govinfo:USCOURTS-insd-1_26-cv-00931-0

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF INDIANA 
INDIANAPOLIS DIVISION 
 
BRENDA MARIELA OTINIANO BRENA, ) 
 ) 
Petitioner, ) 
 ) 
v. ) No. 1:26-cv-00931-JMS-MJD 
 ) 
SAMUEL OLSON, ) 
MARKWAYNE MULLIN, ) 
TODD BLANCHE, ) 
TODD LYONS, ) 
RICHARD KELLY , ) 
NATASHA DOUGLAS, ) 
 ) 
Respondents. ) 
 
Amended1 Order Granting Petition for Writ of Habeas Corpus 
Brenda Mariela Otiniano Brena is an immigrant detainee. She came to the United States 
with her family at age 19 to escape death threats. She arrived in the United States in September 
2022. Nearly three and a half years later, in February 2026, Ms. Otiniano Brena was arrested by 
officers from Immigration and Customs Enforcement ("ICE") pursuant to a warrant for removal 
proceedings. She has been detained ever since pending resolution of the removal proceedings. 
Ms. Otiniano Brena now petitions the Court for a writ of habeas corpus under 28 U.S.C. § 
2241, seeking release from custody or a bond hearing pursuant to 8 U.S.C. § 1226(a). Dkt. 1 at ¶ 
12; id. at 48. The respondents, through the United States Attorney General, submitted its return to 
the petition on May 13, 2026, dkt. 9, and Ms. Otiniano Brena replied in support of the petition on 
May 18, 2026. Dkt 11. 
 
1 This Amended Order differs from the Court's Order entered this day, [Dkt. 12], only to the extent 
that the Court corrects the spelling of the Petitioner's last name from "Ontiniano Brena" to "Otiniano Brena." PageID #:
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For the reasons explained below, the Court grants the petition to the extent that no later 
than 5:00 p.m. on May 26, 2026, the respondents must either: (1) afford Ms. Otiniano Brena an 
individualized bond hearing before an immigration judge pursuant to 8 U.S.C. § 1226(a) and its 
regulations; or (2) release Ms. Otiniano Brena from custody, under reasonable conditions of 
supervision. 
I. Background 
 Ms. Otiniano Brena is a native of Peru. She fled that country with her mother, sister, 
brother, and nieces to escape death threats towards her family. Dkt. 1 at ¶ 34. She travelled to the 
United States and arrived in Arizona. Id. There, Ms. Otiniano Brena encountered border patrol 
agents near San Luis and was taken into custody on September 15, 2022. Id. Three days later, she 
was released from custody and paroled pursuant to an I-94 document because the detention facility 
lacked capacity. Id. 
After her release, Ms. Otiniano Brena briefly resided in Florida but relocated to Illinois due 
to Hurricane Ian in late September 2022. Id. at ¶ 37. While in Illinois, she made several attempts 
to update her address with ICE via telephone and email. Id. at ¶ 39. She was ultimately successful 
in updating her address in December 2022, which was confirmed by the ICE office in Chicago. Id. 
Ms. Otiniano Brena also filed an application for asylum with the United States Citizenship and 
Immigration Services ("USCIS") in July 2023. Id. at ¶ 38. Since then, in April 2024, Ms. Otiniano 
Brena married her husband, a naturalized United States citizen. Dkt. 1 at ¶ 40. 
Nearly a month after she married her husband, ICE issued Ms. Otiniano Brena a Notice to 
Appear on May 2, 2024, which initiated removal proceedings against her. Id. at ¶ 41. However, 
the notice was served at the Florida address Ms. Otiniano Brena provided to border patrol agents 
in September 2022. Id. As a result, she was unaware of the notice and the removal proceeding, id., PageID #:
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which was held on October 2, 2025, without Ms. Otiniano Brena. The immigration judge 
concluded that she had not been "admitted, inspected, or paroled by an immigration officer." Id. at 
¶ 42; dkt. 1-12; dkt. 9 at 2. Ms. Otiniano Brena was ordered removed to Peru as a result. Id. Despite 
the removal order, she maintained contact with ICE during check-in meetings. Id. at ¶ 43. 
Months later, during a virtual check-in at the end of January 2026, ICE told Ms. Otiniano 
Brena that her and her family's next check- in would take place on February 5, 2026. Id. The 
appointment confirmation contained no reference to the removal order or indicated that she would 
be detained. Id. But, while at the February meeting, she was arrested by ICE agents and ultimately 
taken to the Clinton County Jail in Frankfort, Indiana.2 Dkt. 1 at ¶ 43. 
Shortly after her arrest, Ms. Otiniano Brena sought to reopen the removal proceedings on 
February 11, 2026, and the request was granted on February 20, 2026. Id. at ¶ 44. The immigration 
judge rescinded the removal order and reopened the removal proceedings. Id. A new master 
hearing was scheduled for March 25, 2027, which is scheduled to take place in Chicago, as the 
removal proceedings were transferred from Miami. Id. The next hearing for the removal 
proceeding is scheduled to take place in Chicago on May 28, 2026. Id. 
While her removal proceeding was pending, Ms. Otiniano Brena submitted a Form I-130, 
Petition for Alien Relative, with USCIS. Id. at ¶ 45. As a part of that process, she was scheduled 
to interview with USCIS on May 8, 2026. Id. Ms. Otiniano Brena also filed a Form I -485, 
Application to Register Permanent Residence or Adjust Status, in the hopes that she might 
adjudicate the application at the May 28, 2026, hearing. Id. However, Ms. Otiniano Brena remains 
detained, which has hampered her efforts to litigate her immigration status. Id. at ¶ 46. It is unclear 
 
2 On May 18, Ms. Otiniano Brena represented that she had been transferred the Clark County Jail 
in Jeffersonville, Indiana. Dkt. 11 at 3. PageID #:
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if she has been able to attend the hearings for her respective applications in any capacity. See, 
generally, id. 
ICE's detention of Ms. Otiniano Brena is pursuant to the Notice to Appear and warrant for 
her detention. Dkt. 1-11 at 2; dkt. 9-2 at 1; dkt. at 9-3 at 27. The notice charges Ms. Otiniano Brena 
with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i) as "an alien present in the United States 
without being admitted or paroled, or who arrived in the United States at any time or place other 
than as designated by the Attorney General." Dkt. 1 -11 at 2; dkt. 9- 2 at 1 . The "arriving alien" 
checkbox is unmarked. Id. 
II. Discussion 
Ms. Otiniano Brena claims her current detention is unlawful because it violates the INA 
(Count I), and the Due Process Clause of the Fifth Amendment (Count III ). Dkt. 1 at 44- 48. On 
alternative grounds, s he asks the Court to find her detention unlawful because her parole was 
unlawfully revoked (Count II), she was denied due process when she was deprived of an 
opportunity to respond to the removal proceedings and parole revocation (Count IV), and her 
parole was arbitrarily revoked in violation of the Administrative Procedure Act (Count V). Id. 
In response to Ms. Otiniano Brena's unlawful detention claims, the respondents argue that 
Ms. Otiniano Brena is lawfully detained under the INA pursuant to 8 U.S.C. § 1225(b)(2)(A) and 
that § 1226(a) is inapplicable. Dkt. 9. With respect to Ms. Otiniano Brena's remaining claims, the 
respondents state that her parole terminated automatically, and her parole termination and removal 
proceedings are unreviewable by this Court. 
The Court finds that Ms. Otiniano Brena's detention is governed by § 1226(a) and that it is 
unlawful because she has not been afforded a bond hearing pursuant to federal law. Because Ms. 
Otiniano Brena is entitled to habeas corpus relief on these grounds, the Court does not address the PageID #:
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due process challenge to her detention. The Court also declines to address her alternative grounds 
for relief, i.e., whether her parole was unlawfully revoked and whether she was denied due process 
in the removal proceedings. 
A. 8 U.S.C. §§ 1226 and 1225 
At issue here are 8 U.S.C. § 1226 and § 1225. While "§ 1226 applies to aliens already 
present in the United States," U.S. immigration law also "authorizes the Government to detain 
certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2)." Jennings v. 
Rodriguez, 583 U.S. 281, 303 (2018). Section 1226 governs the "usual" removal process, which 
involves an evidentiary hearing before an immigration judge . Dep't of Homeland Sec. v. 
Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings unde r 8 U.S.C. § 1229a, also known as 
"full removal," are initiated by filing a Notice to Appear with the Immigration Court. Matter of E-
R-M- & L-R-M-, 25 I. & N. Dec. 520, 520 (BIA 2011). 
Section 1226(a) provides: 
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 
. . . . [T]he Attorney General— 
 
(1) may continue to detain the arrested alien; and 
(2) may release the alien on— 
(A) bond . . . ; or 
(B) conditional parole[.] 
8 U.S.C. § 1226(a). 
An immigration officer makes the initial determination to either detain or release the 
noncitizen. After that initial decision has been made, "[f]ederal regulations provide that aliens 
detained under § 1226(a) receive bond hearings at the outset of detention." Jennings, 583 U.S. at PageID #:
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306 (citing 8 C.F.R. § 236.1(d)(1)); see also 8 C.F.R. § 1236.1(c)(8). At that hearing, the noncitizen 
"may secure her release if she can convince the officer or immigration judge that she poses no 
flight risk and no danger to the community." Nielsen v. Preap, 586 U.S. 392, 397–98 (2019) (citing 
8 C.F.R. §§ 1003.19(a), 1236.1(d)); see also Hernandez v. Sessions , 872 F.3d 976, 982 (9th Cir. 
2017) ("[T]he burden is on the non-citizen to 'establish to the satisfaction of the Immigration Judge 
. . . that she or she does not present a danger to persons or property, is not a threat to the national 
security, and does not pose a risk of flight.'") (citing In re Guerra , 24 I. & N. Dec. 37, 38 (BIA 
2006)). 
Section 1225(b)(1) deals with "inspection of aliens arriving in the United States and certain 
other aliens who have not been admitted or paroled" and provides that immigration officers shall 
order certain noncitizens removed without further hearing or review unless the noncitizen indicates 
an intention to apply for asylum. § 1225(b)(1)(A)(i). This applies to noncitizens who have engaged 
in misrepresentation or have failed to meet document requirements under §§ 1182(a)(6)(C) or 
1182(a)(7). Id. 
Section 1225(b)(2) pertains to "[i]nspection of other aliens." Section 1225(b)(2)(A) 
provides 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 for a proceeding under section 1229a of this 
title." 8 U.S.C. § 1225(b)(2)(A) (emphasis added). An "applicant for admission" is "[a]n alien 
present in the United States who has not been admitted or who arrives in the United States (whether 
or not at a designated port of arrival . . .)." 8 U.S.C. § 1225(a)(1). In other words, noncitizens 
subject to 1225(b)(2) are not eligible for expedited removal but are subject to mandatory detention 
while their removal proceedings are pending. PageID #:
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B. Ms. Otiniano Brena Is Eligible for a Bond Hearing Pursuant to 8 U.S.C. § 1226(a) 
 
Ms. Otiniano Brena argues that the statute's text, framework, and prior usage make it so 
that she can only be detained under § 1226(a). Based on the record in this case, the Court agrees. 
The Court has previously determined that, considering § 1225 as a whole, the most natural meaning 
is that it applies to "arriving" noncitizens attempting to enter the United States rather than 
undocumented aliens like Ms. Otiniano Brena who have lived in the interior of the United States 
for years. See, e.g., Alejandro v. Olson, No. 1:25-cv-02027-JPH-MKK, 2025 WL 2896348, at *7 
(S.D. Ind. Oct. 11, 2025); Singh v. Bondi, No. 1:25-cv-02101-SEB-TAB, 2025 WL 3029424, *3–
5 (S.D. Ind. Oct. 30, 2025). As the Court has previously explained, the respondents' interpretation 
of the statute (1) disregards the plain meaning of § 1225(b)(2)(A); (2) disregards the relationship 
between §§ 1225 and 1226; (3) would render a recent amendment to § 1226(c) superfluous; and 
(4) is inconsistent with decades of prior statutory interpretation and practice. See, e.g., Alejandro, 
2025 WL 2896348, at *14–19. 
In Castañon-Nava v. U.S. Dep't of Homeland Sec., a decision that carries persuasive 
authority due to its procedural posture,
3 the Seventh Circuit determined that "seeking admission" 
cannot be logically seen as synonymous with "applicant for admission" without violating several 
established canons of statutory interpretation. 161 F.4th 1048, 1061 (7th Cir. 2025) ( Castañon-
Nava I). This Court has applied those established canons of statutory interpretation in its previous 
cases and has reached the same conclusion. 
 
