Unreported / Non-Citable
Background
Omar Jacques, an immigration detainee represented by counsel, petitioned for a writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District of California. The case was referred to a magistrate judge, who issued findings and recommendations on August 4, 2026. The magistrate judge found that Jacques was detained under 8 U.S.C. § 1226(a) because he was detained for overstaying his visa, and recommended that the court order his immediate release because he had been held for a prolonged period without a bond hearing.
Respondents objected on August 11, 2026, arguing that 8 U.S.C. § 1231 governs because Jacques is subject to a final order of removal that is on appeal in a withholding-only challenge. They alternatively argued that he would be subject to detention under 8 U.S.C. § 1226(c) because of a controlled-substances conviction. Jacques replied that the objections did not address his prolonged detention and cut against the immigration judge's two grants of withholding of removal. On August 28, 2026, Respondents notified the court that the Ninth Circuit had granted Jacques's petition for review and remanded to the Board of Immigration Appeals. The order records that notice but does not discuss its effect.
The Court’s Holding
After de novo review under 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the court declined to adopt the findings and recommendations. It concluded that Jacques's detention authority shifted from § 1226(a) to § 1231(a)(6) when a final order of removal was entered, so that he is subject to mandatory detention. Relying on its own earlier decision in J.R.M.J. v. Wofford and on Prieto Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008), the court reasoned that a person held under § 1231(a)(6) during withholding-only proceedings is not entitled to release under Zadvydas even after six months, absent evidence that the government could not expeditiously remove him to the identified country. The court did not separately decide Respondents' alternative § 1226(c) argument.
That conclusion did not end the case. Applying the Mathews v. Eldridge balancing framework as it did in J.R.M.J., the court found that Jacques has been detained for five years, that his detention has undoubtedly grown prolonged, and that he has not received a substantive custody redetermination hearing in that time. It therefore granted the petition on the procedural due process claim and did not address the petition's other grounds. In J.R.M.J. the detention was seven months, so the period here is considerably longer.
The relief is a hearing, not release. Within 14 days Respondents must give Jacques a bond hearing before an immigration judge, at which the government bears the burden of proving by clear and convincing evidence that he is a flight risk or a danger to the community such that continued detention is justified. Respondents must give Jacques and his counsel seven days' advance notice and allow counsel to attend. Jacques must be released immediately only if Respondents fail to comply. Within 17 days of the order, Respondents must file a status report certifying compliance and attaching the immigration judge's order, as applicable. The clerk was directed to enter judgment for Jacques and close the case.
Key Takeaways
- The court treated a final order of removal as shifting detention authority from § 1226(a) to § 1231(a)(6), even though the withholding-only challenge remained pending.
- Under the court's reasoning, detention beyond six months under § 1231(a)(6) does not by itself require release where the government can expeditiously remove the person to the identified country if relief is denied.
- Even where detention is statutorily authorized, five years without a substantive custody hearing was enough for the court to find a procedural due process violation.
- The remedy is a bond hearing in which the government bears a clear-and-convincing burden, not a release order; release follows only if Respondents miss the 14-day deadline or otherwise fail to comply.
- The court did not decide Respondents' § 1226(c) alternative or the petition's other grounds.
Why It Matters
This is an individual habeas order from a district court, not a published or precedential opinion, and it rests heavily on the same judge's earlier unreported decision in J.R.M.J. It shows one court separating the statutory question of which provision authorizes detention from the constitutional question whether prolonged detention without a hearing is permissible, and resolving them differently.
Several points remain open. The order does not say what the immigration judge should decide at the hearing, so whether Jacques is ultimately released is unresolved. It also does not analyze how the Ninth Circuit's grant of review and remand affects his removal posture or the foreseeability of removal, and it leaves the § 1226(c) argument undecided. Respondents' compliance and the hearing outcome are to be reported in the status report due within 17 days.