govinfo:USCOURTS-miwd-1_26-cv-01454-0

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
______ 
 
OLGA VICZARIT GUERRA 
ex rel. ANTHONY JOSE 
BORGES MACHADO, 
 
Petitioner, 
 
v. 
 
U.S. DEPARTMENT OF HOMELAND 
SECURITY et al., 
 
Respondents. 
____________________________/ 
 
 

 
Hon. Hala Y. Jarbou 
 
 
 
 
 
OPINION 
Olga Viczarit Guerra initiated this action by filing a pro se petition for a writ of habeas 
corpus pursuant to 28 U.S.C. § 2241 on behalf of Anthony Jose Borges Machado (Petitioner), a 
United States Immigration and Customs Enforcement (ICE) detainee . (Pet., ECF No. 1.) The 
habeas petition challenges the lawfulness of Petitioner’s current detention and asks the Court to, 
inter alia, issue a writ of habeas corpus pursuant to 28 U.S.C. § 2241 either ordering Respondents 
to release Petitioner or ordering Respondents to conduct a bond hearing to satisfy the requirements 
of due process. (Id., PageID.2.)
1 
In an order entered on May 7, 2026, the Court directed Respondents to show cause, within 
three business days, why the writ of habeas corpus and other relief requested by Petitioner should 
not be granted. (Order, ECF No. 6.) Respondents filed their response on May 12, 2026, (ECF No. 
7.) Petitioner filed a reply on May 28, 2026. (ECF No. 8.) After reviewing the parties’ submissions, 
 
1 With the petition, Petitioner filed an emergency motion for immediate release and protective 
relief. (ECF No. 2). The present opinion and judgment also resolve Petitioner’s motion. 
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the Court concludes that the petition is properly dismissed without prejudice for failure to exhaust 
administrative remedies. 
Discussion 
Petitioner is a native and citizen of Venezuela. (Notice to Appear (NTA), ECF No. 7- 1, 
PageID.35.) Petitioner entered the United States in 2023 and has remained in the United States 
since that time. ( Id.) On February 13, 2026, Department of Homeland Security (DHS) agents 
encountered and arrested Petitioner. ( 2026 Form I -213, ECF No. 7- 3, PageID.45.) Respondents 
have not provided Petitioner an individualized bond hearing before an immigration judge as 
contemplated by 8 U.S.C. § 1226(a).
2 
Since September of 2025, t his Court has considered hundreds of petitions similar to the 
present petition. In resolving those petitions, until recently, t he Court has declined to require that 
immigration detainees exhaust their administrative remedies before seeking habeas relief or, in the 
alternative, the Court has waived the exhaustion requirement. Then, turning to the merits, the Court 
has determined that immigration detainees in Petitioner’s circumstance are properly detained, if at 
all, under 8 U.S.C. § 1226(a) and, accordingly, entitled to a custody redetermination hearing if the 
government intends to continue the detention. 
On May 11, 2026, in Lopez -Campos v. Raycraft , Nos. 25-1965, 1969, 1978, 1982, 2026 
WL 1283891 (6th Cir. May 11, 2026), the United States Court of Appeals for the Sixth Circuit 
also concluded that § 1226(a), not § 1225(b)(2)(A), governs the detention of persons in Petitioner’s 
position. Moreover, the Sixth Circuit explained: 
Noncitizens who have “passed through our gates, even illegally, may be expelled 
only after proceedings conforming to traditional standards of fairness encompassed 
in due process of law.” Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 
 
