Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:26-cv-21108-GAYLES

JOSE CARLOS GONZALEZ PEREDA,

Petitioner,

v.

KROME NORTH SERVICE

PROCESSING CENTER, et al.,

Respondents.

/

ORDER

THIS CAUSE comes before the Court on Petitioner Jose Carlos Gonzalez Pereda’s pro se

Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [ECF No. 12] (the

“Amended Petition”). Petitioner challenges his detention at Krome North Service Processing

Center (“Krome”) in Miami without being afforded an individualized bond determination. See

generally id. In accordance with 28 U.S.C. § 2243, the Court issued an Order directing

Respondents—Krome, the U.S. Department of Homeland Security (DHS), U.S. Immigration

Customs and Enforcement (ICE), and the “Warden” of Krome—to show cause why the Petition

should not be granted. See [ECF No. 13].

Respondent Charles Parra, Assistant Field Office Director at Krome,1 filed a response to

1 As Respondents explain, a writ of habeas corpus must “be directed to the person having custody of the person

detained.” 28 U.S.C. § 2243; [ECF No. 18 at 1 n.1]. And in “challenges to present physical confinement,” the Supreme

Court has made clear that “the immediate custodian, not a supervisory official who exercises legal control, is the

proper respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004); see also id. at 447 (“Whenever a § 2241 habeas

petitioner seeks to challenge his present physical custody within the United States, he should name his warden as

respondent and file the petition in the district of confinement.”). Accordingly, the Court will substitute the immediate

custodian of Krome, Assistant Field Office Director Charles Parra, in his official capacity as Respondent here and will

dismiss all other named Respondents. See [ECF No. 18 1 n.1]; Jackson v. Chatman, 589 F. App’x 490, 491 n.1 (11th

Cir. 2014); Barghouthi v. Field Office Director, No. 25-25666-CIV, 2026 WL 1040943, at *2 (S.D. Fla. Apr. 17,

the Court’s show cause Order on April 17, 2026 [ECF No. 18] (the “Response”). Petitioner filed

his reply on April 21, 2026 [ECF No. 19] (the “Reply”), so the Petition is now ripe for review. The

Court has considered the Petition, the Response, the record, and applicable law. For the following

reasons, the Petition is GRANTED in part.

I. BACKGROUND

A. Petitioner’s Immigration History in the United States

Petitioner is a native and citizen of Cuba. [ECF No. 18-1 at 3]. Neither the Petition nor the

Response explains the circumstances of Petitioner’s arrival in the United States, see generally

[ECF No. 12]; [ECF No. 18], but attachments to the Response indicate that Petitioner was admitted

in February 2021 at a New York airport on a B2 Tourist Visa, see [ECF No. 18-1 at 3]. The Tourist

Visa permitted Petitioner to stay in the country for up to four months, but Petitioner “overstayed

his admission period and failed to depart.” See id.

In March 2022, the U.S. Border Patrol “apprehended” Petitioner in Arizona near the United

States-Mexico border. See id. During that encounter, the DHS issued Petitioner several

immigration documents: (1) a Warrant for Arrest (Form I-200) indicating that Petitioner had

“entered the United States at or near San Luis, Arizona on March 16, 2022” and was in violation

of immigration laws; (2) a Notice to Appear (Form I-862) before an Immigration Judge for a

January 30, 2024 hearing to show why Petitioner should not be removed from the United States;

(3) a Notice of Custody Determination (Form I-286) indicating that it was releasing Petitioner on

his own recognizance instead of detaining him; and (4) an Order of Release on Recognizance

(Form I-220A) requiring Petitioner to comply with several conditions, including that he report in

2026) (“[B]ecause Petitioner is detained at Krome, his immediate custodian is acting Assistant Field Office Director

Charles Parra. Accordingly, the only proper respondent to this case is Parra in his official capacity. . . . The Court

therefore substitutes Assistant Field Office Director Charles Parra as the sole respondent to this action. All other

named respondents are dismissed.”).

