Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

FERNANDO FUERTES MUNOZ,

Petitioner,

v. Case No. 2:26-cv-315-JES-DNF

FLORIDA SOFT SIDE SOUTH, et

al.,

Respondents.

/

ORDER

Before the Court are Petitioner Fernando Fuertes Munoz’s pro

se petition for writ of habeas corpus (Doc. 1), the government’s

response (Doc. 8), and Fuertes Munoz’s reply (Doc. 12). For the

reasons below, the Court grants the petition to the extent set

forth in this Order.

I. Background

Fuertes Munoz is a native and citizen of Cuba who entered the

United States on July 2, 2022. (Doc. 8 at 2). He was briefly

detained by border patrol at that time before being released on

his own recognizance. (Doc. 8-2 at 4, 6). An immigration judge

ordered Fuertes Munoz removed on November 25, 2025, but Fuertes

Munoz appealed the decision, and the order is not yet final. (Doc.

8 at 2).

Fuertes Munoz has an approved credible fear determination, a

pending asylum application, and no criminal history. (Doc. 1 at

8.) He is currently detained at Florida Soft Side South Detention

Facility under the mandatory detention provisions of 8 U.S.C. §

1225(b)(2). (Doc. 8 at 4). He now argues, among other things,

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

(Doc. 1 at 10–13).

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 Fuertes Munoz. 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 Fuertes Munoz—already present in

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

Respondents argue that, despite having resided in the United

States for more than three years, Fuertes Munoz 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)

and Avila v. Bondi, No. 25-3248, 2026 WL 819258 (8th Cir. Mar. 25,

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. Dec. 12, 2025); Reyes Rodriguez v. Florida

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

2026), the Fifth Circuit and Eighth Circuits 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 conclusions

reached by 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

and Eighth Circuits’ analyses and finds the analysis in Castanon-

Nava and the dissents in Buenrostro-Mendez and Avila to be more

persuasive on the statutory interpretation issue. In any event,

neither Buenrostro-Mendez nor Avila are binding precedent in this

Court.

The government could have detained Fuertes Munoz when he

entered the country in 2022. Instead, they released him on his

own recognizance. Thus, the Court rejects the government’s

argument that Fuertes Munoz 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),

Fuertes Munoz has a right to a bond hearing.

The Court will thus order Respondents to either bring Fuertes

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

hearing within ten days or release him. To satisfy this Order,

the hearing must include consideration of all evidence properly

submitted by the petitioner and the factors announced in In re

Guerra, 24 I. & N. Dec. 37 (BIA 2006), and Fuertes Munoz’s counsel

(if any) must receive at least 48 hours’ notice of the hearing,

but only if they enter their appearance in the Executive Office of

Immigration Review’s online filing system in time to receive the

notice.

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 Fuertes

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

Respondents are unable to ensure that Fuertes Munoz 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. Fernando Fuertes Munoz’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

Fuertes Munoz with the statutory process required under § 1226—

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

reasonable conditions of supervision.?

3, If Respondents release Fuertes Munoz, they shall

facilitate his transportation from the detention facility by

notifying his counsel or his family 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 April 17, 2026.

L) p 4 LEC

E. STEELE

Sq IOR UNITED STATES DISTRICT JUDGE

3 In recent cases in the Middle District of Florida—and

despite being ordered to do so-the immigration judge has refused

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

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

Alvarez v. Noem, et al., No. 2:26-cv-313-SPC-DNF (M.D. Fla. Mar.

4, 2026); 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.