Unreported / Non-Citable
Background
Jose Ernesto Martinez Galindo, a citizen of Peru, overstayed a 2016 visitor admission and departed under voluntary departure in 2018. The government's Form I-213 says he re-entered without inspection in July 2022, received a positive credible-fear determination, and was served with a Notice to Appear. On October 17, 2022, ICE released him on an Order of Release on Recognizance under section 236 of the Immigration and Nationality Act, and he lived nearly four years under ICE supervision, including an electronic ankle monitor by September 2026. Respondents identified no violation of his conditions before then.
He alleges that a person posing as an attorney took $1,000 from him and that a look-alike government email cancelled his September 11, 2026 asylum hearing. He did not appear, and an Immigration Judge ordered him removed in absentia. On September 22 he reported to ICE as scheduled and was arrested; the record shows no custody determination on flight risk or danger and no stated reason for revoking release. A week later he moved to reopen, which by statute stays removal. He petitioned under 28 U.S.C. § 2241; Respondents conceded detention under 8 U.S.C. § 1226(a) and the availability of a bond hearing, but urged that relief be limited to a hearing within seven days.
The Court’s Holding
The court concluded that § 1226(a), not § 1231, governs. It acknowledged a contrary argument, since a regulation makes in absentia orders final on entry, but reasoned that a timely motion to rescind is the required first step of review. Petitioner filed eighteen days after the order, so the time for seeking Board of Immigration Appeals review had not expired. The court said the question is not settled and relied on Respondents' decision not to invoke § 1231. It did not decide whether § 1225(b)(1) could apply.
Exhaustion was excused because a bond hearing decides prospective release, not whether revoking years of supervised release satisfied due process, and an Immigration Judge's authority to hold one was uncertain. Applying Mathews v. Eldridge, the court found a substantial liberty interest, a high risk of error because the warrant and Form I-213 addressed removability rather than flight risk or danger, and government interests fully served by a prompt hearing. Continued detention without an individualized custody determination violated due process.
The petition was granted in part as to Claim One and otherwise denied, with two prayers withdrawn. The court declined to order immediate release, bar future re-detention, or shift the burden to the government; the ordinary standard applies, requiring the detainee to show by a preponderance that he is not a flight risk or danger. Within seven days Respondents must provide a hearing before an Immigration Judge, who must consider Petitioner's explanation, supervision history, voluntary reporting, alternatives to detention, and ability to pay if bond is considered. If no hearing occurs by day seven for any reason, including a finding that the judge lacks authority, Respondents must release him on the 2022 conditions, subject to lawful alternatives to detention. That release term lapses if the judge first denies the motion to reopen, in which case Respondents must file notice within one court day, and a status report is due the day after the hearing or release.
Key Takeaways
- The relief is a prompt custody hearing, with release on the original conditions as the fallback, not immediate release.
- The court chose § 1226(a) while acknowledging the question is unsettled and that Respondents did not invoke § 1231.
- Revoking years of supervised release without any recorded assessment of flight risk or danger violated due process, despite a missed hearing and an in absentia order.
- At the hearing the detainee bears the ordinary burden of showing by a preponderance that he is not a flight risk or danger.
- The fraudulent-email account is an unsworn, untested allegation for the Immigration Judge to weigh.
Why It Matters
This is a single-petition district court order, not a published precedent, so its value is persuasive. The court distinguished decisions ordering release outright, because one was unopposed and involved a nonfinal order and another involved an already rescinded in absentia order.
Much remains open: the Immigration Judge's ruling on the motion to reopen, the custody outcome, whether the judge has authority to hold a hearing given 8 C.F.R. § 1236.1(d)(1), and whether § 1231 or § 1225(b)(1) could apply. The court expressed no view on any future custody decision.