# Cetino

> District Court, M.D. Florida · December 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11221769

## Case

- **Full name:** Gabriel Cetino v. David Hardin, et al.
- **Court:** District Court, M.D. Florida
- **Decided:** December 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11221769

## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11221769. Public record. Not legal advice.