3 See Morales Perez v. Walsh, 2026 WL 44777, at *2 (N.D. Ill. Jan. 7, 2026) ("[a]t a minimum, 
Castañon-Nava carries substantial persuasive weight. It is true that Castañon- Nava cautioned that its 
decision was limited to 'the current record.' [161 F.4th at 1061]. But the statutory- interpretation issue that 
the opinion resolved was one purely of law, and any adjustment to the factual record going forward would 
not likely alter the legal conclusion. In any event, as explained below, the Court agrees with Castañon-
Nava's holding on the legal question, so there is no need here to definitively decide whether it is binding 
precedent or something short of that."). PageID #:
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The respondents in essence urge the Court to deviate from its previous decisions. They 
support that position with citations to decisions upholding the government's interpretation of 
§ 1225(b)(2)(A), including two recent circuit court decisions: Buenrostro- Mendez v. Bondi, 166 
F.4th 494, 503 (5th Cir. 2026), and Avila v. Bondi, No. 25-3248, 2026 WL 819258 (8th Cir. Mar. 
25, 2026)). 
In Buenrostro-Mendez, the Fifth Circuit found that "seeking admission" is a permissible 
redundancy for "applicant for admission." 116 F.4th at 503. In Avila , the Eighth Circuit similarly 
held that the meanings of "applicant for admission" and "seeking admission" and the grammatical 
structure of 8 U.S.C. § 1225(b)(2)(A) show that "in the context of the statute the two phrases are 
synonymous." 170 F.4th 1128, 1135 (8th Cir. 2026). 
In contrast, three circuit courts have rejected the respondents' expansive interpretation of 
§ 1225 in recent weeks and embraced reasoning similar to the Seventh Circuit's in Castañon-Nava 
I. See Lopez-Campos, et al. v. Raycraft, et al., Nos. 25-1965/1969/1978/1982, --- F.4th ---, 2026 
WL 1283891 (6th Cir. May 11, 2026)
4; Hernandez Alvarez v. Warden, et al., No. 25-14065, --- 
F.4th ---, 2026 WL 1243395 (11th Cir. May 6, 2026);5 Barbosa da Cunha v. Freden, No. 25-3141-
PR, 2026 WL 1146044 (2d Cir. Apr. 28, 2026).6 
 
4 "We therefore find that an 'applicant for admission' is not necessarily 'seeking admission.' Because no Petitioner is 
alleged to be seeking admission or lawful entry into the United States, § 1225(b)(2)(A)'s mandatory detention scheme 
does not apply to them. And since '§ 1226 applies to aliens already present in the United States' and 'creates a default 
rule for those aliens by permitting—but not requiring—the Attorney General to issue warrants for their arrest and 
detention pending removal proceedings,' Petitioners could have been detained pursuant to only § 1226." Id. at *11. 
 
5 "Simply put, the language that Congress has chosen to use does not grant to the Executive unfettered authority to 
detain, without the possibility of bond, every unadmitted alien present in the country. Nowhere in the text, structure, 
or history of the INA does that reading find steady footing. We are obliged to read the words found in the statute—'an 
alien who is an applicant for admission' and 'an alien seeking admission'—in line with the meaning Congress has given 
them. When we do so, it appears to us that Congress has instead preserved the longstanding border-interior distinction 
for purposes of detention, a position it has taken for over a hundred years." Id. at *21. 
 
