Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ANDRES ELOY DIAZ FERRER,

Petitioner,

v. Case No. 2:26-cv-536-JES-DNF

ACTING DIRECTOR IMMIGRATION AND

CUSTOMS ENFORCEMENT, et al.,

Respondents.

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OPINION AND ORDER

Before the Court are Petitioner Andres Eloy Diaz Ferrer’s

amended petition for writ of habeas corpus (Doc. 6), the

government’s response (Doc. 11), and Diaz Ferrer’s reply (Doc.

13). For the reasons below, the Court grants the petition to the

extent set forth in this Order.

I. Background

Diaz Ferrer is a 20-year-old citizen of Venezuela who was

paroled into the United States on November 20, 2023 under the

Venezuelan Humanitarian Parole program, which was revoked on June

12, 2025. (Doc. 11-1 at 2). Diaz Ferrer has a pending I-589

application for asylum and for withholding of removal. (Id.) On

February 21, 2026, Diaz Ferrer was pulled over for speeding and

reckless driving and was subsequently detained by Immigration and

Customs Enforcement (ICE). (Doc. 6 at 11; Doc. 11-1 at 2).

Diaz Ferrer is currently detained at the Florida Soft Side

South Detention Center (Alligator Alcatraz) in Ochopee, Florida

under the mandatory provisions of 8 U.S.C. § 1225(b)(2). (Doc. 6

At 2; Doc. 11 at 2). Diaz Ferrer now argues, among other things,

that he is entitled to a bond hearing under 8 U.S.C. § 1226(a).

(Doc. 6 at 13–14).

II. Discussion

The core dispute before this Court is whether 8 U.S.C. §

1225(b)(2) or § 1226(a) of the Immigration and Nationality Act

(“INA”) applies to Diaz Ferrer. The distinction matters because

§ 1225(b)(2) mandates detention throughout removal proceedings,

whereas noncitizens detained under § 1226(a) have the right to a

bond hearing before an immigration judge.

Section 1225(b)(1) establishes the procedures for expedited

removal. It allows immigration officers to remove noncitizens

“without further hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i).

As expedited removal affords substantially fewer protections to

the noncitizen's rights, the INA limits its applicability in two

ways. First, noncitizens may be eligible for expedited removal

“only if they are inadmissible on the basis that they either lack

proper entry documents or falsified or misrepresented their

application for admission.” Coalition for Humane Immigrant Rights

v. Noem, 805 F. Supp. 3d 48,61 (D.D.C. 2025) (citing 8 U.S.C. §§

1225(b)(1)(A)(i) and 1182(a)(6)(C), (a)(7)). And “[a]mong that

set, only two categories of noncitizens are eligible for expedited

removal: (1) noncitizens ‘arriving in the United States,’ and (2)

noncitizens who ‘ha[ve] not been admitted or paroled into the

United States’ and cannot affirmatively show that they have been

‘physically present in the United States continuously for the 2-

year period immediately prior to the date of the determination of

inadmissibility.’” Id. (quoting 8 U.S.C. § 1225(b)(1)(A)(i)–

(iii)).

Section 1226 of the INA also “authorizes the Government to

detain certain aliens already in the country pending the outcome

of removal proceedings[.]” Jennings v. Rodriguez, 583 U.S. 281,

289 (2018). But § 1226 provides additional safeguards, including

the right to an individualized bond hearing. Id. 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)). Noncitizens already in the country

are treated differently than those seeking entry. As the Supreme

Court observed, “our immigration laws have long made a distinction

between those aliens who have come to our shores seeking admission

. . . and those who are within the United States after an entry,

irrespective of its legality. In the latter instance, the Court

has recognized additional rights and privileges not extended to

those in the former category who are merely ‘on the threshold of

initial entry.’” Leng May Ma v. Barber, 357 U.S. 185, 187 (1958)

(quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206

(1953)); see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“But

once an alien enters the country, the legal circumstance changes,

for the Due Process Clause applies to all ‘persons’ within the

United States, including aliens, whether their presence here is

lawful, unlawful, temporary, or permanent.”). And until recently,

DHS has treated aliens—such as Diaz Ferrer—already present in the

country as detained under § 1226 and entitled to bond hearings.1

Respondents argue that Diaz Ferrer is properly detained under

section 1225(b).2 Indeed, the Court recognizes that in Buenrostro-

Mendez v. Bondi, et al.,166 F.4th 494 (5th Cir. 2026), the Fifth

Circuit Court of Appeals—the only circuit court to have ruled on

1 The Government’s recent about-face toward mass mandatory

detention under § 1225 was blessed by the Board of Immigration

Appeals (“BIA”) in In re Yajure Hurtado, 29 I.& N. Dec. 216, 229

(B.I.A. 2025). But the Court owes no deference to the BIA’s

statutory interpretations. In 2024, the Supreme Court concluded

that “agencies have no special competence in resolving statutory

ambiguities. Courts do.” Loper Bright Enters. v. Raimondo, 603

U.S. 369, 400–01 (2024). And “[c]ourts interpret statutes, no

matter the context, based on the traditional tools of statutory

construction, not individual policy preferences.” Id. at 403.

