The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 0:26-CV-60337-MIDDLEBROOKS/AUGUSTIN-BIRCH
DANIEL BOZA-ALFONSO,
Petitioner,
v.
CARLOS NUNEZ, et al.,
Respondents.
____________________________________/
REPORT AND RECOMMENDATION ON
PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS
This cause comes before the Court on Petitioner Daniel Boza-Alfonso’s Verified Petition
for Writ of Habeas Corpus. DE 1. The Honorable Donald M. Middlebrooks, United States District
Judge, referred the Petition to the undersigned United States Magistrate Judge to take all action
required by law. DE 5. The Court ordered Respondents to show cause why Petitioner’s Petition
should not be granted, and Respondents filed a response to the Court’s Order to show cause. DE
7. Having carefully considered the briefing and being otherwise fully advised, the Court
RECOMMENDS ordering Respondents to either afford Petitioner an individualized bond hearing
before an immigration judge within seven days or release him.
I. Background
This case is one of many cases around the country stemming from the Department of
Homeland Security’s (“DHS”) recent changes to its interpretation of the Immigration and
Nationality Act’s (“INA”) detention provisions and the Board of Immigration Appeals’ (“BIA”)
agreement with that interpretation in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
On July 8, 2025, DHS informed Immigration and Customs Enforcement (“ICE”) employees that
8 U.S.C. § 1225(b)(2), rather than 8 U.S.C. § 1226, applies to all non-citizens present in the United
States who have “not been admitted . . . whether or not at a designated port of arrival.” See Merino
v. Ripa, No. 25-23845-CIV, 2025 WL 2941609, at *3 (S.D. Fla. Oct. 15, 2025) (quoting ICE
Memo: Interim Guidance Regarding Detention Authority for Applications for Admission, AILA
Doc. No. 25071607 (July 8, 2025)). As such, DHS has taken the position that non-citizens present
in the United States who have not been admitted or paroled are subject to mandatory detention
without the possibility of bond. Id. On September 5, 2025, BIA agreed with this interpretation,
issuing a binding ruling in Matter of Yajure Hurtado that immigration judges lack the authority to
hear bond requests or to grant bonds to non-citizens who are present in the United States without
admission because those non-citizens are properly detained under 8 U.S.C. § 1225(b)(2). See
Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). With this overarching background in
mind, the Court turns to the details of this case.
Petitioner is a native and citizen of Cuba who has resided in the United States since October
9, 2022. DE 1 ¶ 11. On November 6, 2025, ICE detained Petitioner and took him into custody at
the Broward Transitional Center in Broward County, where he remains to this date. Id. ¶¶ 1, 5.
Respondents seek to remove Petitioner from the United States on the basis that he is a non-citizen
present in the United States without admission or parole. DE 7-1 at 3. Petitioner avers that he has
no venue to seek an immigration bond before an immigration judge. DE 1 at 2.
II. Analysis
In his Petition, Petitioner maintains that he is being improperly detained under 8 U.S.C. §
1225(b)(2) and requests for the Court to grant habeas relief and to order his immediate release. DE
1. In response, Respondents maintain that Petitioner is properly detained under 8 U.S.C. §
1225(b)(2) and that Petitioner’s claims cannot be reviewed by this Court. DE 7. This Court has
previously rejected the arguments Respondents raise and remains unmoved in its determination
that 8 U.S.C. § 1226 applies to the detention of non-citizens present in the United States who have
not been admitted or paroled.1 Accordingly, the Court recommends ordering Respondents to either
afford Petitioner an individualized bond hearing before an immigration judge within seven days
or release him. The Court explains below.
A. Jurisdiction
As an initial matter, Respondents contend that 8 U.S.C. § 1252(g) and 1252(b)(9) present
jurisdictional bars preventing the Court from considering Petitioner’s claims. Id. at 10–14. This
Court, along with countless courts around the country, has previously rejected this argument,
concluding that neither 8 U.S.C. § 1252(g) nor 8 U.S.C. § 1252(b)(9) prevent a court from
considering a challenge to the legality of a petitioner’s detention. See Gonzalez v. Noem, No. 0:25-
CV-62261, 2025 WL 4053421, at *2 (S.D. Fla. Dec. 23, 2025) (collecting cases), report and
recommendation adopted, No. 25-62261-CV, 2026 WL 115211 (S.D. Fla. Jan. 15, 2026). The
Court is satisfied that jurisdiction exists to consider Petitioner’s Petition.
