Unreported / Non-Citable
Background
Petitioner Mario Fernando Torres Ortiz, a native and citizen of Colombia, entered the United States in February 2022 and was released by Customs and Border Protection. In 2023, he was convicted of misdemeanor driving while intoxicated and served 10 days in jail. On June 6, 2026, ICE detained him based on a January 17, 2026 arrest for corporal injury on a spouse or cohabitant, a charge that remains pending. He is held at the Mesa Verde ICE Processing Center in the Eastern District of California. On July 27, 2026, Petitioner filed a § 2241 habeas corpus petition challenging his detention without an individualized bond hearing under 8 U.S.C.
§ 1226(a). The Magistrate Judge issued initial Findings and Recommendations on August 18, 2026, recommending grant of the petition and immediate release. On August 21, 2026, Respondent filed objections with new exhibits showing that Petitioner had been served a Notice of Custody Redetermination Hearing on August 17, 2026, and that an Immigration Judge denied bond on August 21, 2026, finding him a flight risk and danger to the community. The Magistrate Judge vacated the initial recommendations to consider this new evidence but maintained that the delay violated due process.
The Court’s Holding
The Magistrate Judge recommends granting the § 2241 petition and ordering Petitioner's immediate release. Although a bond hearing was eventually held on August 21, 2026, Petitioner was detained for over two months—from early June until late August—without the statutory right to a custody redetermination hearing under 8 U.S.C. § 1226(a) and 8 C.F.R. § 1236.1(d). Relying on Rodriguez Vazquez v. Bostock (9th Cir. 2026) and Feng v. Lyons (E.D.
Cal. 2026), the court held that providing a bond hearing months after detention, and only after habeas litigation commenced, does not cure the procedural due process violation. The court exercised its equitable discretion under Burnett v. Lampert (9th Cir. 2005) to fashion the remedy of immediate release. The court also recommended that if the government seeks re-detention, it must provide seven days' notice and a bond hearing at which the government bears the burden of proving flight risk or danger by clear and convincing evidence. The Petitioner's motion for a temporary restraining order was denied as moot.
Key Takeaways
- Detention under 8 U.S.C. § 1226(a) requires a timely bond hearing before an immigration judge; a delay of over two months violates procedural due process even if a hearing is eventually provided.
- The government's belated provision of a bond hearing—only after the filing of a habeas petition—does not remedy the prior constitutional violation.
- Immediate release is an appropriate habeas remedy for the denial of a statutory bond hearing, regardless of the outcome of the eventual hearing.
- If the government seeks re-detention, it must provide 7 days' notice and a new bond hearing where it bears the burden of proof by clear and convincing evidence.
- The final order will not govern detention circumstances if Petitioner becomes subject to an executable final order of removal.
Why It Matters
This decision reinforces the Ninth Circuit's holding in Rodriguez Vazquez v. Bostock that § 1226(a) governs detention for certain noncitizens not subject to mandatory detention under § 1226(c), guaranteeing them a prompt bond hearing. It aligns with district court precedent (Feng v.
Lyons) holding that delayed hearings triggered by habeas filings fail to satisfy due process. The ruling underscores that the executive cannot circumvent statutory bond hearing rights through prolonged detention without process, and that federal courts retain broad equitable authority to order release as a remedy for such violations. The recommended conditions on re-detention impose a heightened procedural burden on the government going forward.