Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KENNYWED JOSE HERNANDEZ OJEDA,

Petitioner,

v. Case No. 2:26-cv-537-JES-DNF

WARDEN, GLADES COUTY DETENTION

CENTER, et al.,

Respondents.

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OPINION AND ORDER

Before the Court are Petitioner Kennywed Jose Hernandez

Ojeda’s petition for writ of habeas corpus (Doc. 1) and the

government’s response (Doc. 5). For the reasons below, the Court

grants the petition to the extent set forth in this Order.

I. Background

Jose Hernandez is a native and citizen of Venezuela who last

entered the United States without inspection on November 29, 2021.

(Doc. 5 at 2). He has a pending application for asylum and

employment authorization. (Doc. 1-1 at 10–11). He was granted

Temporary Protected Status on December 16, 2024. (Id. at 13).

Jose Hernandez has no criminal history. (Doc. 5-1 at 4).

Jose Hernandez was taken into custody by immigration

authorities on December 29, 2025 when he attempted to import a

vehicle into St. Croix. (Doc. 5-1 at 2). He was thereafter placed

in the custody of Immigration and Customs Enforcement (ICE) and

remains detained at the Glade County Detention Center in Moore

Haven, Florida under the mandatory provisions of 8 U.S.C. §

1225(b)(2). (Doc. 5 at 2). Jose Hernandez now argues, among other

things, that he is entitled to a bond hearing under 8 U.S.C. §

1226(a). (Doc. 1 at 7–8).

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 Jose Hernandez. 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 Jose Hernandez—already present in

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

Respondents argue that, despite having continuously resided

in the United States for more than five years, Jose Hernandez is

properly detained under section 1225(b).2 Indeed, the Court

recognizes that in Buenrostro-Mendez v. Bondi, et al.,166 F.4th

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.

494 (5th Cir. 2026), the Fifth Circuit Court of Appeals—the only

circuit court to have ruled on 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. Thus, the Court rejects the

government’s argument that Jose Hernandez 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), Jose Hernandez has a right to a bond hearing.

The Court will thus order Respondents to either bring Jose

Hernandez 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 Jose Hernandez

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is 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 Jose Hernandez to

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

are unable to ensure that Jose Hernandez 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. Kennywed Jose Hernandez Ojeda’s Petition for Writ of

Habeas Corpus (Doc. 1) is GRANTED to the extent set forth in this

Order.

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

Jose Hernandez 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 meaningfully consider

bond, Petitioner must be released.

3, If Respondents release Jose Hernandez, they shall

facilitate his transportation from the detention facility by

notifying his counsel when and where he may be collected.

4. 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.

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VAM Z~ DH

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE