Marckency Estinord v. Markwayne Mullin, Secretary, U.S. Department of Homeland...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 26-cv-02049-NRN MARCKENCY ESTINORD, Petitioner, v. MARKWAYNE MULLIN, Secretary, U.S. Department of Homeland Security (DHS); TODD M. LYONS, Acting Director, U.S. Immigration and Customs Enforcement (ICE); DEREK GORDON, Acting Executive Associate Director, Homeland Security Investigations (HSI), U.S. Immigration and Customs Enforcement (ICE); MARCOS CHARLES, Acting Executive Associate Director, Enforcement and Removal Operations (ERO), U.S. Immigration and Customs Enforcement (ICE); DAREN K. MARGOLIN, Director, Executive Office For Immigration Review; WARDEN, Warden for the Denver Contract Detention Facility, Respondents.

ORDER

N. REID NEUREITER United States Magistrate Judge This case is before the Court on Marckency Estinord’s (“Petitioner”) Petition for Writ of Habeas Corpus (the “Petition”). ECF No. 1. Petitioner is a detainee at the Denver Contract Detention Facility in Aurora, Colorado. ECF No. 1 ¶ 26. He contends that the Respondents are improperly subjecting him to mandatory detention under 8 U.S.C. § 1225(b)(2). Instead, he says, 8 U.S.C. § 1226(a) governs his detention. Because this is a fundamentally legal debate, there is no need for a hearing on the Petition. See 28 U.S.C. § 2243. For the reasons that follow, the Court GRANTS IN PART the Petition.

BACKGROUND This case is one of numerous cases in this District and across the country seeking habeas relief for immigrants detained within the United States and denied bond hearings under a new interpretation of 8 U.S.C. §§ 1225, 1226. E.g., Rivera v. Valdez, No. 26-cv-01765-NRN, 2026 WL 1224072 (D. Colo. May 5, 2026); Martinez v. Baltazar, No. 26-cv-01313-NRN, 2026 WL 925537 (D. Colo. Apr. 6, 2026); Olivas v. Baltazar, No. 26-cv-00777-NRN, 2026 WL 672897 (D. Colo. Mar. 10, 2026), Vasquez Gomez v. Bondi, No. 26-cv-00489-NRN, 2026 WL 482677 (D. Colo. Feb. 20, 2026); Diaz Marquez v. Baltasar, No. 26-cv-00293-CYC, 2026 WL 370864 (D. Colo. Feb. 10, 2026); Abarca v. Baltazar, No. 25-cv-04086-CYC, 2026 WL 309198 (D. Colo. Feb. 5, 2026); Hernandez-Redondo v. Bondi, No. 25-cv-03993-2 PAB, 2026 WL 290989 (D. Colo. Feb.

4, 2026); Jimenez Facio v. Baltazar, No. 25-cv-03592-CYC, 2025 WL 3559128 (D.

Colo. Dec. 12, 2025); Garcia Cortes v. Noem, No. 25-cv-02677-CNS, 2025 WL 2652880 (D. Colo. Sept. 16, 2025); Batz Barreno v. Baltasar, No. 25-cv-03017-GPG- TPO, 2025 WL 3190936 (D. Colo. Nov. 14, 2025); Loa Caballero v. Baltazar, No. 25-cv- 03120-NYW, 2025 WL 2977650 (D. Colo. Oct. 22, 2025).

Petitioner is a Haitian citizen who entered the United States in December 2023 to escape gang violence. ECF No. 1 ¶¶ 21–23. Upon entry in the United States, Petitioner was placed in removal proceedings and released into the United States. Id. ¶ 24.

Petitioner promptly filed an Application for Asylum, has subsequently complied with all immigration procedures and requirements, and is scheduled for June 1, 2026 hearing. Id. ¶ 25. Petitioner was detained around April 20, 2026 without any apparent reason and has been held without bond since. Id. ¶ 26.

Petitioner argues that his detention violates his due process rights. He asks that he either be released from custody or granted a bond hearing within seven days. Id. at 45.

Respondents maintain that Petitioner is subject to mandatory detention under § 1225(b). Respondents’ statutory interpretation has been rejected by this Court as well as almost every other judge in this District. See Vasquez Gomez, 2026 WL 482677, at *2; Jimenez Facio, 2025 WL 3559128, at *2 (recognizing that “every decision in this District addressing the issue” has determined that § 1225(b)(2)(A) does not apply to persons, like Petitioner, who have already been residing in the United States for years).

Indeed, Respondents concede that until the Tenth Circuit rules on this issue, this Court’s prior ruling on this issue would lead the Court to reach the same result here if the Court adheres to that decision, as the facts of this case are not materially distinguishable from that case for purposes of the Court’s decision on the legal issue of whether Petitioner is subject to mandatory detention under 8 U.S.C. § 1225(b)(2).

ECF No. 8 at 4.

ANALYSIS A district court may grant a writ of habeas corpus to any person who demonstrates he is “in custody in violation of the Constitution or laws . . . of the United States.” 28 U.S.C. § 2241. This includes “[c]hallenges to immigration detention.”

Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004). The individual in custody bears the burden of proving that their detention is unlawful. Walker v. Johnston, 312 U.S. 275, 286 (1941). To meet that burden, Petitioner argues, in part, that 8 U.S.C. § 1226(a) applies to him; “that aliens detained under § 1226(a) receive bond hearings at the outset of detention,” Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)); see 8 U.S.C. § 1226(a) (providing for discretionary detention); see also 8 C.F.R. § 1003.19 (providing framework for requesting a bond determination); and that he has received no such hearing.

As this Court and others in this District have repeatedly found in similar cases, Petitioner has met his burden showing that his continued detention without a bond hearing is unlawful. See Diaz Marquez, 2026 WL 370864, at *1 (“The Court remains firmly convinced that it and the other judges in the District who have addressed this issue have correctly decided those cases.”). Accordingly, the Court finds that Petitioner has a statutory right to a bond hearing that has not been provided, in violation of Petitioner’s Fifth Amendment substantive due process rights, see Jimenez Facio, 2025 WL 3559128, at *3 (“Resolution of the due-process question may be unnecessary[,] . . . [b]ut to the extent it is, ‘the Court agrees with other courts that have, against substantially similar factual backgrounds, concluded that detention without a bond hearing amounts to a due process violation.’”) (quoting Garcia Cortes v. Noem, No. 25- cv-02677-CNS, 2025 WL 2652880, at *4 (D. Colo. Sept. 16, 2025)); and the INA, see Abanil v. Baltazar, No. 25-cv-4029-WJM-STV, 2026 WL 100587, at *6 (D. Colo. Jan. 14, 2026) (“The Court joins its colleagues in this District and those courts across the country that have concluded Respondents’ interpretation of § 1225(b)(2)(A) is contrary to the INA’s plain text. As a consequence, the Court also concludes that Garcia Abanil’s detention pursuant to § 1225(b)(2)(A) violates the INA, and that he is instead properly considered to be detained under § 1226(a).”).

In support of their position, Respondents reference the Fifth Circuit’s decision in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. Feb. 6, 2026), and the Eighth Circuit’s decision in Avila v. Bondi, 170 F.4th 1128 (8th Cir. Mar. 25, 2026).

Respondents accurately note that the Court has repeatedly rejected any reliance on these courts’ interpretation of the statute. See, e.g., Solis-Gutierrez v. Mullin, No. 26-cv- 01287-NRN, 2026 WL 925535, at *2 (D. Colo. Apr. 6, 2026). The Court also acknowledges that in recent decision, Chief Judge Daniel D. Domenico found that the petitioner was subject to mandatory detention under § 1225(b)(2)(A). See Singh v. Blanche, No. 26-cv-00421-DDD-KAS, ECF No. 12 (D. Colo. Apr. 15, 2026). However, the Court finds that Respondents have “present[ed] no argument for why these non- binding decisions require the Court to reverse itself on this legal question.” Gregorio Martinez Torres v. Bondi, No. 26-cv-01062-CYC, 2026 WL 860425, at *1 (D. Colo. Mar.

30, 2026). Moreover, the Court notes that the Second and Sixth Circuits have forcefully rejected Respondents’ position. See Barbosa da Cunha v. Freden, --- F.4th ----, 2026 WL 1146044 (2d Cir. Apr. 28, 2026); Lopez-Campos v. Raycraft, No. 25-1965, --- F.4th ----, 2026 WL 1283891 (6th Cir. May 11, 2026). Given that “over ninety percent of district court judges have sided with Petitioner,” Barbosa da Cunha, 2026 WL 1146044, at *4, the Court finds no reason to reverse itself here.

Lastly, Petitioner requests attorney fees and costs. ECF No. 1 at 46. But D.C.COLO.LCivR 54.3(a) requires that “a motion for attorney fees . . . be supported by affidavit,” and no such affidavit supported the request. Further, “a motion involving a contested issue of law shall . . . be supported by a recitation of legal authority in the motion.” D.C.COLO.LCivR 7.1(d). As a result, the Court denies this portion of the Petition without prejudice. If the Petitioner chooses to file a motion for attorney fees, it must comply with all applicable rules and provide legal authority for the request. See L.G. v. Choate, 744 F. Supp. 3d 1172, 1187 (D. Colo. 2024).

CONCLUSION For the foregoing reasons, it is hereby ORDERED that the Petition, ECF No. 1, is GRANTED IN PART as follows.

1) Respondents shall provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within seven days of this Order. At the bond hearing, Respondents bear the burden of proving by clear and convincing evidence that Petitioner’s continued detention is justified due to dangerousness or flight risk. See Abanil, 2026 WL 100587, at *8 (“[T]the weight of authority in this District is clear: it is the Government’s burden to ‘justify[ ] a noncitizen’s continued detention at a bond hearing.’” (quoting Arauz v. Baltazar, No. 25-cv-03260-CNS, 2025 WL 3041840, at *4 n.3 (D. Colo. Oct. 31, 2025)); Espinoza Ruiz v. Baltazar, No. 25-cv-03642- CNS, 2025 WL 3294762, at *2 (D. Colo. Nov. 26, 2025) (ordering that the Government would carry the burden for bond hearing under § 1226(a)); Loa Caballero, 2025 WL 2977650, at *9 (“During such [bond] hearing, the Respondents bear the burden of justifying detention.”). If Respondents do not provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) as required herein, Petitioner must be immediately released from detention; 2) Respondents are ENJOINED from denying bond to Petitioner on the basis that he is detained pursuant to 8 U.S.C. § 1225(b)(2)(A); and 3) Respondents shall file a status report within three days of Petitioner’s bond hearing, stating whether he has been granted bond, and, if his request for bond was denied, the reasons for that denial.

Dated: May 26, 2026.

BY THE COURT:

N. Reid Neureiter United States Magistrate Judge