BADER v. FIELD OFFICE DIRECTOR (2026)

ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

THIS CAUSE is before the Court upon Petitioner David Bader's (“Petitioner”) Verified Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C. § 2241, alleging he has been unlawfully detained in Immigration and Customs Enforcement (“ICE”) custody. ECF No. [1]. The Court ordered a response from Respondent, the Miami ICE Field Office Director (“Respondent”). See ECF No. [6]. Respondent timely filed a Response, ECF No. [7], to which Petitioner filed a Reply, ECF No. [8]. The Court has considered the Petition, the Response, the Reply, the record in this case, the applicable law, and is fully advised. For the reasons set forth below, the Petition is granted in part and denied in part.

I. FACTUAL BACKGROUND

Petitioner is a citizen of Hungary. ECF Nos. [1] ¶ 20; [7] at 1. Petitioner was admitted to the United States on April 8, 2010, via the Visa Waiver Program (“VWP”) pursuant to 8 U.S.C. § 1187(a). Id. Under the VWP, Petitioner gave up his right to contest any action to remove him, other than an application for asylum. ECF No. [1] ¶ 37. Petitioner was authorized to remain in the United States until July 8, 2010; Petitioner overstayed his visa. ECF No. [7] at 1-2.

On December 12, 2020, Petitioner was arrested and charged with a traffic-related offense and a misdemeanor offense that were later dismissed. ECF No. [7] at 2-3. Upon his arrest and inquiry into his immigration status, Petitioner was transferred to ICE custody. Id. On January 8, 2021, the Department of Homeland Security (“DHS”) issued Petitioner a Visa Waiver Program (VWP) Final Administrative Removal Order (“Administrative Removal Order”). ECF Nos. [1] ¶ 22; [1-2] at 11; [7] at 1; [7-4].¹ DHS charged Petitioner as inadmissible under the Immigration and Nationality Act (“INA”) § 237(a)(1)(B) as someone who remained in the United States for a time longer than permitted. ECF No. [7] at 3. On March 31, 2021, Petitioner was released from custody pursuant to an Order of Supervision (“OSUP”) under U.S.C. § 1231(a)(3) and (c)(2). ECF Nos. [1] ¶ 23; [1-2] at 12; [7] at 3. Petitioner thereafter applied to become a lawful permanent resident based on his marriage to a U.S. citizen. ECF No. [1] ¶ 24. On December 4, 2025, Petitioner attended an interview for his application, where he was arrested and detained by ICE based on the revocation of his OSUP. ECF Nos. [1] ¶¶ 25-28; [7] at 3-4; [7-6]. Petitioner received a Notice of Revocation of Release and a Warrant for Arrest. ECF Nos. [7] at 4; [7-7]; [7-8]. Petitioner has been in ICE custody since. ECF Nos. [1] ¶ 29; [7] at 4. On December 11, 2025, United States Citizenship and Immigration Services (“USCIS”) denied Petitioner's application to become a permanent resident for discretionary reasons. ECF Nos. [1] ¶ 30; [1-2] at 24. On January 3, 2026, Petitioner was referred to an immigration judge for asylum-only proceedings. ECF No. [1] ¶ 32; [1-2] at 56; [7] at 4. Petitioner has no criminal history other than the December 2020 charges that were later dropped. See ECF No. [7-6].

Petitioner is currently detained at Krome North Service Processing Center. ECF No. [7] at 4. Petitioner filed the instant Petition on January 27, 2026, asserting his detention is unlawful because he is entitled to a bond hearing under § 1226(a). ECF No. [1] ¶¶ 1-3. Petitioner argues his continued detention violates the INA and his due process rights. Id. at 10-11. Petitioner requests immediate release or a bond hearing. Id. at 12-13. Respondent states Petitioner is a VWP violator and is properly detained without bond pursuant to § 1187. ECF No. [7] at 4.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 2241(a), district courts have the authority to grant writs of habeas corpus. Habeas corpus is fundamentally “a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (citation omitted). A writ may be issued to a petitioner who demonstrates that he is being held in custody in violation of the Constitution or federal law. See 28 U.S.C. § 2241(c)(3). The Court's jurisdiction extends to challenges involving immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).

III. DISCUSSION

A. Jurisdiction

As a preliminary matter, the Court notes it has jurisdiction to decide the Petition. Petitioner asserts jurisdiction is proper under 28 U.S.C. § 2241, 28 U.S.C. § 1331, and the Suspension Clause of the U.S. Constitution. ECF No. [1] ¶¶ 6-8. Respondent does not argue the Court lacks jurisdiction.² See generally ECF No. [7]. However, the Court is obliged to sua sponte determine its own jurisdiction. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004).

While federal district courts still generally retain jurisdiction to review immigration detention claims, in enacting 8 U.S.C. § 1252, Congress has curtailed district court's subject matter jurisdiction over certain immigration actions. Although 8 U.S.C. § 1252(g) “bars courts from reviewing certain exercises of discretion by the attorney general, it does not proscribe substantive review of the underlying legal basis for those discretionary decisions and actions.” Madu v. U.S. Atty. Gen., 470 F.3d 1362, 1368 (11th Cir. 2006). Where Respondent argues Petitioner is detained pursuant to § 1187(c)(2)(E)³ and Petitioner invokes § 1226, Petitioner challenges the underlying statutory basis for his detention pending removal proceedings, which district courts have jurisdiction to hear. See e.g., Nardella Mago v. Rogers, No. 26-cv-00278, 2026 WL 532485, at *1 (M.D. Fla. Feb. 26, 2026) (finding the court has jurisdiction to hear challenges to ongoing detention pending removal proceedings initiated under the Visa Waiver Program). Thus, this Court has jurisdiction to determine the underlying statutory basis for Petitioner's detention.

B. Detention Authority for Visa Waiver Program Entrants

Petitioner argues that nothing in the statue or regulations governing the Visa Waiver Program addresses custody or detention. See ECF No. [1] ¶ 42 (citing 8 U.S.C. § 1187, 8 C.F.R. pt. 217 & §§ 208.2(c), 1208.2(c)). Thus, Petitioner argues the INA's general detention provisions, specifically § 1226(a), govern his detention and he is therefore entitled to a bond hearing. Id. ¶¶ 52, 53. Respondent responds that Petitioner, as an individual subject to the VWP, is detained pursuant to § 1187(c)(2)(E), as confirmed by the Board of Immigration Appeals in Matter of A-W-, 25 I&N Dec. 45, 47 (BIA 2009). ECF No. [7] at 5. In the Matter of A-W-, the BIA held that Immigration Judges do not have jurisdiction to conduct bond hearings for VWP participants because the removal proceedings for VWP participants are statutorily different from removal proceedings initiated by a Notice to Appear under 8 C.F.R. pt. 1240. Id. Respondent states it is bound by decisions of the BIA and contends Petitioner is properly detained without bond. Id. Because this Court is not bound by decisions of the BIA, it now turns to determine the proper statutory basis for Petitioner's detention.

The Eleventh Circuit recently summarized the “three general pathways to detain [a non-citizen]” under the INA. See Hernandez Alvarez v. Warden, Federal Detention Center Miami, 175 F.4th 1258, 2 (11th Cir. 2026). First, a non-citizen may be detained under 8 U.S.C. § 1226, which applies to those who are arrested and detained “pending a decision on whether the [non-citizen] is to be removed from the United States.” Id. (citing 8 U.S.C. § 1226(a)). Second, § 1225 permits detention of non-citizens without a warrant and applies to certain classes of “applicants for admission.” Id. Third and finally, § 1231 permits detention of non-citizens once a final order of removal has been issued and pending the non-citizen's removal from the United States. Id. at *3. Non-citizens detained pursuant to § 1226(a) are entitled to a bond hearing. Id. at *2 (citing 8 U.S.C. § 1226(a); 8 C.F.R. §§ 1003.19(a), 1236.1(d)(1)).

Although detention of VWP violators was not before the Eleventh Circuit, the Eleventh Circuit's summary of detention pathways does not include any mention of detention authority under § 1187. Id. The conclusion that § 1187 does not authorize detention aligns with other courts’ determination that VWP violators’ detention is assessed pursuant to § 1226 or § 1231. See Nardella Mago, 2026 WL 532485, at *2; AMM v. Thompson, No. SA-25-cv-01210-FB, 2025 WL 3296315, at *3 (W.D. Tex Nov. 26, 2025). Therefore, the Court must determine whether § 1226(a)⁴ or § 1231 authorizes Petitioner's detention.⁵ This question turns on whether Petitioner's Administrative Removal Order is a final order of removal.

Section 1231 permits detention during “the removal period,” which is a period of ninety days from the later of 1) the date the order of removal “becomes administratively final,” 2) the date of the court's final order after a stay of removal, or 3) the date of release from non-immigration confinement. 8 U.S.C. §§ 1231(a)(1)(A)-(B). An order of removal “is administratively final when there are no further agency review proceedings to determine removability[.]” See Nardella Mago, 2026 WL 532485, at *2 (citing Johnson v. Guzman Chavez, 594 U.S. 523, 531-35, 141 S.Ct. 2271, 210 L.Ed.2d 656 (2021)). The Eleventh Circuit instructs that a VWP Final Administrative Removal Order is not considered a final order when asylum-only proceedings are pending. See Nreka v. U.S Att'y General, 408 F.3d 1361, 1367 (11th Cir. 2005).

Here, Petitioner's January 8, 2021, Administrative Removal Order states the “order is final and not subject to administrative appeal.” ECF No. [1-2] at 11. However, the Order also states, “DHS will proceed with your removal from the United States unless a court order is issued to stay your removal or an application for asylum, withholding or deferral of removal is pending before the Department of Justice, Executive Office for Immigration Review.” Id. (emphasis added). Petitioner is in asylum-only proceedings before an Immigration Judge. ECF Nos. [1]; [1-2] at 56; [7-9]. Thus, Petitioner's Administrative Removal Order is not final. See Nreka, 408 F.3d at 1367. Therefore, § 1226(a) authorizes Petitioner's detention, and he is not lawfully detained under § 1231. Petitioner's continued detention without a bond hearing is unlawful. Accordingly, the Court finds that Petitioner is detained in violation of the laws of the United States pursuant to 8 U.S.C. § 2241. Furthermore, the Court finds that Petitioner is detained pursuant to the authority of 8 U.S.C. § 1226(a) and is entitled to a bond hearing. Because the Court grants Petitioner's requested relief to order Respondent to provide a bond hearing, the Court does not separately assess Petitioner's due process claim.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Petitioner's Petition for Writ of Habeas Corpus, ECF No. [1], is GRANTED, in part and DENIED in part.

2. Within five (5) days of the date of this Order, Respondent must either: (1) provide Petitioner with a bond hearing before an immigration judge consistent with 8 U.S.C. § 1226(a), at which the Government shall bear the burden of justifying his continued detention by clear and convincing evidence of dangerousness or risk of flight; or (2) release Petitioner from custody, under reasonable conditions of supervision.

3. Respondent is enjoined from denying bond to Petitioner based on the holding in Matter of A-W-that the Immigration Judge lacks jurisdiction to redetermine custody.

4. Respondent must, within 24 hours of the bond hearing or release, file a status report. If Respondent provided Petitioner with a bond hearing, the status report must indicate the outcome of the bond hearing and, if release on bond is denied, the reason(s) for the denial.

5. Petitioner may separately file a request for attorney's fees and costs under the Equal Access to Justice Act (EAJA).

6. The Clerk of Court shall CLOSE this case.

7. To the extent not otherwise disposed of, any scheduled hearings are CANCELED, all pending motions are DENIED AS MOOT, and all deadlines are TERMINATED.

DONE AND ORDERED in Chambers at Miami, Florida, on May 22, 2026.

FOOTNOTES

1.   Because Petitioner was admitted to the United States under the VWP, an immigration enforcement officer can determine Petitioner's deportability without referring his case to an immigration judge. See 8 C.F.R. 217.4(b)(1).

2.   Respondent also does not argue Petitioner failed to exhaust administrative remedies. See generally ECF No. [7].

3.   Section 1187(c)(2)(E) provides: “The government of the country accepts for repatriation any citizen, former citizen, or national of the country against whom a final executable order of removal is issued not later than three weeks after the issuance of the final order of removal. Nothing in this subparagraph creates any duty for the United States or any right for any alien with respect to removal or release. Nothing in this subparagraph gives rise to any cause of action or claim under this paragraph or any other law against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien.” 8 U.S.C. § 1187(c)(2)(E).

4.   8 U.S.C. § 1226(c) requires the Attorney General to take certain categories of foreign nationals into custody pending a removal determination. Neither party argues § 1226(c) applies.

5.   Neither party argues § 1225 applies.

BETH BLOOM UNITED STATES DISTRICT JUDGE