Unreported / Non-Citable
Background
Dagoberto Leal Garrido, a federal immigration detainee proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the Eastern District of California. He entered the United States on or about July 4, 2022, and according to his petition was detained on February 19, 2026 without a bond hearing. On June 3, 2026, an immigration judge granted voluntary departure; he was ordered to depart by July 6, 2026, warned that failure to depart would produce an alternate removal order to Cuba, and later given until August 6, 2026 to leave, but he did not depart.
The matter was referred to a magistrate judge, who on September 11, 2026 recommended granting the petition and ordering a bond hearing. The magistrate judge found under Rodriguez Vazquez v. Bostock that petitioner was not subject to mandatory detention under 8 U.S.C. § 1225(b), acknowledged uncertainty whether discretionary detention under 8 U.S.C. § 1226(a) applied, and noted that even under 8 U.S.C. § 1231 removal was not significantly likely in the reasonably foreseeable future. Respondent objected on September 16, 2026 by incorporating its answer. Respondent's counsel had reported planned August flights, but on August 31, 2026 reported that petitioner was denied repatriation to Cuba and offered no other evidence of a continuing removal effort.
The Court’s Holding
After de novo review under 28 U.S.C. § 636(b)(1)(C), the district court adopted the findings and recommendations in part and granted the petition in part. The court concluded that the alternate removal order became final when petitioner failed to depart by August 6, 2026, placing him in the 90-day removal period under 8 U.S.C. § 1231, relying on Samad v. Mullin, Pozos Vazquez v. Lyons, and Mohsin v. Warden of the California City Detention Facility.
The court nevertheless held that prolonged detention without a significant likelihood of removal may violate due process. Because petitioner was denied repatriation to Cuba and was not ordered removed elsewhere, the court found no significant likelihood of removal in the reasonably foreseeable future. Following Chantha v. Warden and Doe v. Becerra, it ordered a bond hearing before an immigration judge at which the government bears the burden of proving by clear and convincing evidence a significant likelihood of removal or a listed special circumstance. The court also relied on Tuan Thai v. Ashcroft and Zadvydas v. Davis for the rule that dangerousness cannot justify indefinite detention, and discussed 8 C.F.R. § 241.14 in its analysis.
The operative order directs respondent to provide a bond hearing within fourteen days, with the government required to show by clear and convincing evidence a significant likelihood of removal in the reasonably foreseeable future or that a special circumstance listed in 8 C.F.R. § 214.14 applies. Respondent must give at least seven days' notice, counsel may be present, and if no hearing is held within fourteen days petitioner must be immediately released. The court denied the temporary restraining order as having been rendered moot by the order and directed the Clerk to enter judgment for petitioner and close the case.
Key Takeaways
- An alternate removal order becomes final when a noncitizen fails to depart by the end of the voluntary departure period, placing the person in the 90-day removal period under 8 U.S.C. § 1231.
- Detention during the removal period can still violate due process when there is no significant likelihood of removal in the reasonably foreseeable future, as when the destination country refuses repatriation.
- The court placed the burden on the government to prove by clear and convincing evidence a significant likelihood of removal or an 8 C.F.R. § 214.14 special circumstance at a bond hearing.
- Dangerousness cannot justify indefinite detention under Zadvydas, and the government's regulations do not permit detention without a significant likelihood of removal absent special circumstances.
- If the government does not hold the ordered bond hearing within fourteen days, the petitioner must be immediately released.
Why It Matters
The decision adds to district court authority within the Ninth Circuit holding that detainees who cannot actually be removed retain due process protection against indefinite detention even during the statutory removal period. It reinforces that the government, not the detainee, bears the burden of justifying continued detention by clear and convincing evidence.
For detainees in removable-but-unremovable limbo, the ruling shows that a final removal order does not end the due process inquiry: a failed removal attempt can trigger a prompt bond hearing, with release required if the hearing is not timely held.