Mendoza Gutierrez v. Baltazar et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 25-CV-2720-RMR
NESTOR ESAI MENDOZA GUTIERREZ, for himself and on behalf of themselves and
others similarly situated,
Petitioners-Plaintiffs,
v.
JUAN BALTASAR, Warden, Denver Contract Detention Facility, Aurora, Colorado, in
his official capacity,
ROBERT GUADIAN, Director of the Denver Field Office for U.S. Immigration and
Customs Enforcement, in his official capacity;
KRISTI NOEM, Secretary of the U.S. Department of Homeland Security, in her official
capacity;
TODD LYONS, Acting Director of U.S. Immigration and Customs Enforcement, in his
official capacity;
PAMELA BONDI, Attorney General of the United States, in her official capacity;
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW;
SIRCE OWEN, Acting Director for Executive Office of Immigration Review, in her official
capacity;
U.S. DEPARTMENT OF HOMELAND SECURITY;
AURORA IMMIGRATION COURT; and,
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, MARK BOWEN, Acting
Warden,
Respondents-Defendants.
ORDER
Before the Court is Petitioner Nestor Esai Mendoza Gutierrez’s (“Mr. Gutierrez” or
“Petitioner”) Motion for Class Certification (the “Motion”), ECF No. 15. Petitioner is
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requesting that the Court certify a class of noncitizens who are, or will be, arrested or
detained by the United States Immigration and Customs Enforcement (“ICE”) under
Section 235 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1225, which
requires 	detention 	during 	the 	pendency 	of 	a 	noncitizen’s 	immigration 	removal
proceedings. These same noncitizens would have likely been detained under INA § 236,
8 U.S.C. § 1226, before the Department of Homeland Security (“DHS”) issued a new
policy in July 2025 . Under 8 U.S.C. § 1226, noncitizens are entitled to a bond hearing
and, if certain criteria are met, may be released on bond pending their immigration
removal proceedings. For the following reasons, the Court will GRANT IN PART the
Motion, conditionally certifying the class for declaratory judgment.
I. 	BACKGROUND
On September 2, 2025, Mr. Guiterrez filed his First Amended Class Action
Complaint for Vacatur and Declaratory and Habeas Corpus Relief. On October 17, 2025,
the Court granted Mr. Guiterrez’s Emergency Temporary Restraining Order (“TRO”),
ordering Mr. Guiterrez’s immediate release until he received a bond hearing before an
Immigration Judge under § 1226. Mendoza Gutierrez v. Baltasar, No. 25-CV-2720-RMR,
2025 WL 2962908, at *14 (D. Colo. Oct. 17, 2025). The Court found that Mr. Guiterrez is
likely to succeed on the merits, that he is unlawfully detained under Section 1225(b)’s
mandatory detention authority, and Section 1226(a)’s discretionary detention scheme is
more likely applicable. Id. The Court deferred ruling on the motion for class certification
at that time and scheduled a hearing on the motion for class certification. On November
20, 2025, the Court held a hearing on the motion for class certification. After oral
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argument, the Court notified the parties of its intent to conditionally certify a class for
declaratory judgment. The Court declines to certify a class for Petitioner’s APA claim at
this stage but will address doing so later if it becomes necessary to resolve the matter.
The Court ordered the parties to meet and confer to identify the scope of the class and
file with the Court a proposed class definition and proposed briefing schedule agreeable
to both parties by noon on November 20, 2025. ECF No. 43. The parties filed a proposed
order certifying the class, ECF No. 44, along with a Joint Notice of Proposed Class
Certification Order, ECF No. 44, notifying the Court that there is a dispute over the words
“arrested or” in the proposed definition. The Court held a telephonic hearing to address
the dispute. The Respondent objects to the inclusion of the words, “arrested or.” Both
sides made a record of the basis for and against the inclusion of this language in the
definition of the class. For the reasons stated on the record, the Court will include the
words “arrested or” in the class definition at this time.
The Court conditionally certifies the class as defined below:
All people who are arrested or detained by Respondents in Colorado
pending a decision on whether they are to be removed from the United
States based on alleged violations of the Immigration and Nationality Act,
or who are otherwise subject to the jurisdiction of an Immigration Court
located in Colorado, where:
(a) 	For the person’s most recent entry into the United States, the
government has not alleged that the person was admitted into the United
States;
(b) 	For the person’s most recent entry into the United States, the person
was not paroled into the United States pursuant to 8 U.S.C. § 1182(d)(5)(A)
at the time of entry;
(c) 	The person is not a person whose most recent arrest occurred at the
border while they were arriving in the United States; and,
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(d) 	The person is being detained based on Respondents’ assertion that
they are subject to 8 U.S.C. § 1225(b)(2)(A).
