Cetino

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

GABRIEL CETINO,

Petitioner,

v. Case No. 2:25-cv-1037-JES-DNF

DAVID HARDIN, et al.,

Respondents,

________________________/

OPINION AND ORDER

Before the Court is Gabriel Cetino’s Petition for a Writ of

Habeas Corpus (Doc. #1). Cetino claims Immigration and Customs

Enforcement (ICE) is violating the Immigration and Nationality Act

(INA) and the Fifth Amendment’s Due Process Clause by holding him

in Glades County Detention Facility without a bond hearing. (Id.)

The issues have been fully briefed. (Docs. #9 and #10). The Court

grants the petition.

I. Background

Cetino is a native and citizen of Guatemala who entered the

United States on April 28, 2019, at the age of 14. The Department

of Homeland Security (DHS) commenced removal proceedings that day

by issuing a Notice to Appear. Cetino has a pending request for

asylum and withholding of removal based on the murder of his mother

in Guatemala, he has attended his immigration court hearings, and

he has no criminal convictions. ICE arrested Cetino on August 18,

2025, and detained him at Glades Detention Center without a bond

hearing.

II. Discussion

The core of the dispute before this Court is whether 8 U.S.C.

§ 1225(b)(2) or § 1226(a) of the INA applies to Cetino. The

distinction matters because § 1225(b)(2) mandates detention, while

noncitizens detained under § 1226(a) are entitled to a bond hearing

before an immigration judge.

A. Subject-Matter Jurisdiction

Respondents argue that the INA divests the Court of

jurisdiction over Cetino’s petition. They first point to a

provision of the INA that bars courts from hearing certain claims.

It states:

Except as provided in this section and

notwithstanding any other provisions of law

(statutory or nonstatutory), including

section 2241 of Title 28, or any other habeas

corpus provision, and sections 1361 and 1651

of such title, no court shall have

jurisdiction to hear any cause or claim by or

on behalf of any alien arising from the

decision or action by the Attorney General to

commence proceedings, adjudicate cases, or

execute removal orders against any alien under

this chapter.

8 U.S.C. § 1252(g). But this jurisdictional bar is narrow. “The

provision applies only to three discrete actions that the Attorney

General may take: her ‘decision or action’ to ‘commence

proceedings, adjudicate cases, or execute removal orders.” Reno

v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482

(1999) (emphasis in original); see also Jennings v. Rodriguez, 583

U.S. 281, 294 (2018) (“We did not interpret this language to sweep

in any claim that technically can be said to ‘arise from’ the three

listed actions of the Attorney General. Instead, we read the

language to refer to just those three specific actions

themselves.”). “When asking if a claim is barred by § 1252(g),

courts must focus on the action being challenged.” Canal A Media

Holding, LLC v. United States Citizenship and Immigr. Servs., 964

F.3d 1250, 1258 (11th Cir. 2020).

Respondents cite two Eleventh Circuit cases to support their

argument that § 1252(g) strips the Court of jurisdiction to

consider Cetino’s claims: Gupta v. McGahey, 709 F.3d 1062 (11th

Cir. 2013) and Alvarez v. ICE, 818 F.3d 1194, 1203 (11th Cir.

2016). In both cases, the plaintiffs filed Bivens1 actions against

ICE officials after their release from detention. The Eleventh

Circuit found that § 1252(g) barred both actions because they

challenged the methods the defendants used to commence removal

proceedings.

The factual and legal scenario presented in this case differs

from Gupta and Alverez. Cetino does not challenge the decision to

commence removal proceedings against him, the decision to arrest

1 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

and detain him, or the methods by which he was detained. Rather,

Cetino challenges the Attorney General’s treatment of him as an

“alien seeking admission,” whose detention is governed by §

1225(a)(2) rather than § 1226(a). Cf. Madu v. U.S. Atty. Gen.,

470 F.3d 1362, 1368 (11th Cir. 2006) (“While [§ 1252(g)] bars

courts from reviewing certain exercises of discretion by the

attorney general, it does not proscribe substantive review of the

underlying legal bases for those discretionary decisions and

actions.”).

In short, Cetino asks the Court to answer a legal question—

whether he is subject to mandatory detention under § 1225(b)(2) or

discretionary detention under § 1226(a). He does not ask the Court

to second-guess DHS’s discretionary decision to commence removal

proceedings against him. Thus, § 1252(g) does not bar this action.

See Grigorian v. Bondi, No. 25-CV-22914-RAR, 2025 WL 2604573, at

*3-4 (S.D. Fla. Sept. 9, 2025) (finding Section 1252(g)

inapplicable to an alien’s challenge of immigration detention

based on ICE’s noncompliance with statutory requirements when

revoking an order of supervised release).

