# Opinion

> District Court, S.D. Florida · May 1, 2026

URL: https://www.frixlaw.com/law-library/cases/11335120

## Case

- **Full name:** Angelo Gallardo Andrade v. Warden, Federal Bureau of Prisons, et al.
- **Court:** District Court, S.D. Florida
- **Decided:** May 1, 2026
- **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/11335120

## Opinion text

UNITED STATES DISTRICT COURT FOR
SOUTHERN DISTRICT OF FLORIDA

Case No.: 26-cv-22421-JB

ANGELO GALLARDO ANDRADE,

Petitioner,

v.

WARDEN, Federal Bureau of Prisons, et al.,

Respondents.
__________________________________________/

ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS

THIS CAUSE comes before the Court upon Petitioner Angelo Gallardo
Andrade’s Verified Petition for Writ of Habeas Corpus (the “Petition”). ECF No. [1].
Respondents filed a Return Opposing Petition for Writ of Habeas Corpus. ECF No.
[5]. Upon due consideration of the parties’ submissions, the pertinent portions of the
record, and the applicable law, for the reasons explained below, the Petition is
GRANTED IN PART.
I. BACKGROUND

Petitioner is a Venezuelan citizen who has resided in the United States since
August 16, 2023, when he was paroled into the United States until June 12, 2025,
under the Venezuelan Humanitarian Parole program. ECF Nos. [1-1] at 13, [5] at 2,
[10-1]. Petitioner has no prior convictions.
On August 15, 2025, the Department of Homeland Security (“DHS”) issued
Petitioner a Notice to Appear (the “NTA”), classifying him as “an alien present in the
United States who has not been admitted or paroled.” ECF No. [10-1] at 1. The NTA
charges Petitioner with inadmissibility under section under section 212(a)(6)(A)(i) of
the Immigration and Nationality Act (“INA”) as “an alien present in the United States

without being admitted or paroled” and under section 212(a)(7)(A)(i)(I) of the INA as
“an immigrant who, at the time of application for admission, is not in possession of a
valid unexpired immigrant visa, reentry permit, border crossing card, or other valid
entry document required by the [INA], and a valid unexpired passport, or other
suitable travel document[.]” Id. at 4.1 DHS initiated removal proceedings against
Petitioner under 8 U.S.C. § 1229(a), which remain pending. ECF No. [10-2] at 58.

In November 2025, Petitioner was taken into custody by the United States
Immigration and Customs Enforcement (“ICE”). ECF Nos. [1] at 5, [5] at 2.
Petitioner is currently being held at the Federal Detention Center (“FDC”) in Miami,
Florida. ECF No. [1] at 1.
Petitioner requested a custody redetermination before an Executive Office for
Immigration Review (“EOIR”) immigration judge (“IJ”) and, on January 14, 2026, the
IJ denied bond without conducting a dangerousness or risk of flight determination.

ECF No. [1-1] at 19. The IJ concluded that the court lacked jurisdiction over
Petitioner’s detention status pursuant to the Board of Immigration Appeals’ (“BIA”)

1 The Court notes that record contains a second NTA issued on January 12, 2026,
which classifies Petitioner as “an arriving alien” and charges him only under section
212(a)(7)(A)(i)(I) of the INA. ECF No. [10-1] at 120–23. Respondents neither mention
nor rely upon this NTA in their Response. Accordingly, the Court finds that
Respondents have abandoned any arguments based on the NTA issued on January
12, 2026.
published decision in In re Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), which
found that IJs lack authority to consider bond requests of noncitizens who have
resided in the United States but have not been admitted or paroled because those

individuals are subject to mandatory detention without bond under 8 U.S.C. §
1225(b)(2). See id.; 29 I. & N. Dec. at 221.
On April 1, 2026, Petitioner filed a Form I-589 Application for Asylum and for
Withholding of Removal, which remains pending. ECF No. [10-1] at 133–47.
Petitioner’s next hearing in immigration court is scheduled for May 13, 2026. ECF
No. [10-2] at 58.