6 "Although divided panels in two other circuits have agreed with the government, . . . we respectfully find the statutory 
analysis in those decisions, which largely mirrors the government's flawed arguments in this case, to be unpersuasive." 
Id. at *4. "Although divided panels in two other circuits have agreed with the government, . . . we respectfully find PageID #:
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The Court is not convinced that the Seventh Circuit will depart from Castañon-Nava I (and 
disagree with the Second, Sixth, and Eleventh Circuits) to instead follow Buenrostro-Mendez or 
Avila. Therefore, the Court continues to rely on Castañon- Nava I as persuasive precedent. 7 
Accordingly, the Court concludes that Ms. Otiniano Brena is entitled to a bond hearing under 
§ 1226, and it declines to reach her alternative grounds for relief. 
III. Scope of Relief 
Ms. Otiniano Brena is entitled to habeas relief because her continued detention without a 
bond hearing violates the " laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The 
remaining question is the remedy, which should be "appropriate to the violation." Waller v. 
Georgia, 467 U.S. 39, 50 (1984). Ms. Otiniano Brena requests immediate release from custody or, 
alternatively, an individualized bond hearing. Dkt. 1 at 5. Immediate release is the customary 
remedy in habeas proceedings. See Thursaissigiam , 591 U.S. at 107 ("Habeas has traditionally 
been a means to secure release from unlawful detention."); Munaf v. Geren, 553 U.S. 674, 698 
(2008) (explaining that "the quintessential habeas remedy" is release from custody). However, the 
Court finds that it would not be in the interests of justice to order Ms. Otiniano Brena's immediate 
release and instead orders the respondents to provide her with an individualized bond hearing as 
required by § 1226(a) and its regulations. 
 
 
the statutory analysis in those decisions, which largely mirrors the government’s flawed arguments in this case, to be 
unpersuasive. . . . [B]ecause Section 1225(b)(2)(A) applies only to a noncitizen who is both an 'applicant for admission' 
and 'seeking admission,' it does not apply to Petitioner." Id. at *4, *6. 
 
7 Just after the briefing on the petition in this case, the Seventh Circuit issued its merits ruling in Castañon- Nava, --- 
F.4th ----, 2026 WL 1223250 (7th Cir. May 5, 2026) ( Castañon-Nava II). The ultimate issue in Castañon- Nava was 
ICE's compliance with a consent decree prohibiting it from arresting noncitizens without warrants. While one judge 
reaffirmed the § 1225-1226 analysis that resolved the preliminary injunction motion, one reaffirmed his dissent from 
that analysis, and one found the § 1225-1226 issue was not necessary to resolve the case on the merits. Accordingly, 
Castañon-Nava I's preliminary injunction ruling remains persuasive authority as the only Seventh Circuit decision on 
the § 1225-1226 issue. PageID #:
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IV. Conclusion
The Court grants the petition to the extent that no later than 5:00 p.m. on May 26, 2026, 
the respondents must either: (1) provide Ms. Otiniano Brena with an individualized bond hearing 
before an immigration judge pursuant to 8 U.S.C. § 1226(a) and its regulations; or (2) release 
Ms. Otiniano Brena from custody, under reasonable conditions of supervision. The Court orders 
that, no later than 12:00 p.m. on May 28, 2026, the respondents must file documentation certifying 
that they have provided Ms. Otiniano Brena with a bond hearing, including apprising the Court of 
the results of the hearing. If the r espondents release Ms. Otiniano Brena, then they must file 
documentation certifying her release. 
The Clerk is directed to add Scott Maples to the docket as a respondent and terminate 
Natasha Douglas. The Clerk is directed to issue process to Scott Maples, which shall consist of 
the petition [dkt. 1], the order to show cause [dkt. 4], and this order. Scott Maples shall have 
through Friday, May 22, 2026, to answer the petition. The Court withholds final judgment until 
Scott Maples answers the petition. 
IT IS SO ORDERED. 
Distribution: 
All Electronically Registered Counsel 
 with cc to: 
R. Jeffrey Lowe
KIGHTLINGER & GRAY , LLP
jlowe@k-glaw.com
Date: 5/20/2026 PageID #:
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