# Opinion

> District Court, M.D. Florida · March 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11360766

## Case

- **Full name:** Andres Eloy Diaz Ferrer v. Acting Director Immigration and Customs Enforcement, et al.
- **Court:** District Court, M.D. Florida
- **Decided:** March 17, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
___________________________________
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Venezuelan Humanitarian Parole program, which was revoked on June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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11360766. Public record. Not legal advice.