Unreported / Non-Citable
Background
Jonathan Rubelsi Barrios Velazquez, a citizen and national of Guatemala, entered the United States without inspection in November 2020. ICE encountered him in a county jail on February 20, 2026, after his arrest for DUI and fleeing or attempting to elude law enforcement. He was convicted on the fleeing charge on June 16, 2026, and sentenced to credit for 117 days served; prosecutors dismissed the DUI charge. On July 30, an immigration judge ordered him removed to Mexico under 8 U.S.C. § 1182(a)(6)(A)(i), and he waived appeal. The government moved on August 18 to reopen proceedings after discovering that he was Guatemalan, not Mexican. Taking judicial notice of the EOIR case-information page, the magistrate judge stated that the immigration court granted reopening on October 6.
Barrios Velazquez filed his 28 U.S.C. § 2241 petition on September 21, 2026, before reopening was granted. Count Two alleged detention without a custody-redetermination hearing in violation of the INA, and Count Four alleged a Fifth Amendment due-process violation. He sought release or, alternatively, a bond hearing and said his work as an independent worker supplied his household’s main income, so detention caused financial hardship for his wife and minor child. Respondent’s October 15 opposition apparently did not account for the October 6 reopening and argued that mandatory post-removal detention under 8 U.S.C. § 1231(a)(2) applied. Respondent nevertheless acknowledged that reopening would return detention to § 1226(a) and said a bond hearing would not be opposed at that point.
The Court’s Holding
The magistrate judge explained that Barrios Velazquez, apprehended in the interior, was detained under § 1226(a) during removal proceedings. His detention shifted to § 1231(a)(2) when he waived appeal of the July 30 removal order, making that order final under the cited regulations. But the October 6 reopening returned his detention to § 1226(a), consistent with Respondent’s acknowledgment and Alvarenga Matute v. Wofford. Because he remained subject to discretionary detention and had not received the bond hearing to which that scheme entitled him, the magistrate judge recommended granting the petition on Counts Two and Four and requiring a prompt hearing before an immigration judge.
The recommendation recognized that Rodriguez Diaz v. Garland generally permits placing the burden on the noncitizen in a generic § 1226(a) hearing, while leaving room for additional procedures based on individualized circumstances. The magistrate judge found that the claimed serious financial risk to Barrios Velazquez’s wife and child from losing his principal household income warranted heightened process. Citing Velasco Lopez v. Decker and the flexibility of habeas relief recognized in Burnett v. Lampert, the recommendation placed on the government the burden of justifying continued detention by clear and convincing evidence. The proposed hearing must occur within 14 days of any final order, with at least seven days’ advance notice to petitioner and counsel; Respondent must certify compliance within seven days after the hearing and return his documents and possessions if he is released on bond.
Key Takeaways
- Reopening removal proceedings returned the petitioner’s detention from mandatory post-removal authority under § 1231(a)(2) to discretionary detention under § 1226(a).
- The magistrate judge recommended relief on the INA and due-process counts because the petitioner had not received the bond hearing required by the restored discretionary-detention framework.
- Although generic § 1226(a) hearings need not place the burden on the government, the petitioner’s asserted family financial hardship supported an individualized recommendation requiring clear and convincing evidence.
- The proposed relief includes hearing, notice, compliance-certification, and conditional return-of-property requirements, but it remains a recommendation rather than a final district-court judgment.
- The remaining claims were not addressed for judicial economy, and the findings and recommendations set a shortened three-day objection period with a warning about possible appellate waiver.
Why It Matters
The recommendations illustrate how the statutory basis for immigration detention can change with the posture of removal proceedings. A final order followed by waiver of appeal triggered post-removal detention here, but the government’s successful motion to reopen restored the discretionary framework and the associated opportunity for a bond hearing. The analysis also distinguishes the general burden allocation approved in Rodriguez Diaz from an individualized remedy based on asserted hardship to a detainee’s dependents.
The document does not finally adjudicate the petition, order release, or resolve every claim. It submits findings and recommendations to the assigned district judge, leaves the remaining claims unaddressed, and makes the principal deadlines dependent on a final order. Its practical importance therefore lies in the recommended statutory and due-process framework and the specific proposed safeguards, subject to the objection and district-court review process.