B. The Appropriate Statute Governing Petitioner’s Detention
Respondents argue next that Petitioner’s Petition should be denied because he is properly
detained under 8 U.S.C. § 1225(b)(2), as opposed to 8 U.S.C. § 1226. DE 7 at 3–9. Specifically,
1 The Court acknowledges that, in a split-decision, the Fifth Circuit has recently reached a contrary conclusion. See
generally Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL 323330 (5th Cir. Feb. 6, 2026). That opinion,
however, is not binding on this Court. The Court also notes that, following Buenrostro-Mendez, courts within this
Circuit have declined to follow the majority’s opinion, finding the dissenting opinion to be more persuasive instead.
See, e.g., Vasquez Lopez v. Warden, Glades Cnty. Det. Ctr., No. 2:26-CV-147-JES-NPM, 2026 WL 369362, at *2
(M.D. Fla. Feb. 10, 2026) (recognizing Buenrostro-Mendez but determining that the majority’s opinion was “contrary
to the overwhelming majority of district court judges to have considered the issue”); Rostislav Malikov v. Bondi, No.
2:26-CV-00172-SPC-NPM, 2026 WL 395296, at *1 n.1 (M.D. Fla. Feb. 12, 2026) (“The Court acknowledges the
Fifth Circuit’s decision in Buenrostro-Mendez . . . which agreed with the government’s interpretation of the INA. The
decision is not binding here, and it contradicts the vast majority of district court opinions addressing the issue. The
Court respectfully disagrees with the majority’s reasoning and finds Judge Douglas’s dissent more persuasive.”).
Respondents maintain that 8 U.S.C. § 1225(b)(2) applies to all non-citizens who are present in the
United States without admission. Id. This argument has been rejected by this Court and countless
courts around the country. See Gonzalez, 2025 WL 4053421, at *4 (concluding that 8 U.S.C. §
1226 applies to the detention of non-citizens present in the United States who have not been
admitted or paroled), report and recommendation adopted, No. 25-62261-CV, 2026 WL 115211
(S.D. Fla. Jan. 15, 2026); Sanchez v. Noem, No. 25-62677-CV, 2026 WL 222556, at *1 (S.D. Fla.
Jan. 28, 2026) (same); see, e.g., Merino, 2025 WL 2941609, at *3 (“DHS’s interpretation of the
applicability of § 1225(b)(2), rather than § 1226, to noncitizens who have resided in the count[r]y
for years and were already in the United States when apprehended, runs afoul of the statutes’
legislative history, plain meaning, and interpretation by courts in the First, Second, Fifth, Sixth,
Eighth, and Ninth Circuits.”); Puga v. Assistant Field Off. Dir., Krome N. Serv. Processing Ctr.,
No. 25-24535-CIV, 2025 WL 2938369, at *5 (S.D. Fla. Oct. 15, 2025) (“[N]umerous courts that
have examined the interpretation of section 1225 articulated by Respondents––particularly
following the BIA’s decision in Matter of Yajure Hurtado––have rejected their construction and
adopted Petitioner’s.”); Lopez v. Hardin, No. 2:25-CV-830-KCD-NPM, 2025 WL 3022245, at *5
(M.D. Fla. Oct. 29, 2025) (“[A]ccepting 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.”); Hyppolite v. Noem, No. 25-CV-4304 (NRM), 2025
WL 2829511, at *12 (E.D.N.Y. Oct. 6, 2025) (“[I]n the approximately two and one-half-months
since Respondents began to broadly invoke § 1225(b)(2)(A) to justify the mandatory detention of
noncitizens who already reside within the United States, well over a dozen federal courts around
the country have rejected Respondents’ novel and illogical interpretation of the INA.”); Lepe v.
Andrews, No. 1:25-CV-01163-KES-SKO (HC), 2025 WL 2716910, at *4 (E.D. Cal. Sept. 23,
2025) (“The government’s argument that section 1225(b)(2)(A) applies to all noncitizens present
in the United States without admission is unpersuasive. The government’s proposed interpretation
of the statute (1) disregards the plain meaning of section 1225(b)(2)(A); (2) disregards the
relationship between sections 1225 and 1226; (3) would render a recent amendment to section
1226(c) superfluous; and (4) is inconsistent with decades of prior statutory interpretation and
practice. Other district courts have reached a similar conclusion.”); Lopez-Campos v. Raycraft,
797 F. Supp. 3d 771, 784 (E.D. Mich. 2025) (“There can be no genuine dispute that Section
1226(a), and not Section 1225(b)(2)(A), applies to a noncitizen who has resided in this country for
over twenty-six years and was already within the United States when apprehended and arrested
during a traffic stop, and not upon arrival at the border. The reading of the statutes supports this
finding, as does every other Court that has had to address the distinction between Section
1225(b)(2)(A) and Section 1226(a).”); Demirel v. Fed. Det. Ctr. Phila., No. 25-5488, 2025 WL
3218243, at *1 (E.D. Pa. Nov. 18, 2025) (“The Government argues that under the INA, all non-
citizens in this country illegally are subject to mandatory detention. I agree with Petitioner that the
Government has misread the INA, and that Demirel is entitled to a bond hearing before an
Immigration Judge. Although there is no apposite appellate authority, there are 288 district court
decisions addressing this issue. In all but six, the Government’s interpretation of the INA––the
same interpretation it urges here––was rejected.” (citations omitted)).
