Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARIO MARES VILLAGOMEZ, 	)
)
Petitioner, 	)
)
v. 	) 	No. 1:26-cv-00089-SEB-KMB
)
KRISTI NOEM Secretary, U.S Department of
Homeland Security,
)
)
PAMELA BONDI Attorney General, U.S.
Department of Justice,
)
)
SAMUEL OLSON Field Office Director, Chicago
Field Office, Immigration and Customs
Enforcement,
)
)
)
NATASHA DOUGLASS Jail Commander, Clinton
County Jail,
)
)
)
Respondents. 	)
ORDER DENYING MOTION TO ENFORCE
On January 27, 2026, the Court granted Petitioner Mario Mares Villagomez's petition for a
writ of habeas corpus and ordered Respondents "to provide him an individualized bond hearing as
required by § 1226(a) and its regulations." Dkt. 9 at 7. The Court entered final judgment. Dkt. 10.
On February 19, 2026, Mr. Mares Villagomez filed a motion to enforce that judgment. Dkt.
[12]. The Court directed further proceedings, and Mr. Marez Villagomez and the federal
respondents filed responses. Dkts. 13, 15, 16. Then, as directed by the Court, these same parties
filed additional briefs on the topic of exhaustion. Dkts. 18, 19.
The motion to enforce is now ready for the Court's decision.
I. Factual Background
Mr. Mares Villagomez is detained under the authority of U.S. Immigration and Customs
Enforcement ("ICE"). Pursuant to the Court's order, Respondents provided Mr. Mares Villagomez
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an individualized bond hearing and denied Mr. Mares Villagomez's request for a change in his
custody status, finding that he "failed to meet his burden of establishing that he does not pose a
risk of flight" and "failed to establish that there is an amount of bond or condition of release that
can ensure his appearance for future hearings and for removal, if necessary." Dkt. 12-1 at 2.
Respondents presented no evidence at the hearing. Dkt. 12 at 2. Mr. Mares Villagomez
provided nearly 120 pages of evidence, including the September 8, 2025, written order of a
different Immigration Judge summarizing her oral decision granting Mr. Mares Villagomez's
request for cancellation of removal. Dkt. 12-2 at 8–10. Though not included in that written
summary, Mr. Mares Villagomez represents that the prior Immigration Judge had found that Mr.
Mares Villagomez had established that "he had been in this country for at least ten years, he is of
good moral character, he does not have any disqualifying conviction, and that his U.S. citizen
children will experience exceptional and extremely unusual hardship . . . based on the children’s
severe physical and mental health conditions." Dkt. 12 at 2.
II. Analysis
Mr. Mares Villagomez contends that the Immigration Judge presiding over his bond
hearing did not comply with the Court's order, having failed to act as a neutral adjudicator, and
thus the bond hearing violated the Fifth Amendment's Due Process Clause. Dkt. 12 at 3–5. He also
contends that our court has jurisdiction to hear his challenge to the Immigration Judge's decision
based on the Judge's incorrect application of the burden of proof and for violating the Constitution.
Dkt. 16 at 2. He maintains, for these reasons, that his bond hearing was fundamentally unfair. Id.
at 3.
Respondents counter that, in providing Mr. Mares Villagomez with an individualized bond
hearing which resulted in a merits-based decision on his request for bond determination, they fully
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complied with the Court's order. Dkt. 15 at 1–3. They also assert that the Court lacks jurisdiction
to review the immigration judge's decision. Id. at 3.1
A. 	Jurisdiction
The Seventh Circuit has directed that "[w]hen a district court issues a conditional habeas
writ, it retains jurisdiction to determine compliance." Jensen v. Pollard, 924 F.3d 451, 454 (7th Cir.
2019) (citing Hudson v. Lashbrook, 863 F.3d 652, 656 (7th Cir. 2017)). Thus, the Court has
authority to decide whether Respondents provided Mr. Mares Villagomez the "individualized bond
hearing as required by § 1226(a) and its regulations," as we previously ordered. Dkt. 9 at 7.
Even so, the jurisdictional limitation set out in 8 U.S.C. § 1226(e), might suggest otherwise.
There, it states:
The Attorney General’s discretionary judgment regarding the application of this
section shall not be subject to review. No court may set aside any action or decision
by the Attorney General under this section regarding the detention of any alien or
the revocation or denial of bond or parole.
We do not read this statute to deprive federal courts of jurisdiction to hear constitutional challenges
to detention in habeas cases. 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 framework for
those decisions. The district court therefore had jurisdiction under § 2241."). Because Mr. Mares
1 The parties also disagree on procedural grounds regarding the Board of Immigration Appeals' rejection of
Mr. Mares Villagomez's Notice of Appeal of his bond denial. See dkt. 18 at 1–2; dkt. 19 at 3–4. This issue
is beyond the scope of our prior order. We, therefore, will not address it in the context of ruling on this
motion to enforce that order.
