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

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF INDIANA 
TERRE HAUTE DIVISION 
 
BRENDA MARIELA OTINIANO BRENA, ) 
 ) 
Petitioner, ) 
 ) 
v. ) No. 1:26-cv-00931-JMS-MJD 
 ) 
SAMUEL OLSON, et al., ) 
 ) 
Respondents. ) 
 
Order 
Brenda Mariela Otiniano Brena is an immigrant detainee who filed a petition for a writ of 
habeas corpus arguing that she was wrongfully being held in mandatory detention under § 
1225(b)(2)(A). The Court agreed that she fell under 8 U.S.C. § 1226(a) and granted her petition to 
the extent that she was entitled to an individualized bond hearing pursuant 8 U.S.C. § 1226(a) and 
its regulations. Dkt. 12. 
A bond hearing was held in the Indianapolis Immigration Court on May 22, 2026, and the 
immigration judge denied Ms. Brena's request for bond. 
Ms. Brena has now petitioned the Court to enforce its order granting her habeas petition. 
Dkt. 24. She has also filed an emergency motion for release pending adjudication of the amended 
motion. Dkt. 25. 
For the reasons explained below, the Court finds that Ms. Brena has made a substantial 
showing that the bond hearing did not comply with due process. However, the Court finds that the 
appropriate remedy is to order that a second bond hearing be held that provides Ms. Brena with 
sufficient notice so that she may adequately prepare for the hearing. PageID #:
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I. Background 
A. Background and Proceedings Before Court's Order Granting Habeas Relief 
Ms. Brena fled her native country, Peru, for the United States with family members to 
escape death threats. Dkt. 1. Once in the United States, Ms. Brena encountered border patrol agents 
near San Luis, Arizona, 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. Id. Ms. Brena eventually 
settled in Champagne, Illinois, where she met and married her husband, a naturalized United States 
citizen. Dkt. 1 at ¶ 40. 
During her time in the United States, Ms. Brena applied for asylum with the United States 
Citizenship and Immigration Services ("USCIS"), id. at ¶ 38; kept ICE apprised of her current 
address and information, id. at ¶ 37–39; submitted a form I-130, Petition for Alien Relative, and I-
485, Application to Register Permanent Residence or Adjust Status, with USCIS, id. at ¶ 45; and 
married her husband, a naturalized U.S. citizen. Id. at ¶ 40. 
On May 2, 2024, ICE issued Ms. Brena a Notice to Appear for removal proceedings, which 
was sent to a previous address. Id. at ¶ 41.1 A hearing on the removal proceeding was held in Miami 
without her presence and she was ordered removed. Id. at ¶ 42; dkt. 1-12; dkt. 9 at 2. Despite the 
removal order, Ms. Brena maintained contact with ICE during regular check- in meetings. Dkt. 1 
at ¶ 43. 
At one such check–in, ICE arrested her on February 5, 2026, and ultimately took Ms. Brena 
to the Clinton County Jail in Frankfort, Indiana. Id. at ¶ 43.2 Shortly after her arrest, Ms. Brena's 
 
1 Ms. Brena states that she briefly resided in Florida before relocating to Illinois due to hurricane Ian. The Florida 
address was provided to border patrol agents in September 2022 when she came to the United States. Dkt. 1 at ¶ 37. 
Ms. Brena states she attempted to inform ICE of the address change. 
2 On May 18, 2026, Ms. Brena was transferred from Clinton County in Franklin, Indiana, to Clark County Jail in 
Jeffersonville, Indiana. Dkt. 13. PageID #:
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request to reopen the removal proceedings 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, and her case was transferred to Chicago. Id. 
On May 7, 2026, Ms. Brena filed a petition for writ of habeas corpus in this Court, dkt. 1, 
challenging her mandatory detention as unlawful under the Immigration and Nationality Act, the 
Due Process Clause of the Fifth Amendment, the Administrative Procedures Act, and the Accardi 
Doctrine. Dkt. 1 at 44. 
