Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 0:26-CV-60206-MIDDLEBROOKS/AUGUSTIN-BIRCH
REPORT AND RECOMMENDATION ON
PETITION FOR A WRIT OF HABEAS CORPUS
This cause comes before the Court on Petitioner Freddy Antonio Tellez Lopez’s Petition
for a Writ of Habeas Corpus. 	DE 1. 	The Honorable Donald M. Middlebrooks, United States
District Judge, referred the Petition to the undersigned United States Magistrate Judge to take all
action required by law. DE 3. Respondents filed a response to the Petition, and Petitioner filed a
reply. DE 5; DE 6. The Court has carefully considered the briefing and the record and is otherwise
fully advised. The Court RECOMMENDS that the Petition [DE 1] be GRANTED only insofar
as Respondents be ordered to, within seven days, either afford Petitioner an individualized bond
hearing before an immigration judge or release him.
I. 	Background
This case is one of many cases around the country stemming from the Department of
Homeland Security’s (“DHS”) recent changes to its interpretation of the Immigration and
Nationality Act’s (“INA”) detention provisions and the Board of Immigration Appeals’ (“BIA”)
agreement with that interpretation in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
FREDDY ANTONIO TELLEZ LOPEZ,
Petitioner,
v.
MARCOS CHARLES, et al.,
Respondents.
____________________________________/
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Two INA detention provisions are at issue, 8 U.S.C. § 1225(b)(2) and 8 U.S.C. § 1226(a).
Section 1225(b)(2) states that, “in the case of an alien who is an applicant for admission, if the
examining immigration officer determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained.” 8 U.S.C. § 1225(b)(2)(A).
Section 1226(a) 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.” Id. § 1226(a). But § 1226(a) provides that an alien awaiting a decision on removal may
be released on bond instead of continuing to be detained. Id. “Federal regulations provide that
aliens detained under § 1226(a) receive bond hearings at the outset of detention.” 	Jennings v.
Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)).
On July 8, 2025, DHS informed Immigration and Customs Enforcement (“ICE”)
employees that § 1225(b)(2), rather than § 1226(a), applies to all non-citizens present in the United
States who have “not been admitted . . . whether or not at a designated port of arrival.” Merino v.
Ripa, No. 25-23845-CIV, 2025 WL 2941609, at *3 (S.D. Fla. Oct. 15, 2025) (quoting ICE Memo:
Interim Guidance Regarding Detention Authority for Applications for Admission, AILA Doc.
No. 25071607 (July 8, 2025)). 	DHS has taken the position that all non-citizens present in the
United States who have not been admitted or paroled are applicants for admission and are subject
to mandatory detention under § 1225(b)(2), without the possibility of bond. Id. On September 5,
2025, BIA agreed with this interpretation, issuing a binding ruling in Matter of Yajure Hurtado
that immigration judges lack the authority to hear bond requests or to grant bonds to non-citizens
who are present in the United States without admission because those non-citizens are properly
detained under § 1225(b)(2). Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). With
this background in mind, the Court turns to the facts of this case.
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Petitioner states that he is a native and citizen of Nicaragua who entered the United States
without inspection in 2021, was not apprehended at the border, and has lived openly and
continuously in the United States for more than four years. 	DE 1 ¶¶ 1, 4. 	He has established
substantial ties to the United States, including by purchasing a home. 	Id. ¶ 4. 	He filed an
application for asylum in 2022. Id. ¶ 5; see DE 1-3 (asylum application). On October 1, 2025,
while he was attending a scheduled asylum interview, ICE arrested him and placed him into
immigration detention. DE 1 ¶ 6. He currently is detained at the Broward Transitional Center in
Pompano Beach, Florida and has been denied an individualized bond hearing. Id. ¶¶ 12–13, 17,
19, 21, 24, 26. While detained at the Broward Transitional Center, he has been sexually assaulted
by a detention officer. Id. ¶¶ 9, 32.
II. 	Analysis
Petitioner contends that his continued detention without a bond hearing violates the INA
and his right to due process under the Fifth Amendment to the United States Constitution and is
arbitrary and unreasonable. Id. at 10–12. He also asserts that the conditions of his confinement
are unlawful. Id. at 11. Among the relief he seeks is a writ of habeas corpus requiring Respondents
to release him with or without reasonable conditions of supervision. Id. at 12. Respondents assert
that Petitioner properly is detained without bond under 8 U.S.C. § 1225(b)(2) and that he cannot
challenge the conditions of his confinement through a habeas petition.
A. The Appropriate Statute Governing Petitioner’s Detention
Respondents contend that the Petition must be denied because Petitioner properly is
detained without bond under § 1225(b)(2), as opposed to § 1226(a). Respondents maintain that
§ 1225(b)(2) applies to all non-citizens who are present in the United States without admission.