Respondents also raise the INA’s “zipper clause,” which

states:

Judicial review of all questions of law and

fact, including interpretation and

application of constitutional and statutory

provisions, arising from any action taken or

proceeding brought to remove an alien from the

United States under this subchapter shall be

available only in judicial review of a final

order under this section. Except as otherwise

provided in this section, no court should have

jurisdiction, by habeas corpus under section

2241 or title 28 or any other habeas corpus

provision, by section 1361 or 1651 of such

title, or by any other provision of law

(statutory or nonstatutory), to review such an

order or such question of law or fact.

8 U.S.C. § 1252(b)(9). Specifically, they argue the action Cetino

challenges—“ICE’s decision to detain him in the first instance”—

is an action taken to remove an alien. (Doc. #9 at 8).

This argument does not carry the day. Supreme Court and

Eleventh Circuit precedent is clear. The zipper clause only

applies to claims requesting review of a removal order. See Madu,

470 F.3d at 1365 (holding the INA did not divest the district court

of jurisdiction over a § 2241 challenge to detention of the

petitioner pending deportation). Cetino is not asking for review

of an order of removal; he is not challenging the decision to seek

removal; and he is not challenging any part of the process by which

his removability will be determined. Jennings, 583 U.S. at 294.

The zipper clause does not apply.

B. Exhaustion of Administrative Remedies

Respondents next argue that the Court should dismiss this

action as unexhausted since Cetino did not make an administrative

request for a bond hearing. Cetino claims such a request would be

futile due to a precedential decision by the Board of Immigration

Appeals (BIA). In Matter of Yajure Hurtado, the BIA held that

immigration judges never have authority to consider bond requests

from noncitizens who entered the United States without inspection

because those aliens are always held under § 1225 and must be

detained for the duration of their removal proceedings. 29 I&N

Dec. 216, 220 (BIA. 2025).

Petitioners need not exhaust administrative remedies if “the

administrative body is shown to be biased or has otherwise

predetermined the issue before it.” McCarthy v. Madigan, 503 U.S.

140, 148 (1992); see also Shalala v. Ill. Counsel on Long Term

Care, Inc., 529 U.S. 1, 13 (2000). The BIA has determined that

noncitizens in Cetino’s position are subject to mandatory

detention and are not eligible for bond hearings. Thus, requiring

Cetino to make an administrative request for a bond hearing would

be futile because the result is predetermined. District courts

around the country have reached the same conclusion. See Patel v.

Hardin, No. 25-cv-870-JES-NPM, 2025 WL 3442706, at *3 n.5 (M.D.

Fla. Dec. 1, 2025) (collecting cases). The Court finds good cause

to excuse exhaustion.

C. Legal Basis for Detention

Cetino asserts that Respondents are detaining him in

violation of the Fifth Amendment’s Due Process Clause and the INA.

The key question is whether Cetino’s detention is governed by §

1225(b)(2), which mandates detention, or § 1226(a), which allows

for release on bond. Respondents argue that Cetino is an “alien

seeking admission” under § 1225(b)(2) because he entered the United

States without being admitted after inspection by an immigration

officer. Cetino counters that he is not an “alien seeking

admission” because he was apprehended inside the United States

years after his entry, so § 1226(a) applies.

The Supreme Court recently analyzed the interplay between §

1225 and § 1226 in Jennings v. Rodriguez. There, the Court

observed that the decision of who may enter this country and who

may remain “generally begins at the Nation’s borders and ports of

entry, where the Government must determine whether an alien seeking

to enter the country is admissible.” Jennings, 583 U.S. at 287.

As relevant here, the Court explained that § 1225 “applies

primarily to aliens seeking entry into the United States.” Id. at

297. By contrast, § 1226 “applies to aliens already present in

the United States.” Id. at 303. “Section 1226(a) creates a

default rule for those aliens by permitting—but not requiring—the

Attorney General to issue warrants for their arrest and detention

pending removal proceedings.” Id. “Section 1226(a) also permits

the Attorney General to release those aliens on bond[.]” Id.

The government followed this dichotomy “for the past three

decades.” Pizarro Reyes v. Raycraft, No. 25-CV-12546, 2025 WL

2609425, at *4 (E.D. Mich. Sept. 9, 2025). That is, until July 8,

2025, when DHS announced a change:

An “applicant for admission” is an alien present in the

United States who has not been admitted or who arrives

in the United States, whether or not at a designated

port of arrival. INA § 235(a)(1). Effective

immediately, it is the position of DHS that such aliens

are subject to detention under INA § 235(b) and may not

be released from ICE custody except by INA § 212(d)(5)

parole. These aliens are also ineligible for a custody

redetermination hearing (“bond hearing”) before an

immigration judge and may not be released for the

duration of their removal proceedings absent a parole by

DHS. For custody purposes, these aliens are now treated

in the same manner that “arriving aliens” have

historically been treated.

