Erasmo Duenas-Marchant v. Helaine Tasch, Cincinnati Field Office Director, U.S. Immigration and Customs Enforcement, et al.
CourtDistrict Court, S.D. Ohio
Date FiledOctober 7, 2026
Docket1:26-cv-00377
StatusUnknown
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Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
ERASMO DUENAS-MARCHANT, i Case No. 1:26-cv-377
Petitioner, Judge Matthew W. McFarland
HELAINE TASCH, Cincinnati Field 2
Office Director, U.S. Immigration and :
Customs Enforcement, et al.,
Respondents.
ORDER AND OPINION
This matter is before the Court on Petitioner Erasmo Duenas-Marchant’s Petition
for Writ of Habeas Corpus (Doc. 1). Respondents filed a Return of Writ (Doc. 5), to which
Petitioner filed a Reply (Doc. 7). Respondents also filed a Motion to Dismiss (Doc. 10), to
which Petitioner filed a Response in Opposition (Doc. 11). These matters are therefore
ripe for the Court’s review. For the reasons explained below, the Petition (Doc. 1) is
DISMISSED WITHOUT PREJUDICE and Respondents’ Motion to Dismiss (Doc. 10) is
DENIED AS MOOT.
FACTS AS ALLEGED
Petitioner is a citizen of Mexico who entered the United States without inspection
in 2009. (Petition, Doc. 1, § 31; Record of Deportable/Inadmissible Alien, Doc. 5-1, Pg. ID
64.) Petitioner had previously attempted to enter the United States illegally on three prior
occasions, but was detained and permitted to voluntarily return to Mexico each time.
(Record of Deportable/Inadmissible Alien, Doc. 5-1, Pg. ID 64-65.)
On March 1, 2026, Homeland Security agents detained Petitioner following a
traffic stop. (Petition, Doc. 1, § 34; Record of Deportable/Inadmissible Alien, Doc. 5-1,
Pg. ID 64.) The Department of Homeland Security served Petitioner with a Notice to
Appear (“NTA”) charging Petitioner as removable for being unlawfully present in the
United States and initiating his removal proceedings. (NTA, Doc. 5-2, Pg. ID 66-68.)
Petitioner remains in the custody of U.S. Immigration and Customs Enforcement (“ICE”)
at the Butler County Correctional Complex in Hamilton, Ohio, pending his removal.
(Petition, Doc. 1, § 33.)
Petitioner requested bond, and the immigration judge denied that request
following a hearing on March 16, 2026. (Bond Order, Doc. 5-3, Pg. ID 69-70.) Petitioner
appealed the bond denial to the Board of Immigration Appeals (“BIA”), which has not
yet rendered a decision. (Appeal Receipt, Doc. 5-4, Pg. ID 71-73.) The immigration judge
also ordered Petitioner removed from the United States on May 20, 2026. (Appeal
Dismissal, Doc. 12-1, Pg. ID 244-46.) Petitioner appealed that removal order to the BIA,
but he later moved to dismiss that appeal, and the BIA granted his motion to dismiss. (See
id.)
PROCEDURAL POSTURE
Petitioner filed a Petition for Writ of Habeas Corpus (Doc. 1) against Respondents,
bringing claims for: (1) violation of his Fifth Amendment right to due process, (2)
violation of 28 U.S.C. § 2241, (3) violation of the Immigration and Nationality Act (“INA”)
and the Administrative Procedure Act (“APA”), and (4) violation of the Suspension
Clause. (Petition, Doc. 1, §{[ 65-73.) Petitioner alleges that his continued detention
without a meaningful opportunity to challenge his confinement via an individualized
bond hearing violates these authorities. (Id. at {J 40-73.)
LAW & ANALYSIS
The Court's analysis begins and ends with the preliminary question of exhaustion.
The doctrine of exhaustion of administrative remedies instructs that “no one is entitled
to judicial relief for a supposed or threatened injury until the prescribed administrative
remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193 (1969) (quotation
omitted). As this Court has held, an alien petitioner challenging his detention without
bond must first exhaust his available administrative remedies. See Bartolon v. Bondi, 813
F, Supp. 3d 811, 823-27 (S.D. Ohio 2025). Petitioner appealed his bond determination to
the BIA, but he has not received a decision on his appeal. (Appeal Receipt, Doc. 5-4, Pg.
ID 71-73.) Petitioner has thus failed to exhaust his administrative remedies, and dismissal
is appropriate.
Contrary to Petitioner’s arguments, the Sixth Circuit’s decision in Lopez-Campos v.
Raycraft, 175 F.4th 713 (6th Cir. 2026) does not displace this analysis. See Galvez-Luna v.
Bullock, No. 2:26-CV-02939-TLP-ATC, 2026 WL 2533141, at *2 (W.D. Tenn. Aug. 27, 2026).
While the Sixth Circuit in Lopez-Campos found that aliens detained under 8 U.S.C. §
1226(a) were entitled to a bond hearing, it did not address the preliminary question of
exhaustion. Lopez-Campos, 175 F.4th at 732-34. And, Petitioner has not demonstrated that
exhaustion would be futile. As this Court previously held, futility must be “clear and
positive;” it is not enough that Petitioner believes the BIA will reject his arguments or that
existing BIA precedent makes success unlikely. Bartolon, 813 F. Supp. 3d at 825-26.
In any event, Petitioner is now subject to an order of removal, which he does not
challenge. (Notice, Doc. 12, Pg. ID 242; Appeal Dismissal, Doc. 12-1, Pg. ID 244-46.) Thus,
Petitioner is now in post-removal-period detention pursuant to 8 U.S.C. § 1231(a)(2), and
the issue of detention without an individualized bond hearing now appears to be moot.
CONCLUSION
For the foregoing reasons, the Court ORDERS the following:
1) The Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED WITHOUT
PREJUDICE;
2) Respondents’ Motion to Dismiss (Doc. 10) is DENIED AS MOOT; and
3) This matter is TERMINATED from the Court's docket.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Haw Wega
By: :
JUDGE MATTHEW W. McFARLAND
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