Unreported / Non-Citable
Background
Jose Manuel Abadin Perez, a citizen of Cuba, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 against U.S. Immigration and Customs Enforcement on August 20, 2026. He had been in immigration custody since August 3, 2026, detained at the Adelanto ICE Processing Facility in Adelanto, California. On August 21, 2026, the court issued a notice under General Order 26-05 directing ICE to show cause why the writ should not be granted and setting an expedited briefing schedule.
On August 28, 2026, ICE filed a notice of intended removal and response, stating that on August 24 it informed Perez it intended to remove him to Mexico and arguing the petition stated no valid claim for release. On August 31, Perez filed an ex parte application for a temporary restraining order or preliminary injunction barring removal to any nation other than Cuba. The previously assigned district judge granted it on September 4, 2026, after ICE failed to respond timely, enjoining removal to any country other than Cuba during the pendency of the action.
On September 10, 2026, Perez filed an amended petition alleging his detention violated 8 U.S.C. § 1231(a)(6), the Fifth Amendment's Due Process Clause, and withholding and Convention Against Torture protections in connection with third-country removal. He also consented to proceed before the magistrate judge, which the district judge approved on September 21. The amended petition was properly filed as of course under Rule 15(a)(1)(B); ICE was required to respond by September 24 under Rule 15(a)(3) but neither responded nor sought an extension.
The Court’s Holding
The court held that ICE's failure to respond to the amended petition, despite notice of its obligation and an opportunity to be heard, was deemed consent to granting the relief sought under Local Rule 7-12. The court also noted that ICE, as the detaining authority, failed its statutory duty under 28 U.S.C. § 2243 to certify the true cause of the detention, observing that ICE seemed to have lost any interest in contesting the case.
In light of that concession and the uncontested allegations, the court found Perez presently in custody in violation of the Constitution or laws of the United States. It granted the petition and ordered ICE to immediately release Perez under reasonable conditions of supervision, and permanently enjoined re-detention without first providing constitutionally adequate process and a lawful basis consistent with the Fifth Amendment and Zadvydas v. Davis, 533 U.S. 678 (2001).
The court further found that the August 24, 2026 Notice of Removal, standing alone, did not provide constitutionally adequate process for removal to Mexico because it omitted the legal basis for the designation, the timing of removal, and the procedures for seeking withholding or CAT protections. It permanently enjoined removal to Mexico or another third country not identified in the operative removal order absent adequate notice and a meaningful opportunity to consult counsel and pursue protections. ICE must file a status report confirming release within two days; fee motions must follow Equal Access to Justice Act deadlines; the court retained jurisdiction over those motions and enforcement issues; and judgment was to be entered consistent with the decision.
Key Takeaways
- ICE's complete failure to respond to the amended habeas petition was deemed consent to the relief sought under Local Rule 7-12, resulting in grant of the petition and an order of immediate release.
- As the detaining authority, ICE had a statutory duty under 28 U.S.C. § 2243 to certify the true cause of the detention, and its failure to do so reflected a loss of interest in contesting the case.
- A notice of intended removal to a third country that omits the legal basis for the designation, the timing of removal, and the procedures for seeking withholding or CAT protections is not constitutionally adequate process.
- The court permanently enjoined removal to Mexico or any third country not identified in the operative removal order absent adequate notice and a meaningful opportunity to consult counsel and pursue country-specific protections.
- The court ordered a status report confirming release within two days and retained jurisdiction over fee motions and other collateral enforcement issues.
Why It Matters
This decision shows the consequences when a government agency defaults in habeas proceedings: the court converted ICE's silence into substantive relief, including immediate release and permanent injunctions against re-detention and third-country removal, underscoring that the § 2243 duty to certify the true cause of detention is not optional.
The ruling also addresses third-country removals, holding that a bare notice of intended removal to a country not identified in the operative removal order falls short of due process when it omits the legal basis, the timing, and the available protection procedures—a holding relevant to other detainees facing removal to undesignated countries.