Unreported / Non-Citable
Background
Petitioner Jose Antonio Alvarez-Alas, a native and citizen of El Salvador who entered the United States without inspection in 2005, was arrested by ICE officers on September 6, 2026, following his release from state custody on a misdemeanor conviction. He was served with a notice to appear charging him as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner filed a habeas corpus petition under 28 U.S.C. § 2241 on October 22, 2026, challenging his continued detention without a bond hearing as a violation of the INA and the Fifth Amendment Due Process Clause. Respondents opposed, arguing that Petitioner was detained under 8 U.S.C. § 1226(a) and was entitled to a custody redetermination hearing but had not requested one. Neither party opposed the court ruling directly on the petition.
The court found that when the government detains a noncitizen under § 1226(a), DHS officers must conduct an initial custody determination to assess whether detention or release is appropriate, memorialized on Form I-286, which includes a mechanism for the detainee to request a custody redetermination hearing before an immigration judge. Respondents did not attach Petitioner's notice of custody determination to their opposition nor allege that one was issued. The record of deportable/inadmissible alien included a 'Custody Determination' section stating only that Petitioner would be '[d]etained without bond,' which contradicted any inference that an immigration official evaluated whether Petitioner posed a danger or was likely to appear for future proceedings as required by 8 C.F.R. § 236.1(c)(8).
The Court’s Holding
The court held that Petitioner's detention was unlawful due to Respondents' failure to provide an initial custody determination as required by 8 U.S.C. § 1226(a) and its implementing regulations. Citing Aguilar Moreno v. Chestnut and other Ninth Circuit district court decisions, the court concluded that where there is no indication that the arresting officer made an initial custody determination and permitted the noncitizen to demonstrate that release is proper, that detention is unlawful. The failure to provide § 1226(a) procedures constitutes a breach of both statutory and due process rights, and the proper remedy is the noncitizen's immediate release.
Accordingly, the court granted Petitioner's habeas petition and motion for a temporary restraining order, ordering Respondents to immediately release Petitioner from custody, not impose additional restrictions such as electronic monitoring unless determined necessary at a future custody hearing, return all documents and possessions, and provide a prompt bond hearing if the government seeks to re-detain Petitioner, at which Petitioner shall bear the burden of showing he is not a flight risk or danger to community safety. The Clerk was directed to serve the order on the detention facility and enter judgment for Petitioner.
Key Takeaways
- The court ruled that immigration detention under 8 U.S.C. § 1226(a) is unlawful from the outset when the government fails to conduct an initial custody determination that evaluates danger to property or persons and likelihood of appearance, as required by 8 C.F.R. § 236.1(c)(8).
- A record notation stating only 'detained without bond' without any individualized assessment contradicts the regulatory requirement for an initial custody determination and cannot substitute for one.
- The failure to provide the initial custody determination and the opportunity to request a custody redetermination hearing violates both the noncitizen's statutory rights under the INA and constitutional due process protections against arbitrary confinement.
- The proper remedy for such a failure is immediate release, not merely a belated bond hearing, because the detention was never lawfully authorized in the first instance.
- If the government seeks to re-detain the petitioner, it must provide a prompt bond hearing at which the petitioner bears the burden of showing he is not a flight risk or danger to the community.
Why It Matters
This decision reinforces a line of Eastern District of California cases holding that the government's failure to comply with the initial custody determination requirements of 8 U.S.C. § 1226(a) and 8 C.F.R. § 236.1 renders immigration detention unlawful ab initio, warranting immediate release rather than a delayed hearing. The ruling underscores that procedural protections in the immigration detention statute are not optional and serve as critical safeguards for the noncitizen's liberty interest.