person to an ICE officer. See [ECF No. 12-1 at 17–21]. The Order of Release noted Petitioner was

not “authorized for employment,” id. at 19; but in April 2023, U.S. Citizenship and Immigration

Services (USCIS) approved Petitioner’s Application for Employment Authorization (Form I-765),

authorizing him to work through March 2025, see [ECF No. 18-1 at 3].2

In May 2023, Petitioner submitted an Application to Register Permanent Residence or

Adjust Status (Form I-465) seeking to become a Legal Permanent Resident, which as of September

2025 was still pending. See id. And in December 2024, Petitioner’s naturalized U.S. citizen wife

submitted a Petition for Alien Relative (Form I-130) seeking to have Petitioner’s status adjusted

based on their November 2024 marriage. See [ECF No. 12-1 at 25–27].

On September 9, 2025, Petitioner was arrested in Escambia County, Florida for Operating

a Motor Vehicle without a Valid Commercial License. See [ECF No. 18-1 at 2–3]. ICE’s Miami

Office issued an Immigration Detainer (Form I-247) for Petitioner on September 10, 2025 and

arrested him on September 12, 2025. See id. Petitioner has been detained since that date, see id.,

and is currently being held at Krome, see [ECF No. 12 at 1]. He has “requested bond hearings

twice,” in November 2025 and December 2025. See id. at 6; [ECF No. 12-1 at 51–54].

No action was taken on Petitioner’s November 2025 custody redetermination request, see

[ECF No. 12-1 at 53–54], but an Immigration Judge denied his December 2025 custody

redetermination request, see id. at 51–52. Citing Yajure Hurtado, 29 I. & N. Dec. 216 (B.I.A.

2025), the Immigration Judge found the Immigration “Court does not have jurisdiction over”

Petitioner’s “bond proceedings.” See id. at 51. Petitioner did not appeal the denial to the Board of

Immigration Appeals (BIA), finding it futile “based on the Court[’s] reliance on” Yajure Hurtado.

See [ECF No. 12 at 2–3]. Petitioner has not otherwise received a bond hearing and remains in ICE

2 When his work authorization expired in March 2025, Petitioner submitted a new Application for Employment

Authorization (Form I-765), which was pending when ICE detained him in September 2025. See [ECF No. 18-1 at 3].

custody at Krome. See generally [ECF No. 12]; [ECF No. 18]; [ECF No. 19].

B. Petitioner’s Habeas Petition and Respondent’s Response

On April 7, 2026, Petitioner filed the operative Amended Petition, which challenges his

prolonged detention on four grounds.3 [ECF No. 12]. First, he asserts that procedural “defects” in

his brief detention and ultimate release in March 2022 have “caused confusion” in his “legal status

and have prolonged his detention.” See id. at 6; [ECF No. 12-1 at 3–4]. Second, he asserts he has

“been detained since September” 2025 “without a final order of removal” or a “meaningful

opportunity to contest” his detention to challenge the “lawfulness of his confinement,” which

amounts to “indefinite detention” in violation of his due process rights. See [ECF No. 12 at 6];

[ECF No. 12-1 at 4–5]. Third, he asserts his “unreasonable” continued detention prevents him from

supporting his wife, mother, and minor children, which has created “severe hardship” on his

family. See [ECF No. 12 at 6]; [ECF No. 12-1 at 5]. Finally, he asserts he is “in active removal

proceedings” and that his continued detention “imposes unnecessary hardship” and limits “his

ability to participate in his defense.” See [ECF No. 12 at 7]; [ECF No. 12-1 at 5–6]. He asks the

Court to declare his detention unlawful and to order either his “immediate release under reasonable

supervision” or an “immediate bond hearing where the Government must justify continued

detention.” See [ECF No. 12 at 7]; [ECF No. 12-1 at 6].

