Diaz

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:26-CV-60451-MIDDLEBROOKS/AUGUSTIN-BIRCH

ROBERTO PESTANA CEPERO,

Petitioner,

v.

MITCHELL DIAZ, et al.,

Respondents.

____________________________________/

REPORT AND RECOMMENDATION ON

PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS

This cause comes before the Court on Petitioner Roberto Pestana Cepero’s 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 February

11, 2022. DE 1 ¶ 7. As of October 27, 2025, Petitioner has been detained at the Broward Transitional

Center in Broward County, where he remains to this date. Id. ¶¶ 14, 22. An immigration judge has

already denied Petitioner’s bond request given the binding ruling in Matter of Yajure Hurtado. DE 1-

5.

II. Analysis

In his Petition, Petitioner requests for the Court to grant habeas relief and to order his

immediate release. DE 1. In response, Respondents acknowledge that courts around the country,

including this Court, have determined that 8 U.S.C. § 1226(a) applies to non-citizens who are present

in the United States without admission. DE 7 at 3–5. Nonetheless, Respondents maintain that 8 U.S.C.

§ 1225(b)(2) applies to such non-citizens and that Petitioner is properly detained under that section.

Id. at 2–3. Respondents also note that this issue––the applicability of 8 U.S.C. § 1226(a) and 8 U.S.C.

§ 1225(b)(2)––is currently before the Eleventh Circuit on appeal. See id. at 5.

As explained below, the Court 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.

Courts around the country, including this Court, have determined that 8 U.S.C. § 1226, which

provides the opportunity for a bond hearing, applies to the detention of non-citizens who are present

in the United States without parole or admission, as opposed to 8 U.S.C. § 1225(b)(2), which

mandates detention without the possibility for release. See Gonzalez v. Noem, No. 0:25-CV-62261,

2025 WL 4053421, at *4 (S.D. Fla. Dec. 23, 2025) (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

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.”).

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) “primarily applies 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

is a non-citizen present in the United States without inspection or parole. 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.”).

ILI. 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))). Accordingly, the Court

RECOMMENDS ordering Respondents to either afford Petitioner an individualized bond hearing

before an immigration judge within seven days or release him.

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 11th day of March,

2026. HD "\—

PANAYOTTA AUGUSTIN-BIRCH

UNITED STATES MAGISTRATE JUDGE