ECF No. 43.
II. 	Legal Standard
The class action is “an exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). To
justify a departure from that rule, “a class representative must be part of the class and
‘possess the same interest and suffer the same injury’ as the class members.” Id. at 348–
49 (quoting East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977));
see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 408
(2010) (“A class action . . . enables a federal court to adjudicate claims of multiple parties
at once, instead of in separate suits.”).
The party seeking certifications must show:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests
of the class.
Fed. R. Civ. P. 23(a). In addition, “the proposed class must satisfy at least one of the
three requirements listed in Rule 23(b).” Wal-Mart, 564 U.S. at 345. Petitioner seeks to
certify a class under Rule 23(b)(2), which demands that “the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
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Fed. R. Civ. P. 23(b)(2). “Rule 23(b)(2) applies only when a single injunction or declaratory
judgment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at 360.
The Court's examination of these requirements is not cursory. Rule 23 “does not
set forth a mere pleading standard.” Id. at 350. Rather, “certification is proper only if the
trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have
been satisfied.” Id. at 350–51 (cleaned up). “Petitioner[] must satisfy the ‘preponderance’
evidentiary standard at the class certification stage.” D.B.U. v. Trump, 349 F.R.D. 228,
235 (D. Colo. 2025) (citing Payne v. Tri-State CareFlight, LLC, 328 F.R.D. 601, 621 n.12
(D.N.M. 	2018) 	(“[A]lthough 	the 	Tenth 	Circuit 	has 	not 	yet 	explicitly 	adopted 	the
preponderance standard for fact-finding in class certification analyses, it most likely will,
and the Court will employ that standard here.”) (collecting cases).
III. 	Analysis
Respondents argue this action is, at its core, a habeas corpus action. The Tenth
Circuit has recognized that while other circuits have ruled that Rule 23 class actions are
technically inapplicable to habeas corpus actions, the Court can apply an analogous
procedure by reference to Rule 23. Thus, the Court will apply the Rule 23 elements in its
analysis. The parties do not appear to disagree with the Rule 23(a) elements. The
disagreement is focused on Rule 23(b) and whether the class-wide relief requested is
declaratory or injunctive in nature and whether the relief requested is barred by 8 U.S.C. §
1252(f). The court will first briefly discuss the Rule 23(a) elements and then turn its
attention to the Rule 23(b) requirement, which took up the bulk of oral argument at the
hearing on the Motion.
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1. 	Rule 23(a)
a. 	Numerosity
There is no argument that the first requirement of Rule 23(a), numerosity, is
satisfied here. Under Rule 23(a)(1), plaintiffs or petitioners must show “that the class is
so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). As of
November 11, 2025, over 500 individuals were detained by ICE in the District of Colorado
under 	8 	U.S.C. 	§ 	1225(b)(2). 	ECF 	No. 40 	at 	14. 	Joinder 	of 	500 	noncitizens 	is
impracticable, and that does not include any future unknown members ─ noncitizens who
will be arrested and detained under § 1225(b)(2) in the District of Colorado in the future.
b. 	Commonality
During the hearing, Respondents represented that any dispute as to commonality
and typicality has to do with the class definition and can likely be resolved through
conferral with Petitioner’s counsel to come up with a mutually agreeable class definition.
The parties have now come to a resolution on the class definition, except for the term
“arrested or,” resolving the Petitioner’s argument that the class definition is too broad.
ECF Nos. 44-45. While Respondent’s objection to the inclusion of the “arrested or”
language is noted, it does not defeat the commonality element of the class certification.
Rule 23(a)(2) is disjunctive: a plaintiff may satisfy its commonality requirement if
“there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2); see
also Menocal v. GEO Grp., Inc., 882 F.3d 905, 914 (10th Cir. 2018) (“A finding of
commonality requires only a single question of law or fact common to the entire class.”)
(quotations omitted). Here, a common legal question exists ─ whether § 1225(b)(2)’s
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mandatory detention provisions apply to the class and prevents them from being
considered for release on bond under § 1226(a) and its implementing regulations. In an
analogous case, the Western District of Washington found that commonality was satisfied
when the common legal question was “whether Defendants’ ‘policy and practice denying
bonds for lack of jurisdiction’ violates the INA and APA.” Rodriguez v. Bostock, 349 F.R.D.
333, 354 (W.D. Wash. 2025) (Rodriguez II1). In another analogous case, the District of
Massachusetts held the common question of law was “does § 1225(b)(2)(A) authorize
mandatory detention without a bond hearing during removal proceedings for noncitizens
who entered the United States without inspection, were arrested while residing inside the
country, and who are not subject to the expedited removal process under § 1225(b)(1),
parole revocation under § 1182(d)(5)(A), or mandatory detention under § 1226(c).
Guerrero Orellana v. Moniz, No. 25-CV-12664-PBS, 2025 WL 3033769, at *9 (D. Mass.
Oct. 30, 2025). The Court finds that the class definition does present a common question
of law. Thus, the commonality element is met here.
c. 	Typicality
The typicality requirement calls upon the plaintiff to show that his claims or
defenses “are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). As
the Supreme Court has noted, “[t]he commonality and typicality requirements of Rule
23(a) tend to merge” Guerrero, 2025 WL 3033769, at *10..
1 The Court will utilize the same naming conventions for the multiple Rodriguez v. Bostock orders as it did
in Mendoza Gutierrez v. Baltasar, No. 25-CV-2720-RMR, 2025 WL 2962908, at *12 (D. Colo. Oct. 17,
2025) to avoid confusion.
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Initially, Respondents argued that Petitioner’s claim was not typical of the class, in
part, because of his pending U-Visa application. ECF No. 26 at 29. In their Supplemental
Brief for Class Certification Hearing and at the hearing, Respondents seem to concede
that whether a noncitizen has some sort of pending application should not impact the
Court’s typicality analysis. ECF No. 40 at 16. As the court previously noted, “[u]nder Rule
23(a)(2), Petitioners are not required to share the same factual circumstances of other
class members, particularly where questions of law—[whether § 1225(b)(2)’s mandatory
detention provisions apply to the class and prevents them from being considered for
release on bond under § 1226(a) and its implementing regulations]—are common to the
class.” D.B.U., 349 F.R.D. at 237 (internal quotation omitted). It appears that with the new
proposed class definition, Respondents no longer dispute that the typicality element is
satisfied.
d. 	Adequacy
The adequacy prong demands that “the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Resolution of two
questions determines legal adequacy: (1) do the named plaintiffs and their counsel have
any conflicts of interest with other class members and (2) will the named plaintiffs and
their counsel prosecute the action vigorously on behalf of the class?” White v. Gen.
Motors LLC, No. 21-cv-00410-CNS-MEH, 2023 WL 3278460, at *12 (D. Colo. May 5,
2023), reconsideration denied, No. 21-cv-00410-CNS-MEH, 2023 WL 4628438 (D. Colo.
June 30, 2023). Respondents do not contest that Mr. Guiterrez is an adequate class
representative. The Court finds that there is no conflict between Mr. Guiterrez's interests
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and the interests of class members. Mr. Guiterrez asserts the same legal theory as the
other class members. They “all have suffered or will suffer the same injury from the
government's uniform policy imposing mandatory detention without a bond hearing on
them during their removal proceedings.” Guerrero, 2025 WL 3033769, at *11.
Respondents do not contest the adequacy of proposed class counsel, who have
extensive experience in complex civil litigation, immigration law, and class actions. See
D.B.U., 349 F.R.D. at 233 (appointing some of the same counsel as class counsel). Class
counsel has litigated this action through the TRO phase and now into certification briefing,
not only in this Court but in other District Courts as well. See Maldonado Bautista v. Noem,
No. 5:25-cv-01873-SSSBFM, ECF No. 14 (C.D. Cal. July 28, 2025). The Court finds class
counsel have vigorously prosecuted this action on behalf of the class—and will continue
to—thus satisfying Rule 23(a)(4)’s adequacy requirement. See, e.g., White, 2023 WL
3278460, at *12 (concluding named plaintiff and class counsel met adequacy burden
where counsel had “vigorously been litigating” and “proffered intelligible [certification]
arguments” (quotations omitted)).
For the reasons set forth above, Petitioner, by a preponderance of the evidence,
satisfied Rule 23(a)’s threshold certification requirements. See Fed. R. Civ. P. 23(a). The
Court now proceeds to its analysis of Petitioner’s class certification motion under Rule
23(b)(2).
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2. 	Rule 23(b)(2)
Having satisfied Rule 23(a)’s requirements, the Court turns to whether Petitioners
have met their Rule 23(b)(2) burden. See, e.g., Fed. R. Civ. P. 23(b). This is where things
get more complicated.
Plaintiffs bring this class action under Rule 23(b)(2), see ECF No. 15 at 14, which
provides maintenance of a class action where “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a whole,” Fed. R.
Civ. P. 23(b)(2). See also Wal-Mart, 564 U.S. at 360 (“Rule 23(b)(2) applies only when a
single injunction or declaratory judgment would provide relief to each member of the
class.”).
a. 	8 U.S.C. § 1252(f)(1)
Respondents contend that Petitioner’s requested relief is injunctive because it
would ultimately require Respondents to provide the class members a bond hearing under
8 U.S.C. § 1226(a). Respondents maintain that 8 U.S.C. § 1252(f)(1) prohibits the Court
from awarding a class-wide injunction. Section 1252(f) provides, in part, that:
[N]o court (other than the Supreme Court) shall have jurisdiction or authority
to enjoin or restrain the operation of the provisions of [§§ 1221–31] of this
subchapter . . . other than with respect to the application of such provisions
to an individual alien against whom proceedings under such part have been
initiated.
8 U.S.C. § 1252(f). In other words, “[i]t prohibits federal courts from granting classwide
injunctive relief” against certain provisions of the INA, specifically §§ 1221–1231. Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999); see also Garland
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v. Aleman Gonzalez, 596 U.S. 543, 550 (2022) (Ҥ 1252(f)(1) generally prohibits lower
courts from entering injunctions that order federal officials to take or to refrain from taking
actions to enforce, implement, or otherwise carry out the specified statutory provisions.”).
On the record, Petitioner clarified the two forms of relief he is seeking: 1) a
declaratory judgment, declaring the challenged policies unlawful, and 2) vacatur, or set
aside relief, under the APA, seeking the Court to set aside DHS’s new policy and the
Board of Immigration Appeals’ (“BIA”) decision in Matter of Yajure Hurtado, 29 I. & N.
Dec. 216, 216 (BIA 2025). Petitioner argues that vacatur is necessary because in the
Western District of Washington, where a declaratory judgment was issued in an
analogous case, the Immigration Judges in that district are ignoring the declaratory
judgment. ECF No. 38 at 8 n.12; see also Rodriguez v. Bostock, No. 3:25-CV-05240-
TMC, 2025 WL 2782499, at *27 (W.D. Wash. Sept. 30, 2025) (Rodriguez III) (finding that
the class “has shown that the text of section 1226, canons of interpretation, legislative
history, and longstanding agency practice demonstrate that they are governed by section
1226(a)’s ‘default’ rule for discretionary detention). Petitioner concedes that his individual
habeas claim is still a live issue before the court, but he denies that he is seeking class
habeas.
In Aleman Gonzalez, the Supreme Court declined to reach the question of whether
§ 1252(f) prohibits class-wide declaratory relief. 596 U.S. at 551 n.2. Two out-of-circuit
district courts have held that § 1252(f) does not prohibit the declaratory relief sought here,
each relying on its own circuit's precedent. The First Circuit and Ninth Circuits have said
that § 1252(f) does not prohibit declaratory relief. See Guerrero, 2025 WL 3033769, at
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*12 (citing Brito v. Garland, 22 F.4th 240, 256-257 (1st Cir. 2021); Rodriguez II, 349 F.R.D.
333, 364 (W.D. Wash. 2025) (citing Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir.
2010)). In Van Dinh v. Reno, the Tenth Circuit declined to decide whether § 1252(f) bars
review when constitutional due process issues are raised. 197 F.3d 427, 433–34 (10th
Cir. 1999). (“While the immigration statutes may not preclude collateral review of
constitutional issues in § 2241 habeas cases, an issue we do not decide here, they do
preclude direct review of the Attorney General's discretionary decisions in immigration
cases by means of a Bivens class action suit.”).
Respondents argue that Plaintiff’s request for declaratory relief is in name only,
and that because Petitioner is still asking the Court to compel Respondents to act by
providing the class members a bond hearing under 8 U.S.C. 1226(a) that such relief is
injunctive, which is barred by 8 U.S.C. § 1252(f). ECF No. 40 at 6-7. Respondents also
argue that vacatur is a form of injunctive relief as well. The Court asked Respondents at
the hearing, as a practical matter, if the Court, like many other Courts in the nation, has
ruled that DHS’s new policy interpreting 8 U.S.C. §§ 1225 and 1226(a) is unlawful, how
does the Court ensure the 500 noncitizens to whom this new policy applies get relief?
