Unreported / Non-Citable
Background
Juan Luis Tapia Espinoza, a native and citizen of Mexico, became a lawful permanent resident on December 11, 2000, and has a United States citizen wife and three United States citizen children. On October 11, 2024, he pleaded nolo contendere to possession of a controlled substance for sale under California Health and Safety Code § 11378 and received probation with 180 days in county jail. On February 23, 2025, ICE arrested him on an administrative warrant, and DHS charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and (B)(i) and ordered him detained. On January 16, 2026, an immigration judge found him removable and ordered removal to Mexico; his BIA appeal, received February 13, 2026, remains pending, so there is no administratively final removal order.
Petitioner twice requested IJ custody redetermination and twice withdrew the request without a recorded ruling: on August 27, 2025, and again on September 23, 2026—after this petition was filed and one day after the court's September 22, 2026 order directing the parties to explain the first withdrawal. He had earlier filed a pro se habeas petition in May 2026 challenging the same detention; the court recommended denial without prejudice for failure to exhaust, and judgment was entered July 6, 2026. Now counseled, he filed this second petition on September 8, 2026, asserting four claims—a pre-detention hearing, prolonged detention, the Eighth Amendment, and the APA—and seeking immediate release, a bar on re-detention without a hearing, a bond hearing, or EAJA fees. After the court ordered supplemental filings on September 22, 2026, Respondents reported and Petitioner did not respond.
The Court’s Holding
The court held that 8 U.S.C. § 1226(c) governs because the BIA appeal is pending and the removal order is not administratively final; the statute permits release only in narrow witness-protection circumstances and, under Jennings v. Rodriguez, does not limit detention length or require periodic bond hearings. On Count One, under Demore v. Kim, Congress may require detention for the period necessary for removal proceedings without an individualized hearing, so no pre-detention hearing was required; Count One was denied.
On Count Two, the prolonged-detention claim, the court acknowledged that nineteen months is substantial and that Justice Kennedy's Demore concurrence left open whether prolonged § 1226(c) detention requires an individualized determination, but it did not reach the constitutional question because Petitioner had not exhausted administrative remedies or shown excusal. He twice withdrew custody-redetermination requests with no ruling on danger, flight risk, or IJ authority, and he declined the court's express invitation to argue excusal. Under Laing v. Ashcroft and Leonardo v. Crawford, the court dismissed Count Two without prejudice, expressly not deciding whether the IJ had authority to redetermine custody, whether available procedures are adequate, or whether the detention violates due process.
On Count Three, under Carlson v. Landon, the Eighth Amendment does not require bail for noncitizens detained pending deportation, and reliance on a Jennings dissent is not controlling; Count Three was denied. On Count Four, the APA claim identified no final agency action distinct from the detention challenged in habeas, which is an adequate remedy, so it was dismissed without prejudice. The petition was denied, Counts One and Three denied, Counts Two and Four dismissed without prejudice, and the EAJA fee request denied.
Key Takeaways
- A noncitizen detained under § 1226(c) while a BIA appeal is pending is not entitled to a hearing before detention begins; Demore v. Kim permits mandatory detention for the period necessary for removal proceedings.
- A § 2241 prolonged-detention claim will be dismissed without prejudice, not decided, where the petitioner twice withdraws custody-redetermination requests and declines the court's invitation to argue that exhaustion should be excused.
- The court left open whether the IJ had authority to redetermine custody, whether administrative procedures are adequate, and whether nineteen months of detention violates due process.
- A categorical Eighth Amendment Excessive Bail Clause challenge fails under Carlson v. Landon; a dissenting opinion is not controlling.
- An APA claim identifying no final agency action distinct from the detention challenged in habeas is duplicative and dismissed without prejudice.
Why It Matters
The decision shows how prudential exhaustion can postpone judicial review of prolonged § 1226(c) detention where counsel withdraws bond requests without a recorded ruling, and how targeted supplemental-briefing orders can build an exhaustion record. At the same time, the opinion preserves the open constitutional question whether nineteen months of detention without an individualized danger or flight-risk determination violates due process, leaving it available to a petitioner who exhausts or properly excuses exhaustion.