Hernandez Hernandez v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-03983-NRN
FRANKLIN HERNANDEZ HERNANDEZ,
Petitioner,
v.
KRISTI NOEM, in her official capacity as Secretary of the Department of Homeland
Security,
TODD LYONS, in his official capacity as Acting Director of Immigration and Customs
Enforcement,
ARTHUR WILSON, in his official capacity as ICE Field Officer Director,
JOHNNY CHOATE, in his official capacity as the warden of the Aurora Immigration
Detention Facility,
PAMALA BONDI, in her official capacity as the United States Attorney General,
THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT,
THE BOARD OF IMMIGRATION APPEALS,
Respondents.
ORDER
N. REID NEUREITER
United States Magistrate Judge
This case is before the Court on Franklin Hernandez Hernandez’s (“Petitioner”)
Verified Petition for Writ of Habeas Corpus (the “Petition”). ECF No. 1. Petitioner is
currently in the custody of the Department of Homeland Security (“DHS”) in Aurora,
Colorado. He contends that the Respondents are improperly subjecting him to
mandatory detention under 8 U.S.C. § 1225(b)(2). Instead, he says, 8 U.S.C. § 1226(a)
governs his detention. Because this is a fundamentally legal debate, there is no need
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for a hearing on the Petition. See 28 U.S.C. § 2243. For the reasons that follow, the
Court GRANTS IN PART the Petition.
BACKGROUND
This case is one of numerous cases in this District and across the country
seeking habeas relief for immigrants detained within the United States and denied bond
hearings under a new interpretation of 8 U.S.C. §§ 1225, 1226. E.g., Gomez v. Bondi,
No. 26-CV-00489-NRN, 2026 WL 482677 (D. Colo. Feb. 20, 2026); Diaz Marquez v.
Baltasar, No. 26-cv-00293-CYC, 2026 WL 370864 (D. Colo. Feb. 10, 2026); Abarca v.
Baltazar, No. 25-cv-04086-CYC, 2026 WL 309198 (D. Colo. Feb. 5, 2026); Hernandez-
Redondo v. Bondi, No. 25-cv-03993-PAB, 2026 WL 290989 (D. Colo. Feb. 4, 2026);
Jimenez Facio v. Baltazar, No. 25-cv-03592-CYC, 2025 WL 3559128 (D. Colo. Dec. 12,
2025); Garcia Cortes v. Noem, No. 25-cv-02677-CNS, 2025 WL 2652880 (D. Colo.
Sept. 16, 2025); Batz Barreno v. Baltasar, No. 25-cv-03017-GPG-TPO, 2025 WL
3190936 (D. Colo. Nov. 14, 2025); Loa Caballero v. Baltazar, No. 25-cv-03120-NYW,
2025 WL 2977650 (D. Colo. Oct. 22, 2025). Petitioner brings claims under the Fifth
Amendment and the Immigration and Nationality Act (“INA”).
Petitioner is a native and citizen of Guatamala who entered the United States
without inspection when he was five years old. ECF No. 1 ¶ 1. Petitioner has one
juvenile criminal conviction of petty criminal mischief. Id. He has two U.S. citizen
children. Id.
Petitioner was apprehended by ICE after an arrest following an encounter with
the police. Id. On August 14, 2025, an Immigration Judge granted a bond
redetermination in the amount of $10,000. Id. ¶ 2. DHS appealed and on September 23,
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2025, the Board of Immigration Appeals (“BIA”) vacated the bond, finding that Petitioner
was ineligible for bond because U.S.C. § 1225(b)(2)(A) bars individuals who entered
without inspection from receiving a bond redetermination from an immigration judge. Id.
This interpretation, as discussed below, has been rejected by courts in this District.
Petitioner argues that he qualifies for immediate release from custody because
an Immigration Judge has already determined that he is neither a danger nor a flight
risk, and Respondents do not offer any evidence of a criminal history that requires
mandatory detention. See 8 U.S.C. § 1226(c). Instead, Respondents contend that
Petitioner’s detention is governed by § 1225(b), which they argue applies to all
applicants for admission, not just arriving aliens or those who unlawfully entered the
country recently, and mandates detention. See ECF No. 8 at 12–15. Respondents’
argument has been rejected by this Court as well as several other judges in this District.
See Gomez, 2026 WL 482677; Jimenez Facio, 2025 WL 3559128, at 2 (recognizing
that “every decision in this District addressing the issue” has determined that §
1225(b)(2)(A) does not apply to persons, like Petitioner, who have already been residing
in the United States for several years). The Court sees no reason why this case would
merit a different outcome.
ANALYSIS
A district court may grant a writ of habeas corpus to any person who
demonstrates he is “in custody in violation of the Constitution or laws . . . of the United
States.” 28 U.S.C. § 2241. This includes “[c]hallenges to immigration detention.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004). The individual in custody
bears the burden of proving that their detention is unlawful. Walker v. Johnston, 312
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U.S. 275, 286 (1941). To meet that burden, Petitioner argues that 8 U.S.C. § 1226(a)
applies to him; “that aliens detained under § 1226(a) receive bond hearings at the
outset of detention,” Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 C.F.R.
§§ 236.1(d)(1), 1236.1(d)(1)); see 8 U.S.C. § 1226(a) (providing for discretionary
detention); see also 8 C.F.R. § 1003.19 (providing framework for requesting a bond
determination); and, while he received a hearing, Respondents then determined that he
is statutorily ineligible for bond. The Court finds that Petitioner has met his burden.
The Court is “firmly convinced that it and the other judges in the District who have
addressed this issue have correctly decided those cases.” Diaz Marquez, 2026 WL
370864, at *1. While the Court recognizes that the Fifth Circuit has recently held
otherwise, Buenrostro-Mendez v. Bondi, Nos. 25-20496 & 25- 40701, --- F.4th ----, 2026
WL 323330 (5th Cir. Feb. 6, 2026), “[o]bviously, the Fifth Circuit's decision is not binding
authority on this Court, and, as to persuasiveness, the Court respectfully finds in Judge
Douglas's dissent a more rigorous and compelling legal analysis of the relevant
statutory provisions. Gomez v. Bondi, 2026 WL 482677, at *2; see also Singh v.
Baltazar, --- F. Supp. 3d ----, 2026 WL 352870, at *3–6 (D. Colo. Feb. 9, 2026)
(explaining in detail why Buenrostro-Mendez does not compel a contrary outcome).
Accordingly, the Court finds that Petitioner’s continued confinement has violated
the INA and Petitioner’s Fifth Amendment due process rights.1 See Jimenez Facio,
2025 WL 3559128, at *3 (“Resolution of the due-process question may be
1 Because the Court grants the Petition based on the statutory interpretation of
§§ 1225(b) and 1226(a), it need not reach Petitioner’s additional arguments regarding
his entitlement to relief as a member of the “Bond Denial Class” certified in Maldonado
Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM (C.D. Cal.).
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unnecessary[,] . . . [b]ut to the extent it is, ‘the Court agrees with other courts that have,
against substantially similar factual backgrounds, concluded that detention without a
bond hearing amounts to a due process violation.’”) (quoting Garcia Cortes v. Noem,
No. 25-cv-02677-CNS, 2025 WL 2652880, at *4 (D. Colo. Sept. 16, 2025)).
Moreover, because an Immigration Judge, after a full custody hearing, ordered
Petitioner released on a $10,000 bond, it has already been determined that Petitioner
does not pose a danger to the community nor a flight risk. Therefore, the Court orders
his immediate release on the previously set immigration bond. See Rivero v. Mina, No.
6:26-cv-66-RBD-NWH, 2026 WL 199319, at *4 (M.D. Fla. Jan. 26, 2026) (“Forcing a
detainee to wait for a hearing for days or weeks more in custody—under who knows
what conditions—when he is not lawfully detained in the first place would gut the
purpose of habeas review.”).
Lastly, Petitioner requests attorney fees and costs. ECF No. 1 at 10. But
D.C.COLO.LCivR 54.3(a) requires that “a motion for attorney fees . . . be supported by
affidavit,” and no such affidavit supported the request. Further, “a motion involving a
contested issue of law shall . . . be supported by a recitation of legal authority in the
motion.” D.C.COLO.LCivR 7.1(d). As a result, the Court denies this portion of the
Petition without prejudice. If the petitioner chooses to file a motion for attorney fees, it
must comply with all applicable rules and provide legal authority for the request. See
L.G. v. Choate, 744 F. Supp. 3d 1172, 1187 (D. Colo. 2024).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Petition, ECF No. 1, is
GRANTED IN PART as follows.
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1) Petitioner is not subject to mandatory detention pursuant to 8 U.S.C. §
1225(b)(2), and Respondents are PERMANENTLY ENJOINED from re-detaining
him under 8 U.S.C. § 1225(b)(2)(A).
2) Respondents shall immediately release Petitioner from detention on the
previously set immigration bond.
3) On or before March 10, 2026, Respondents shall confirm in writing Petitioner’s
release from custody, assuming bond has been posted.
4) This Court retains jurisdiction over this matter to ensure Respondents comply
with this Order.
Date: March 5, 2026 BY THE COURT:
N. Reid Neureiter
United States Magistrate Judge
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