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This Court already has rejected Respondents’ position, and Judge Middlebrooks has
agreed. Sanchez v. Noem, No. 0:25-CV-62677, 2026 WL 218739, at *2–3 (S.D. Fla. Jan. 20, 2026)
(concluding that “Petitioner’s detention is governed by 8 U.S.C. § 1226(a), [and] Petitioner is
entitled 	to 	an 	individualized 	bond 	hearing 	before 	an 	immigration 	judge”), 	report 	&
recommendation adopted, 2026 WL 222556 (S.D. Fla. Jan. 28, 2026); Gonzalez, 2025 WL
4053421, at *4 (concluding that “Petitioner’s detention is governed by 8 U.S.C. § 1226(a), [and]
Petitioner is entitled to an individualized bond hearing before an immigration judge”), report &
recommendation adopted, 2026 WL 115211. Likewise, many courts in this District and around
the country have rejected Respondents’ position.1 E.g., Merino, 2025 WL 2941609, at *3 (“DHS’s
interpretation of the applicability of § 1225(b)(2), rather than § 1226, to noncitizens who have
resided in the count[r]y for years and were already in the United States when apprehended, runs
afoul of the statutes’ legislative history, plain meaning, and interpretation by courts in the First,
Second, Fifth, Sixth, Eighth, and Ninth Circuits.”); Puga v. Assistant Field Off. Dir., Krome N.
Serv. Processing Ctr., No. 25-24535-CIV, 2025 WL 2938369, at *5 (S.D. Fla. Oct. 15, 2025)
(“[N]umerous courts that have examined the interpretation of section 1225 articulated by
Respondents––particularly following the BIA’s decision in Matter of Yajure Hurtado––have
rejected their construction and adopted Petitioner’s.”); see also DE 5 at 2–3 n.1 (string cite of cases
from this District).
Section 1225(b) “applies primarily to aliens seeking entry into the United States.”
Jennings, 583 U.S. at 297. In contrast, § 1226(a) “applies to aliens already present in the United
States.” Id. at 303. Petitioner was detained while he was already present in the United States, not
1 The Court acknowledges that, in a split-decision, the Fifth Circuit recently reached a contrary conclusion.
See generally Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL 323330 (5th Cir. Feb. 6, 2026). That opinion,
however, is not binding on this Court.
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while he was seeking entry into the United States. 	According to Petitioner, he had lived in the
United States for over four years by the time he was detained. His detention is governed under
§ 1226(a), not under § 1225(b)(2). See Merino, 2025 WL 2941609, at *3 (“Petitioner, who has
resided in the country for nearly a decade and was apprehended while already within the United
States, not at the border, falls under § 1226(a), not § 1225(b)(2), and is therefore subject to
discretionary bond determination.”). 	As Petitioner’s detention is governed under § 1226(a), he
must receive an individualized bond hearing before an immigration judge. See Jennings, 583 U.S.
at 306 (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)).
B. Petitioner’s Challenge to Conditions of Confinement
Within the Petition, Petitioner contends that the conditions of his confinement are unsafe,
are inhumane, and “effectively deprive him of basic human needs and place him at substantial risk
of physical and psychological harm,” violating his right to due process. 	DE 1 ¶¶ 46–47.
Respondents argue that he cannot challenge the conditions of his confinement through a habeas
petition. 	Respondents are correct. 	“Claims challenging the fact or duration of a sentence fall
within the core of habeas corpus, while claims challenging the conditions of confinement fall
outside of habeas corpus law.” 	Vaz v. Skinner, 634 F. App’x 778, 780 (11th Cir. 2015) (citing
cases where plaintiffs challenged the conditions of their confinement by filing complaints under
42 U.S.C. § 1983). 	If Petitioner wishes to challenge the conditions of his confinement, he may
initiate a separate action by filing a complaint under the appropriate laws.
III. 	Recommendation
Accordingly, the Court RECOMMENDS that the Petition [DE 1] be GRANTED only
insofar as Respondents be ordered to, within seven days, either afford Petitioner an individualized
bond hearing before an immigration judge or release him.
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While a party normally has fourteen days to serve and file written objections to any of the
findings and recommendations in a report and recommendation, see 28 U.S.C. § 636(b)(1);
S.D. Fla. Mag. R. 4(a), this case warrants a shorter objection period. Within seven days of being
served with a copy of this Report and Recommendation, any party may serve and file written
objections to any of the above findings and recommendations. Failure to timely object waives the
right to challenge on appeal the District Court’s order based on unobjected-to factual and legal
conclusions contained in this Report and Recommendation. 11th Cir. R. 3-1 (2014).
DONE AND SUBMITTED in Chambers at Fort Lauderdale, Florida, this 10th day of
February, 2026.
_______________________________
PANAYOTTA AUGUSTIN-BIRCH
UNITED STATES MAGISTRATE JUDGE
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