govinfo:USCOURTS-flsd-0_26-cv-60414-0

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 26-60414-CIV-SINGHAL 
 
CRISTOFER JOSE GOMEZ VARELA, 
 
Petitioner, 
 
v. 
 
CARLOS NUNEZ, et al. ,  
 
Respondent. 
________________________________/ 
 
ORDER SETTING HEARING 
 
Petitioner is a Honduran national  who entered the United States in 2011 without 
inspection.  (DE [1] ¶ 44).  On October 28, 2025, Petitioner was detained during a traffic  
stop, and he was transferred to Broward Transitional Center.  Id.  ¶ 45.  Petitioner was 
placed in removal proceedings, which are pending.  Id. ¶ 46.  Petitioner requested release 
on bond, but the immigration judge denied Petitioner’s request under Matter of Yajure 
Hurtado, 29 I&N Dec. 216 (BIA 2025) .  Id. ¶¶ 48-49.  Petitioner then filed the present 
Petition for Writ of Habeas Corpus (DE [3]).  The government responded, (DE [ 8]), and 
the Court held a hearing on March 4, 2026.  (DE [12]).  Despite the excellent arguments 
that Petitioner’s counsel raised at the hearing, the Court determines that Petitioner is 
lawfully detained pursuant to 8 § 1225(b)(2).  The Petition (DE [1]) is denied. 
I. LEGAL STANDARD 
District courts have authority to grant writs of habeas corpus.  28 U.S.C. § 2241(a).  
Habeas corpus is fundamentally “a remedy for unlawful executive detention.”  Munaf v. 
Geren, 553 U.S. 674, 693 (2008) (citation omitted).  A writ may be issued to a petitioner 
who demonstrates that he is being held in custody in violation of the Constitution or federal 
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law.  See 28 U.S.C. § 2241(c)(3).  The court's jurisdiction extends to challenges involving 
immigration-related detention.  See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). 
II. DISCUSSION 
Petitioner claims that he has been unlawfully detained without bond, and that he 
should be released under 8 U.S.C. § 1226.  This Court has previously explained that 
aliens present in the United States without admission are “applicants for admission” under 
8 U.S.C. § 1225 and are therefore subject to mandatory detention under § 1225.  See, 
e.g., Morales v. Noem , — F. Supp. 3d — , 2026 WL 236307 , at *8  (S.D. Fla. Jan. 29, 
2026); Banchi v. Diaz , No. 0:25- cv-62341 (S.D. Fla. Feb. 2, 2026); Doria v. Warden, 
Broward Transitional Center, No. 0:26-cv-60112 (S.D. Fla. Feb. 9, 2026).  Multiple courts 
of appeals have done the same.  See Buenrostro-Mendez v. Bondi, — F.4th —,  2026 WL 
323330, at *4 (5th Cir. Feb. 6, 2026); Avila v. Bondi, — F.4th —, 2026 WL 819258, at *4 
(8th Cir. Mar. 25, 2026).  And other district courts have also reached the same conclusion.  
See, e.g. , Lopez v. Dir. of Enf ’t & Removal Operations, — F. Supp. 3d —, 2026 WL 
261938, at *7  (M.D. Fla. Jan. 26, 2026) ; Weng v. Genalo,  2026 WL 194248, at *3 
(S.D.N.Y. Jan. 25, 2026).  This case is no different.  Petitioner entered the country without 
inspection, and was therefore an applicant for admission.  (DE [1] ¶ 45).   
Petitioner tries to distinguish these cases and argues that the Notice to Appear he 
received places him under § 1226, not § 1225.  At the hearing, Petitioner argued that on 
the Notice to Appear, Department of Homeland Security (“DHS”) had checked the box for 
“You are an alien present in the United States who has not been admitted or paroled,” 
instead of the “You are an arriving alien box.”  But both of those boxes apply to an 
applicant for admission—" An alien present in the United States who has not been 
admitted . . . .” 8 U.S.C. § 1225(a)(1).  Only checking the third box, “ You have been 
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admitted to the United States, but are removable for the reasons stated below,” requires 
that the detainee receive a bond hearing under § 1226.  See  Ramirez v. Charles, — F. 
Supp. 3d —, 2026 WL 827155, at *2  (S.D. Fla. Mar. 26, 2026)  (ordering petitioner be 
granted a bond hearing when DHS checked the third box).  Petitioner was not inspected 
and is therefore an applicant for admission.  The government may, under the present 
statutory scheme, detain Petitioner under § 1225(b)(2).  
Petitioner then argues that his detention violates the INA’s regulations.  Petitioner 
points to Executive Office for Immigration Review: Inspection and Expedited Removal of 
Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum, 62 
Fed. Reg. 10312, 10333 (Mar. 6, 1997).  There the agency stated that “[d]espite being 
applicants for admission, aliens who are present without having been admitted or paroled 
