Unreported / Non-Citable
Background
Nancy Correa Reyes, a 46-year-old asylum-seeker from Mexico who has lived in California for more than two years, entered the United States in May 2024 with her three minor children and was paroled by DHS. After an asylum officer found a credible fear, she applied for asylum, withholding of removal, and Convention Against Torture protection with her children as derivatives. In September 2025, arriving about 30 minutes late to her individual hearing, she was ordered removed in absentia and her applications deemed abandoned. She timely moved to reopen and rescind the order, but the Immigration Judge denied her fee waiver and marked the motion to reopen "rejected as moot." Her appeal and emergency stay remain pending before the Board of Immigration Appeals.
On March 31, 2026, ICE served her with an Order of Supervision, which she complied with. On September 29, 2026, at a scheduled check-in at the San Francisco ICE Field Office, an officer handed her an English-language Notice of Revocation of Release without translating or explaining it, told her to handwrite her fear of returning to Mexico, and said the family would be transferred to San Diego. No officer stated reasons for the revocation, conducted an interview, or explained an intent to deport; officers confiscated their cell phones, threatened the children with separation, flew the family to San Diego, and then back to San Francisco, arriving at about 9:30 p.m., where they were released at about 11:30 p.m.
That day, Petitioners filed a habeas corpus petition and TRO motion seeking release. The court granted the TRO, ordering Respondents to release the family and enjoining re-detention absent prior notice and a pre-deprivation hearing before a neutral decisionmaker, and ordered Respondents to show cause. After Petitioners filed a first amended petition, the parties stipulated to submit the matter on the papers without oral argument.
The Court’s Holding
The court first held that it had subject-matter jurisdiction. It rejected Respondents' argument that 8 U.S.C. § 1252(g) barred review, explaining that habeas challenges to post-removal-period detention are not challenges to the Attorney General's discretion to commence or execute removal, citing Zadvydas v. Davis; jurisdiction existed under 28 U.S.C. § 2241(c)(3).
On the merits, the court held the detention violated 8 U.S.C. § 1231(a) because Petitioners were not subject to an administratively final removal order. A motion to reopen an in absentia order is part of the process of challenging the order itself, not a collateral attack, and because Petitioners' BIA appeal of the denial remained pending, the order was not final under Cui v. Garland. ICE therefore lacked statutory authority to re-detain them.
The court also held that ICE violated procedural due process by failing to follow 8 C.F.R. §§ 241.4(l) and 241.13(i): the Notice of Revocation gave only boilerplate, English-only notice with no meaningful individualized reasons; no informal interview was conducted; and AFOD Starr lacked authority under § 241.4(l)(2) because there was no public-interest determination or finding that circumstances did not permit referral. All three Matthews v. Eldridge factors favored Petitioners. The court granted the petition and permanently enjoined Respondents from re-arresting or re-detaining Petitioners unless and until they receive a pre-detention bond hearing before a neutral immigration judge with at least seven days' notice, expressly leaving open detention if they become subject to an executable final removal order.
Key Takeaways
- An in absentia removal order is not administratively final while a timely motion to reopen and BIA appeal are pending, so 8 U.S.C. § 1231(a) does not authorize detention.
- ICE must comply with its own regulations when revoking release: meaningful, individualized notice in a language the person understands and a prompt informal interview.
- Revocation by an Assistant Field Office Director without the required public-interest and referral findings violates 8 C.F.R. § 241.4(l)(2) and due process.
- Under Matthews v. Eldridge, releasees who have complied with all conditions have a strong liberty interest, and the complete absence of procedure creates a high risk of erroneous deprivation.
- The permanent injunction bars re-detention without a pre-detention bond hearing before a neutral immigration judge on seven days' notice, but does not address detention under an executable final removal order.
Why It Matters
This ruling confirms that noncitizens pursuing timely challenges to in absentia removal orders cannot be detained under § 1231(a) while those challenges remain pending, closing a route to detention of asylum-seekers with live BIA appeals. It also reinforces that ICE must follow its own revocation regulations—meaningful notice, language access, an actual interview, and proper delegated authority—and that the Matthews balancing test protects releasees who have complied with all conditions. The permanent injunction requiring a bond hearing before a neutral immigration judge provides a concrete check on arbitrary re-detention.