JORGE ALEJADRO GOMEZ TEJADA v. JORDAN POWELL (2026)

ORDER

This matter concerns ICE's detention of Jorge Alehandro Gomez Tejada. In his habeas petition, Mr. Tejada requests immediate release or, alternatively, a bond hearing pursuant to Eleventh Circuit precedent. On July 2, 2026, the Court ordered the respondents to show cause why Mr. Tejada should not be released. (Doc. 10). On July 16, 2026, the Court held a hearing on this matter.

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In his habeas petition, Mr. Tejada asserts that he was arrested without a warrant, and he requests immediate release based on this alleged violation of his due process rights. (Doc. 1, pp. 24–25, 40, 56–58). Mr. Tejada and his wife both report that they were not provided a warrant despite their repeated requests. (Doc. 1, pp. 2, 4–6, ¶¶ 4, 14–17; Statement by Yaria S. Garcia, Counsel for Mr. Tejada, July 1, 2026 Telephone Conference). The government has produced an administrative warrant dated for the day of Mr. Tejada's arrest. (Doc. 10-2).

ICE must have a warrant to arrest someone under § 1226(a), and it would be improper for ICE to withhold from a detainee a copy of the warrant for his arrest. See Jennings v. Rodriguez, 583 U.S. 281, 302 (2018) (internal brackets omitted) (quoting 8 U.S.C. § 1226(a)) (noting that “section [1226(a)] authorizes detention only ‘on a warrant issued’ by the Attorney General leading to the alien's arrest”). ICE's documents indicate that ICE monitored Mr. Tejada, stopped him, arrested him, and then served him with an administrative warrant based on information he provided during the stop. (Doc. 10-1, p. 3) (“On June 27, 2026, ERO Birmingham Fugitive Operations Team (BHM/FOT) officers conducted surveillance ․ BMH/FOT observed a subject appearing to match the description of the target get into a White GMC and drive off. At approximately 0937 BHM/FOT initiated a vehicle stop ․ The driver, later identified as GOMEZ-TEJADA freely admitted to being a citizen and nation[al] of Mexico without proper documentation to be in the United States․ BHM/FOT positively identified GOMEZ-TEJADA as the target from biometric data obtained from a previous immigration encounter. Based on GOMEZ-TEJADA's own admission and records checks, BHM/FOT established GOMEZ-TEJADA is illegally present in the United States and arrested him without incident. BHM/FOT served GOMEZ-TEJADA with a warrant of arrest, Form I-200 by a supervisor on scene during the arrest.”); (Doc. 12-1, p. 2) (“On June 27, 2026, ICE/ERO arrested Petitioner in Birmingham, Alabama. After a brief interview where Petitioner admitted to being a citizen of Mexico without any lawful status to be in the United States, ICE/ERO served him with an arrest warrant.”). ICE's documents do not indicate that ICE had a warrant for Mr. Tejada's arrest before ICE stopped him.¹

Thus, it appears that ICE officials did not follow proper procedure when the officials arrested Mr. Tejada. The United States Supreme Court has held that “[h]abeas is at its core a remedy for unlawful executive detention,” and “[t]he typical remedy for such detention is, of course, release.” Munda v. Geren, 553 U.S. 674, 693 (2008). Likewise, the Supreme Court has held that “[f]reedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that the [Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001).

Courts have held that administrative agencies like ICE may cure a procedural defect — here, the absence of a warrant — by “forc[ing] the agency to go back and do its job right” — here, obtaining and producing a warrant. See, e.g., Nwosu v. Warden, No. 26-cv-00183, 2026 WL 787632, at *5 (M.D. Fla. Mar. 20, 2026). And the Supreme Court has stated that if there is a legal basis for detention, habeas may not be used to “discharge” a detainee “for defects in the original arrest or commitment.” Nishimura Eli v. United States, 142 U.S. 651, 662 (1892). As a practical matter, the Court cannot put the genie back in the bottle. Given Mr. Tejada's alleged admission to agents that he is a citizen of Mexico without lawful status in the United States, if the Court were to order Mr. Tejada's release based on the procedural flaw in the initial arrest, ICE would simply re-arrest Mr. Tejada using the existing arrest warrant. Because habeas operates under equitable principles, Munda, 553 U.S. at 693, the Court will not order a futile act.²

