Lusvy v. Maples — Motion to Enforce Habeas Judgment Denied for Failure to Exhaust Administrative Remedies

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April 20, 2026 Get Citation Alerts Download PDF Add Note

Lusvy Roxana Aguilar Gonzalez v. Jailer Scott Maples in his official capacity as Sheriff/Jailer of Michael L. Beacher Adult Correction Complex, Clark County Detention Center; Todd Lyons in his official capacity as Acting Director of Immigration and Customs Enforcement; Kristi Noem Secretary of Homeland Security; Pam Bondi U.S. Attorney General; Samuel Olson Field Office Director for ICE Chicago Field Office

District Court, S.D. Indiana

• Citations: None known
• Docket Number: 4:26-cv-00022

• Precedential Status: Unknown Status

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

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Trial Court Document

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

LUSVY ROXANA AGUILAR GONZALEZ )
A# 221 441 744, )
)
Plaintiff, )
)
v. ) No. 4:26-cv-00022-TWP-KMB
)
JAILER SCOTT MAPLES in his official )
Sheriff/Jailer of Michael L. Beacher Adult )
Correction Complex, Clark County Detention )
Center, )
TODD LYONS in his official capacity as Acting )
Director of Immigration and Customs )
Enforcement, )
KRISTI NOEM Secretary of Homeland Security, )
PAM BONDI U.S. Attorney General, )
SAMUEL OLSON Field Office Director for ICE )
Chicago Field Office, )
)
Respondents. )

ORDER DENYING MOTION TO ENFORCE
This matter is before the Court on Petitioner Lusvy Roxana Aguilar Gonzalez's Motion to
Enforce Judgment and to Show Cause Re: Contempt Immediate Hearing Requested. (Dkt. 15). On
February 13, 2026, the Court granted Ms. Aguilar Gonzalez's petition for a writ of habeas corpus
and ordered Respondents to provide her "an individualized bond hearing as required by § 1226(a)
and its regulations" or release her from custody. (Dkt. 11 at 8). That same day, the Court entered
final judgment. (Dkt. 12). The instant motion was filed on March 24, and the federal Respondents
filed their Response in opposition on April 3, 2026. (Dkt. 16). Ms. Aguilar Gonzalez did not file a
reply. The motion to enforce is now ripe for the Court's decision.
I. FACTUAL BACKGROUND
Ms. Aguilar Gonzalez is detained under the authority of U.S. Immigration and Customs
Enforcement ("ICE"). On February 18, 2026, the Indianapolis Immigration Court held a bond
hearing pursuant to the Court's order. (Dkt. 15-1). As a result of that hearing, the Immigration

Judge denied Ms. Aguilar Gonzalez's request for a change in her custody status, finding that she
"failed to meet her burden of establishing that she does not pose a risk of flight" and "failed to
establish that there is a condition of release or amount of bond that can ensure her appearance at
future hearings or for removal if necessary." Id.
II. Analysis
Ms. Aguilar Gonzalez contends that the bond hearing she received did not comply with the
Court's order because (1) the Immigration Judge was not neutral, was unprepared, and failed to
develop the record; (2) there was no individualized, Guerra-based risk analysis; (3) the burden of
proof was improperly placed on Ms. Aguilar Gonzalez; (4) the Immigration Judge did not follow
federal regulations; and (5) the Immigration Judge did not consider any alternatives to detention.

Ms. Aguilar Gonzalez also asserts that the bond hearing was unconstitutional because she was not
afforded due process of law and that institutional bias renders her incapable of receiving a bond
hearing that passes constitutional muster from an Immigration Judge.
The federal Respondents counter that they fully complied with the Court's order by
providing Ms. Aguilar Gonzalez with an individualized bond hearing at which the decision on her
request for bond determination was made on the merits. They also assert that the Court lacks
jurisdiction to review the immigration judge's decision and, in the alternative, that the case should
be dismissed or stayed for lack of exhaustion.
A. Jurisdiction
The Seventh Circuit has directed that "[w]hen a district court issues a conditional habeas
writ, it retains jurisdiction to determine compliance." Jensen v. Pollard, 924 F.3d 451, 454 (7th Cir.
2019) (citing Hudson v. Lashbrook, 863 F.3d 652, 656 (7th Cir. 2017)). Thus, it appears that the

