Unreported / Non-Citable
Background
Adan Zacarias Velasquez, a native and citizen of Guatemala proceeding without counsel, filed a verified petition for a writ of habeas corpus under 28 U.S.C. § 2241. He entered the United States without inspection on March 30, 2019, and was detained by Customs and Border Protection. He received a Notice to Appear in standard removal proceedings under INA § 240, 8 U.S.C. § 1229a. An immigration judge denied his applications for relief and ordered him removed on September 9, 2022, but his appeal to the Board of Immigration Appeals remained pending when the habeas petition was considered.
ICE re-detained Velasquez on or about February 11, 2026, following an arrest in Homestead, Florida, and he remained continuously detained. An immigration judge denied bond on July 27, 2026, finding that he presented a flight risk. Velasquez filed his habeas petition on September 3, 2026; respondent opposed on September 16, and Velasquez did not reply. The petition challenged his re-detention on statutory and Fifth Amendment due process grounds. Because he was proceeding pro se, the court liberally construed his separate sufficiency-of-evidence claim as part of the due process claim.
The Court’s Holding
The magistrate judge first rejected the statutory theory insofar as it depended on detention under 8 U.S.C. § 1231(a). Velasquez's removal order was not administratively final because his BIA appeal was still pending. Under the Ninth Circuit authority quoted by the court, a removal order becomes final only upon the earlier of a BIA determination affirming it or expiration of the deadline to seek BIA review. The court therefore recommended denying the statutory claim.
The court treated the detention as governed by 8 U.S.C. § 1226(a), which supplies the general process for arresting and detaining noncitizens present in the United States and eligible for removal. It described the statute's custody framework and procedural protections, including an initial bond hearing before a neutral decisionmaker, an opportunity for counsel and evidence, appeal rights, and the ability to seek a new hearing after materially changed circumstances. A person detained under § 1226(a) is entitled to a bond hearing.
Because Velasquez received a July 27, 2026 bond hearing before an immigration judge, who denied bond based on flight risk, the court recommended denying the due process claims as well. The formal recommendation was to deny the petition, direct entry of judgment for respondent, and close the case. This was a recommendation to the assigned district judge, not a final judgment; the order allowed fourteen days for objections and seven days for responses, and warned that failure to object could waive appellate rights.
Key Takeaways
- A pending BIA appeal prevented Velasquez's removal order from becoming administratively final, undermining his statutory claim based on § 1231(a).
- The court analyzed his detention under § 1226(a) and emphasized that detention under that provision carries an entitlement to a bond hearing.
- The July 27, 2026 immigration-judge bond hearing was central to the recommendation to reject the Fifth Amendment due process claims.
- The magistrate judge construed the pro se sufficiency-of-evidence claim as part of the due process claim rather than treating it as a wholly separate basis for relief.
- The document recommends denial and case closure but leaves the ultimate disposition to the district judge through the objections process.
Why It Matters
The recommendation illustrates how the administrative finality of a removal order can determine which immigration-detention framework applies in a § 2241 case. Velasquez could not premise relief on post-removal-period detention under § 1231(a) while his BIA appeal remained unresolved.
It also shows the practical importance of the bond-hearing process in a § 1226(a) due process challenge. On the facts recited here, the court treated the immigration judge's hearing and flight-risk determination as sufficient to recommend rejection of the due process claims, while preserving the parties' opportunity to seek district-judge review through objections.