Unreported / Non-Citable
Background
Diego Alberto Sierra Guerrero, a Colombian citizen, entered the United States without inspection in March 2023 and was placed in removal proceedings. ICE released him on an order of supervision in May 2023. Over the next three and a half years he complied with ICE appointments, pursued his asylum process, obtained employment authorization through 2030, held a California driver's license, and had no criminal convictions. On August 9, 2026, he was arrested for domestic violence with injury under California Penal Code § 273.5(a); the order notes it is unclear whether charges were filed or remain pending. ICE determined the arrest triggered mandatory detention under 8 U.S.C. § 1226(c), as amended by the Laken Riley Act, and arrested him at a September 2, 2026 appointment. He was served a Notice of Custody Determination citing only INA § 236 (8 U.S.C. § 1226 generally), not § 1226(c) or the arrest. Although he requested immigration-judge review, he received no hearing during two months of detention. He filed a pro se § 2241 petition on September 14, 2026, alleging procedural and substantive due process violations and seeking release.
The parties consented to magistrate-judge jurisdiction. Respondents' answer acknowledged an apparent entitlement to a bond hearing under § 1226(a) yet also asserted mandatory detention under § 1226(c). After court-ordered supplemental briefing, respondents argued the charge qualified as a "crime that results in … serious bodily injury" under § 1226(c)(1)(E)(ii), citing only the charge's nature without evidence of underlying facts or pending charges. The court then appointed counsel, who replied that serious bodily injury is not an element of § 273.5(a), that the notice did not identify mandatory detention, and that due process independently required relief.
The Court’s Holding
The court granted Ground 1 and dismissed Ground 2 as moot. It found a protected liberty interest arose from ICE's 2023 release, creating an implicit promise that liberty would be revoked only for noncompliance. Applying Mathews v. Eldridge, the court held that even assuming § 1226(c) applied—an issue it expressly left undecided—respondents violated procedural due process by detaining him without pre-deprivation process, based solely on an arrest, and without promptly notifying him of the § 1226(c) basis. The general citation did not distinguish bond-eligible § 1226(a) detention from mandatory § 1226(c) detention, and he learned of the § 1226(c) basis only when respondents answered the petition. A post-deprivation Joseph hearing could not cure the violation given the lack of prompt notice, the unexplained absence of the requested IJ review, and his colorable arguments against mandatory detention.
The court found a significant risk of erroneous deprivation: respondents initially did not identify the applicable subsection, later relied on the charge's nature without facts, and ignored the separate inadmissibility requirement of § 1226(c)(1)(E)(i). The government's public-safety interest was lessened because only an arrest existed, with no conviction or individualized danger finding. The court distinguished Demore v. Kim, a facial challenge involving undisputed convictions, noting the Laken Riley Act's expansion to pending charges and two months of detention without a removal decision. The proper remedy was immediate release, not a delayed hearing, because release restores the status quo ante and a post-petition hearing would render the pre-deprivation requirement meaningless. The court ordered immediate release; if release did not occur within three days, petitioner may file a request for an order to show cause re contempt. It also barred re-detention without a pre-detention hearing before a neutral decisionmaker at which respondents must prove by clear and convincing evidence either § 1226(c) detention or specified § 1226(a) grounds: flight risk or danger requiring custody, or changed circumstances creating a significant likelihood of removal in the reasonably foreseeable future.
Key Takeaways
- ICE's release on supervision created a protected liberty interest, and re-detention based solely on an arrest without pre-deprivation process violated procedural due process.
- A custody notice citing only INA § 236 or 8 U.S.C. § 1226, without specifying § 1226(c) or the underlying arrest, fails to provide adequate notice of mandatory detention.
- The court did not decide whether the arrest actually subjected petitioner to § 1226(c), and dismissed the substantive due process ground as moot.
- Immediate release, not a post-deprivation hearing, is the appropriate remedy because allowing the government to cure the violation after a habeas filing would render the pre-deprivation requirement meaningless.
- Re-detention is barred without a pre-detention hearing before a neutral decisionmaker and clear and convincing evidence of the statutory basis for custody.
Why It Matters
This decision applies procedural due process safeguards to an as-applied challenge involving the Laken Riley Act's expansion of mandatory detention beyond convictions to specified arrests and charges. The holding rests on the combined absence of pre-deprivation process, prompt specific notice, and a meaningful post-detention remedy, not on a categorical ruling that every § 1226(c) detention requires identical procedure.
The remedy is equally significant: the court rejected a hearing offered only after habeas litigation as an adequate cure and restored the prior release status. The re-detention conditions identify the neutral decisionmaker, allocate the burden to respondents, and specify the statutory or changed-circumstances showings required, while leaving the underlying mandatory-detention classification unresolved.