2 In Patel v. Hardin, No. 2:25-cv-870-JES-NPM (M.D. Fla. Dec.

1, 2025), Respondents argued that the Court lacks jurisdiction to

consider this petition and that the petitioner has not properly

exhausted his administrative remedies. The Court rejected those

arguments in Patel and in scores of other recent cases presenting

the same issues. See, e.g., Cetino v. Hardin, No. 2:25-cv-1037-

JES-DNF (M.D. Fla. December 12, 2025); Reyes Rodriguez v. Florida

Southside Facility, No. 2:25-cv-1012-JES-DNF (M.D. Fla. December

15, 2025). In those cases, the Court was satisfied of its

jurisdiction and determined that exhaustion was excused because it

would be futile. The Court’s reasoning on these issues also

applies here.

the issue thus far—recently concluded that most noncitizens

apprehended anywhere in the United States are never eligible for

release on bond, no matter how long they have resided inside the

United States. This is contrary to the overwhelming majority of

district court judges to have considered the issue. See also

Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1060–

62 (7th Cir 2005) (concluding that the government was unlikely to

prevail on the merits that petitioner was subject to mandatory

detention under § 1225(b)(2)(A)). This Court respectfully

disagrees with the Fifth Circuit’s analysis and finds the analysis

in Castanon-Nava and the dissent in Buenrostro-Mendez to be more

persuasive on the statutory interpretation issue. In any event,

Buenrostro-Mendez is not binding precedent in this Court.

The government could have detained Diaz Ferrer without a bond

hearing when he entered the country in 2023. Instead, they

released him on parole and allowed him to stay for more than two

years before rearresting him. Thus, the Court rejects the

government’s argument that Diaz Ferrer is subject to expedited

removal and concludes that Respondents’ authority to detain him

stems from section 1226(a). As a noncitizen detained under section

1226(a), Diaz Ferrer has a right to a bond hearing.

The Court will thus order Respondents to either bring Diaz

Ferrer before an immigration judge for a merit-based § 1226 bond

hearing or release him within ten days. At the hearing, the

immigration court must make findings as to whether Diaz Ferrer is

3

a flight risk or is a danger to the community. The Court is aware

that the Executive Office for Immigration Review (“EOIR”) is the

agency that schedules bond hearings. In other cases, Respondents

have claimed they cannot direct the EOIR when to conduct a bond

hearing. Regardless, subjecting Diaz Ferrer to mandatory

detention under § 1225(b)(1) is unlawful. If Respondents are

unable to ensure that Diaz Ferrer timely receives the meaningful

and thorough bond hearing to which he is entitled under § 1226(a),

they must release him.

Accordingly, it is ORDERED:

1. Andres Eloy Diaz Ferrer’s Amended Petition for Writ of

Habeas Corpus (Doc. 6) is GRANTED to the extent set forth in this

Order.

2. Within TEN (10) DAYS Respondents shall either provide

Diaz Ferrer with the statutory process required under § 1226—which

includes a merit-based bond hearing—or release him under

reasonable conditions of supervision.

3

In recent cases in the Middle District of Florida—and

despite being ordered to do so—the immigration judge has declined

to provide a merit-based bond hearing, determining that under

Hurtado he had no discretion to issue a bond. See, e.g., Nahadian

Fard v. Bondi, et al., No. 6:26-cv-157-GAP-RMN, Doc. 23 (M.D. Fla.

Feb. 12, 2026). If the immigration judge in this case reaches the

same conclusion or otherwise declines to consider bond, Petitioner

must be released.

3, If Respondents release Diaz Ferrer, they shall

facilitate his transportation from the detention facility by

notifying his counsel when and where he may be collected.

4, The Warden’s motion to dismiss (Doc. 10) is DENIED as

moot.

5. The Clerk is DIRECTED to terminate any pending motions

and deadlines, enter judgment, and close the case.

DONE AND ORDERED in Fort Myers, Florida on March 17, 2026.

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE