Unreported / Non-Citable
Background
Hibbert presented himself at the San Ysidro port of entry on September 27, 2015 and requested asylum. After expedited-removal processing and a credible-fear determination, he was referred to immigration court for removal proceedings on October 27, 2015. An immigration court granted him bond on May 5, 2016, and he was released. He later applied for employment authorization in February 2025. On April 25, 2026, local authorities arrested him for aggravated assault with a firearm; he was also charged with improper exhibition of a dangerous weapon and resisting an officer without violence. ICE placed a detainer, re-detained him after local authorities released him, and he remained in ICE custody.
Proceeding pro se, Hibbert filed his first federal habeas petition on June 9, 2026, followed by an amended petition on June 16, 2026. On July 2, 2026, the court issued findings and recommendations that the first petition be granted and that a bond hearing be ordered at which the government would bear the burden to prove flight risk or danger. The court adopted those findings on July 16, 2026 and ordered the immigration court to hold the hearing. On July 23, 2026, the immigration court held that hearing, acknowledged Hibbert’s residence, family ties, work history, and mental-health issues, but found by clear and convincing evidence that he was a danger whom no bond or release conditions could sufficiently mitigate; it denied bond on danger without reaching flight risk. Hibbert filed this second petition on August 24, 2026, and respondent answered on August 30, 2026 with the immigration court’s bond order.
The Court’s Holding
The magistrate judge treated grounds one and two as successive because they raised due-process claims already addressed in Hibbert’s favor in the first habeas case, and he found their premise—that Hibbert had not received a bond hearing—factually incorrect. Construing the pro se petition liberally as a challenge to the hearing’s procedure and result, the judge concluded that the hearing complied with the prior order because the government bore the clear-and-convincing burden on danger or flight risk. He also noted that there was no indication Hibbert had appealed the bond order to the Board of Immigration Appeals, citing the need to exhaust that administrative remedy before asking the district court to review the immigration judge’s decision.
The remaining claim relied on Accardi v. Shaughnessy and detention regulations, but the judge rejected it because 8 C.F.R. §§ 241.13 and 241.4 apply only after a final order of removal. Hibbert had no removal order and remained detained under 8 U.S.C. § 1226(a). The judge therefore recommended that the petition be denied, that judgment be entered, and that the case be closed. Separately, the order directed substitution of the Warden of Mesa Verde Detention Facility after Hibbert’s transfer and denied both motions for appointed counsel because the interests of justice did not require appointment at that time. The recommendation was submitted to the district judge under 28 U.S.C. § 636(b)(1) and remained subject to written objections within fourteen days of service; it was not itself the district judge’s final judgment.
Key Takeaways
- The recommended denial rested in part on the successive nature of due-process claims already resolved in Hibbert’s first habeas case.
- The immigration court had conducted the federally ordered bond hearing and applied the government’s clear-and-convincing burden, denying bond on danger without deciding flight risk.
- The opinion identified Hibbert’s apparent failure to appeal the bond order to the BIA as an administrative-exhaustion problem.
- The Accardi-based claim failed because the regulations Hibbert invoked required a final removal order that had not yet issued.
- The court ordered warden substitution and denied appointed counsel, while only recommending—not finally ordering—denial of habeas relief, entry of judgment, and case closure.
Why It Matters
The decision distinguishes a detainee’s entitlement to a constitutionally adequate bond process from a renewed federal challenge after that process has occurred. It shows how successive-claim principles, the actual hearing record, and administrative exhaustion can independently limit a second Section 2241 petition.
The regulatory analysis is detention-stage specific: the court did not broadly reject every possible challenge to continued custody, but held that the particular post-removal regulations cited did not govern Hibbert’s pre-removal-order detention under Section 1226(a).