Mr. Tejada contends that the Court should order ICE to release him from custody because the government has not explained why ICE rearrested him when nothing has changed since the government dismissed an earlier removal proceeding against Mr. Tejada. (Doc. 15, pp. 4–5, 7–8). Mr. Tejada has provided a copy of the orders dismissing the prior removal proceeding. (Doc. 16, pp. 4–9). These orders and the underlying regulations note that the earlier dismissal is without prejudice. (Doc. 16, p. 8); 8 C.F.R. § 1239.2(c). Though the argument may be persuasive in a bond hearing, Mr. Tejada has not cited authority for the proposition that the government must provide a reason to reopen a case dismissed without prejudice, and Mr. Tejada “concede[s] that he presently lacks lawful status” in the United States, even though he is eligible for permanent residence if his U.S. citizen wife's pending I-130 application is approved. (Doc. 15, p. 4).³

Counsel for Mr. Tejada argues that the government targeted him because his wife filed an I-130 application and used the information in the application to reopen removal proceedings, making the process for obtaining lawful status a trap for those seeking legal standing in the United States. The Court is not unsympathetic to the apparent Catch-22, but the Court may not adjudicate this claim. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482–92 (1999) (holding that 8 U.S.C. § 1252(b)(9) and (g) are constitutional and that the statutory provisions bar district courts from considering selective prosecution claims in the context of immigration proceedings).⁴

In Reno, the Supreme Court stated that “we need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.” Reno, 525 U.S. at 491. The Court has not located an opinion from a court within the Eleventh Circuit that has applied this exception. Accordingly, if Mr. Tejada wishes to challenge his removal proceedings on this basis, he must do so in those proceedings. See, e.g., Khalil v. President, United States, 164 F.4th 259, 273–77, 279–81 (3d Cir. 2026) (discussing what types of claims are and are not jurisdictionally barred and the possibility that U.S. Courts of Appeal could review First Amendment retaliation and due process claims on a petition for review of a final order of removal).

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Turning to Mr. Tejada's request for a bond hearing, Mr. Tejada argues, and the government concedes, that even if his detention is lawful, he is entitled to an individualized bond hearing under 8 U.S.C. § 1226(a) and Hernandez Alvarez v. Warden, 175 F.4th 1258 (11th Cir. 2026). (Doc. 1; Doc. 5, p. 4). Section 1226(a) provides that “except as provided in subsection (c) and pending such decision, the Attorney General— ․ may release the alien on ․ bond ․ [or] conditional parole.” 8 U.S.C. § 1226(a). Bond hearings must be held “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)). The government has asked for seven days to arrange a bond hearing. (Doc. 12).

Mr. Tejada argues that, as a matter of due process, at a bond hearing, the government must prove by clear and convincing evidence that he is either a danger or a flight risk. (Doc. 1, pp. 59–61). The government argues that the Court should “deny Petitioner's request to mandate the burden of proof in immigration court proceedings.” (Doc. 1, p. 10). The Supreme Court has held that it is constitutional to categorically deny bond hearings to criminal aliens during removal proceedings under 8 U.S.C. § 1226(c), Demore v. Kim, 538 U.S. 510 (2003), but the Supreme Court has not determined what due process requires for non-criminal aliens like Mr. Tejada for whom detention is discretionary under § 1226(a). Lower courts have reached a variety of conclusions on the issue.