Court can decide whether the Respondents provided Ms. Aguilar Gonzalez the "individualized
bond hearing before an immigration judge pursuant to § 1226(a) and its regulations" as ordered.
(Dkt. 11 at 8).
However, this must be reconciled with 8 U.S.C. § 1226 (e), which provides:
The 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.
Although, at first blush, § 1226(e) appears to preclude this Court's jurisdiction, the statute does not
deprive federal courts of jurisdiction to hear constitutional challenges to detention in habeas cases.
Demore v. Kim, 538 U.S. 510, 517 (2003) ("Section 1226(e) contains no explicit provision barring
habeas review, and we think that its clear text does not bar respondent's constitutional challenge to
the legislation authorizing his detention without bail."); Parra v. Perryman, 172 F.3d 954, 957 (7th
Cir. 1999) ("Section 1226(e) likewise deals with challenges to operational decisions, rather than
to the legislation establishing the framework for those decisions. The district court therefore had
jurisdiction under § 2241."). Because Ms. Aguilar Gonzalez raises a due process challenge, the
Court finds that § 1226(e) does not bar review of her motion to enforce.
The respondents also briefly invoke another statutory limit on judicial review, which states,
in relevant part: "no court shall have jurisdiction to review . . . any other decision or action of the
Attorney General or the Secretary of Homeland Security the authority for which is specified under
this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland
Security." 8 U.S.C. § 1252 (a)(2)(B)(ii). However, courts have held that § 1252(a)(2)(B)(ii)—like
§ 1226(e)—does not apply to constitutional challenges or questions of law. Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017); Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 135 (D.D.C. 2018)
("While § 1252(a)(2)(B)(ii) undoubtedly bars judicial review of individual parole decisions, courts

have declined to apply it to claims challenging the legality of policies and processes governing
discretionary decisions under the INA."). At least to the extent Ms. Aguilar Gonzalez challenges
her denial of bond on due process grounds, § 1252(a)(2)(B)(ii) is not a jurisdictional bar. The Court
therefore proceeds to the question of exhaustion.
B. Exhaustion
The respondents acknowledge that no statute requires Ms. Aguilar Gonzalez to exhaust
administrative remedies before pursuing her habeas action. "[W]here Congress has not clearly
required exhaustion, sound judicial discretion governs." McCarthy v. Madigan, 503 U.S. 140, 144 (1992). There is a "general rule that parties exhaust prescribed administrative remedies before
seeking relief from the federal courts." Id. at 144–45. The Court has discretion to depart from the

general rule and find that "individual interests demand that exhaustion be excused when:
(1) requiring exhaustion of administrative remedies causes prejudice, due to
unreasonable delay or an indefinite timeframe for administrative action; (2) the
agency lacks the ability or competence to resolve the issue or grant the relief
requested; (3) appealing through the administrative process would be futile because
the agency is biased or has predetermined the issue; or (4) where substantial
constitutional questions are raised.
Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (quoting Iddir v. INS, 301 F.3d 492,
498 (7th Cir.2002)). Thus, the Court must determine whether exhaustion should be excused in this
instance and uses four factors stated above in concluding that exhaustion will not be excused.
1. Prejudice from Appellate Timeline
Respondents represent that Ms. Aguilar Gonzalez did not appeal her bond denial. (Dkt. 16
at 2). If she had pursued an appeal, this factor would have weighed against requiring exhaustion.
The appellate process can last months, and Ms. Aguilar Gonzalez's detention would continue while

the appeal was pending, which would impose a hardship on her family—including her minor U.S.
citizen children.
2. Agency Competency
The second individual interest—agency competency—weighs in favor of requiring
exhaustion. Ms. Aguilar Gonzalez predominantly relies on due process arguments in this Court, 1
but the crux of those arguments is that the Immigration Judge deprived her of due process by
making errors in the decision, specifically, that she made a decision (1) contrary to the evidence
presented, (2) premised on an impermissible burden of proof, (3) without consideration of less
restrictive alternatives, and (4) infected by institutional bias.2 Certainly, the Board of Immigration
Appeals ("BIA") has greater expertise than this Court on the questions of how immigration judges

should or should not weigh evidence in administrative bond hearings.

1 Ms, Aguilar Gonzalez also argues that the Immigration Judge failed to comply with 8 C.F.R. § 1003.19 (d) because
the immigration judge considered Ms. Aguilar Gonzalez's likelihood of success on her underlying removal
proceedings in making the bond determination. That subsection of the regulation provides:

Consideration by the Immigration Judge of an application or request of a respondent regarding
custody or bond under this section shall be separate and apart from, and shall form no part of, any
deportation or removal hearing or proceeding. The determination of the Immigration Judge as to
custody status or bond may be based upon any information that is available to the Immigration Judge
or that is presented to him or her by the alien or the Service.

Contrary to Ms. Aguilar Gonzalez's argument, the regulation does not forbid Immigration Judges from considering
likelihood of success on other pending immigration applications. It forbids collapsing the bond hearing into a
deportation or removal hearing or proceeding, which the Immigration Judge did not do. Instead, she based her decision
on information available to her, which the regulation explicitly permits.

2 The Court addresses the argument on institutional bias in the following section.
This analysis is not changed by Ms. Aguilar Gonzalez's argument that the Immigration
Judge violated the Constitution by placing the burden on her to prove that release was warranted.
"The rationale for" requiring exhaustion "may be even stronger in the context of a case, like this
one, that raises a constitutional question." In re Establishment Inspection of Kohler Co., [935 F.2d

810](https://www.courtlistener.com/opinion/562664/in-re-establishment-inspection-of-kohler-company-appeal-of-kohler-co/), 812–13 (7th Cir. 1991). "[T]he exhaustion requirement enables courts to avoid deciding cases
on constitutional grounds unnecessarily; during administrative proceedings the constitutional
issue, or the entire case, for that matter, may be resolved favorably for the aggrieved party,
obviating the need for the courts to address the constitutional claim." Id. at 813. See also Diliberti
v. Brown, 583 F.2d 950, 951 (7th Cir. 1978) (Requiring "exhaustion would further 'the well-
established and sound policy in the federal courts which seeks to avoid premature decisions of
constitutional questions such as those raised in plaintiffs' complaint.'" (quoting Champagne v.
Schlesinger, 506 F.2d 979, 984 (7th Cir. 1974))).
The Court pauses to note that counsel for Ms. Aguilar Gonzalez boldly states that there is
a "now-settled due process principle that, at a § 1226(a) (or analogous) bond hearing, the

government—not the detainee—must justify continued civil detention, typically by clear and
convincing evidence, through individualized proof of flight risk or dangerousness." Dkt. 15 at 18
(citing Velasco Lopez v. Decker, 978 F.3d 842, 855–57 (2d Cir. 2020); German Santos v. Warden
Pike Cnty. Corr. Facility, 965 F.3d 203, 213–14 (3d Cir. 2020); Mbalivoto v. Holt, 527 F. Supp. 3d
838, 852–53 (E.D. Va. 2020); Oscar M-S. v. Garland, 21-cv-1341 (WMW/KMM), 2021 WL
6063232, at *4–6 (D. Minn. Dec. 20, 2021); Ranchinskiy v. Barr, 422 F. Supp. 3d 789, 800
(W.D.N.Y. 2019); Banegas v. Decker, 21-CV-2359 (VEC), 2021 WL 1997033, at *8–10 (S.D.N.Y.
May 7, 2021)).
In this judicial circuit—from which none of the cited cases were issued—there is no such
settled principle. Even the circuit courts that have addressed the question of who bears the burden
of proof at a § 1226(a) bond hearing have not resolved the question uniformly.3
The Court expects better conduct from lawyers admitted to practice before it. Counsel is

reminded that, by presenting a motion to the Court, she is "certif[ying] that to the best of [her]
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances . . . the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law." Fed. R. Civ. P. 11(b). Counsel is also reminded of her duty to the Court,
contained in The Standards for Professional Conduct Within the Seventh Federal Judicial Circuit
to "not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any
oral or written communication to the court." See id. (avail. at
https://www.ca7.uscourts.gov/pages/LandingPage.php?page=standards-for-professional-
conduct).

Returning to the agency competency factor, Ms. Aguilar Gonzalez seeks release from
custody or a bond hearing based on different considerations than the one she received. The BIA
can provide that relief and is well equipped to determine whether she is entitled to it under the

3 Compare Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir. 2021) ("We therefore conclude that the government
must bear the burden of proving dangerousness or flight risk in order to continue detaining a noncitizen under section
1226(a)."); Velasco Lopez v. Decker, 978 F.3d 842, 846 (2d Cir. 2020) ("[T]he district court correctly ordered a new
bond hearing where the Government bore the burden of proof."), with Rodriguez Diaz v. Garland, 53 F.4th 1189, 1214
(9th Cir. 2022) ("[E]ven when there are deficiencies in individual § 1226(a) proceedings, they may be redressable
through means short of major changes to the burden of proof."); Miranda v. Garland, 34 F.4th 338, 365 (4th Cir. 2022)
("Espinoza did not meet his burden to show a likelihood of success on his claim that requiring an alien in a § 1226(a)
bond hearing to show, by a preponderance of evidence, that he is not a danger to the community nor a flight risk
violates an alien's rights under the Due Process Clause."); Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d
274, 279 (3d Cir. 2018) ("[U]under § 1226(a) the burden remains on the detainee at all times. [W]e perceive no problem
. . . .").
Immigration and Nationality Act and applicable regulations. The Court finds that it is prudent to
allow the BIA to address Ms. Aguilar Gonzalez's claims from that vantage point before wading
into a complicated constitutional question on which there is no Seventh Circuit precedent and on
which the federal courts more broadly are divided.

1. Futility and Bias The third individual interest—avoiding futility or bias—is a neutral factor. Ms. Aguilar Gonzalez argues that the Immigration Judge was not a neutral arbiter because the Immigration Judge decided against her even though she submitted over 80 pages of supporting documents. To adopt Ms. Aguilar Gonzalez's view would require the Court to review the substance of the Immigration Judge's decision and reweigh the evidence presented.4 Ms. Aguilar Gonzalez also contends that the Executive Office for Immigration Review is a biased institution that is incapable of providing her with a constitutional bond hearing. She points to the termination of many immigration judges, advertisements for "deportation judges," the hiring of temporary immigration judges without immigration law experience, and "agenda-driven

policies." (Dkt. 15 at 20–21).
Despite Ms. Aguilar Gonzalez's protestations, the Court takes judicial notice of cases filed
in this judicial district where recently filed notices indicate that the petitioners were released after
being provided bond hearings pursuant to writs of habeas corpus. See Jiminez Bravo v. Swearingen,
No. 2:26-cv-00107-JRS-MKK, dkt. 13 (S.D. Ind. Mar. 19, 2026); Joseph v. Swearingen, No. 2:26-

4 Ms. Aguilar Gonzalez also takes a non-exhaustive list of permissible considerations from In re Guerra and asserts
that they are required factors. Compare In Re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) ("Immigration Judges may
look to a number of factors in determining whether an alien merits release from bond, as well as the amount of bond
that is appropriate. These factors may include any or all of the following . . . ") with dkt. 15 at 8–9 ("Bond
determinations under § 1226(a) require an individualized assessment of specific factors, including family ties, length
of residence, compliance history, and avenues for relief." (citing In re Guerra, 24 I. & N. Dec. at 40)).
cv-147-JRS-MKK, dkt. 12 (S.D. Ind. Mar. 19, 2026); Ramirez Montes v. Swearingen, No. 2:26-
cv-176-JPH-MJD, dkt. 13 (S.D. Ind. Mar. 25, 2026).
Certainly, the Court must be concerned about allegations of biased institutions. While doing
so, however, the Court tempers this with the notices from cases in this district, which show that

denial of bond after a writ of habeas corpus is granted is not automatic. Ms. Aguilar Gonzalez may
be concerned that she will not receive a fair result from the BIA, but the Court finds that
institutional bias cannot be wholesale assumed. Thus, the Court finds this factor to fall neutrally
between requiring and excusing exhaustion.
4. Constitutional Questions
Finally, the fourth individual interest—addressing constitutional issues—weighs in favor
of requiring exhaustion. It is true that Ms. Aguilar Gonzalez asks this Court to resolve a
constitutional question. However, as discussed above, the constitutional claim overlaps
substantially with a specific administrative decision. She asks the Court to find that the
Immigration Judge's bond denial deprived her of due process because the judge made a decision

that was unsupported by the evidence. The BIA is as capable as this Court of evaluating the
decision on those grounds.
If Ms. Aguilar Gonzalez has asked the Court to address a constitutional question that does
not overlap with the merits of the Immigration Judge's decision, that question is who should bear
the burden of proof in the bond determination. As discussed above, the answer to that question is
unsettled in this jurisdiction. The Court finds it prudent to permit the BIA an opportunity to address
Ms. Aguilar Gonzalez's claims through the administrative review process. Exhaustion is the
general rule, and it is especially appropriate here where the merits are unsettled.
The Court is sympathetic to the consequences of Ms. Aguilar Gonzalez's continued
detention. But the law generally requires exhaustion of administrative remedies. Two of the four
individual interests that could cause this Court to deviate from that general rule weigh in favor of
requiring exhaustion. Another factor is neutral, and only the appellate timeline factor weighs in
favor of excusing exhaustion—though it is unclear whether Ms. Aguilar Gonzalez has appealed
the Immigration Judge's decision to the BIA. The Court therefore declines to exercise its discretion
to excuse exhaustion.
Il. CONCLUSION
The Court concludes that Petitioner Lusvy Roxana Aguilar Gonzalez has failed to exhaust
her administrative remedies. Accordingly, for the reasons explained in this Order her Motion to
Enforce Judgment and to Show Cause Re: Contempt Immediate Hearing Requested Dkt. [15] is
DENIED without prejudice.
IT IS SO ORDERED.
Date: 4/20/2026 ange th oath
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

Distribution:
All electronically registered counsel

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