Ortuno-Aycardi v. Facility Administrator

Aug 10, 2026
1:26-cv-03423

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Petition). [Doc. 1]. Respondent has responded to the Petition. [Doc. 8]. Petitioner proceeds pro se and is currently detained by Immigration and Customs Enforcement (ICE) at the Denver Contract Detention Facility in Aurora, Colorado. See [Doc. 1 at 1]. The Court must construe Petitioner‘s filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. The Court has reviewed the Petition, the related briefing, and the applicable case law. For the reasons set forth below, the Petition is GRANTED in part.

BACKGROUND

Petitioner Darwin Jose Ortuno-Aycardi (Petitioner or Mr. Ortuno-Aycardi), a citizen of Venezuela, entered the United States in or about 2023 and has lived in the country ever since. [Doc. 1-1 at 3]. On or about July 14, 2026, Mr. Ortuno-Aycardi was detained by ICE, and he remains in custody at the ICE Aurora Contract Detention Facility. [Id. at 3–4].

Mr. Ortuno-Aycardi asserts three claims challenging his dеtention. First, he argues that his detention without a bond hearing violates his due process rights under the Fifth Amendment. [Id. at 4–5]. Second, he argues his detention is not supported by an individualized showing that he is a flight risk or poses a danger to the community, which violates the Immigration and Nationality Act (INA). [Id. at 5–8]. Third, he contends that his detention is arbitrary and unnecessary given his history of compliance and cooperative with immigration authority. [Id. at 6–7]. Mr. Ortunо-Aycardi seeks a writ of habeas corpus ordering that he either be immediately released from custody or granted an individualized bond hearing. [Id. at 10; Doc. 1 at 1].

In the Response, Respondent states that [f]or purposes of this specific case, Respondent is not submitting a brief in opposition to the Petition detailing the facts and circumstances of this case. [Doc. 8 at 1]. Respondent recognizes that the Court may thеn decide to grant the Petition and award appropriate relief and submits that if the Court does grant the Petition, the appropriate relief would be an Order directing that Respondent, within seven days of this Court‘s Order, provide[] Petitioner with a bond hearing under 8 U.S.C. § 1226(a), or else release Petitioner. [Id. at 1–2]. Respondent does not appear to contest Petitioner‘s factual assertion that he has not been provided a bond hearing or his contention that he is in removal proceedings. See [id.].

This matter is fully briefed and ripe for disposition. No Party has requested an evidentiary hearing or oral argument, and the Court finds that no hearing is necessary. Garcia Cortes v. Noem, No. 25-сv-02677-CNS, 2025 WL 2652880, ‍​​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌​​‌​​​‌​‌​​​‌​‌‌‌​‌‌‌​​‌​‍at *1 (D. Colo. Sept. 16, 2025) (declining to hold a hearing where the petitioner‘s habeas challenge was fundamentally legal in nature).

LEGAL STANDARD

Section 2241 of Title 28 authorizes a court to issue a writ of habeas corpus when a persоn is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). [T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Challenges to immigration detention are properly brought directly through habeas. Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687–88 (2001)).

ANALYSIS

Petitioner‘s second claim turns on whether his detention is gоverned by § 1226(a), such that he is entitled to a bond hearing under the statute. The Court summarizes the statutory framework before turning to Petitioner‘s arguments.

I. Statutory Framework

Two statutory provisions govern detention of noncitizens prior to a final order of removal. See Jennings v. Rodriguez, 583 U.S. 281, 287 (2018). The first, 8 U.S.C. § 1226, sets forth the default rule for detaining noncitizens already present in the United States. Quispe-Ardiles v. Noem, No. 1:25-cv-01382-MSN-WEF, 2025 WL 2783800, at *5 (E.D. Va. Sept. 30, 2025) (quoting Jennings, 583 U.S. at 303). This section permits, but does not require, the Attorney General to detain noncitizens pending removal proceedings, subject to certain exceptions not applicable here. Jennings, 583 U.S. at 303; 8 U.S.C. § 1226(a)(1)–(2) (the Attorney General may continue to detain or may release the noncitizen (emphasis added)). Section 1226(a) thus establishes a discretionary framework for the detention of noncitizens pending removal proceedings.