In a § 1226(c) opinion vacated as moot, the Eleventh Circuit stated that, “[l]ike non-criminal aliens [under § 1226(a)], the criminal alien carries the burden of proof [under § 1226(c)] and must show that he is not a flight risk or danger to others.” Sopo v. U.S. Att'y Gen., 825 F.3d 1199, 1220 (11th Cir. 2016), vacated as moot, 890 F.3d 952 (11th Cir. 2018). In Sopo, in examining the burden of proof at bond hearings for criminal aliens detained under § 1226(c), the Eleventh Circuit cited only § 1226's implementing regulations; the Eleventh Circuit did not consider what due process requires. Sopo, 825 F.3d at 1219–20 & n.10. Relying in part on Sopo, at least one district judge in the Eleventh Circuit has held that the petitioner bears the burden of proof in hearings conducted pursuant to § 1226(a). Aham v. Gartland, No. 19-cv-00046, 2020 WL 806929, at *3 nn. 2 & 3 (S.D. Ga. Jan. 29, 2020) (Cheesbro, M.J.), report and recommendation adopted, 2020 WL 821005 (S.D. Ga. Feb. 18, 2020) (Wood, J.). Other district judges in this circuit have required the government to “bear the burden of establishing by clear and convincing evidence that Petitioner is either a danger to the community or a flight risk.” D.Y.E.H. v. Warden, No. 25-cv-00201, 2026 WL 1230386, at *11 (M.D. Ga. Apr. 6, 2026) (Sands, J.); see also, e.g., J.G. v. Warden, 501 F. Supp. 3d 1331, 1341–42 (M.D. Ga. 2020) (Lawson, J.); Bader v. Field Off. Dir., No. 26-cv-20537, 2026 WL 1459639, at *4, __ F. Supp. 3d __ (S.D. Fla. May 22, 2026) (Bloom, J.); W.C. v. Warden, Irwin Cnty. Det. Ctr., No. 26-cv-00157, 2026 WL 1658526, at *1 (M.D. Ga. June 4, 2026) (Gardner, J.); Lacroix v. Lynch, No. 15-cv-00140, 2016 WL 1165804, at *6 (N.D. Fla. Jan. 7, 2016) (Kahn, J.), report and recommendation adopted in part, 2016 WL 1175199 (N.D. Fla. Mar. 23, 2016) (Hinkle, J.).⁵

The First Circuit has held that “due process requires the government to either (1) prove by clear and convincing evidence that [the petitioner] poses a danger to the community or (2) prove by a preponderance of the evidence that [the petitioner] poses a flight risk.” Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021).⁶

In a decision concerning prolonged detention of an individual who already had had one bond hearing, the Second Circuit has held that the government must prove that a § 1226(a) detainee “is a danger to the community or a flight risk by clear and convincing evidence to justify his continued detention,” Velasco Lopez v. Decker, 978 F.3d 842, 855–57 (2d Cir. 2020); see also Velasco, 978 F.3d at 855 n.13 (“This case does not require us to establish a bright-line rule for when due process entitles an individual detained under § 1226(a) to a new bond hearing with a shifted burden.”); Barbosa da Cunha v. Freden, 175 F.4th 61, 95 & n.11 (2d Cir. 2026) (noting that Velasco did not establish a bright-line rule and that the petitioner in Velasco had already had a bond hearing).

The Third Circuit has held that the petitioner bears the burden of proof in an initial § 1226(a) proceeding. See Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 280 (3d Cir. 2018); Ojo v. Warden Elizabeth Det. Ctr., 808 Fed. Appx. 61, 65 (3d Cir. 2020).

The Fourth and Ninth Circuits have held that the petitioner may bear the burden of proof. Miranda v. Garland, 34 F.4th 338 (4th Cir. 2022); Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022). Both opinions have dissenting opinions.

For several reasons, the Court finds the First Circuit's reasoning most persuasive. A few well-settled principles provide the foundation for the Court's conclusion. First, “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. Second, deportation proceedings “are civil, not criminal, and we assume that they are nonpunitive in purpose and effect.” Zadvydas, 533 U.S. at 690. Third, “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425 (1979). “[T]he fact that some detention is permissible does not change the fact that a detainee suffers significant liberty deprivations.” Hernandez-Lara, 10 F.4th at 28. Due process dictates that the government's power to detain non-criminal immigrants pending removal “ ‘is subject to important constitutional limitations.’ ” Hernandez-Lara, 10 F.4th at 28 (quoting Zadvydas, 533 U.S. at 695).

