026), petition for cert. filed, No. 25-1415 (U.S. June 24, 2026). Under the reasoning of that opinion, noncitizens “who did not attempt lawful entry into the United States and are actively avoiding being inspected for lawful entry[] are not ‘seeking admission’ and are thus not subject to 1 To be more precise, the Petitioner is “a derivative on his stepfather’s U Visa application.” [Dkt. 1 at 2]. “A U visa generally entitles an eligible noncitizen to lawfully remain in the United States and to seek work authorization.” Patel v. Wilkinson, No. 19-4254, 2021 WL 2253966, at *1 n.2 (6th Cir. Feb. 1, 2021) (citing 8 U.S.C. §§ 1101(a)(15)(U) and 1184(p)(6)). It is thus a grant of lawful status. § 1225(b)(2)(A)’s mandatory detention scheme.” Id. at 723. Instead, such noncitizens must be provided with a bond hearing in immigration proceedings pursuant to the statutory scheme set forth by 8 U.S.C. § 1226. But as soon as those noncitizens take an affirmative step to attain lawful admission to the United States, like filing a U Visa application, they no longer fit within the Sixth Circuit’s holding and instead become subject to mandatory detention under 8 U.S.C. § 1225(b)(2). This outcome puts noncitizens to a Hobson’s choice: They can either get a bond hearing by making no claim to lawful admission, or they can pursue whatever pathway to lawful admission may exist—with the guarantee of mandatory detention in the meantime and no promise that lawful status or release ultimately awaits them.2 But this is the unavoidable consequence of the Sixth Circuit’s reasoning, and so the Court is bound to conclude the Petitioner’s choice to apply for a U Visa means he is properly detained under 8 U.S.C. § 1225(b)(2). In the alternative, the Court concludes that the Petitioner is properly detained under either 8 U.S.C. §1225(b)(1) or 8 U.S.C. §1225(b)(2) as an “arriving alien” because neither his parole into the United States nor the end of his parole changed his pre-existing legal status. The Petitioner first argues that his detention is unlawful because the Government did not give him written notice when revoking his parole and otherwise 2 In Department of Homeland Security v. Thuraissigiam, the Supreme Court characterized a similar situation as “creat[ing] a perverse incentive to enter at an unlawful rather than a lawful location.” 591 U.S. 103, 140 (2020). The Court shares Judge Murphy’s concern that the Sixth Circuit’s opinion in Lopez-Campos v. Raycraft creates a comparable “perverse incentive.” 175 F.4th 713, 755–56, 761 (6th Cir. 2026) (Murphy, J., dissenting) (quoting Thuraissigiam, 591 U.S. at 140). “failed to follow their own regulations in revoking humanitarian parole” by not providing him with an individualized assessment before revoking his parole. [Dkt. 1 at 10–13]. In the alternative, the Petitioner argues that his detention violates his Due Process rights on various grounds. [Id. at 13–17]. His final alternative argument is that he is “not currently seeking admission to the United States” and so is detained pursuant to 8 U.S.C. § 1226, which he says applies to noncitizens who were present in the United States when they were detained and requires the Government to provide him with a bond hearing. [Id. at 17–18]. To buttress this argument, the Petitioner invokes the Sixth Circuit’s recent decision in Lopez-Campos. [Dkt. 6 at 3 (citing Lopez-Campos, 175 F.4th 713)]. In that case, the Sixth Circuit held that mandatory detention without a bond hearing “applies to certain noncitizens who seek admission into the country, whereas [a] permissive detention scheme [requiring a bond hearing] applies to all other noncitizens pending a decision on their removability, with exceptions.” Lopez-Campos, 175 F.4th at 722. In short, the Petitioner’s position is that because he was paroled into the United States from a port of entry, he is entitled to the same protections and Due Process rights as a noncitizen who is encountered for the first time in the interior of the United States. The Government argues in response that the Petitioner is detained under 8 U.S.C. § 1225(b)(2)—not 8 U.S.C. §1226—because he remains an “arriving alien” as a matter of law. [Dkt. 5 at 1]. This, the Government says, means that he is properly detained without a bond hearing. [See Dkt. 5 at 7–9 (“Bond has never b

Official opinion source