Lopez Dionicio v. Warden, Denver Contract Detention Facility

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 26-cv-04684-NYW
WILMAR BERSAI LOPEZ DIONICIO,
Petitioner,
v.
WARDEN, Denver Contract Detention Facility,
Respondent.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (the “Petition”). [Doc. 1]. Respondent responded that he
is “not submitting a brief in opposition to the Petition detailing the facts and circumstances
of this case.” 	[Doc. 9 at 1]. 	For the reasons set forth in this Order, the Petition is
respectfully GRANTED in part.
BACKGROUND
Petitioner Wilmar Bersai Lopez Dionicio (“Petitioner” or “Mr. Lopez Dionicio”) is a
citizen of Guatemala who has lived in the United States “for many years.” 	[Doc. 1 at 5;
Doc. 1-1 at ¶¶ 1–2). He previously held a U visa and employment authorization. [Doc. 1
at 5; Doc. 1-1 at ¶¶ 4–8, 20]. Mr. Lopez Dionicio was detained by ICE on November 5,
2025, and is currently detained at the Denver Contract Detention Facility in Aurora,
Colorado. [Doc. 1 at 5]. On August 14, 2026, an immigration judge ordered him removed
to Guatemala. 	[Id. at 6]. 	Petitioner appealed the removal order to the Board of
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Immigration Appeals, and that appeal remains pending. [Id. at 5–6]. Because his appeal
of the removal order remains pending, Petitioner's order of removal is not administratively
final. See 8 C.F.R. § 1241.1(a) (“An order of removal made by the immigration judge at
the conclusion of proceedings under section 240 of the Act shall become final . . . [u]pon
dismissal of an appeal by the Board of Immigration Appeals.”); Hidalgo Anazco v.
Baltazar, No. 26-cv-01133-PAB, 2026 WL 1004485, at *1 (D. Colo. Apr. 14, 2026).
Mr. Lopez Dionicio asserts three claims. 	First, he alleges that his continued
detention—more than ten months when the Petition was filed—“without a meaningful,
present, individualized determination that detention remains necessary violates the Due
Process Clause of the Fifth Amendment.” [Id. at 5]. Second, Mr. Lopez Dionicio contends
that 	his 	“continued 	detention 	should 	be 	evaluated 	on 	[his] 	present 	individual
circumstances, including whether reasonable conditions of supervision can address any
legitimate concern about appearance or public safety.” [Id.]. Third, Petitioner alleges that
his present circumstances and the availability of less restrictive alternatives do not justify
continued detention. [Id. at 5]. The Court understands all three claims to be essentially
the same, asserting that Mr. Lopez Dionicio should have been but has not yet been
provided an individualized bond hearing during his time in detention, and such lack of
hearing is violating his due process rights. 	As relief, Mr. Lopez Dionicio seeks release
from 	detention 	under 	reasonable 	conditions 	of 	supervision 	or, 	alternatively, 	an
individualized custody hearing at which the Government bears the burden of proof of
justifying his continued detention by clear and convincing evidence. [Id. at 6].
This matter is fully briefed and ripe for disposition. 	No Party has requested an
evidentiary hearing or oral argument, and the Court finds that no hearing is necessary.
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Garcia Cortes v. Noem, No. 25-cv-02677-CNS, 2025 WL 2652880, at *1 (D. Colo. Sept.
16, 2025) (declining to hold a hearing where the petitioner’s habeas challenge was
“fundamentally legal in nature”).
LEGAL STANDARD
Section 2241 of Title 28 authorizes a court to issue a writ of habeas corpus when
a person is “in custody in violation of the Constitution or laws or treaties of the United
States.” 	28 U.S.C. § 2241(c)(3). 	“[T]he essence of habeas corpus is an attack by a
person in custody upon the legality of that custody, and . . . the traditional function of the
writ is to secure release from illegal custody.” 	Preiser v. Rodriguez, 411 U.S. 475, 484
(1973). 	“Challenges to immigration detention are properly brought directly through
habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas
v. Davis, 533 U.S. 678, 687–88 (2001)).
Because Mr. Lopez Dionicio proceeds pro se, the Court liberally construes his
filings but will not act as his advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir.
2013).
ANALYSIS
I. 	Detention Without a Bond Hearing
Mr. Lopez Dionicio argues that he is entitled to a bond hearing. See [Doc. 1 at 5].
Respondent does not dispute this position and agrees that, if the Petition is granted, the
“appropriate relief” would be a bond hearing under § 1226(a). See [Doc. 9 at 1–2]. The
Court construes this as a concession that Petitioner is detained under § 1226(a). 	See
Contreras Posada v. Mullin, No. 26-cv-03765-NYW, 2026 WL 2654041, at *1 (D. Colo.
Sept. 9, 2026) (“By not substantively responding to the Petition and arguing that
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‘appropriate relief’ would be a bond hearing under 8 U.S.C. § 1226(a), . . . Respondents
effectively concede that Petitioner is currently detained under § 1226(a).”); Mendoza
Hernandez v. Baltazar, No. 26-cv-03652-WJM, 2026 WL 2453685, at *4 (D. Colo. Aug.
21, 2026) (“Respondents have waived any arguments they might otherwise have had in
response to Mendoza Hernandez’s claims by expressly declining to respond to Mendoza
Hernandez’s claims and his arguments in support of those claims.”).