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Villagomez has raised a due process challenge, we hold that § 1226(e) does not bar our
consideration of his motion to enforce.
Respondents also make passing reference to another statutory limitation on judicial review,
which provides, 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) (emphasis added). Courts have generally held
that § 1252(a)(2)(B)(ii)—like § 1226(e)—does not apply to constitutional challenges or to
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."). Accordingly,
Mr. Mares Villagomez's challenge to his denial of bond on due process grounds is not foreclosed
by § 1252(a)(2)(B)(ii). We thus shall proceed to address the issue of exhaustion.
B. 	Exhaustion
Respondents concede that no statute requires Mr. Mares Villagomez to exhaust his
administrative remedies before pursuing a habeas action. Dkt. 18 at 3. "[W]here Congress has not
clearly required exhaustion, sound judicial discretion governs." McCarthy v. Madigan, 503 U.S.
140, 144 (1992).
In succinct fashion, Mr. Mares Villagomez maintains that exhaustion of administrative
remedies "is not an element" in determining whether Respondents complied with the Court's prior
order. Dkt. 19 at 1. We note, however, the "general rule that parties [must] exhaust prescribed
administrative remedies before seeking relief from the federal courts." McCarthy, 503 U.S. at 144–
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45. Discretion is granted to the Court in deciding whether to depart from this general rule to
determine whether
individual interests demand that exhaustion be excused [which is allowable] 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
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)). In determining whether exhaustion of administrative remedies should be
excused in this instance, we therefore examine the four factors listed above.
1. 	Prejudice from Appellate Timeline
It is unclear based on the record before us whether Mr. Mares Villagomez has appealed or
intends to appeal his bond denial through the administrative appellate process. His initial notice of
appeal was rejected by the Board of Immigration Appeals ("BIA"). Whether it has been refiled we
do not know. See dkt. 19 at 3–4.
A decision to appeal would weigh against requiring exhaustion for the reason that the
appellate process itself can drag on for many months, during which time Mr. Mares Villagomez
will remain detained. This imposes a hardship both on himself and his family, which includes his
children who are U.S. citizens.
2. 	Agency Competency
The competency of the agency factor redounds in favor of requiring exhaustion. Mr. Mares
Villagomez's due process claim rests on the Immigration Judge's deprivation of his due process
rights when she ruled contrary to the evidence and imposed on Mr. Mares Villagomez the burden
of proof. These errors by the Immigration Judge, he argues, resulted in a fundamentally unfair
hearing.
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We conclude that the BIA has greater expertise than this court in reviewing decisions by
immigration judges tasked with weighing the evidence adduced in administrative bond hearings.
Mr. Mares Villagomez's argument that the Immigration Judge violated the Constitution by
requiring him to shoulder the burden of proof regarding his release invokes principles of unsettled
law. Mr. Mares Villagomez admits that the Seventh Circuit has not decided the question of who
bears the burden of proof in an administrative bond hearing. Dkt. 12 at 4. Further, other circuit
courts have also left this issue up in the air.2 "The rationale for" requiring exhaustion "may be even
stronger in the context of a case, like this one, that raises a constitutional question." In re
Establishment Inspection of Kohler Co., 935 F.2d 810, 812–13 (7th Cir. 1991). "[T]he exhaustion
requirement enables courts to avoid deciding cases on constitutional grounds unnecessarily; during
administrative proceedings the constitutional issue, or the entire case, for that matter, may be
resolved favorably for the aggrieved party, obviating the need for the courts to address the
constitutional claim." Id. at 813. See also Diliberti v. Brown, 583 F.2d 950, 951 (7th Cir. 1978)
(Requiring "exhaustion would further 'the well-established and sound policy in the federal courts
which seeks to avoid premature decisions of constitutional questions such as those raised in
plaintiffs' complaint.'" (quoting Champagne v. Schlesinger, 506 F.2d 979, 984 (7th Cir. 1974))).
2 Compare Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021) ("We therefore conclude that the
government must bear the burden of proving dangerousness or flight risk in order to continue detaining a
noncitizen under section 1226(a)."); Velasco Lopez v. Decker, 978 F.3d 842, 846 (2d Cir. 2020) ("[T]he
district court correctly ordered a new bond hearing where the Government bore the burden of proof."),
with Rodriguez Diaz v. Garland, 53 F.4th 1189, 1214 (9th Cir. 2022) ("[E]ven when there are deficiencies
in individual § 1226(a) proceedings, they may be redressable through means short of major changes to the
burden of proof."); Miranda v. Garland, 34 F.4th 338, 365 (4th Cir. 2022) ("Espinoza did not meet his
burden to show a likelihood of success on his claim that requiring an alien in a § 1226(a) bond hearing to
show, by a preponderance of evidence, that he is not a danger to the community nor a flight risk violates
an alien's rights under the Due Process Clause."); Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d
274, 279 (3d Cir. 2018) ("[U]under § 1226(a) the burden remains on the detainee at all times. [W]e
perceive no problem . . . .").
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Mr. Mares Villagomez's current request seeks an order releasing him from custody or
requiring a bond hearing before a neutral adjudicator where he does not bear the evidentiary
burden. These are all issues that the BIA is well-equipped to resolve pursuant to the Immigration
and Nationality Act and applied regulations. Thus, we shall allow the BIA to first address Mr.
Mares Villagomez's claims, thereby avoiding the necessity of our engaging in a complex
constitutional analysis involving issues on which there is no Seventh Circuit precedent and other
federal courts are generally divided.
3. 	Futility and Bias
We view the import of the third individual interest—avoiding futility or bias—as neutral.
The sparse discussion Mr. Mares Villagomez provided against requiring exhaustion centers
primarily on this futility and bias factor. He argues that "courts nationwide have addressed whether
immigration bonds are being conducted in a fundamentally fair manner," (Dkt. 19 at 2) citing a
decision from the District of New Jersey that concluded that the petitioner was not provided a
"constitutionally adequate bond hearing" as the court had ordered. Perez Meija v. Bondi, No. CV
26-1592, 2026 WL 752560, at *5 (D.N.J. Mar. 17, 2026).
Mr. Mares Villagomez has also proffered affidavits by a former Immigration Judge and
several immigration attorneys each attesting to recent, significant changes in bond practices in the
immigration courts. See, e.g., dkt. 12-3 at 5 ("I submit this declaration to provide the Court with
direct, firsthand observations of a dramatic and systematic change in bond hearing outcomes that
have occurred over the past three weeks in immigration proceedings in Virginia and Maryland
. . . ."); dkt. 12-3 at 12 ("I have observed a complete 180 over the last three weeks by immigration
judges in post-habeas bond cases, characterized by a systematic and uniform denial of bond
without meaningful analysis of facts and law"); dkt. 12-3 at 20–21 ("[I]t is clear that the
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Immigration Judge failed to consider any of the relevant enumerated factors properly prior to
denying the bond . . . . Unfortunately, this incident is a common occurrence in immigration courts
around the country where immigration judges are no longer neutral arbitrators as they fear
retaliation and firing by the executive branch.").
Certainly, this evidence as submitted by Mr. Mares Villagomez is deeply troublesome to
us. However, within this judicial district recently filed notices reveal that various petitioners have
been released after being provided bond hearings pursuant to court-issued writs of habeas corpus.
See Jiminez Bravo v. Swearingen, No. 2:26-cv-00107-JRS-MKK, dkt. 13 (S.D. Ind. Mar. 19,
2026); Joseph v. Swearingen, No. 2:26-cv-147-JRS-MKK, dkt. 12 (S.D. Ind. Mar. 19, 2026);
Ramirez Montes v. Swearingen, No. 2:26-cv-176-JPH-MJD, dkt. 13 (S.D. Ind. Mar. 25, 2026).
Thus, the Court finds the weight of this factor falls equally on the parties in deciding whether to
require or to excuse exhaustion.
4. 	Constitutional Questions
Finally, in terms of the existence of constitutional issues, we hold that their presence does
not justify a departure from the general rule requiring exhaustion. Mr. Mares Villagomez's request
that we resolve the constitutional issue he has raised substantially overlaps with the specific
administrative issue. He maintains that the Immigration Judge's bond denial deprived him of due
process because the judge's decision was unsupported by the evidence. Whether that is true is a
decision well within the competency of the BIA.
If faced with deciding the question of who should bear the burden of proof in the bond
determination, as a constitutional question that does not overlap with the merits of the Immigration
Judge's decision and is unresolved based on our precedent, we might rule otherwise. But at this
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juncture, in our view, it is prudent to permit the BIA to address Mr. Mares Villagomez's claims
through the administrative review process.
We are not unsympathetic to the hardship of Mr. Mares Villagomez's continued detention.
Even so, exhaustion of administrative remedies is required here for the reasons explained above.
Thus, we decline to exercise our discretion so to excuse the exhaustion of administrative remedies
requirement.
III. Conclusion
The motion to enforce is denied without prejudice. Dkt. [12].
IT IS SO ORDERED.
Date: _______________________
Distribution:
All electronically registered counsel
4/7/2026	_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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