Unreported / Non-Citable
Background
Israel Ibarra Perez, a Mexican national, first entered the United States in 2003 and was voluntarily returned to Mexico. He re-entered in 2023 and was removed through expedited removal. On May 2, 2024, he returned through a scheduled CBP One application, claimed a credible fear of returning to Mexico, and requested asylum. USCIS found his asylum claim positive on May 11, 2024, and he was placed into standard removal proceedings on an I-862 Notice to Appear. The order states that DHS released him into the interior on parole under Alternatives to Detention (ATD) on May 15, 2026, and that his removal proceedings remain ongoing with no final order of removal.
Petitioner lived in Fresno, California with his mother and sister, obtained a valid driver's license and work authorization, complied with ATD reporting through monthly ICE check-ins and weekly SmartLINK photographs, had no criminal history, and was an active church member. In 2026 he received a SmartLINK notice for a check-in at 7:00 a.m. on Sunday, August 30, 2026, outside regular office hours. When he arrived with his sister, ICE denied her entry, placed him in a holding cell, and arrested him without explanation, transferring him to the Golden State Annex Facility in McFarland, California.
Respondents' I-213 form alleged six ATD violations between July 2024 and January 2026, which Petitioner disputed; Respondents attached no SmartLINK records, biometric logs, or other substantive evidence. On September 28, 2026, Petitioner filed a § 2241 habeas petition and a TRO motion, arguing that re-detention without pre-deprivation notice and hearing violated the Fifth Amendment Due Process Clause. Respondents opposed, arguing mandatory detention under 8 U.S.C. § 1225(b)(1) and that the alleged violations justified re-detention.
The Court’s Holding
The court granted the habeas petition, holding that Petitioner's detention is governed by 8 U.S.C. § 1226(a), not the mandatory detention provision of § 1225(b)(1). Although Petitioner was formerly processed for expedited removal, he received a positive asylum determination, was placed into standard removal proceedings, and was released on parole, bringing him within § 1226(a) and the cited Ninth Circuit and Eastern District of California authority requiring bond hearings.
The court held that re-detention after more than two years of release without a pre-deprivation hearing violated the Fifth Amendment Due Process Clause. Respondents failed to provide sufficient documentation of the alleged ATD violations, offering only the I-213 form, and the court distinguished prior cases where comprehensive records justified post-deprivation bond hearings. The months-long gap between the last alleged violation on January 15, 2026 and the August 2026 arrest, plus Petitioner's lack of criminal history, valid documents, and community ties, showed the allegations did not establish a change in circumstances justifying non-pretextual re-detention.
The court ordered Petitioner's immediate release, denied the motion to appoint counsel and the TRO motion as moot, and enjoined Respondents from re-detaining him unless the government gives notice a minimum of seven days in advance and holds a bond hearing before a neutral arbiter under § 1226(a), at which the government must prove by clear and convincing evidence that he is a flight risk or danger. The Clerk was directed to serve the detention facility with a copy of the order and to close the case. Footnote 4 permits a post-deprivation hearing within seven days if arrest without advance notice is legally justified, and allows detention solely to execute a final removal order with a bond hearing as required by law.
Key Takeaways
- An immigrant processed for expedited removal but later given a positive asylum determination, placed into standard removal proceedings, and released on parole is detained under 8 U.S.C. § 1226(a), not § 1225(b)(1), and is entitled to a bond hearing.
- Re-detention of such an immigrant after more than two years of release without pre-deprivation notice and a hearing violates the Fifth Amendment Due Process Clause.
- Allegations of ATD violations must be supported by substantive records such as SmartLINK logs or biometric reports; a bare I-213 form is insufficient to justify re-detention without a hearing.
- A significant delay between the last alleged ATD violation and the arrest supports a finding that the violations were pretextual.
- The government may re-detain the petitioner only after notice a minimum of seven days in advance and a § 1226(a) bond hearing with clear and convincing proof of flight risk or danger, subject to the footnote 4 exceptions.
Why It Matters
The decision reinforces due process protections for immigrants released on parole who later face re-detention, clarifying that once DHS places an individual into standard removal proceedings and releases them on parole, § 1226(a) bond-hearing standards govern rather than the mandatory detention scheme of § 1225(b)(1).
It also raises the evidentiary bar for justifying re-detention based on alleged ATD violations, requiring substantive records rather than conclusory allegations, and treats an unexplained months-long delay between alleged violations and arrest as evidence of pretext.