Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOSE DANIEL LOPEZ AVELAR,

Petitioner,

v. Case No. 3:26-cv-715-TJC-MCR

MARKWAYNE MULLIN, Secretary

of the Department of Homeland

Security, et al.,

Respondents.

ORDER

On April 1, 2026, Petitioner Jose Daniel Lopez Avelar, an immigration

detainee at Baker County Facility, initiated this action through counsel by

filing a Petition for Writ of Habeas Corpus. (Doc. 1; Petition). The Federal

Respondents filed a Response. (Doc. 12; Response). The case is now ripe for

review.

I. Background

Petitioner, a citizen of El Salvador, entered the United States on January

4, 2017, as an unaccompanied minor without inspection and was encountered

by border patrol. Petition at 7; Response at 2. Since his entry, he has resided

continuously in the United States. Petition at 7. Notably, on October 11, 2022,

Petitioner’s earlier immigration court proceedings “were dismissed pursuant to

a Joint Motion to Dismiss filed by DHS and Respondent. Id. at 9 (emphasis in

original). Petitioner has an approved Form I-130 Petition for Alien Relative,

filed by his United States citizen wife, and is pursuing lawful permanent

resident status. Id. at 7. He has also filed a Form I-601A provisional Unlawful

Presence Waiver with U.S. Citizenship and Immigration Services, which

remains pending. Id. at 7–8. Petitioner also has a pending application for

asylum and related protection, filed in 2020. Id. at 8. He has no criminal history.

Id. at 14.

On February 18, 2026, Immigration and Customs Enforcement (ICE)

officers conducted a worksite enforcement operation where Petitioner was

working. Id. at 8. During that operation, “ICE officers arrested Petitioner

despite his presentation of a valid driver’s license and having a valid

employment authorization document.” Id. He was then taken into ICE custody,

placed in removal proceedings, and transferred to Baker County Facility, where

he remains detained. Id.; Response at 3.

II. Analysis

The Petition contains two counts, alleging: (1) Respondents have violated

the Immigration and Nationality Act; and (2) Respondents have violated the

Fifth Amendment due process clause. Petition at 14–21. As relief, Petitioner

requests, inter alia, immediate release or an order directing Respondents to

provide him with a bond hearing before an immigration judge. Id. at 21.

As Respondents acknowledge, the Court has recently addressed nearly

identical issues in Orozco Torres v. U.S. Dep’t of Homeland Sec., No. 3:26-cv-

646-TJC-LLL, 2026 WL 947955 (M.D. Fla. April 8, 2026). The Court

incorporates the reasoning in Orozco Torres into this Order. A difference

between the two cases is that Orozco Torres had a bond hearing at which the

immigration judge determined he had no jurisdiction to consider bond, whereas

Petitioner likely has not. But his efforts to secure a meaningful hearing would

likewise be futile, given Respondents’ position that he is being held under §

1225(b)(2) and that he is therefore “subject to mandatory detention.” Response

at 11.

Accordingly, the Court rejects the Federal Respondents’ arguments that

two statutory provisions, 8 U.S.C. § 1252(g) and (b)(9), deprive this Court of

jurisdiction to adjudicate Petitioner’s claims and that he failed to exhaust his

administrative remedies prior to filing this case. Regarding the merits of his

claim, the Court finds, in line with Orozco Torres, that Petitioner is not properly

detained under § 1225(b)(2). Thus, his Petition is due to be granted. See 2026

WL 947955, at *6.1

1 The Second Circuit Court of Appeals recently came to a similar

conclusion. See Cunha v. Freden, No. 25-3141-pr, 2026 WL 1146044 (2d Cir.

April 28, 2026) (“Section 1225(b)(2)(A) does not apply to noncitizens, such as

Petitioner, who are present in the United States after entering the country

without inspection and admission, and who were not apprehended at or near

the border at the time of entry. This result is dictated by the plain text of these

III. Remedy

The Court considered requiring an individualized bond hearing before an

immigration judge on Petitioner’s detention. However, the Board of

Immigration Appeals decision in Matter of Yajure Hurtado, 29 I&N Dec. 216

(BIA 2025), which is binding on all immigration judges, held that such judges

lack authority under 8 U.S.C. § 1225(b)(2) to consider bond requests for

individuals who entered the United States without admission. Thus, if the

Court were to require a hearing, the immigration judge would be bound to find,

under Hurtado, that he or she lacks jurisdiction to provide Petitioner with a

meaningful hearing.2 Moreover, Respondents argue Petitioner is subject to

“mandatory” detention under 8 U.S.C. § 1225(b)(2)(A), which does not permit

provisions, and further confirmed by the statute’s context, structure, history,

and purpose. It likewise comports with the Supreme Court’s established

understanding of Sections 1225 and 1226. It reflects Executive Branch practice

over thirty years and across five Presidential administrations. Moreover, it

explains why Congress has never challenged that settled practice despite

making numerous amendments to the immigration laws. Finally, even if the

government’s newfound interpretation of Section 1225(b)(2)(A) were

plausible—and it is not—we would nonetheless reject it based on our obligation

to construe these statutes in a manner that would avoid the serious

constitutional questions attendant to what would be the broadest mass-

detention-without-bond mandate in our Nation’s history for millions of

noncitizens.”)

2 Indeed, in previous similar cases before the undersigned, the

immigration judges have found they do not have “jurisdiction” to grant an

individualized bond hearing.

bond hearings. Response at 11.3

For these reasons, the Court finds ordering an individualized hearing

would not afford relief and would be futile. See, e.g., Rivero v. Mina, No. 6:26-

cv-66-RBD-NWH, --- F. Supp. 3d --- , 2026 WL 199319, at *4 (M.D. Fla. Jan. 26,

2026) (explaining that when the government “asserted no lawful basis” for

petitioner’s detention, allowing his continued detention while waiting for a

hearing “would gut the purpose of habeas review”) (citations omitted). Without

any lawful basis for his detention at this time, and unable to access a

meaningful bond hearing, the Court can only find that Petitioner is entitled to

immediate release.

Since the Court will grant the Petition because Petitioner is not properly

detained under § 1225(b)(2), it does not, and need not, address his due process

claim. See Banks v. Dretke, 540 U.S. 668, 689 n.10 (2004) (declining to address

an additional claim in a habeas petition after granting relief on another claim

because “any relief [petitioner] could obtain on that claim would be

cumulative”).

Accordingly, it is hereby

3 Respondents argue alternatively that if the Court finds that Petitioner

is subject to detention under 8 U.S.C. § 1226, “the appropriate remedy” is to

order a bond hearing before an immigration judge. Response at 15. However,

Respondents have not contended that they are detaining Petitioner under

§ 1226. Consequently, the Court declines to address § 1226, finding only that

the Petitioner is not properly detained under § 1225.

ORDERED:

1. Jose Daniel Lopez Avelar’s Petition for Writ of Habeas Corpus (Doc.

1) is GRANTED as to Count One; the Petition is otherwise denied

without prejudice as moot. Respondents shall release Petitioner

within 48 hours of the entry of this Order. Respondents shall

facilitate Petitioner’s transportation from the detention facility by

notifying his counsel when and where he can be collected.

3. No later than May 11, 2026, Respondents shall FILE a notice with

the Court confirming that Jose Daniel Lopez Avelar has been

released from custody.

4. The Clerk shall enter judgment granting the Petition as to Count

One and close the file.

5. The Court retains jurisdiction to effectuate this Order.

DONE AND ORDERED in Jacksonville, Florida this 5th day of May,

2026.

TIMOTHY J. CORRIGAN

Smt” Senior United States District Judge

hms

Copies:

Counsel of record