Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:26-cv-22782-GAYLES

OSCAR DAVID GALVIS JINETE,

Petitioner,

v.

MIAMI FDC,

Respondent.

/

ORDER

THIS CAUSE comes before the Court on Petitioner Oscar David Galvis Jinete’s pro se

Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [ECF No. 1] (the “Petition”). Petitioner

challenges his detention at the Miami Federal Detention Center (“FDC”) without being afforded

an individualized bond determination. See generally id. In accordance with 28 U.S.C. § 2243, the

Court issued an Order directing Respondent to show cause why the Petition should not be granted.

See [ECF No. 4].

Respondent filed a response to the Court’s show cause Order on April 17, 2026 [ECF No.

6] (the “Response”), 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 Colombia. [ECF No. 1 at 11]; [ECF No. 6-3 at 1].

Neither the Petition nor the Response explains the full circumstances of Petitioner’s arrival in the

United States, see generally [ECF No. 1]; [ECF No. 6], but the Petition does indicate that Petitioner

came “seeking protection from threats and criminal activity” in his home country, see [ECF No 1

at 8]. In December 2021, U.S. Immigration and Customs Enforcement (ICE) arrested Petitioner,

but it released him from custody with an Arrival-Departure Record (Form I-94) “as an alternative

to detention as a condition of parole.” [ECF No. 6-1 at 2]. In December 2022, Petitioner filed an

application for relief with U.S. citizenship and Immigration Services (USCIS), which remains

pending. [ECF No. 6-2 at 2].

On March 7, 2026, Petitioner was arrested in Hillsborough County, Florida for Battery and

Resisting an Officer Without Violence. See id.; [ECF No. 6-1 at 2–3]. On March 9, 2026, Petitioner

was transferred to ICE custody and issued a Notice to Appear (Form I-862) before an Immigration

Judge for a March 24, 2026 hearing to show why he should not be removed from the United States.

See [ECF No. 6-2 at 2]; [ECF No. 6-3 at 1]. Petitioner has been detained since March 9, see [ECF

No. 1 at 7], and is currently being held at the FDC, see [ECF No. 6 at 2]. Petitioner has not received

a bond hearing. See generally [ECF No. 1]; [ECF No. 6].

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

On April 22, 2026, Petitioner filed the Petition, which challenges his prolonged detention

on five grounds. [ECF No. 1]. First, he asserts he has been unlawfully detained for a prolonged

period without justification, in violation of his Fifth Amendment due process rights, because he

has no criminal history or pending criminal charges. See id. at 6–7. Second, he asserts he has been

denied bond without an individualized determination because the decision was based solely on his

immigration status and not on his “actual circumstances.” See id. at 7. Third, he asserts that he has

been improperly classified as requiring mandatory detention because he does not have any criminal

convictions or qualifying offenses that would subject him to that level of restraint. See id. Fourth,

he asserts he has not been given a “fair opportunity for release” because his denial of bond was

“based on general assumptions related to immigration status, rather than specific evidence showing

that Petitioner is a danger to the community or a flight risk.” See id. at 8. Finally, he asserts that

his ”entry with parole was not properly considered” and was instead “mischaracterized by

immigration authorities as unlawful entry without inspection.” See id. He asks the Court to order

his immediate release from custody or, in the alternative, that he be given a prompt bond hearing

with “proper legal standards applied.” See id.

In his Response, Respondent notes this “case presents legal issues that have already been

decided in this District numerous times”: which authority—8 U.S.C. §1225(b)(2)(A) or 8 U.S.C.

§ 1226(a)—governs bond determinations for noncitizens in Petitioner’s situation; whether the

Court has jurisdiction to hear such claims; and whether Petitioner must first exhaust his

administrative remedies before seeking judicial relief. See [ECF No. 6 at 2]. Respondent argues

“Petitioner is an applicant for admission subject to mandatory detention without bond under

§ 1225(b)(2) because he was present in the United States without being admitted or paroled.” Id.