Section 1226(a) “sets forth ‘the default rule’ for detaining noncitizens ‘already
present in the United States,’” Quispe-Ardiles v. Noem, No. 1:25-cv-01382-MSN-WEF,
2025 WL 2783800, at *5 (E.D. Va. Sept. 30, 2025) (quoting Jennings v. Rodriguez, 583
U.S. 281, 303 (2018)), and establishes a discretionary framework for the detention of
noncitizens pending removal proceedings, see 8 U.S.C. § 1226(a)(1)–(2). Recently, the
Tenth Circuit held that “noncitizens who entered the United States and were thereafter
detained in the interior of the country are usually subject to § 1226(a) (and thus eligible
for bond), not § 1225(b)(2)(A).” 	Santillan Quiroz v. Mullin, 180 F.4th 1226, 1237 (10th
Cir. 2026). Petitioner was detained while he was in the interior of the United States, see
[Doc. 1 at 5], so his detention is governed by § 1226(a), Santillan Quiroz, 180 F.4th at
1237.
Pursuant to Santillan Quiroz, Petitioner’s detention without a bond hearing violates
§ 1226(a). 	See Santillan Quiroz, 180 F.4th at 1237; Loa Caballero v. Baltazar, No. 25-
cv-03120-NYW, 2025 WL 2977650, at *8 (D. Colo. Oct. 22, 2025). 	And the Court
“concurs with the numerous other district courts that have held that denying a bond
hearing to a noncitizen detained under § 1226(a) violates the noncitizen’s due process
rights.” 	Onate-Brinez v. Baltazar, No. 26-cv-02768-NYW, 2026 WL 2085090, at *3 (D.
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Colo. July 20, 2026).
Accordingly, the Court GRANTS the Petition as to Petitioner’s claim that he is
being improperly detained without a bond hearing.
II. 	Appropriate Remedy
Mr. Lopez Dionicio requests immediate release under reasonable conditions of
supervision. [Doc. 1 at 6]. Respondent “submits that if the Court does grant the Petition,
the appropriate relief would be an Order directing that Respondent, within seven days of
this Court’s Order, provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a), or
else release Petitioner.” [Doc. 9 at 1–2 (citing Santillan Quiroz, 180 F.4th at 1251 n.13)].
The Court respectfully agrees with Respondent.
As this Court has explained, Section 1226(a) “does not require release—it provides
DHS the discretion to grant an alien release on bond.” Martinez Escobar v. Baltazar, No.
26-cv-00296-NYW, 2026 WL 503313, at *5 (D. Colo. Feb. 24, 2026) (quoting Nava
Hernandez v. Baltazar, No. 25-cv-03094-CNS, 2025 WL 2996643, at *8 (D. Colo. Oct. 24,
2025)). 	This Court has accordingly concluded that a constitutionally adequate bond
hearing is an appropriate habeas remedy for noncitizens who have not yet received such
a hearing under § 1226(a). 	See Wang v. Baltazar, No. 26-cv-04166-NYW, 2026 WL
2905324, at *4 (D. Colo. Sept. 28, 2026).
Following the weight of authority in this District, the Court has required the
Government to bear the burden of proof at a § 1226(a) bond hearing. See Diaz Lopez v.
Noem, No. 25-cv-04089-NYW, 2026 WL 206220, at *5 (D. Colo. Jan. 27, 2026); Martinez
Escobar, 2026 WL 503313, at *5; see also, e.g., Garcia Abanil v. Baltazar, 817 F. Supp.
3d 1148, 1159 (D. Colo. 2026) (“[T]he weight of authority in this District is clear: it is the
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Government’s burden to justify a noncitizen’s continued detention at a bond hearing.”
(cleaned up) (collecting cases)). 	The Court also concurs with the decisions concluding
that “the clear and convincing standard that generally applies to civil detention where
liberty is at stake is appropriate here as well.” Arredondo v. Baltazar, No. 25-cv-03040-
RBJ, 2025 WL 4083607, at *4 (D. Colo. Oct. 31, 2025) (quotation omitted); see also
Martinez Escobar, 2026 WL 503313, at *5 (collecting cases).
Accordingly, Respondent is ORDERED to provide Mr. Lopez Dionicio a bond
hearing no later than October 22, 2026. At the bond hearing, the Government shall bear
the burden of justifying Mr. Lopez Dionicio’s detention by clear and convincing evidence.
If Respondent does not provide Mr. Lopez Dionicio with a bond hearing under 8 U.S.C.
§ 1226(a) as required herein, Mr. Lopez Dionicio must be immediately released from
detention. 	On or before October 29, 2026, Respondent shall file a status report
concerning (1) the results of any bond hearing that was conducted or, if no hearing was
held, advise the Court of the date Mr. Lopez Dionicio was released from custody; and
(2) whether any additional proceedings in this matter are required.
CONCLUSION
For the reasons set forth above, IT IS ORDERED that:
(1) 	The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
[Doc. 1] is GRANTED in part;
(2) 	Respondent shall provide Mr. Lopez Dionicio a bond hearing no later than
October 22, 2026. 	At the bond hearing, the Government shall bear the
burden of proving, by clear and convincing evidence, that Mr. Lopez
Dionicio’s continued detention is justified. If Respondent does not provide
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Mr. Lopez Dionicio with a bond hearing under 8 U.S.C. § 1226(a) as
required herein, Mr. Lopez Dionicio must be immediately released from
detention;
(3) 	On or before October 29, 2026, Respondent shall file a status report
concerning (1) the results of any bond hearing that was conducted or, if no
hearing was held, advise the Court of the date Mr. Lopez Dionicio was
released from custody; and (2) whether any additional proceedings in this
matter are required; and
(4) 	A copy of this Order shall be sent to Petitioner at his address of record.
DATED: October 14, 2026 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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