Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

VICTOR MANUEL PEREZ

PACHECO,

Petitioner,

v. Case No.: 2:26-cv-1227-SPC-NPM

WARDEN OF FLORIDA SOFT

SIDE SOUTH DETENTION

FACILITY et al..

Respondents,

/

OPINION AND ORDER

Before the Court are Victor Manuel Perez Pacheco’s Petition for Writ of

Habeas Corpus (Doc. 1), the federal government’s response (Doc. 6), and Perez

Pacheco’s reply (Doc. 10). For the below reasons, the Court grants the petition.

Perez Pacheco is a native and citizen of Cuba who applied for admission

into the United States through the CBP One process. On July 24, 2024, the

Department of Homeland Security (“DHS”) granted him humanitarian parole,

admitted him into the country through June 27, 2025, and commenced removal

proceedings by issuing a notice to appear. In September 2024, Perez Pacheco

applied for adjustment of status under the Cuban Adjustment Act. The

application remains pending. On October 16, 2024, an immigration judge

dismissed the removal proceeding. He explained,

The respondent has testified under oath that they were fingerprinted by

DHS and have no criminal record. The respondent’s status as a paroled

Cuban is immutable and the respondent is, and will remain, eligible

indefinitely to apply for adjustment of status under the Cuban

Adjustment Act. The court will dismiss proceedings for the respondent

to apply for adjustment of status with USCIS who has sole jurisdiction

over their applications.

(Doc. 1-7 at 1).

On March 30, 2026, roving Border Patrol agents arrested Perez Pacheco

during a traffic stop and detained him at Alligator Alcatraz. On April 1, 2026,

DHS issued a notice to appear, which incorrectly charged Perez Pacheco as

being “an alien present in the United States who has not been admitted or

paroled.” (Doc. 6-1 at 6). Perez Pacheco is currently detained at ERO El Paso

Camp East Montana.

The respondents argue (1) 8 U.S.C. § 1252(g) and (b)(9) strip the Court

of jurisdiction over the petitioner’s claims, (2) the petitioner failed to exhaust

available administrative remedies, and (3) the petitioner is properly detained

under § 1225. As the respondents acknowledge, the Court rejected these

arguments in cases that presented the same issues, like Hinojosa Garcia v.

Noem, No. 2:25-cv-879-SPC-NPM, 2025 WL 3041895 (M.D. Fla. Oct. 31, 2025)

and Vasquez Carcamo v. Noem, 2:25-cv-922-SPC-NPM, 2025 WL 3119263

(M.D. Fla. Nov. 7, 2025).

As the Court explained in Hinojosa Garcia and Vasquez Carcamo, it has

jurisdiction because this action falls outside the scope of § 1252(g) and (b)(9),

and exhaustion is excused because it would be futile. And like the petitioners

in those cases, Perez Pacheco’s detention is not governed by § 1225(b)(2). Even

under the government’s expanded application of mandatory detention—which

the Board of Immigration Appeals adopted Matter of Yajure Hurtado, 29 I&N

216 (BIA Sept. 5, 2025)—Perez Pacheco is not an “arriving alien” because he

was admitted into the country. Indeed, DHS did not charge Perez Pacheco as

being an arriving alien in the April 1, 2026 notice to appear.

8 U.S.C. § 1226(a) did not authorize Perez Pacheco’s arrest and detention

either. That section states, “On a warrant issued by the Attorney General, an

alien may be arrested and detained pending a decision on whether the alien is

to be removed from the United States.” The timing of the warrant and the

arrest is important. 8 C.F.R. § 1236.1(b) states, “At the time of issuance of the

notice to appear, or at any time thereafter and up to the time removal

proceedings are completed, the respondent may be arrested and taken into

custody under the authority of Form I–200, Warrant of Arrest.” (emphasis

added). Courts in this district and elsewhere have ordered ICE to release

detainees who were arrested on a I-200 warrant before issuance of a notice to

appear. See Alejandro Arellano v. Quinones, No. 26-cv-512-GAP-DCI (M.D.

Fla. Mar. 9, 2026); Landaverde Ardon v. Mina, No. 6:26-cv-313-JSS-LHP, 2026

WL 530199 (M.D. Fla. Feb. 26, 2026); Arango v. Genalo, No. 25-cv-6720 (RER),

2025 WL 3637500 (E.D.N.Y. Dec. 16, 2025); Gopie v. Lyons, No. 25-cv-5229-

SJB, 2025 WL 3167130 (E.D.N.Y. Nov. 13, 2025).

DHS did not even bother to issue a warrant here. The government

arrested Perez Pacheco with no warrant, after his first removal proceeding was

dismissed, and before a new removal proceeding was commenced. Perez

Pacheco’s arrest and detention were unlawful. See Gopie, 2025 WL 3167130,

at *3 (“ICE does not have free-ranging ability to arrest and detain people, and

figure out the reasons later, like they apparently did here.”).

Accordingly, it is hereby ORDERED:

Victor Manuel Perez Pacheco’s Petition for Writ of Habeas Corpus (Doc.

1) is GRANTED.

1. The respondents shall release Perez Pacheco from custody within

24 hours of this Order and facilitate his transportation from the facility by

notifying his counsel when and where he may be collected.

2. 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 May 1, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1