Unreported / Non-Citable
Background
Petitioner, a Cuban national admitted as a lawful permanent resident in 1993, is held by Immigration and Customs Enforcement and filed a habeas petition under 28 U.S.C. section 2241. According to respondents' evidence, he was convicted in 2009 of dealing in stolen property, grand theft, and credit card forgery or counterfeit card possession. He was ordered removed on September 14, 2009, did not appeal, received deferred action in 2010, and was released in 2012 on an Order of Supervision that barred new crimes. Respondents also showed convictions in 2019, 2022, and 2024, including battery on a law enforcement officer, organized fraud, and grand theft.
The petition alleged instead that he was ordered removed on March 24, 2009, and released that April. The record showed March 24 was the date of a Notice to Appear. In June 2026, DHS issued a Notice of Revocation of Release citing a felony conviction and stating ICE was seeking a travel document to remove him to Mexico. He was re-detained on June 6, 2026. He raised a Zadvydas v. Davis claim, a challenge to the revocation, and two challenges to ICE's third-country removal procedures, and sought release. Respondents argued detention is proper under a final removal order and that he poses a danger. The parties consented to the magistrate judge deciding the case.
The Court’s Holding
The court denied appointment of counsel, finding the interests of justice did not require it at this time. It rejected the revocation challenge: the notice identified a felony conviction as the violated condition and gave the date of an informal interview, as 8 C.F.R. section 241.13(i)(3) requires. Section 241.13(i)(1) allows a person who violates release conditions to be returned to custody for an additional six months, notwithstanding prior incarceration. Citing district court decisions, the court held that due process did not require a pre-deprivation hearing given the alleged violation.
On the Zadvydas claim, the petition's assertion of detention beyond six months after a final order was contradicted by the record. The order issued in September 2009 and the current detention began June 6, 2026, so he remains within the presumptively reasonable period, during which a petitioner carries a heavier burden to show removal is not reasonably foreseeable. His general assertions that Mexico could not remove him did not overcome the presumption. The court also declined to enjoin all third-country removal, calling that claim speculative because he identified no destination where he might face persecution or torture.
The court nonetheless granted the petition in part. Respondents did not address the due process claim or whether Mexico is a country designated by the immigration judge. The court therefore enjoined third-country removal unless DHS first gives written notice in a language petitioner understands at least 21 days before removal and allows at least 10 days to raise a Convention Against Torture fear claim to an immigration judge. If reasonable fear is shown, respondents must move to reopen. If not, he must have at least 15 days to seek reopening. All other relief was denied without prejudice and the case was closed.
Key Takeaways
- Re-detention after a violation of supervision conditions can be authorized under 8 C.F.R. section 241.13(i)(1) for an additional six months, notwithstanding earlier periods of incarceration.
- A new felony conviction can justify revoking release without a pre-deprivation hearing, provided the person receives written notice of the reasons and an informal interview date.
- Within the first six months of post-order detention, general allegations that removal is unlikely do not rebut the Zadvydas presumption of reasonableness.
- A request to bar all third-country removal fails when the petitioner identifies no specific country where he faces persecution or torture.
- Where the government does not show the designated country of removal, the court may require notice, a fear-claim opportunity, and reopening procedures before any third-country removal.
Why It Matters
This order shows how an Eastern District of California court separates two questions that immigration habeas petitions often combine. The challenge to ongoing detention failed on this record because the re-detention was tied to a documented release violation and the six-month Zadvydas period had not yet run. The denial is without prejudice, so a renewed claim based on specific evidence about removal prospects is not foreclosed.
The partial grant follows other decisions in the district requiring notice and a meaningful chance to seek protection before removal to a country the immigration judge did not designate. It is an unpublished district court order, so it is not binding precedent. Its practical effect is limited to this petitioner, and it leaves open whether Mexico is a designated country and whether any third-country removal will occur.