Unreported / Non-Citable
Background
Jose Samuel Cela Velasquez, a native of Ecuador, entered the United States without inspection around April 29, 2019, and had no earlier contact with immigration authorities according to his petition. The government's record states that on June 12, 2026, ICE officers conducting surveillance in support of a Homeland Security Investigations search warrant in Rochester, New York, detained him with two other noncitizens. He was served an arrest warrant and has been held since then, now at the Central Valley Annex Detention Facility. On September 18, 2026, an immigration judge denied release at a custody redetermination hearing, finding him a flight risk.
On September 28, 2026, he filed a 28 U.S.C. § 2241 petition and a motion for a temporary restraining order, alleging a warrantless arrest and a due process violation. Respondents argued he was lawfully detained under 8 U.S.C. § 1226(a) on a valid warrant, had received a bond hearing, and, to the extent he attacked the bond ruling, had to exhaust before the Board of Immigration Appeals. Respondents did not oppose a ruling directly on the petition, and Petitioner filed no reply. The court also noted that much of his record of deportable alien described an unrelated third party's immigration history, an unexplained deficiency.
The Court’s Holding
The court granted the petition and the restraining order. It first held that the plain language of 8 C.F.R. § 1236.1(b)(1), which permits arrest under § 1226(a) at the time of issuance of the notice to appear or later, requires an arrest warrant to be executed and the arrest effectuated after, or contemporaneously with, the notice to appear. Here the warrant was executed on June 12, 2026, and the first notice to appear on June 14, 2026. The court found that this violated the Immigration and Nationality Act and its regulations, joining other district courts including Mudiyanselage and Loaeza, and noted that no exigent circumstances were alleged.
The court also held that the arrest violated due process. The issuing officer checked no box stating the basis for the probable cause finding that Petitioner was removable, so no reviewing party could determine whether probable cause existed. Following Coria Ramirez, the court treated a finding based on nothing as requiring release. It waived prudential exhaustion under Hernandez v. Sessions because Petitioner challenged the lawfulness of his arrest and detention, not the immigration judge's discretionary bond denial.
The relief is specific. Respondents must immediately release Petitioner, may not impose added restrictions such as electronic monitoring unless a future custody hearing finds them necessary, and must return his documents and possessions. If the government seeks to re-detain him, it must provide a prompt bond hearing at which Petitioner bears the burden of showing he is not a flight risk or danger to the community. The remaining motions were denied as moot, and judgment was entered for Petitioner and the case closed. The order does not address the merits of removal.
Key Takeaways
- A court may find an immigration arrest unlawful where the arrest and warrant execution preceded issuance of the notice to appear, absent exigent circumstances.
- An arrest warrant whose probable cause section identifies no basis for believing the person removable cannot be reviewed and, in this court's view, violates due process.
- Prudential exhaustion may be waived when a petitioner raises a purely legal challenge to the lawfulness of the arrest rather than a discretionary bond denial.
- The remedy was release, with no added restrictions such as electronic monitoring unless later found necessary.
- Any re-detention requires a prompt bond hearing, and the order places the burden on Petitioner at that hearing.
Why It Matters
This is an unreported district court order, so it is persuasive rather than binding. It adds to a line of Eastern District of California and other district decisions treating the sequence of the notice to appear and arrest as a limit on detention authority under § 1226(a), and it pairs that statutory ruling with an independent due process ruling about an unexplained probable cause finding.
Open questions remain. The order does not address what exigent circumstances might excuse an earlier arrest, whether later notices to appear could support new detention, or how a re-detention bond hearing would proceed beyond assigning the burden to Petitioner. The court also did not resolve the third-party record problems beyond noting them.