Another provision, 8 U.S.C. § 1225(b), supplement[s] § 1226‘s detention scheme. Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1246 (W.D. Wash. 2025) (quoting Rodriguez Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022)). Section 1225(b) applies primarily to [noncitizens] seeking entry into the United States, i.е., applicants for admission. Jennings, 583 U.S. at 297. This section provides, in relevant part, that in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seеking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained pending removal proceedings. 8 U.S.C. § 1225(b)(2)(A) (emphasis added). Under § 1225(a)(1), an applicant for admission is

An alien present in the United States who has not been admitted or who arrivеs in the United States (whether or not at a designated port of ‍​​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌​​‌​​​‌​‌​​​‌​‌‌‌​‌‌‌​​‌​‍arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters).

The Tenth Circuit has explаined that [t]he only time a noncitizen can be said to be seeking admission is when he is seeking to enter the United States at the border. Santillan Quiroz v. Mullin, 180 F.4th 1226, 1239 (10th Cir. 2026). Since § 1225(b)(2)(A) applies only to those seeking admission, the Tenth Circuit has concluded that § 1225(b)(2)(A)‘s application is limited to the border. Id. at 1239–40. Absent an exception for urgent humanitarian reasons not implicated in this case, detention under § 1225(b)(2) is considered mandatory, and [i]ndividuals detained under § 1225 are not entitled to a bond hearing. Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 484 (S.D.N.Y. 2025) (citing Jennings, 583 U.S. at 297).

II. Section 1226(a) Applies to Petitioner

The Court liberally construes Petitioner‘s argument as an assertion that his detention is governed by § 1226(a). [Doc. 1-1 at 5–8]. Respondent does not contest this assertion in his response brief, see [Doc. 8], presumably because the Tenth Circuit‘s decision in Santillan Quiroz makes clear that § 1226(a) governs the detention of noncitizens, like Petitioner, who were taken into сustody years after they entered the United States. In Santillan Quiroz, the Tenth Circuit reversed the denial of a similar habeas petition filed by a noncitizen who had resided in the United States for years before he was detained by ICE during a traffic stop. 180 F.4th at 1232–33. The Tenth Circuit reasoned that the Santillan Quiroz petitioner and those similarly situated to him, i.e. those who entered the United States without admission and who have lived here since, are categorically unable to seek admission while they remain in the country. Id. at 1239. After all, [a] person cannot make a present request for permission to enter the United States, lawfully or otherwise, once he or she has already entered. Id. Thus, the Tenth Circuit concluded that [t]he only time a noncitizen can be said to be seeking admission is when he is seeking to enter the United States at the border. Id.; see also id. (Since § 1225(b)(2)(A) applies only to those seeking admission, § 1225(b)(2)(A) is likewise limited to the border.). Because the petitioner in Santillan Quiroz had bеen residing in the United States for years before he was detained, he was not seeking admission and could not be detained under § 1225. Id. Instead, the petitioner was subject to detention under § 1226(a). Id. at 1251 n.13; see also id. at 1237 (holding that noncitizens who entered the United States and were thereafter detained in the interior of the country are usually subject to § 1226(a) (and thus eligible for bond), not § 1225(b)(2)(A)).

The analysis and holding in Santillan Quiroz controls this case. Mr. Ortuno-Aycardi had been residing in the United States for approximately three years when he was detained. His detention is thereforе governed by § 1226(a). And because Petitioner has not been provided the bond hearing required ‍​​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌​​‌​​​‌​‌​​​‌​‌‌‌​‌‌‌​​‌​‍by statute, his continued detention without a bond hearing violates § 1226(a). See, e.g., Loa Caballero v. Baltazar, No. 25-cv-03120-NYW, 2025 WL 2977650, at *8 (D. Colo. Oct. 22, 2025).

Having determined that § 1226(a) governs Petitioner‘s detention, the Court also concludes that his detention without a bond hearing violates his due process rights. Because Petitioner is detained under § 1226(a), at a minimum the process due to him is that which is afforded under Section 1226(a). Lopez-Campos v. Raycraft, 797 F. Supp. 3d 771, 785 (E.D. Mich. 2025), aff‘d, 175 F.4th 713 (6th Cir. 2026). As explained above, that process is an individualized bond determination. See, e.g., Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025) (describing the process owed under § 1226 as an individualized bond hearing before an [immigration judge]); Hyppolite v. Noem, 808 F. Supp. 3d 474, 485 (E.D.N.Y. 2025) ([Section] 1226(a) requires an individualized bond determination.). The Court thus concurs with the numerous other district courts that have held that denying a bond hearing to a noncitizen detained under § 1226(a) violates the noncitizen‘s due process rights. See, e.g., Garcia Cortes, 2025 WL 2652880, at *4; Lopez-Campos, 797 F. Supp. 3d at 784–85.

For the reasons set forth above, the Petition is GRANTED with respect to Petitioner‘s first and second. The Court need not address Petitioner‘s third claim.