2 The materials submitted by the parties do not suggest that Petitioner is subject to a final order of 
removal or that Petitioner is subject to detention under 8 U.S.C. § 1226(c). 
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212 (1953); see also Yamataya v. Fisher , 189 U.S. 86, 100–01 (1903). Thus, 
noncitizens within the interior of the United States are entitled to the protections of 
the Due Process Clause, “whether their presence here is lawful, unlawful, 
temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). “It is well 
established that the Fifth Amendment entitles aliens to due process of law in 
[removal] proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993); see also Demore 
v. Kim, 538 U.S. 510, 523 (2003) . Consequently, the government may not deny 
“notice” or “an opportunity to be heard” to a noncitizen “who has entered the 
country, and has become subject in all respects to its jurisdiction, and a part of its 
population, although alleged to be illegally here.” Yamataya, 189 U.S. at 100–01. 
Lopez-Campos, 2026 WL 1283891, at *11. The Sixth Circuit therefore upheld the lower courts’ 
determinations that the government’s detention of the Lopez -Campos petitioners “without bond 
under § 1226(a) was a deprivation of liberty that violated [their] due process rights.” Id. at *13. 
In Respondents’ submissions to this Court, they indicate their intention to comply with the 
binding holdings of Lopez -Campos and afford Petitioner a custody redetermination hearing. 
(Resp., ECF No. 7.) This changes the Court’s exhaustion analysis. At present the Court concludes 
that exhaustion would not be futile, and that the balance of prudential exhaustion factors weighs 
in favor of requiring exhaustion. 
There are no applicable statute s or rule s that mandate administrative exhaustion by 
Petitioner. Thus, whether to require exhaustion is within this Court’s “sound judicial discretion.” 
See Shearson v. Holder , 725 F.3d 588, 593–94 (6th Cir. 2013) (quoting McCarthy v. Madigan, 
503 U.S. 140, 144 (1992)). “Courts have described an implied requirement to raise issues with an 
agency as a ‘judge-made,’ ‘prudential,’ or ‘common law’ duty to exhaust,” Island Creek Coal Co. 
v. Bryan, 937 F.3d 738, 746 (6th Cir. 2019) (citations omitted), and such a court-made exhaustion 
rule must comply with statutory schemes and Congressional intent, Shearson, 725 F.3d at 593–94. 
Notably, the Sixth Circuit has not yet decided “whether courts should impose administrative 
exhaustion in the context of a noncitizen’s habeas petition for unlawful mandatory detention,” 
Pizarro Reyes v. Raycraft, No. 25-cv-12546, 2025 WL 2609425, at *3 (E.D. Mich. Sep. 9, 2025) 
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(citing Hernandez Torrealba v. U.S. Dep’t of Homeland Sec., No. 1:25- cv-1621, 2025 WL 
2444114, at *8 (N.D. Ohio Aug. 25, 2025)), and “[t]he Sixth Circuit has not formally adopted a 
standard for determining when prudential exhaustion applies.” Lopez-Campos v. Raycraft , 
No. 2:25-cv-12486, 2025 WL 2496379, at *4 (E.D. Mich. Aug. 29, 2025). However, courts within 
the Sixth Circuit “have applied the three -factor test, set forth in United States v. California Care 
Corp., 709 F.2d 1241, 1248 (9th Cir. 1983) (derived from McGee v. United States , 402 U.S. 479, 
484[ (1971)]; McKart v. United States , 395 U.S. 185, 193–95[ (1969)),]” to determine whether 
prudential exhaustion should be required. Id. Under this three-factor test, 
Courts may require prudential exhaustion when: 
(1) agency expertise makes agency consideration necessary to generate a proper 
record and reach a proper decision; 
(2) relaxation of the requirement would encourage the deliberate bypass of the 
administrative scheme; and 
(3) administrative review is likely to allow the agency to correct its own mistakes 
and to preclude the need for judicial review. 
Id. (citing Shweika v. Dep’t of Homeland Sec., No. 1:06- cv-11781, 2015 WL 6541689, at *12 
(E.D. Mich. Oct. 29, 2015)). 
Alternatively, even in situations where a court may ordinarily apply prudential exhaustion, 
the court may still choose to waive exhaustion. See id. (citations omitted). A court may choose to 
rule upon the merits of the issues presented when the “legal question is ‘fit’ for resolution and 
delay means hardship.” Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 13 (2000) 
(citation omitted). A court may also waive exhaustion if the “pursuit of administrative remedies 
would be a futile gesture.” Shearson, 725 F.3d at 594 (citation omitted). 
In resolving hundreds of prior petitions like Petitioner’s , this Court conclude d that 
prudential exhaustion should not be required after balancing the prudential considerations and the 
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likely futility of starting with an agency decision. But after the Sixth Circuit’s decision in Lopez-
Campos and the government’s unequivocal commitment to apply its holding in this case, 
administrative review of the controlling legal question is likely to result in an agency decision that 
honors the law. This, in turn, means that exhaustion is no longer futile. 
Therefore, the Court will require Petitioner to exhaust the available administrative 
remedies. The Court will dismiss the petition without prejudice. Should the administrative 
remedies prove to be an unavailable path to allow the agency to correct its own mistakes, Petitioner 
may file a new petition. 
Conclusion 
For the reasons discussed above, the Court will enter a judgment dismissing the petition 
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 without prejudice. 
 
Dated: June 16, 2026 /s/ Hala Y. Jarbou 
HALA Y. JARBOU 
CHIEF UNITED STATES DISTRICT JUDGE 
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