In addition to these fundamental principles, the Court's decision accounts for the relatively recent decision by the executive branch to place the burden of proof on non-criminal aliens. The First Circuit Court of Appeals explained the regulatory shift in Hernandez-Lara:

Section 1226(a) is silent as to what burden of proof applies in bond hearings and who bears that burden. See 8 U.S.C. § 1226(a). For many decades, the [Board of Immigration Appeals] interpreted that silence as creating a presumption in favor of liberty pending removal proceedings. See Matter of Patel, 15 I. & N. Dec. 666, 666 (B.I.A. 1976) (“An alien generally is not and should not be detained or required to post bond except on a finding that he is a threat to the national security or that he is a poor bail risk.” (citations omitted)).

In 1996 Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Omnibus Consolidated Appropriations Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996). IIRIRA adopted what is now the current version of the mandatory detention requirements of section 1226(c). IIRIRA did not alter the discretionary regime of section 1226(a) except by increasing the minimum bond amount from $500 to $1,500.

Nevertheless, following the enactment of IIRIRA, the Immigration and Naturalization Service (INS) adopted new regulations establishing a presumption of detention in the initial custody determination by the arresting officer. See 8 C.F.R. § 236.1(c)(2)-(8). Under those regulations, a noncitizen seeking release bears the burden of “demonstrat[ing] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” Id. § 236.1(c)(8). Although that regulation applied only to the custody determination by the arresting officer, the BIA soon adopted that standard for section 1226(a) bond hearings before an IJ, reversing its prior rule. See Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (B.I.A. 1999); Matter of Guerra, 24 I.& N. Dec. at 38.

Accordingly, under current BIA precedent, a noncitizen detained under section 1226(a) must demonstrate “to the satisfaction of the Immigration Judge that he or she merits release on bond,” Matter of Guerra, 24 I. & N. Dec. at 40, “even though section [1226(a)] does not explicitly contain such a requirement.” Matter of Adeniji, 22 I. & N. Dec. at 1113. To do so, the noncitizen must prove that he or she is neither a danger to the community nor a flight risk. See, e.g., Matter of R-A-V-P-, 27 I. & N. Dec. 803, 804 (B.I.A. 2020). In contrast, the government “need not show anything to justify incarceration for the pendency of removal proceedings, no matter the length of those proceedings.” Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir. 2020).

Hernandez-Lara, 10 F.4th at 26-27 (footnote omitted).⁷ As the First Circuit explained, there is no statutory basis for this administrative policy change:

IIRIRA did not change section 1226(a) except by increasing the minimum bond amount from $500 to $1,500. In other words, even as Congress limited bond opportunities for noncitizens covered by section 1226(c), it chose to maintain section 1226(a)'s discretionary bond provision. And at the time Congress chose to do so, the BIA had long interpreted section 1226(a) as placing the burden of proof in bond hearings on the government. See Matter of Patel, 15 I. & N. Dec. 666 (B.I.A. 1976). So one cannot find in IIRIRA any support at all for the BIA's subsequent reversal of the burden that Congress left undisturbed.

Hernandez-Lara, 10 F.4th at 36.

Against this backdrop, the Court considers the constitutional implications of the BIA's policy reversal. When examining what due process requires in a particular circumstance, courts consider: (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.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).⁸

The private interest here is strong. “Deportation is a ‘drastic measure,’ often amounting to lifelong ‘banishment or exile.’ ” Sessions v. Dimaya, 584 U.S. 148, 157 (2018) (citations omitted). The impact of deportation is particularly acute for individuals like Mr. Tejada, a former DACA recipient who was brought to the United States as a young child, who likely remembers little of any other country, and who has built his life in the United States. For Mr. Tejada and other non-criminal detainees like him, removal is punitive, exacting a price for conduct that was not within the detainees' control and in which the detainees had no say. Cf. Dep't of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 29 (2020) (ruling withdrawal of DACA forbearance was arbitrary and capricious, and noting prior DHS judgment that “forbearance is ‘especially justified’ for ‘productive young people’ who were brought here as children and ‘know only this country as home’ ”). Detention during removal proceedings deprives Mr. Tejada and other non-criminal detainees like him of the ability to work to provide for family members – here, Mr. Tejada's wife and children, while the detainees attempt to use the tools legally available to them during their confinement to oppose deportation. For non-criminal detainees like Mr. Tejada, the length of “detention under § 1226(a) is impossible to predict” and “frequently prolonged,” often lasting years, “even where an individual has prevailed and the Government appeals.” Hernandez-Lara, 10 F.4th at 29–30 (quoting Velasco Lopez, 978 F.3d at 852) (citing Pereira-Brito v. Barr, 415 F. Supp. 3d 258 (D. Mass. 2019), aff'd in part, vacated in part, remanded sub nom. Brito v. Garland, 22 F.4th 240 (1st Cir. 2021)). Detention in this civil administrative proceeding places a substantial financial burden on detainees like Mr. Tejada and his family, a burden that increases with the passage of time. Accordingly, Mathews's private interest factor weighs heavily in Mr. Tejada's favor.