Other than having the Court rule on 500 separate habeas petitions, what mechanism
should be used to determine the rights and obligations regarding the other purported class
members? Respondents proposed that multidistrict litigation was a possibility, but
Respondents did not otherwise provide a satisfactory answer as to what the Court should
do with the current situation.
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Without addressing the argument that vacatur is a form of injunctive relief, the
Court finds that a class-wide declaratory judgment that the new DHS policy violates the
INA is not precluded by § 1252(f). The Court agrees with the reasoning in Rodriguez II
and Guerrero that Petitioner’s requested relief does not fall within the bar of § 1252(f).
Rodriguez II, 349 F.R.D. at 364; Guerrero, 2025 WL 3033769, at *12. As the Court
previously noted, “Mr. Gutierrez is not seeking to halt, suspend, or alter the discretionary
‘operation’ of any INA provision. Rather, he has raised procedural due process claims
challenging the constitutionality of immigration agencies’ recently enacted policies and
procedures.” Mendoza Gutierrez v. Baltasar, No. 25-CV-2720-RMR, 2025 WL 2962908,
at *13 (D. Colo. Oct. 17, 2025).
b. 	Appropriate Relief
Respondents also argue the class cannot be certified under Rule 23(b)(2) because
the declaratory judgment would not provide final relief to each member of the class. ECF
No. 40 at 8. Instead, Respondents argue, members of the class would have to file
individual injunctions to secure an order requiring the government to provide a bond
hearing in his or her specific case. ECF No. 40 at 8. As the Court emphasized at the
hearing, the expectation is in this District that if the Court issues an order of declaratory
judgment, the order will be followed. And as the court in Guerrero found, “[a] final
declaratory judgment establishing a right to a bond hearing would be appropriate on a
class-wide basis, and each class member could then secure a coercive remedy enforcing
that right in an individual action,” but hopefully, that will not be necessary. Guerrero, 2025
WL 3033769, at *13. Thus, the Court finds that "the declaratory relief requested—a ruling
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that the policy violates the INA—would provide the entire class with relief.” Rodriguez II,
349 F.R.D. at 363.
IV. 	CONCLUSION
For the foregoing reasons, Petitioner’s Motion for class certification, ECF No. 15,
is GRANTED in PART. The Court conditionally certifies the following class for purposes
of Petitioner’s declaratory judgment claim for relief:
All people who are arrested or detained by Respondents in Colorado pending a
decision on whether they are to be removed from the United States based on alleged
violations of the Immigration and Nationality Act, or who are otherwise subject to the
jurisdiction of an Immigration Court located in Colorado, where:
(a) 	For the person’s most recent entry into the United States, the government
has not alleged that the person was admitted into the United States;
(b) 	For the person’s most recent entry into the United States, the person was
not paroled into the United States pursuant to 8 U.S.C. § 1182(d)(5)(A) at the time
of entry;
(c) 	The person is not a person whose most recent arrest occurred at the border
while they were arriving in the United States; and,
(d) 	The person is being detained based on Respondents’ assertion that they
are subject to 8 U.S.C. § 1225(b)(2)(A).
The Court DENIES WITHOUT PREJUDICE to certify the class for Petitioner’s vacatur
claim for relief under the APA.
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The Court appoints Plaintiff-Petitioner Nestor Esai Mendoza Gutierrez as the class
representative for the conditionally-certified class. Pursuant to Federal Rule of Civil
Procedure 23(g), Timothy R. Macdonald, Emma Mclean-Riggs, Anna I. Kurtz, Sara Neel,
and Scott C. Medlock of the American Civil Liberties Union Foundation (“ACLU”); Michael
K.T. Tan and Anand Balakrishnan of the American Civil Liberties Union Foundation; and
Hans Meyer and Conor Gleason of the Meyer Law Office as class counsel for the
conditionally-certified class.
The Court’s previous order enjoining Respondents from removing the putative
class he had originally proposed to represent from the United States or transferring them
from the District of Colorado during the pendency of this action, ECF No. 33 at 36, is
MODIFIED to apply only to members of the class defined above.
The parties are ordered to brief the merits in accordance with the agreed schedule
ECF No. 44 at 2. Petitioner’s opening brief is due November 24, 2025. Respondent’s
response is due December 8, 2025. Petitioner’s reply is due December 15, 2025.
DATED: November 21, 2025
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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