III. Appropriate Remedy

Petitioner asks the Court to ordеr his immediate release. [Doc. 1-1 at 10]. In the alternative, he asks the Court to order Respondent to provide him a prompt and meaningful individualized custody or bond determination consistent with applicable law. [Id.]. Respondent submits that if the Court does grant the Petition, the appropriate relief would be an Order directing that Respondent . . . provide[] Petitioner with a bond hearing under 8 U.S.C. § 1226(a), or else release Petitioner. [Doc. 8 at 1–2].

The Court finds it appropriаte to order a bond hearing, rather than immediate release. Section 1226(a) does not require release—it provides DHS the discretion to grant an alien release on bond. Nava Hernandez v. Baltazar, No. 25-cv-03094-CNS, 2025 WL 2996643, at *8 (D. Colo. Oct. 24, 2025); see also Santillan Quiroz, 180 F.4th at 1251 n.13 (instructing the district сourt on remand only to order the Government to provide the petitioner with a bond hearing or else release him). This Court has previously held that a bond hearing before an immigration judge is sufficient to vindicаte the procedural protections afforded by § 1226(a). See, e.g., Loa Caballero, 2025 WL 2977650, at *9; Briales-Zuniga v. Baltazar, No. 25-cv-03439-NYW, 2026 WL 35227, ‍​​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌​​‌​​​‌​‌​​​‌​‌‌‌​‌‌‌​​‌​‍at *4 (D. Colo. Jan. 6, 2026).

Following the weight of authority in this District, the Court has previously required the Government to bear the burden of proof at a § 1226(a) bond hearing where, as here, the petitioner is initially erroneously detained under § 1225. See Diaz Lopez v. Noem, No. 25-cv-04089-NYW, 2026 WL 206220, at *5 (D. Colo. Jan. 27, 2026); Martinez Escobar v. Baltazar, No. 26-cv-00296-NYW, 2026 WL 503313, at *5 (D. Colo. Feb. 24, 2026); see also, e.g., Garcia Abanil v. Baltazar, 817 F. Supp. 3d 1148, 1159 (D. Colo. 2026) ([T]he weight of authority in this District is clear: it is the Government‘s burden to justify a noncitizen‘s continued detеntion at a bond hearing. (cleaned up) (collecting cases)). But see De La Cruz v. Baltazar, No. 26-cv-00360-PAB, 2026 WL 439217, at *4 (D. Colo. Feb. 17, 2026) (declining to place burden on the Government in a similar case). The Court also concurs with the decisions concluding that thе clear and convincing standard that generally applies to civil detention where liberty is at stake is appropriate here as well. Arredondo v. Baltazar, No. 25-cv-03040-RBJ, 2025 WL 4083607, at *4 (D. Colo. Oct. 31, 2025) (quotation omitted); see also Martinez Escobar, 2026 WL 503313, at *5 (collecting cases).

Accordingly, Respondent is ORDERED to provide Petitioner a bond hearing no later than August 17, 2026. At the bond hearing, the Government shall bеar the burden of justifying Petitioner‘s detention by clear and convincing evidence. If Respondent does not provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) as required herein, Petitioner must be immediately released from detention. On or before August 24, 2026, Respondent shall file a status report concerning (1) the results of any bond hearing that was conducted or, if no hearing was held, the date Petitioner was released from custody; and (2) whether any additional proceedings in this matter are required.

CONCLUSION

For the reasons set forth in this Order, IT IS ORDERED that:

  1. The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] is GRANTED in part;
  2. Respondent shall provide Petitioner a bond hearing no later than August 17, 2026. At the bond hearing, the Government shall bear the burden of proving, by clear and сonvincing evidence, that Petitioner‘s continued detention is justified. If Respondent does not ‍​​​​​‌​‌​‌​​‌‌​‌​​​‌‌‌‌​​‌​​​‌​‌​​​‌​‌‌‌​‌‌‌​​‌​‍provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) as required herein, Petitioner must be immediately released from detention;
  3. On or before August 24, 2026, Respondent shall file a status report concerning (1) the results of any bond hearing that was conducted or, if no hearing was held, the date Petitioner was released from custody; and (2) whether any additional proceedings in this matter are required; and
  4. A copy of this Order shall be sent to:
    Darwin Jose Ortuno-Aycardi
    A# 241-179-348
    Denver Contract Detention Facility
    3130 North Oakland Street
    Aurora, CO 80010

DATED: August 10, 2026

BY THE COURT:

Nina Y. Wang

United States District Judge