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A missing Form I-286 led a federal judge in Kentucky to order the immediate release of a Cuban man ICE had held for nearly six months. In a Nov. 10 opinion, U.S. District Judge Rebecca Grady Jennings of the Western District of Kentucky found that ICE never issued the custody notice required when it re-arrested Damichel Jesus Viamontes Castellano in May, and never made the individualized custody decision that the form is supposed to record. If ICE detains him again without a material change in circumstances, she ruled, the government must justify custody by clear and convincing evidence.
The ruling matters now because many people held under the same statute, 8 U.S.C. 1226(a), were picked up on old notices to appear without a fresh look at whether they need to be locked up at all. The opinion turns that gap in paperwork into a constitutional problem, and it gives detainees in the Sixth Circuit a concrete question to ask: where is my I-286?
What Form I-286 is supposed to do
Form I-286, the Notice of Custody Determination, is the document ICE uses to tell a person arrested under Section 1226(a) whether they will be held, released on bond or released on conditions, and that they can ask an immigration judge to review that decision. The obligation comes from 8 C.F.R. 236.1, which requires an officer to make an initial custody determination and give the person notice of it.
According to the opinion, Border Patrol arrested Viamontes Castellano in Texas in 2022, served a notice to appear and released him on his own recognizance. In May 2026, ICE flagged that old notice along with February 2025 charges of driving under the influence and reckless driving, which had not produced a conviction, opened a targeted investigation, arrested him on May 19 and cancelled his release. Agents gave him Forms I-862, I-200 and I-826. The judge ordered the government to produce an I-286. It did not. “Accordingly, the Court finds that a Form I-286 does not exist as to Castellano,” the opinion states.
He was held at the Oldham County Detention Center in La Grange. An immigration judge ordered him removed to Cuba on July 28, but his appeal to the Board of Immigration Appeals is pending, so both sides agreed Section 1226(a) still governs his custody.
Two holdings that reach beyond one detainee
No exhaustion required. The government argued he should have sought bond from an immigration judge first. Judge Jennings rejected that, reasoning in part that the government had already skipped the administrative process it wanted him to use, and that an immigration judge could not fix the core problem because judges are bound by Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020), which places the burden of proof at bond hearings on the detainee.
The burden shifts to the government. Relying on due process rather than the statute, and noting that after Loper Bright courts owe no deference to the Board’s reading, the court said it “joins those courts” requiring the government to prove the need for detention by clear and convincing evidence. It cited district courts in Michigan, Ohio, Kentucky and Tennessee and decisions of the First and Second Circuits. The Fourth Circuit, in Miranda v. Garland, has gone the other way, as has the Ninth Circuit.
That split is the open question. A single district court opinion binds no one else, and the government can appeal to the Sixth Circuit, whose 2026 decision in Lopez-Campos v. Raycraft the court leaned on in finding that holding a Section 1226(a) detainee without a custody redetermination hearing violates due process. If the circuit eventually adopts the clear-and-convincing standard as well, bond hearings across Kentucky, Michigan, Ohio and Tennessee would look very different from those in the Eighth Circuit, where the new Appleton detention facility operates under a no-bond rule. The practical effect is that the location of detention keeps deciding the legal standard, a theme also running through the BIA’s new bond-hearing ruling on disputed proffers.
For people already detained, the most immediate takeaway is documentary. The custody file either contains an I-286 reflecting a real decision or it does not, and this opinion shows a federal judge treating that absence as evidence that no individualized assessment happened. Habeas petitions in the region are likely to demand the form early, as this court did.
The court gave the government until Nov. 12 to certify his release. Whether the Justice Department appeals, and whether other courts adopt the I-286 reasoning, are the next signals, along with how the issue plays in cases like ICE’s detention of a USF professor granted withholding of removal.
This article is for general information and is not legal advice.
Source: Viamontes Castellano v. Tindall, No. 3:26-cv-729-RGJ (W.D. Ky. Nov. 10, 2026), Memorandum Opinion and Order; 8 C.F.R. 236.1, Apprehension, custody, and detention.
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