Unreported / Non-Citable
Background
Petitioner, a Cuban national paroled into the United States in 2004, was ordered removed by an immigration judge on April 9, 2014, on grounds that he lacked a valid entry document and had a conviction for a crime involving moral turpitude. The record does not identify which offense. His rap sheet showed pre-removal convictions including aggravated assault with a deadly weapon, burglary, and burglary with assault or battery and kidnapping. The order became final when he waived appeal, and ICE released him on an order of supervision on June 27, 2016.
In February 2026, local police arrested him on an out-of-county warrant for driving with a suspended license. ICE issued a detainer and on February 25, 2026 revoked his supervision, stating he had been convicted of a crime involving moral turpitude and was an aggravated felon. ICE took him into custody from a county jail around March 30, 2026 and served the revocation notice. He is held at the Central Valley Annex.
He filed a 28 U.S.C. § 2241 petition on September 10, 2026. It alleged revocation without the procedures of 8 C.F.R. § 241.4(l), re-detention without meaningful notice and opportunity in violation of due process, and indefinite detention contrary to 8 U.S.C. § 1231(a)(6) and Zadvydas v. Davis. Respondent argued detention was lawful, that Petitioner had not met his burden, and that his criminal history was good cause. It also filed an April 23, 2026 Notice of Removal that identifies Mexico, not Cuba.
The Court’s Holding
Magistrate Judge Sean C. Riordan recommended, but did not order, that the petition be granted on Counts One and Three. Detention is governed by § 1231(a)(6), and more than six months had passed. Because ICE released Petitioner in 2016 and revoked that release in 2026, the court found Zadvydas burden-shifting inapplicable and placed on Respondent the burden of showing a significant likelihood of removal to Cuba in the reasonably foreseeable future.
Respondent did not meet that burden. It asserted unspecified efforts, filed no declaration or other evidence of them, and did not say Cuba had agreed to repatriate him. The Notice of Removal to Mexico did not help: there was no removal order to Mexico and no evidence Mexico would accept him. The court rejected the argument that refusing to cooperate with removal to Mexico justifies detention. It also rejected the criminal-history argument, calling the detention purely preventive, noting no convictions since June 2016, and finding him an ordinary violent criminal outside the narrow Zadvydas exception for specially dangerous individuals.
As an alternative ground on Count One, the court found the revocation violated 8 C.F.R. § 241.13(i), which it viewed as the more applicable regulation. The notice named no specific violated condition and apparently relied on a conviction predating release. No record evidence showed that the 2018 arrest Respondent cited prompted the revocation. There was also no sign of the required prompt informal interview, and the interview fields were blank, so the court found the revocation failed due process. It recommended release under supervision conditions, an injunction against re-detention without compliance with § 241.13(i), entry of judgment, and closing the case. Count Two was not addressed.
Key Takeaways
- Where ICE released a person on supervision and later revoked it, this court placed on the Government the burden of showing a significant likelihood of removal in the reasonably foreseeable future.
- A notice of removal to a third country, without a removal order or evidence that the country will accept the person, did not satisfy that burden.
- Past violent convictions did not justify continued detention under Zadvydas absent special circumstances, and the court described the detention as purely preventive.
- A revocation notice that identified no violated release condition, combined with blank informal interview fields, supported the finding that revocation did not follow required procedures.
- These are recommendations only; the district judge must still rule after objections due within seven days, and Count Two remains unaddressed.
Why It Matters
The recommendation adds to a line of Eastern District of California decisions that treat re-detention after release on supervision differently from first-time post-removal detention, placing the evidentiary burden on the Government. It also shows courts scrutinizing thin showings, such as an unexplained assertion of ongoing efforts and a third-country notice, rather than accepting them as proof that removal is likely.
Its reach is limited. It is a magistrate judge's findings and recommendations, not a final judgment, and it has no binding effect unless the assigned district judge adopts it. The shortened seven-day objection period means the outcome could change quickly. The analysis also rests on this record, including the absence of any Government declaration, and the court did not reach the due process claim in Count Two.