In his Response, Respondent notes that the outcome of the Amended Petition turns on a

“dispositive question of law”: “whether Petitioner’s immigration detention is governed by”

§ 1225(b)(2) or § 1226(a) “and, relatedly, whether Petitioner is entitled to an individualized bond

hearing before the immigration court.” See [ECF No. 18 at 2]. Because it does, Respondent

3 This case began on February 19, 2026, when Petitioner’s wife filed a Petition for Writ of Habeas Corpus under

§ 2241 on his behalf. [ECF No. 1]. She twice amended that Petition in an attempt to explain how she qualified as his

next friend, see [ECF No. 6]; [ECF No. 9], but the Court found she did not qualify and dismissed those amended

petitions, see [ECF No. 10]. Petitioner then filed the Amended Petition on his own behalf. [ECF No. 12].

believes “the Court is positioned [to] rule . . . without individualized legal briefing” and submits a

“truncated” brief instead of “a formal memorandum of law and fact.” See id. at 2 n.2, 4. In his

truncated brief, Respondent notes his position that “Petitioner is subject to detention under”

§ 1225(b)(2) “because he was encountered in the United States without being admitted or paroled,

and therefore remains an ‘applicant for admission’ subject to mandatory detention, regardless of

the length of time he has been present in the United States.” See id. at 2. But Respondent

acknowledges that this Court is among the “that district courts across the country” that have

rejected that position. See id. at 3.

In his Reply, Petitioner reiterates his arguments about the procedural defects in his March

2022 detention and release, the violation of his due process rights, and family hardship. See [ECF

No. 19]. He “disputes” that he was admitted in 2021 on a B2 Tourist Visa. See id. at 2. Finally, he

notes Respondent’s acknowledgement that this Court has rejected the argument that § 1225(b)(2)

applies here and urges the Court to “follow its own precedent and grant relief.” See id. at 1, 4.

II. LEGAL STANDARD

District courts may grant writs of habeas corpus if a person is “in custody in violation of

the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241(a), (c)(3). Indeed,

“[h]abeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674,

693 (2008). Relevant here, the Supreme Court has reaffirmed Ҥ 2241 habeas corpus proceedings

remain available as a forum for statutory and constitutional challenges to” immigration detention.

See Zadvydas v. Davis, 533 U.S. 678, 688 (2001). And courts in this District have held that this

Court has jurisdiction over challenges involving whether a petitioner is detained subject to

§ 1225(b)(2) or to § 1226(a). See, e.g., Similien v. Warden, Fed. Det. Ctr., Miami, No. 26-CV-

21739, 2026 WL 900078, at *2 (S.D. Fla. Apr. 2, 2026); Chamsadine v. Assistant Field Dir.

Warden, No. 26-21487-CV, 2026 WL 746400, at *1 (S.D. Fla. Mar. 17, 2026).

Section 1225(b) governs the inspection of noncitizen applicants for admission. See 8

U.S.C. § 1225(b). An “applicant for admission” is an “alien present in the United States who has

not been admitted or who arrives in the United States.” See id. § 1225(a)(1). Detention for

noncitizen applicants for admission under § 1225(b)(2) is mandatory. See Jennings v. Rodriguez,

583 U.S. 281, 302 (2018) (noting § 1225(b)(2) “mandate[s] detention of aliens throughout the

completion of applicable proceedings and not just until the moment those proceedings begin”).

For that reason, a noncitizen applicant for admission detained under § 1225(b)(2) is ineligible for

bond. See, e.g., Carvajal Bautista v. U.S. Immigr. & Customs Enf’t, No. 1:26-CV-22191, 2026

WL 925590, at *2 (S.D. Fla. Apr. 6, 2026).

Section 1226, on the other hand, “authorizes the Government to detain certain aliens

already in the country pending the outcome of removal proceedings.” See Jennings, 583 U.S. at

289 (emphasis added). “Section 1226(a)’s default rule permits the Attorney General to issue

warrants for the arrest and detention of these aliens pending the outcome of their removal

proceedings.” Id. at 281; see also 28 U.S.C. § 1226(a) (“On a warrant issued by the Attorney

General, an alien may be arrested and detained pending a decision on whether the alien is to be

removed from the United States.”). “The Attorney General ‘may release’ these aliens on bond”

unless they “fall[] into one of the enumerated categories” in § 1226(c) “involving criminal offenses

and terrorist activities.” See Jennings, 583 U.S. at 281 (quoting § 1226(a)(2)). “Federal regulations

provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Id.

at 306; see also 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1).

Put simply, § 1226(a) “establishes a discretionary detention framework,” which is “unlike

the mandatory detention framework of § 1225(b)(2).” See Carvajal Bautista, 2026 WL 925590, at

*2 (quotation marks omitted); Aguilar Merino v. Ripa, No. 25-23845-CIV, 2025 WL 2941609, at

*3 (S.D. Fla. Oct. 15, 2025). Congress explained the basis for these different detention frameworks

when it determined in 1996 that “noncitizens already residing in the U.S.” have “more substantial

due process rights” than “noncitizens recently arriving.” See Aguilar Merino, 2025 WL 2941609,

at *3. In the thirty years since then, federal courts and agencies have uniformly held that § 1226(a)

governs the detention of noncitizen residents, while § 1225(b)(2) applies to noncitizens arriving at

an entry point. See id.

Indeed, even ICE’s own agency, the DHS, interpreted the statutes this way until a July

2025 policy change. See id. Pursuant to the DHS’s new policy, however, ICE has been instructed

to treat noncitizen residents “in the same manner that ‘arriving aliens’ have historically been

treated,” which means mandatory detention and no eligibility for a bond hearing. See id. (quoting

ICE Memo: Interim Guidance Regarding Detention Authority for Applications for Admission,

AILA Doc. No. 25071607 (July 8, 2025)); Carvajal Bautista, 2026 WL 925590, at *2. “Following

this interpretation, the BIA held” that an Immigration Judge “had no authority to provide a bond

hearing to a noncitizen” who “had been living in the United States for years without admission or

parole” because he “is an applicant for admission under § 1225(b)(2)” and “subject to mandatory

detention.” Carvajal Bautista, 2026 WL 925590, at *2; see also Yajure Hurtado, 29 I. & N. Dec.

at 228 (adopting DHS’s new interpretation).

But “District Courts have overwhelmingly rejected the BIA’s interpretation.” Carvajal

Bautista, 2026 WL 925590, at *2. That includes courts in this District, many of which have

concluded that DHS’s abrupt shift in interpretation “runs afoul of the statutes’ legislative history,

plain meaning, and interpretation by courts in” six Circuits over the last three decades. See, e.g.,

Aguilar Merino, 2025 WL 2941609, at *3. Those courts have instead adhered to the interpretation

supported by a “plain reading” of § 1225(b)(2) and § 1226(a), see id., which is that the detention

of noncitizens encountered when they are already living in the United States “is governed by

§ 1226(a) and not § 1252(b)(2),” see Carvajal Bautista, 2026 WL 925590, at *3. But see

Buenrostro-Mendez v. Bondi, 166 F.4th 494, 506–08 (5th Cir. 2026) (adopting DHS’s new

interpretation); Avila v. Bondi, 170 F.4th 1128, 1137–38 (8th Cir. 2026) (same).

III. ANALYSIS

The core disagreement between Petitioner and Respondent is whether Petitioner is detained

under § 1225(b)(2), and is thus ineligible for bond, or under § 1226(a), which allows for release

on bond. This is a hotly contested question that is “currently dividing” courts “throughout the

country.” See Rocha Vargas v. Miami Fed. Det. Ctr., No. 25-CV-25966-RAR, 2026 WL 911291,

at *1 (S.D. Fla. Apr. 2, 2026). This Court, however, has already answered it: noncitizens who have

“been living in the United States” for years before being detained are “governed by § 1226(a) and

not § 1252(b)(2).” See, e.g., Carvajal Bautista, 2026 WL 925590, at *3. Those noncitizens are

“therefore entitled to a bond hearing.” See id.

The Court sees no reason to depart from that holding here.4 Respondent detained Petitioner,

who has lived in the United States since at least 2022, after he had an encounter with state law

enforcement in Escambia County, not at the border or the port. See [ECF No. 18-1 at 2–3]. That

4 The Court acknowledges the recent decisions by the Fifth and Eighth Circuits that agreed with Respondent’s position.

See Buenrostro-Mendez, 166 F.4th at 506–08; Avila, 170 F.4th at 1137–38. Of course, those decisions are “not binding

here, and” they “contradict[] the vast majority of district court opinions addressing the issue.” Lobovillalobos v.

Hardin, No. 2:26-cv-00446, 2026 WL 621380, at *2 n.1 (M.D. Fla. Mar. 5, 2026); see also Buenrostro-Mendez, 166

F.4th at 509 (Douglas, J., dissenting) (criticizing the decision as “totally unsupported”). Therefore, they do not

persuade this Court. Similarly, Respondent notes that the government has appealed two decisions from this District

that have reached the same conclusion. See [ECF No. 18 at 3–4]. The Eleventh Circuit has not yet decided those

appeals, so the Court’s Carvajal Bautista decision remains good law.

makes Petitioner a noncitizen resident, not an arriving alien or an applicant for admission. As a

result, the Petition is governed by § 1226(a) not § 1225(b)(2), and Petitioner is entitled to a bond

hearing under § 1226(a).

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED:

1. Petitioner Jose Carlos Gonzalez Pereda’s pro se Amended Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2241 [ECF No. 12] is GRANTED in part. The

Court finds that Petitioner’s detention falls under 8 U.S.C. § 1226(a).

2. Respondent shall afford Petitioner an individualized bond hearing consistent with 8

U.S.C. § 1226(a) on or before May 7, 2026 or otherwise release Petitioner.

3. On or before May 11, 2026, Respondent shall file a Status Report informing the

Court of whether Petitioner was given a bond hearing, the outcome of Petitioner’s

bond hearing, and the status of matters relevant to the Petition.

4. The Clerk SHALL SUBSTITUTE the immediate custodian of Krome, Assistant

Field Office Director Charles Parra in his official capacity, as Respondent in this

case and SHALL TERMINATE all other named Respondents. See 28 U.S.C. §

2243; Rumsfeld, 542 U.S. at 439, 447; Jackson, 589 F. App’x at 491 n.1;

Barghouthi, 2026 WL 1040943, at *2.

5. This case is CLOSED for administrative purposes.

6. The Court retains jurisdiction to address matters that may arise with respect to the

Petition, and either party may file a motion to reopen the case should any additional

relief be sought relating to the Petition or this Order.

7. The Clerk SHALL MAIL a copy of this Order to Petitioner.

DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of April, 2026.

DARRIN P. GAYLES

UNITED STATES DISTRIC GE

Ce:

Jose Carlos Gonzalez Pereda

A# 220845852

Krome North Service Processing Center

Inmate Mail/Parcels

18201 SW 12th Street

Miami, FL 33194

PRO SE

Noticing 2241/Bivens US Attorney

Email: usafls-2255@usdo].gov

Noticing INS Attorney

Email: usafls-immigration@usdo].gov

John Steven Leinicke

Benjamin Sardinas

Carolina Perez Schmerold

United States Attorney’s Office, Civil

99 N.E. 4th Street

Miami, FL 33132

Email: john.lemicke@usdoj.gov

Email: Benjamin.Sardinas@usdoj.gov

Email: carolina.perez@usdoj.gov

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