B. The Court's Order and the Subsequent Bond Hearing 
On Wednesday, May 20, 2026, t he Court granted the petition as to the claim that Ms. 
Brena's detention was unlawful under § 236 of the INA, or 8 U.S.C. § 1226, because she had been 
denied the opportunity for a bond hearing. Dkt. 12. The Court ordered Respondents to provide her 
with an individualized bond hearing pursuant to § 1226 and its regulations by 5:00 p.m. on May 
26, 2026. Id. May 26 was the Tuesday after Memorial Day, thus leaving only three business days 
for the hearing to be scheduled. 
On May 21, 2026, the immigration court scheduled a bond hearing for the following day, 
Friday, May 22, at 10:30 a.m. (Eastern). Dkt. 25 at 4. The hearing was scheduled in an immigration 
court in Indianapolis rather than Chicago, where Ms. Brena's removal proceedings were pending 
at the time. Dkt. 25-1. 
Before the bond hearing, Immigration Judge Valerie Burch issued an order in which she 
stated that all bond evidence must be filed "2 business days prior to the bond hearing." Dkt. 24-2. 
The order also commanded that any fact witnesses appear in person because the judge felt she 
could not assess witnesses' credibility over WebEx. Id. PageID #:
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Ms. Brena and her counsel appeared by video for the bond hearing. Dkt. 25- 2 at 2. Ms. 
Brena's counsel confirmed that, as the petitioner, she bore the burden of establishing that she did 
not pose a danger to the community or a risk of flight. Id. at 2. 
At the hearing, Ms. Brena told the judge that she "didn't know" that she had court that day. 
Id. at 19. The judge did question Ms. Brena about her underlying asylum claim, her ability to 
support herself in the United States, her failure to appear for her removal proceeding, and other 
matters. See, generally, id. When her attorney was questioned about whether Ms. Brena's efforts 
to keep her address updated were in the record, her attorney responded that it was in her removal 
proceeding records, but not her bond hearing record. Id. at 10-11. 
Judge Burch denied Ms. Brena's request for bond based on her conclusion that she was a 
flight risk. Id. at 20-22. 
The morning of her hearing, Ms. Brena filed an emergency motion to enforce the order 
granting relief, dkt. 20, which was withdrawn and refiled because the bond hearing concluded 
without resolution of the motion. Dkt. 21. The amended motion to enforce the order granting relief 
was refiled on June 3, 2026, dkt. 24, along with motion for immediate release pending resolution 
of the motion to enforce and for a preliminary injunction pending. Dkt. 25. The latter motion was 
set for accelerated briefing and is now ripe. Dkts. 27, 28. 
II. Jurisdiction 
Respondents argues that the INA precludes the Court from reviewing the discretionary 
bond decisions of the Attorney General. They also argue in the alternative that the Court should 
deny the motion without prejudice for failure to exhaust administrative re medies.
3 Each is 
addressed in turn. 
 
3 See 8 C.F.R. § 1003.38 (Appeals to the Board of Immigration Appeals). PageID #:
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A. Judicial Review 
As an initial matter, Respondents argue that the Court is precluded from reviewing Ms. 
Brena's current claims. They argue that 8 U.S.C. § 1226(e) prevents the Court from reviewing the 
Attorney General's "discretionary bond denial under § 1226(a)." Dkt. 27 at 7. They also argue that 
8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review. 
Neither statute, however, prevents this Court's inherent authority to determine compliance 
with the Court's conditional habeas writ. Jensen v. Pollard, 924 F.3d 451, 454 (7th Cir. 2019) 
("When a district court issues a conditional habeas writ, it retains jurisdiction to determine 
compliance." (citing Hudson v. Lashbrook, 863 F.3d 652, 656 (7th Cir. 2017))). "[A] federal court 
always retains jurisdiction to enforce its lawful judgments, including habeas judgments, [and] the 
court has the authority to see that its judgment is fully effectuated." Hechavarria v. Whitaker, 358 
F. Supp. 3d 227, 235 (W.D.N.Y . 2019) (citing Gall v. Scroggy, 603 F.3d 346, 352 (6th Cir. 2010)). 
And although § 1226(e) precludes this Court's jurisdiction over a review of the immigration 
judge's discretionary decision, the statute does not deprive the Court of jurisdiction over Ms. 
Brena's claim that the process by which the bond hearing was held violated her right to due process. 
Demore v. Kim, 538 U.S. 510, 517 (2003) ("Section 1226(e) contains no explicit provision barring 
habeas review, and we think that its clear text does not bar respondent's constitutional challenge to 
the legislation authorizing his detention without bail."); Parra v. Perryman, 172 F.3d 954, 957 (7th 
Cir. 1999) ("Section 1226(e) likewise deals with challenges to operational decisions, rather than 
to the legislation establishing the framewo rk for those decisions. The district court therefore had 
jurisdiction under § 2241." ); Al-Siddiqi v. Achim, 531 F.3d 490, 494 (7th Cir. 2008) . Thus, the 
Court has jurisdiction to review whether the process by which the bond hearing was held satisfied 
due process. Trejo v. Bullock, No. 3:26-CV-47, 2026 WL 598391, at *2 (E.D. Tenn. Mar. 3, 2026) 
(court had jurisdiction to review whether bond hearing "satisfied due process or otherwise suffered PageID #:
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some defect that rendered it noncompliant with th[e] Court 's Order"); Espana v. Nessinger, No. 
26-CV-014-JJM-PAS, 2026 WL 821788, at *6 (D.R.I. Mar. 25, 2026) ( "A district court retains 
jurisdiction to ensure compliance with its earlier order granting a petitioner habeas relief."). 
The respondents also invoke another statutory limit on judicial review, which states, in 
relevant part: " no court shall have jurisdiction to review . . . any other decision or action of the 
Attorney General or the Secretary of Homeland Security the authority for which is specified under 
this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland 
Security." 8 U.S.C. § 1252(a)(2)(B)(ii). However, courts have held that § 1252(a)(2)(B)(ii)—like 
§ 1226(e)—does not apply to consti tutional challenges or questions of law. Hernandez v. Sessions, 
872 F.3d 976, 988 (9th Cir. 2017); Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 135 (D.D.C. 2018) 
("While § 1252(a)(2)(B)(ii) undoubtedly bars judicial review of individual parole decisions, courts 
have declined to apply it to claims challenging the legality of policies and processes governing 
discretionary decisions under the INA." ). To the extent Ms. Brena argues that her bond hearing 
was contrary to the Court's order, e.g., due process grounds, § 1252(a)(2)(B)(ii) is not a 
jurisdictional bar. 
B. Exhaustion 
"[W]here Congress has not clearly required exhaustion, sound judicial discretion governs." 
McCarthy v. Madigan, 503 U.S. 140, 144 (1992). There is a "general rule that parties exhaust 
prescribed administrative remedies before seeking relief from the federal courts." Id. at 144–45. 
The Court has discretion to depart from the general rule and find that "individual interests demand 
that exhaustion be excused when: 
(1) requiring exhaustion of administrative remedies causes prejudice, due to 
unreasonable delay or an indefinite timeframe for administrative action; (2) the 
agency lacks the ability or competence to resolve the issue or grant the relief 
requested; (3) appealing through the administrative process would be futile because PageID #:
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the agency is biased or has predetermined the issue; or (4) where substantial 
constitutional questions are raised. 
Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting Iddir v. INS, 301 F.3d 492, 
498 (7th Cir. 2002)). 
The Court declines to require exhaustion of administrative remedies, as the Court is 
ordering compliance with its order. As discussed below, the Court ordered a constitutionally 
adequate bond hearing, which was not done in this case. Thus, the Court finds it inappropriate to 
require Ms. Brena to exhaust her claims through the Board of Immigration Appeals. 
III. Discussion 
Ms. Brena seeks a preliminary injunction and asks the Court to enjoin Respondents from 
further detention pending resolution of her emergency motion to enforce. The premise behind the 
motion for immediate release and preliminary injunction ("motion for rele ase") is that Ms. Brena 
meets the standard for release on bail because she has a substantial due process claim , or because 
Respondents failed to comply with the Court's order. Dkt. 25 at 8. In the alternative, Ms. Brena is 
entitled to temporary relief and seeks to enjoin Respondents from further detaining her, as she has 
a shown a likelihood of success on the merits of her due process claim. 
The Court agrees that Ms. Brena has shown that the circumstances resulted in the absence 
of meaningful review. "[T]he Due Process Clause applies to all 'persons' within the United States, 
including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." 
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citing Plyler v. Doe, 457 U.S. 202, 210 (1982)). See 
also A. A. R. P . v. Trump, 605 U.S. 91, 94 (2025) ("[T]he Fifth Amendment entitles aliens to due 
process of law in the context of removal proceedings." (quoting Trump v. J. G. G., 604 U. S. 670, 
673 (2025))). PageID #:
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"Freedom from bodily restraint has always been at the core of the liberty protected by the 
Due Process Clause from arbitrary governmental action." Foucha v. Louisiana, 504 U.S. 71, 80 
(1992) (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982)). "It is clear that commitment for 
any purpose constitutes a significant deprivation of liberty that requires due process protection." 
Id. (quoting Jones v. United States, 463 U.S. 354, 361 (1980)). 
When assessing whether a bond hearing complied with an immigrant detainee's right to 
due process, courts typically apply the standards established in Mathews v. Eldridge, 424 U.S. 319 
(1976). See Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999) ; Hernandez-Lara v. Lyons, 10 
F.4th 19, 27 (1st Cir. 2021). 
The Mathews factors are: (1) " the private interest that will be affected by the official 
action"; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and 
the probable value, if any, of additional or substitute procedural safeguards "; and (3) " the 
Government's interest, including the function involved and the fiscal and administrative burdens 
that the additional or substitute procedural requirement would entail." 424 U.S. at 335. 
The first factor weighs in favor of Ms. Brena, given the interest she has in freedom from 
being detained while her removal proceedings are ongoing. Zadvydas, 533 U.S. at 695. 
The second factor weighs heavily in Ms. Brena's favor. A right to be heard is fundamental. 
See Mathews, 424 U.S. at 333 ("The 'right to be heard before being condemned to suffer grievous 
loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, 
is a principle basic to our society.'" (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 
168, (1951) (Frankfurter, J., concurring))). To serve that end, the "fundamental requirement of due 
process is the opportunity to be heard 'at a meaningful time and in a meaningful manner .'" 
Mathews, 424 U.S. at 333 (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965))) (emphasis PageID #:
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added). This "requires notice that is 'reasonably calculated, under all the circumstances, to apprise 
interested parties' and that 'afford[s] a reasonable time ... to make [an] appearance. '" A. A. R. P ., 
605 U.S. at 94-95 (alterations in original) (citing Mullane v. Central Hanover Bank & Trust Co., 
339 U.S. 306, 314 (1950)). 
Ms. Brena argues that she did not have sufficient notice, which materially limited her 
ability to meet her burden for release on bond at the hearing. This is evident in the record. At the 
hearing, part of Judge Burch's decision rested on Ms. Brena "fail[ing] to appear for a court hearing 
[where] an in abstentia order was entered against her." Dkt. 24- 1 at 22. Judge Burch concluded, 
"Given the respondent's failure to appear for a previous hearing and failure to update her address, 
the court does not believe there is any condition of release or amount of bond that can ensure her 
appearance." Id. But Ms. Brena testified that she "sent several emails with [her] new address," id. 
at 17, and her counsel argued that she had timely updated her address, which was confirmed by 
ICE. Dkt. 24- 1 at 11. Ms. Brena argues that she did not have sufficient time to provide 
documentation evincing the address change , which appears to be material in the immigration 
court's decision. Id. at 22. Further, the judge's order provided that she was supposed to file her 
evidence two business days before the hearing—an impossible demand given the 24- hour notice. 
Moreover, Ms. Brena has shown that she had insufficient time to call fact witnesses, which 
were required to appear in person per Judge Burch's order, dkt. 24- 2. She argues that, with less 
than one day of notice, this was insufficient time because both her familial ties and spouse live in 
or around Champaign-Urbana, Illinois. Dkt. 24 at 33. When asked whether she asked her husband 
to testify at the hearing, Ms. Brena responded, "No." Dkt. 25-2 at 19. When asked why, she stated, 
"Because I didn't know that I had [] court today." Id. PageID #:
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Ms. Brena argues that inability to call fact witnesses was compounded by Respondents 
moving her from Clinton County, Indiana, to the Clark County Jail merely days before the Court 
issued its order granting habeas relief. Id. at 7. Respondents do not address the reason for moving 
Ms. Brena and instead only acknowledge that it occurred. Dkt. 27 at 2-3. By itself, it does not lend 
support to violation of the Court's order or result in a violation of Ms. Brena's due process rights. 
But, under the circumstances, it raises an inference of an attempt to frustrate the spirit of the Court's 
order. Clinton County is within the jurisdiction of the Chicago Immigration Court where her 
removal proceedings had been pending and where her bond hearing would have been held absent 
the move.
4 When she was relocated to Clark County, her bond hearing would have been held in 
Indianapolis.5 The Court is unimpressed with Respondents' lack of discussion on this issue . 
Regardless, because the hearing was held at a distant court on short notice, Ms. Brena lacked the 
opportunity for meaningful review of her claims.
6 As an aside, this Court notes the role it played 
in creating a short timeline by ordering the bond hearing to be held within a very short timeframe 
over a holiday weekend. It takes its role in account as it considers future habeas petitions requesting 
bond hearings. 
The third factor- the government's interest - weighs in favor of the government, but only 
slightly. This Court acknowledges that ordering a second bond hearing imposes an administrative 
burden on an already very busy immigration court. But this burden does not compare to being 
incarcerated due to a procedurally deficient hearing in the first place. 
 
4 See https://www.justice.gov/eoir/immigration-court-administrative-control-list (last visited June 5, 2026). 
5 See id.; see also 8 C.F.R. 1003.19(c). 
6 While Ms. Brena also argues that her habeas counsel was unable to attend the hearing, the records clearly reflects 
that she was represented by counsel at the hearing. And the Court declines to find bias at the bond hearing on the 
record presently before the Court (dkt. 24 at 2). PageID #:
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 Ultimately, Ms. Brena's bond hearing did not afford her the due process protections 
afforded by Matthews. The Court finds that the proper remedy here is for the immigration court to 
hold another bond hearing that complies with due process. 
IV. Conclusion 
For the foregoing reasons, Ms. Brena's emergency motion for release, dkt. [25] and 
amended motion to enforce, dkt. [24], are granted in part and denied in part. 
The motions are granted to the extent that the Court finds that Ms. Brena's bond hearing 
did not comply with the due process mandates of Mathews v. Eldridge, 424 U.S. 319 (1976). They 
are denied to the extent that Ms. Brena seeks immediate release. Rather, the Court orders that Ms. 
Brena have a second de novo bond hearing that complies with Mathews, 8 U.S.C. § 1226(a), and 
its regulations, no fewer than 14 days from the date of this Order. The Court expects that at the 
hearing, Ms. Brena will be afforded a reasonable opportunity to present witness testimony and any 
other evidence and that she and counsel will receive no less than 3 business days' notice of the 
hearing. The respondents must also notify this Court of the date that the bond hearing is set. 
In the alternative, the respondents may release Ms. Brena from custody, under reasonable 
conditions of supervision. 
The respondents must file a notice within 48 hours of Ms. Brena's second bond hearing or 
release, apprising the Court of the result. 
Given that the Court received all briefing necessary to issue its decision on the motion to 
enforce, the briefing schedule issued on May 28, 2026, is vacated. 
IT IS SO ORDERED. 
 
 
 
Date: 6/5/2026 PageID #:
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Distribution: 
All Electronically Registered Counsel PageID #:
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