As explained by the Supreme Court, 8 U.S.C. § 1225(b) “applies primarily to aliens seeking
entry into the United States,” whereas 8 U.S.C. § 1226 “applies to aliens already present in the
United States.” Jennings v. Rodriguez, 583 U.S. 281, 298, 303 (2018). Here, it is undisputed that
Petitioner was present in the United States when ICE detained him, and Respondents seek to
remove Petitioner as a non-citizen present without admission or parole. See DE 7-1 at 3. As such,
Petitioner’s detention is governed by 8 U.S.C. § 1226(a), not 8 U.S.C. § 1225(b)(2). See, e.g.,
Boffill v. Field Off. Dir., No. 25-CV-25179-JB, 2025 WL 3246868, at *6 (S.D. Fla. Nov. 20, 2025)
(“[T]he NTA that DHS issued to Petitioner did not classify him as an ‘arriving alien.’ Instead, the
NTA charged him as ‘present in the United States without admission or parole.’ This classification
places him squarely within section 1226.” (citations omitted)); Merino, 2025 WL 2941609, at *3
(“Petitioner, who has resided in the country for nearly a decade and was apprehended while already
within the United States, not at the border, falls under § 1226(a), not § 1225(b)(2) . . . .”); Patel v.
Hardin, No. 2:25-CV-870-JES-NPM, 2025 WL 3442706, at *5 (M.D. Fla. Dec. 1, 2025) (“It is
undisputed that Patel has been in this country since 2011. His detention is thus governed by §
1226(a).”); Pizarro Reyes v. Raycraft, No. 25-CV-12546, 2025 WL 2609425, at *8 (E.D. Mich.
Sept. 9, 2025) (“[I]n the Notice to Appear, ICE marked Pizzaro Reyes as ‘present in the United
States,’ and notably not as ‘arriving.’ The fact that the Notice to Appear listed ‘arriving’ and
‘present’ as two distinct options, and that ICE selected ‘present,’ reinforces how novel
Respondents’ proposed statutory interpretation is. Overall, the legislative history and agency
guidance supports the argument that § 1226(a) applies to Pizarro Reyes.”).
III. Recommendation
Having concluded that Petitioner’s detention is governed by 8 U.S.C. § 1226(a), Petitioner
is entitled to an individualized bond hearing before an immigration judge. 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))). The Court acknowledges
that Petitioner does not explicitly ask for a bond hearing in his Petition and instead only requests
release from immigration custody. See DE 1 at 13. However, 8 U.S.C. § 1226(a) affords discretion
as to whether a non-citizen is detained or released. See 8 U.S.C. § 1226(a)(1)–(2) (explaining that,
pending a removal decision, the Attorney General may either continue to detain the non-citizen or
release the non-citizen); 8 C.F.R. § 236.1(d)(1) (“[T]he immigration judge is authorized to exercise
the authority. . . to detain the alien in custody, release the alien, and determine the amount of bond,
if any, under which the respondent may be released ... .”). Accordingly, the Court
RECOMMENDS ordering Respondents to either afford Petitioner an individualized bond hearing
before an immigration judge within seven days or release him. As for Petitioner’s request for
attorney’s fees and costs pursuant to the Equal Access to Justice Act, the Court RECOMMENDS
permitting Petitioner to move for attorney’s fees and costs under the Equal Access to Justice Act
if this Report and Recommendation is adopted.
Although a party normally has fourteen days to serve and file written objections to any of
the findings and recommendations in a report and recommendation, see 28 U.S.C. § 636(b)(1);
S.D. Fla. Mag. R. 4(a), the circumstances of this matter warrant a shorter objection period. Within
seven (7) days of being served with a copy of this Report and Recommendation, any party may
serve and file written objections to any of the above findings and recommendations. The parties
are hereby notified that a failure to timely object waives the right to challenge on appeal the District
Court’s order based on unobjected-to factual and legal conclusions contained in this Report and
Recommendation. 11th Cir. R. 3-1 (2014).
DONE AND SUBMITTED in Chambers at Fort Lauderdale, Florida, this 27th day of
February, 2026. GED \—
PANAYOTTA AUGUSTIN-BIRCH
UNITED STATES MAGISTRATE JUDGE