(formerly referred to as aliens who entered without inspection) will be eligible for bond 
and bond redetermination.”  He argues that this statement shows that “individuals who 
had entered without inspection were eligible for consideration for bond.”  (DE [1] ¶ 55).  
There are three issues with this argument .  First, this statement in the Federal 
Register is not part of a codified regulation but is the agency’s explanation, during the 
notice and comment process, of an interim rule.  It is therefore not a regulation binding 
on anyone.  It is the regulatory equivalent of legislative history.  Second, as this Court 
explained in Morales, § 1225 and § 1226 both cover non-admitted aliens—applicants for 
admission.  The Government has always had authority to detain applicants for admission 
under either statute.  Prior to 2025 however, the executive chose to offer bond to 
applicants for admission already present in the country under § 1226.  The executive now 
is exercising its discretion to detain applicants for admission under § 1225.  This is not a 
change of interpretation; this is a permissible use of executive power to execute the law 
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as the chief executive determines best.  The separation of powers mandates that the 
Court cannot direct the executive how to execute the laws. 
Third, t his statement in the Federal Register actually cuts against Petitioner’s 
statutory argument.  The agency determined that “aliens who are present without having 
been admitted or paroled  . . . will be eligible for bond and bond redetermination” “despite 
being applicants for admission.”  62 Fed. Reg. at 10333 (emphasis added).  In other 
words, DHS stated that it would detain applicants for admission under § 1226 even though 
§ 1225 applied.  Since 1997, DHS has recognized that §  1225 applies to applicants for 
admission.  Until 2025, DHS chose not to enforce it.  Starting in 2025, DHS chose to apply 
§ 1225.  These are both lawful executive decisions.  
Petitioner’s argument that his detention violates 8 C.F.R. §§ 236.1, 1236.1, and 
1003.19 fails for the same reasons.  These regulations state that an immigration officer 
“may, in the officer’s discretion, release an alien” under § 1226. 8 C.F.R. § 236.1(c)(8); 8 
C.F.R.  § 1236.1(c)(8)  These regulations do not require immigration officials to release 
all detainees, including those detained under § 1225.   In fact, th e officers’ discretion is 
limited to releasing aliens under § 1226 and § 1252 (not relevant here).  These regulations 
give the officers discretion to release aliens under specific provisions, not under all the 
detention provisions of the Immigration and Nationality Act.  For many years, immigration 
officials did exercise their discretion to grant bond under § 1226.  But now, at DHS’ s 
directive, these same officials are exercising their authority to detain applicants for 
admission under § 1225.  This change is compatible with these regulations— officials may 
still release admitted aliens under § 1226.  The only difference is that applicants for 
admission detained under § 1225 are not being released.   This change is a permissible 
enforcement decision, and it does not contravene these regulations.  
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Petitioner’s due process arguments are similarly of no avail.  See, e.g., Arroyo v. 
Diaz, -- F. Supp. --, 2026 WL 279656, at *6 (S.D. Fla. Feb. 2, 2026); Morales, 2026 WL 
236307, at *9.  The “[Supreme]  Court has recognized detention during deportation 
proceedings as a constitutionally valid aspect of the deportation process.”  Demore v. 
Kim, 538 U.S. 510, 523 (2003).   “[A]liens are not entitled to a bond hearing while they 
pursue withholding of removal.”  Johnson v. Guzman Chavez, 594 U.S. 523, 526 (2021).  
Because the Supreme Court has upheld the constitutionality and lawfulness of detention 
without bond, Petitioner's due process rights have not been violated.  
III. CONCLUSION 
For the reasons discussed above, the Court concludes that Petitioner’s detention 
is lawful under 8 U.S.C. § 1225(b)(2).   Petitioner is  not entitled to release or a bond  
hearing pending removal.  Accordingly, it is hereby ORDERED AND ADJUDGED that 
the Petition (DE [1]) is DENIED.  The Clerk of Court is directed to CLOSE  this case and 
DENY AS MOOT any pending motions. 
 DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 8 th day of 
April 2026. 
 
Copies furnished counsel via CM/ECF  
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