But Respondent acknowledges that “several Judges in this District have reached the opposite

conclusion.” Id. at 3–4 n.1. Respondent also that asserts 8 U.S.C. § 1252(b)(9), (g) bars the Court’s

review of Petitioner’s claims, as does Petitioner’s failure to exhaust his administrative remedies.

See id. at 10–15.

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.

216, 228 (B.I.A. 2025) (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; Cunha v. Freden,

No. 25-3141-PR, 2026 WL 1146044, at *23 (2d Cir. Apr. 28, 2026). 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.

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.

Just two days ago, the Second Circuit agreed. See Cunha, 2026 WL 1146044, at *2. That

Court joined “the overwhelming majority of federal judges across the Nation” who have concluded

that § 1226(a) applies to noncitizen residents like Petitioner and that “the government’s novel

interpretation of the immigration statutes defies their plain text.” See id. As the Second Circuit

noted, the government’s attempt to “muddy” the “textually clear waters” of § 1225 “defies the

statute’s context, structure, history, and purpose”; “contradicts the Supreme Court’s dicta in

Jennings and longstanding Executive Branch practice”; and “raises serious constitutional

questions that should be avoided even if the statutory language were ambiguous.” See id. at *23.

The Court’s Carvajal Bautista holding evades those problems, and the Court sees no reason

to depart from it here.1 Respondent detained Petitioner, who has lived in the United States since at

least 2021, after he had an encounter with state law enforcement in Hillsborough County, not at

the border or the port. See [ECF No. 6-1 at 2–3]. That 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).2

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED:

1. Petitioner Oscar David Galvis Jinete’s pro se Petition for Writ of Habeas Corpus under

28 U.S.C. § 2241 [ECF No. 1] is GRANTED in part. The Court finds that Petitioner’s

1 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, although two decisions from this District raising this issue are currently pending before

the Eleventh Circuit, that Court has not yet decided those appeals, so this Court’s Carvajal Bautista decision remains

good law.

2 Respondent also argues Petitioner failed to exhaust administrative remedies. But “exhaustion is not required where

. . . an administrative appeal would be futile.” Linfors v. United States, 673 F.2d 332, 334 (11th Cir. 1982). That is

true because 8 U.S.C. § 1252(d)(1) “is not jurisdictional,” Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 891 (11th Cir.

2023) (quoting Santos-Zacaria v. Garland, 598 U.S. 411, 413 (2023)), so the exhaustion requirement courts have

derived from it is a prudential limitation the Court has discretion to set aside, see Bennett v. Spear, 520 U.S. 154, 162

(1997) (defining prudential concerns as “judicially self-imposed limits on the exercise of federal jurisdiction” that “are

founded in concern about the proper—and properly limited—role of the courts in a democratic society” (citations and

quotation marks omitted)); McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (“[W]here Congress has not clearly

required exhaustion, sound judicial discretion governs.”). Here, because “any subsequent bond appeal to the BIA is

nearly a foregone conclusion under” Yajure Hurtado, “any prudential exhaustion requirements are excused for

futility.” Puga v. Assistant Field Off. Dir., Krome N. Serv. Processing Ctr., No. 25-24535, 2025 WL 2938369 at *2

(S.D. Fla. Oct. 15, 2025).

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 14, 2026 or otherwise release Petitioner.

3. On or before May 18, 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. This case is CLOSED for administrative purposes.

5. 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.

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

DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of April, 2026.

DARRIN P. GAYLES

UNITED STATES DIST JUDGE

Ce:

Oscar David Galvis Jinete

A# 232082973

Miami FDC

Federal Detention Center

Inmate Mail/Parcels

33 NE 4th Street

Miami, FL 33132

PRO SE

Noticing 2241/Bivens US Attorney

Email: usafls-2255@usdo].gov

Noticing INS Attorney

Email: usafls-immigration@usdoj.gov

Michele S. Vigilance

DOJ-USAO

United States Attorney’s Office, Civil

99 N.E. 4th Street

Miami, FL 33132

Email: michele.vigilance@usdoj.gov