The second Mathews factor, the risk of error under current and alternative procedures, also weighs in Mr. Tejada's favor. “[P]roving a negative (especially a lack of danger) can often be more difficult than proving a cause for concern,” Hernandez-Lara, 10 F.4th at 31, even when a petitioner has full access to public records that may inform a court's decision regarding danger to the public and flight risk. Yet immigration detainees often struggle to gain access to even basic records relevant to dangerousness or flight risk, leading to denial of bond based on incomplete or inaccurate information. See, e.g., Hernandez-Lara, 10 F.4th at 30–31; Velasco Lopez, 978 F.3d at 852–53; (Doc. 13, p. 2) (noting delayed production of documents); (Doc. 15, pp. 2–3) (noting some documents are still missing from the government's production in this case). Detainees also often face language barriers and lack legal representation. Hernandez-Lara, 10 F.4th at 30–31; see also, e.g., Toshkhua v. Smith, No. 26-cv-00194, slip op. at 5–6 n. 10 (N.D. Ala. Mar. 16, 2026), ECF No. 20 (warrant had been read to petitioner in English despite ICE records indicating petitioner did not speak or understand English).

The government typically has access to and control over public records that may provide objective information relevant to the issues of danger and flight, documents that may be very difficult for a detainee to obtain. Importantly, a non-criminal detainee's strong incentive to remain in his or her community, oppose removal, and obtain legal status, especially in circumstances like Mr. Tejada's in which the individual seeks bond to maintain employment and remain united with his American family, makes flight extremely unlikely. Under these circumstances, objective documentary evidence is necessary to overcome the practical considerations that make flight highly unlikely, and the government has the greatest access to public records. Accordingly, “the odds of error in the weighing of such evidence (or its absence) are likely reduced by placing the burden on the government, as in virtually all other instances of proposed lengthy detention.” Hernandez-Lara, 10 F.4th at 31.

With respect to the third Mathews factor concerning the government's interests, “it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). Still, detention must “bear[ ] a reasonable relation to the purpose for which the individual was committed.” Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972). Detention is permitted when an individual poses a danger to society or when the individual is a flight risk.

The Supreme Court has observed that “[t]he alien's removable status itself ․ bears no relation to a detainee's dangerousness.” Zadvydas, 533 U.S. at 692. Therefore, the pendency of removal proceedings is not evidence that an individual is dangerous.

As for flight, the government has a strong interest in securing attendance at removal proceedings. See, e.g., Nken v. Holder, 556 U.S. 418, 436 (2009) (noting “a public interest in prompt execution of removal orders”). Detention furthers this interest only if a detainee is, in fact, a flight risk. Hernandez-Lara, 10 F.4th at 32–33. The Supreme Court has recognized that generally, “[a]liens who have not been ordered removed are less likely to abscond because they have a chance of being found admissible.” Johnson v. Guzman Chavez, 594 U.S. 523, 544 (2021); see also, e.g., Ingrid Eagly et. al., Detaining Families: A Study of Asylum Adjudication in Family Detention, 106 CAL. L. REV. 785, 848 & n.283 (2018) (noting family detainees' high rates of attendance at immigration proceedings, and explaining that non-attendance was often the result of ICE providing unclear or incorrect instructions to detainees, often in a language the detainee did not understand). In evaluating flight risk, an immigration judge may consider a detainee's likelihood of being found admissible or having deportation otherwise deferred. Hernandez-Lara, 10 F.4th at 34. An immigration judge also may consider the fact that a detainee who does not consent to removal likely wishes to remain in his local community to care for a spouse, children, and other relatives and to maintain employment to support dependents. Hernandez-Lara, 10 F.4th at 33; see Velasco Lopez, 978 F.3d at 855 (noting that detention “separates families and removes from the community breadwinners, caregivers, parents, siblings and employees”).