ICE Memo: Interim Guidance Regarding Detention Authority for

Applicants for Admission, AILA Doc. No. 25071607 (July 8, 2025);

see also Merino v. Ripa, No. 25-23845-CIV-MARTINEZ, 2025 WL

2941609, at *3 (S.D. Fla. Oct. 15, 2025) (discussing the memo).

The BIA adopted and applied this new policy in Yajure Hurtado,

supra.

Since DHS’s change in policy, courts in this District and

around the country have rejected its new interpretation of the

INA. This Court recently joined the consensus and explained the

flaws in Respondent’s reasoning:

First, the text of the statutes suggests that § 1225

does not apply to aliens who have been in the United

States for long periods. Section 1225 is titled:

“Inspection by immigration officers; expedited removal

of inadmissible arriving aliens; referral for hearing.”

Id. The use of “arriving” indicates that the statute

governs incoming noncitizens, not those present already.

This is supported by the text of the statute itself,

which is focused on inspections for noncitizens when

they arrive via “crewman” or as “stowaways.” 8 U.S.C. §

1225(b)(2). These limited and more specific methods of

entry suggest that § 1225 applies to noncitizens

arriving at a border or port and are presently “seeking

admission” into the United States.

Next, context and the Supreme Court’s interpretation of

these statutes point in the same direction. Courts are

meant to “construe statutes, not isolated provisions.”

King v. Burwell, 576 U.S. 473, 486 (2015). As mentioned,

the Supreme Court has identified § 1226 as the “default

rule” applicable “to aliens already present in the

United States.” Jennings, 583 U.S. at 281, 288. “That

Congress separated removal of arriving aliens from its

more general section for ‘Apprehension and detention of

aliens,’ § 1226, implies that Congress enacted § 1225

for a specific, limited purpose.” Pizarro Reyes, 2025 WL

2609425, at *5. The Supreme Court has also observed that

“our immigration laws have long made a distinction

between those aliens who have come to our shores seeking

admission . . . and those who are within the United

States after an entry, irrespective of its legality. In

the latter instance the Court has recognized additional

rights and privileges not extended to those in the former

category who are merely ‘on the threshold of initial

entry.’” Leng May Ma v. Barber, 357 U.S. 185, 187 (1958)

(quoting Shaughnessy v. United States ex rel. Mezei, 345

U.S. 206 (1953)); see also Zadvydas v. Davis, 533 U.S.

678, 693 (2001) (“But once an alien enters the country,

the legal circumstance changes, for the Due Process

Clause applies to all ‘persons’ within the United

States, including aliens, whether their presence here is

lawful, unlawful, temporary, or permanent.”).

Third, when considering amendment of the INA in 1996,

Congress again acknowledged that noncitizens present in

the United States have more substantial due process

rights than new arrivals. See H.R. Rep. 104-469, p.1, at

163–66 (recognizing “that an alien present in the U.S.

has a constitutional liberty interest to remain in the

U.S., and that this liberty interest is most significant

in the case of a lawful permanent resident alien”).

Following the amendment, federal regulations explained,

“Despite being applicants for admission, aliens who are

present without having been admitted or paroled

(formerly referred to as aliens who entered without

inspection) will be eligible for bond and bond

redetermination.” Inspection and Expedited Removal of

Aliens, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997).

Finally, accepting Respondents’ argument would leave §

1226 superfluous. Interpreting § 1225 to govern all

noncitizens present in the country who had not been

admitted leaves § 1226 with no apparent application. See

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a

cardinal principle of statutory construction that a

statute ought, upon the whole, to be so construed that,

if it can be prevented, no clause, sentence, or word

shall be superfluous, void, or insignificant.”).

Patel, 2025 WL 3442706, at *5.

It is undisputed that Cetino has been in this country since

2019. His detention is thus governed by § 1226(a). As a noncitizen

detained under § 1226(a), Cetino has a right to a bond hearing.

See Jennings, 583 U.S. at 306 (“Federal regulations provide that

aliens detained under § 1226(a) receive bond hearings at the outset

of detention.”) (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)).

Accordingly, it is hereby

ORDERED:

1. Gabriel Cetino’s Petition for a Writ of Habeas Corpus

(Doc. #1) is GRANTED.

2. Within ten (10) days of this Opinion and Order,

Respondents shall either (1) bring Cetino before an immigration

judge for an individualized bond hearing or (2) release Cetino

under reasonable conditions of supervision. If Respondents

release Cetino, they shall facilitate his transportation from the

detention facility by notifying his counsel when and where he may

be collected.

3. All other relief is DENIED.

4. The Clerk is DIRECTED to terminate any pending motions

and deadlines, enter judgment, and close the case.

DONE AND ORDERED in Fort Myers, Florida on December 12th , 2025.

JGHH E. STEELE

5 IOR UNITED STATES DISTRICT JUDGE

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