On April 8, 2026, Petitioner filed the instant Petition. ECF No. [1]. Petitioner
alleges that his continued detention without an individualized bond hearing violates
due process. ECF No. [1] at 6. Petitioner further alleges that Respondents have
exhibited deliberate indifference to his medical needs, namely, his type 1 diabetes
that has been poorly managed during his detention, resulting in exceedingly high
glucose levels, loss of teeth, and recurring infections, among other complications. Id.
at 7.2 Petitioner requests that the Court order his immediate release from custody

or, in the alternative, an individualized bond hearing. Id. at 8.
Respondents filed a Response to the Petition. ECF No. [5]. Respondents argue
that “[t]ermination of Petitioner’s parole” renders him “an ‘arriving alien’ subject to

2 Petitioner also alleges that Respondents improperly denied him humanitarian
parole. Id. at 8. However, given the Court’s conclusion below that Petitioner’s
detention is governed by 8 U.S.C. § 1226(a), it is unnecessary for the Court to address
this claim.
the removal and detention provisions in 8 U.S.C. § 1225(b)(2)” and he thus “lack[s] a
statutory or due process right to a bond hearing” and “is subject to the statute’s
mandatory removal and detention provisions.” Id. at 4. Respondents also argue that

Petitioner’s claim for inadequate medical care constitutes a challenge to the
conditions of his confinement, which is not properly asserted in a habeas petition. Id.
at 9.
II. ANALYSIS

District courts have the authority to grant writs of habeas corpus. See 28
U.S.C. § 2241(a). Habeas corpus is fundamentally “a remedy for unlawful executive
detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008) (citation omitted). A writ may
be issued to a petitioner who shows that he is being held in custody in violation of the
Constitution or federal law. See 28 U.S.C. § 2241(c)(3). The Court’s jurisdiction
extends to challenges involving immigration detention. See Zadvydas v. Davis, 533
U.S. 678, 687 (2001).
A. Legality of Petitioner’s Mandatory Detention
Respondents contend that Petitioner is an “applicant for admission” under 8

U.S.C. § 1225(b)(2)(A), making him subject to mandatory detention and ineligible for
a bond hearing, as opposed to 8 U.S.C. § 1226(a). ECF No. [5] at 6–8. The Court
examines each of these statutes in turn.
i. 8 U.S.C. § 1225
Section 1225 governs the inspection, detention, and removal of applicants for
admission. See 8 U.S.C. § 1225 et seq. Applicants for admission are defined as
noncitizens “present in the United States who ha[ve] not been admitted” or those
“arriv[ing] in the United States.” Id. All applicants for admission “must be inspected
by immigration officers to ensure that they may be admitted into the country
consistent with U.S. immigration law.” Jennings v. Rodriguez, 583 U.S. 281, 287

(2018).3 To that end, “U.S. immigration law authorizes the Government to detain
certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2).” Id.
at 289 (emphasis added).
“Section 1225(b)(1) applies to aliens initially determined to be inadmissible due
to fraud, misrepresentation, or lack of valid documentation.” Id. Such noncitizens
are generally subject to expedited removal “without further hearing or review.” 8

U.S.C. § 1225(b)(1). However, if the noncitizen expresses “an intention to apply for
asylum” or a fear of persecution,” the statute requires referral to an interview with
an immigration officer. Id. § 1225(b)(1)(A)(ii). If the immigration officer finds a
“credible fear,” the noncitizen “shall be detained for further consideration of the
application for asylum.” Id. Respondents do not argue that Petitioner is subject to
detention under 8 U.S.C. § 1225(b)(1).
On the other hand, “Section 1225(b)(2) is broader” and “serves as a catchall

provision that applies to all applicants for admission not covered by § 1225(b)(1).”
Jennings, 583 U.S. at 287. Noncitizens covered under § 1225(b)(2) are detained for
removal proceedings “if the examining immigration officer determines that an alien

3 Indeed, Jennings began its analysis by emphasizing the temporal and categorical
distinction between the detention statutes. Section 1225 applies to noncitizens who
are “seeking admission into the country” at the border or a port of entry, whereas
section 1226 governs those “already in the country pending the outcome of removal
proceedings.” Jennings, 583 U.S. at 285–89.
seeking admission is not clearly and beyond a doubt entitled to be admitted” into the
country. 8 U.S.C. § 1225(b)(2)(A). Importantly, detention under § 1225(b)(2) is
mandatory. See Gomes v. Hyde, No. 25-cv-11571, 2025 WL 1869299, at *8 (D. Mass.

July 7, 2025).
ii. 8 U.S.C. § 1226
Federal immigration law “also authorizes the Government to detain certain
aliens already in the country pending the outcome of removal proceedings.” Jennings,
583 U.S. at 289 (emphasis added). Section 1226(a) provides that when a noncitizen
has been “arrested and detained pending a decision on whether the alien is to be
removed from the United States,” the Attorney General may either continue to detain

the individual or release them on bond or conditional release. See 8 U.S.C. § 1226(a).
The statute thus “establishes a discretionary detention framework.” Gomes, 2025 WL
1869299, at *2. Importantly for purposes of this action, “[f]ederal regulations provide
that aliens detained under [section] 1226(a) receive bond hearings at the outset of
detention.” Jennings, 583 U.S. at 306 (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1));
see also Lopez Benitez v. Francis, No. 25-Civ-5937, 2025 WL 2371588, at *13 (S.D.N.Y.

Aug. 13, 2025) (“To be sure, a noncitizen detained under [section] 1226(a) is
undoubtedly entitled to a bond hearing before an immigration judge.”).
iii. Petitioner’s Detention Is Governed By 8 U.S.C. § 1226(a),
Not 8 U.S.C. § 1225(b)(2)
Whether section 1225(b)(2) or section 1226(a) governs Petitioner’s detention is
a question of statutory interpretation squarely within the Court’s jurisdiction.
Pizarro Reyes v. Raycraft, No. 25-cv-12546, 2025 WL 2609425, at *3 (E.D. Mich. Sep.
9, 2025) (noting that the interplay of these two sections is a matter “of statutory
interpretation belong[ing] historically within the province of the courts.”) (citing
Loper Bright Enter. v. Raimondo, 603 U.S. 369, 386 (2024)); Barrios v. Shepley, No.

25-cv-00406, 2025 WL 2772579, at *5 (D. Me. Sept. 25, 2025) (district court had
jurisdiction to review petitioner’s challenge to the “statutory framework” regarding
his detention); see Gomes, 2025 WL 1869299, at *8 n.9 (“Courts must exercise
independent judgment in determining the meaning of statutory provisions”);
Mosqueda, 2025 WL 2591530, at *7 (district court had jurisdiction to decide whether
§ 1225 or § 1226 applied as “[t]hese are purely legal questions of statutory

interpretation.”).
From the outset of Petitioner’s case, DHS proceeded under section 1226.
Specifically, the NTA that DHS issued to Petitioner did not classify him as an
“arriving alien.” ECF No. [1-1] at 2. Instead, the NTA classified and charged him as
an alien present in the United States who has not been admitted or paroled. Id. This
classification places him squarely within section 1226. See e.g., Pizarro Reyes, 2025
WL 2609425, at *8 (emphasizing ICE’s selection of “present” rather than “arriving”

on the NTA as evidence that § 1226 applied); see also Hyppolite v. Noem, No. 25-4304,
2025 WL 2829511, *8 (E.D.N.Y. Oct. 6, 2025) (respondent’s initial classification of
petitioner “certainly is relevant to the Court's assessment of the credibility and good
faith of ‘Respondents’ new position as to the basis for [Hyppolite’s] detention, which
was adopted post hoc and raised for the first time in this litigation.’”) (citation
omitted); Perez v. Berg, No. 25-cv-494, 2025 WL 2531566, at *2 (D. Neb. July 24, 2025)
(“The Court notes that the government itself charged Petitioner as an alien present
in the United States who has not been admitted or paroled rather than an arriving
alien.”) (quotations omitted).

In addition, “[w]hereas [section] 1225 governs removal proceedings for
‘arriving aliens,’ [section] 1226(a) serves as a catchall.” Pizarro Reyes v. Raycraft, No.
25-cv-12546, 2025 WL 2609425, at *5 (E.D. Mich. Sept. 9, 2025). As the Supreme
Court stated in Jennings, section 1226 “creates a default rule” that “applies to aliens
already present in the United States.” Jennings, 583 U.S. at 303. The inclusion of a
“catchall” provision in section 1226, particularly following the more specific provision

in section 1225, is “likely no coincidence, but rather a way for Congress to capture
noncitizens who fall outside of the specified categories.” Pizarro Reyes, 2025 WL
2609425, at *5; see also Barrera, v. Tindall, No. 3:25-cv-541, 2025 WL 2690565, at *4
(W.D. Ky. Sept. 19, 2025) (citation omitted). The circumstances surrounding
Petitioner’s detention align with section 1226(a), not section 1225(b)(2). Indeed, other
Courts in this Circuit and District have uniformly rejected Respondents’ expansive
interpretation of section 1225. See, e.g., Gil-Paulino v. Sec’y of the U.S. Dep’t of

Homeland Sec., 25-cv-24292, ECF No. [41], (S.D. Fla. Oct. 10, 2025) (respondent’s
interpretation of the INA “directly contravenes the statute” and “disregards decades
of settled precedent”); see also Pizarro Reyes, 2025 WL 2609425, at *7 (“Finally, the
BIA's decision to pivot from three decades of consistent statutory interpretation and
call for Pizarro Reyes’ detention under § 1225(b)(2)(A) is at odds with every District
Court that has been confronted with the same question of statutory interpretation.”);
Puga, No. 25-24535, 2025 WL 2938369, at *3–6; Merino v. Ripa, No. 25-23845, 2025
WL 2941609, at *3 (S.D. Fla. Oct. 15, 2025); Lopez v. Hardin, No. 25-cv-830, 2025 WL
2732717, at *2 (M.D. Fla. Sept. 25, 2025); Alvarez v. Morris, 25-cv-24806, ECF No.

[6], (S.D. Fla. Oct. 27, 2024) (collecting cases).
The Court recognizes that this issue is currently before the Eleventh Circuit
Court of Appeals in Hernandez-Alvarez v. Warden, Federal Detention Ctr. Miami, et
al. and Cerro Perez v. Assistant Field Office Director, et al., and that the Fifth Circuit
Court of Appeals in Buenrostro-Mendez v. Bondi, et al. and the Eighth Circuit Court
of Appeals in Avila v. Bondi, recently issued decisions in Respondents’ favor. See

Buenrostro-Mendez, 166 F.4th 494 (5th Cir. 2026); Avila, 170 F.4th 1128 (8th Cir.
2026). In any event, neither decision is controlling on this Court, and the Eleventh
Circuit has not ruled on the matter. As such, there is no binding authority that
contravenes the previous decisions of this Court. Indeed, most case law has
consistently held that detainees such as Petitioner are entitled to an individualized
bond hearing under 8 U.S.C. § 1226(a).
Accordingly, Petitioner’s detention is governed by section 1226(a) and,

therefore, he is entitled to an individualized bond hearing before an IJ. As such,
Petitioner’s mandatory detention under section 1225(b) without conducting a
dangerousness and risk of flight determination is unlawful.
B. Petitioner’s Claim for Inadequate Medical Care is Outside the
Scope of Habeas Relief.
Petitioner’s claim regarding his inadequate medical care concerns the
conditions of his confinement, rather than the fact of his confinement, and, thus, are
outside the scope of habeas relief. See Vaz v. Skinner, 634 F. App’x 778, 780 (11th
Cir. 2015) (“Claims challenging the fact or duration of a sentence fall within the ‘core’
of habeas corpus, while claims challenging the conditions of confinement fall outside

of habeas corpus law.”). Moreover, “release from imprisonment is not an available
remedy for a conditions-of-confinement claim.” Id., 634 F. App’x at 778; see also
Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (“The appropriate
Eleventh Circuit relief from prison conditions . . . is to require the discontinuation of
any improper practices . . . [it] does not include release from confinement.”).
Accordingly, Petitioner’s claim challenging the conditions of his confinement is

dismissed without prejudice because a habeas petition is not the appropriate vehicle
to raise this claim. Such a claim is properly brought, if at all, pursuant to 42 U.S.C.
§ 1983. See Vaz, 634 F. App’x at 780.
III. CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as
follows:
1. Petitioner Angelo Gallardo Andrade’s Verified Petition for Writ of
Habeas Corpus, ECF No. [1], is GRANTED IN PART. The Court has determined
that Petitioner falls under 8 U.S.C. § 1226(a), and accordingly, Respondents shall
promptly afford Petitioner an individualized bond hearing consistent with 8 U.S.C. §
1226(a) or otherwise release Petitioner.
2. Respondents shall, within 24 hours of the bond hearing, file a Status
Report indicating the outcome of the bond hearing and, if release on bond is denied,
the reason(s) for the denial.
3. Count I of the Petition is GRANTED and the remaining Counts are
DISMISSED WITHOUT PREJUDICE.
4, The Clerk is directed to CLOSE this case.
5. Any pending motions are DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida this lst day of May,
2026.
seagfe BECERRA
UNITED/STATES DISTRICT JUDGE

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11335120. Public record. Not legal advice.