The government has an interest in reducing administrative burdens and costs. See Mathews, 424 U.S. at 335 (directing courts to consider “the fiscal and administrative burdens that the additional or substitute procedural requirement would entail”). In the abstract, placing the burden of proof on the government arguably may increase administrative burdens and costs marginally. As a practical matter, though, the government has a strong incentive to obtain criminal records before a bond hearing because an ICE officer must make an initial detention decision under 28 U.S.C. § 1226(a) and must have a reason for selecting detention, a reason that the government can defend at a subsequent bond hearing before an immigration judge. Hernandez-Lara, 10 F.4th at 26. Given the government's access to criminal, employment, marriage, school, and similar records (or ability to establish the absence of such records), it is unlikely that “shifting the burden will cause the government to expend more than minimal additional resources obtaining such records.” Hernandez-Lara, 10 F.4th at 33; see also Velasco Lopez, 978 F.3d at 855 (“ICE and DHS can access the records of other federal agencies and local law enforcement and routinely do so for purposes of the merits proceedings.”).

In contrast, every unnecessary detention imposes direct and indirect costs on government and society. See Hernandez-Lara, 10 F.4th at 33; Velasco Lopez, 978 F.3d at 854–55. “Detention [directly] costs taxpayers approximately $134 per person, per day.” Velasco Lopez, 978 F.3d at 855 n.13. “Funds saved by not housing noncitizens suffering erroneous liberty deprivations would likely outweigh the fiscal burdens of accessing and presenting evidence at a bond hearing.” J.G., 501 F. Supp. 3d at 1340. “States' revenues drop because of reduced economic contributions and tax payments by detained immigrants, and their expenses rise because of increased social welfare payments in response to the harms caused by unnecessary detention.” Hernandez-Lara, 10 F.4th at 323 (internal brackets omitted). And “ruptures in the fabric of communal life impact society in intangible ways that are difficult to calculate in dollars and cents.” Hernandez-Lara, 10 F.4th at 323. Accordingly, increasing the accuracy of bond determinations by “shifting the burden of proof to the Government to justify continued detention promotes the Government's interest ․ in minimizing the enormous impact of incarceration in cases where it serves no purpose.” Velasco Lopez, 978 F.3d at 854.

In sum, detainees' fundamental liberty interest is severely impacted by placing the burden of proof on them, while the government's interests are minimally affected by assigning the burden of proof to the government. Therefore, due process requires placing the burden of proof on the government.

As an aside, the Court notes that in all but a narrow subset of criminal cases, the government bears the burden of production when it seeks pretrial detention. The burden of proof shifts after conviction. Compare 18 U.S.C. § 3142(f)(2) (pretrial detainees), with 18 U.S.C. § 3142(a)(1), (2)(B), (b)(A) (posttrial detainees); see also United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990) (citations omitted) (stating that in the narrow subset of criminal cases in which criminal defendants bear a burden concerning pretrial detention, pretrial, those defendants bear only the burden of production, not the burden of persuasion, i.e., “[t]he defendant's [statutory] obligation to come forward with [countervailing] evidence does not shift to the defendant the government's burden of persuasion”). Because the reasons for detention in criminal cases are more compelling than the reasons for detention in civil removal proceedings concerning non-criminal detainees, the burden should rest on the government with respect to discretionary detention under § 1226(a). The BIA's pre-IIRIRA procedure aligned properly with due process and with the typical allocation of burdens under civil and criminal law.

As to the level of the government's burden, in all other civil detention situations, the Supreme Court requires the government to prove dangerousness by clear and convincing evidence. See, e.g., Foucha, 504 U.S. at 85. There is no justification for applying a lesser standard to § 1226(a) detainees, who have not been convicted of serious crimes and are, under Supreme Court precedent, not dangerous simply because they are involved in removal proceedings. Zadvydas, 533 U.S. at 692. With respect to flight, the government's interest in ensuring attendance at immigration proceedings is like the government's interest in ensuring attendance at criminal proceedings, and in the pre-trial context, the government must prove flight risk only by a preponderance of the evidence. United States v. Medina, 775 F.2d 1398, 1402 (11th Cir. 1985); see also Hernandez-Lara, 10 F.4th at 40–41 (analogizing to bail reform act). In both the immigration and criminal contexts, the risk of an erroneous determination is generally lower for flight risk than for dangerousness because the detainee generally will have access to more of the relevant information, including information on “their family and community ties, place of residence, length of time in the United States, and record of employment.” Hernandez-Lara, 10 F.4th at 40. Placing the burden on the government to show flight risk by a preponderance of the evidence means “the noncitizen need not prove a negative (by showing, for example, that he or she has not fled prosecution or failed to appear at court) but is instead faced with the more straightforward task of marshalling evidence readily available to her so as to rebut the government's evidence.” Hernandez-Lara, 10 F.4th at 40.

Accordingly, “due process requires the government to either (1) prove by clear and convincing evidence that she poses a danger to the community or (2) prove by a preponderance of the evidence that she poses a flight risk.” Hernandez-Lara, 10 F.4th at 41.⁹

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Accordingly, the Court denies Mr. Tejada's request for immediate release. The Court grants Mr. Tejada's request for a bond hearing. The government shall either (a) provide Mr. Tejada with a bond hearing pursuant to 8 U.S.C. § 1226(a) within seven days of this order, or (b) release him from custody. If a bond hearing is conducted, the hearing shall take place before an immigration judge within the Eleventh Circuit. The hearing must include—and the resulting order must reflect—consideration of all evidence properly submitted by Mr. Tejada, the factors announced in In re Guerra, 24 I. & N. Dec. 37 (BIA 2006), and the proper burden of proof as discussed in this order. Mr. Tejada's counsel must receive at least 48 hours' notice of the hearing.¹⁰

If either (a) Mr. Tejada is not given a bond hearing within seven days of this order, or (b) an immigration judge denies bond for reasons that conflict with this order or current Eleventh Circuit precedent (i.e., Hernandez Alvarez), then this Court orders that the respondents release Mr. Tejada either unconditionally or with reasonable conditions of supervision.

The Court directs the respondents to file a notice by ten days after this order reporting the results of the individualized bond hearing or informing the Court that Mr. Tejada has been released from custody.

The government is enjoined from transferring Mr. Tejada out of the Eleventh Circuit until a bond hearing has been provided in accordance with this order. Because there are no immigration judges within this district, the Court lifts the temporary restraining order's prohibition on transfer outside of this district.

DONE and ORDERED this July 29, 2026.

FOOTNOTES

1.   At the July 16 hearing on Mr. Tejada's petition, the government argued that, based on the biometric data ICE had for Mr. Tejada, ICE had probable cause or reasonable suspicion to stop and question Mr. Tejada about his immigration status. (July 16, 2026 minute entry). A transcript of the July 16, 2026 hearing is available upon request.

2.   Mr. Tejada also suggested that the judgment in Maldonado Bautista requires immediate release. (Doc. 1, pp. 45–47) (citing Maldonado Bautista v. Santacruz, No. 25-cv-01873, 2025 WL 3288403 (C.D. Cal. Nov. 25, 2025), reconsideration granted in part, 813 F. Supp. 3d 1075 (C.D. Cal. 2025), and amended and superseded on reconsideration, 813 F. Supp. 3d 1084 (C.D. Cal. 2025), judgment entered, 2025 WL 3678485 (C.D. Cal. Dec. 18, 2025)). Whatever the merits of Mr. Tejada's argument on the scope of this decision, “the Ninth Circuit has stayed pending appeal the Maldonado Bautista class certification order.” Alvarenga v. Powell, No. 26-cv-00939, 2026 WL 1683122, at *3 (N.D. Ala. Jun. 10, 2026) (citing Maldonado Bautista v. U.S. Dept. of Homeland Sec., No. 25-7958, Doc. 14 (9th Cir. Mar. 31, 2026)).

3.   The Tejada I-130 application has been pending for more than two years. (Doc. 1, p. 18).

4.   8 U.S.C. § 1252(b)(9) and (g) read:(9) Consolidation of questions for judicial reviewJudicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.․(g) Exclusive jurisdictionExcept as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

5.   One district judge in the Eleventh Circuit declined to specify the burden of proof on the grounds that doing so “would likely both exceed this court's authority and be unnecessary to afford [the petitioner] complete relief,” citing the limits on judicial review in 8 U.S.C. § 1226(e). Martinez Alvarenga v. Powell, No. 26-cv-00939, 2026 WL 1683122, at *4 (N.D. Ala. June 10, 2026) (Maze, J.). Subsection 1226(e) states that “[t]he 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.” 8 U.S.C. § 1226(e). “[T]he extent of the Government's detention authority is not a matter of ‘discretionary judgment,’ ‘action,’ or ‘decision.’ ” Jennings v. Rodriguez, 583 U.S. 281, 296 (2018) (ruling § 1226(e) did not prohibit review of government's detention authority under § 1226(a) and the Due Process Clause).

6.   There is a dissenting opinion in Hernandez-Lara.

7.   The statutory precursor to § 1226(a) appeared at 8 U.S.C. § 1252 and remained largely the same from its original enactment through 1996. The first third of the former § 1252(a)(1) is analogous to the current § 1226(a):Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody. Except as provided in paragraph (2), any such alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (A) be continued in custody; or (B) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (C) be released on conditional parole․8 U.S.C. § 1252(a)(1) (1994). In relevant part, 8 C.F.R. § 236.1(c)(8) reads:Any officer authorized to issue a warrant of arrest may, in the officer's discretion, release an alien not described in section 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.

8.   The Supreme Court has stated that it “has never viewed Mathews as announcing an all-embracing test for deciding due process claims,” Dusenbery v. United States, 534 U.S. 161, 168 (2002), but the Supreme Court has evaluated similar factors in civil commitment and pre-trial bail contexts. See generally Addington v. Texas, 441 U.S. 418 (civil commitment generally); Foucha v. Louisiana, 504 U.S. 71 (1992) (civil commitment after acquittal on insanity grounds); United States v. Salerno, 481 U.S. 739 (1987) (pre-trial bail). Several courts have applied the Mathews factors when analyzing what due process requires for aliens detained under § 1226(a). See, e.g., Hernandez-Lara v. Lyons, 10 F.4th at 27–28; Miranda, 34 F.4th at 358–59; Rodriguez Diaz, 53 F.4th at 1206.

9.   A higher showing may be required after prolonged detention. See, e.g., Velasco Lopez, 978 F.3d at 855 (requiring the government prove both dangerousness and flight risk by clear and convincing evidence after prolonged detention, reasoning that “[w]hile the Government's interest may have initially outweighed short-term deprivation of [the detainee's] liberty interests, that balance shifted once his imprisonment became unduly prolonged”). The issue of prolonged detention is not currently before the Court, so the Court does not rule on it.

10.   As a condition to receive notice, courts generally have required that counsel for the detainee “enter[ their] appearance[s] in the Executive Office of Immigration Review's online filing system in time to receive the notice.” E.g., Martinez Alvarenga v. Powell, No. 26-cv-00939, 2026 WL 1683122, at *2 (N.D. Ala. June 10, 2026). At the July 16 hearing, counsel for Mr. Tejada stated that they were unable to enter their notices of appearance in EOIR's online filing system because a case had not been created in that system for Mr. Tejada. The government shall ensure that a case for Mr. Tejada is promptly created in EOIR's system. Once the case has been created, the government shall promptly notify Mr. Tejada's attorneys of that fact. Mr. Tejada's attorneys shall then promptly enter their notices of appearance in EOIR's system. If an EOIR case for Mr. Tejada is not created at least 96 hours before his bond hearing, the government must ensure that Mr. Tejada's attorneys receive notice of the relevant details through other means.

MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE