Unreported / Non-Citable
Background
Petitioner Adriano Gayer Xavier, a Brazilian citizen admitted on F-1 student status in April 2019, was arrested in Utah for forgery in July 2026 and convicted of unlawfully possessing identification of another. On July 29, 2026, he was served a Notice to Appear charging removability under INA § 237(a)(1)(C)(i) for failing to maintain nonimmigrant status and has been in ICE custody since. He filed a pro se § 2241 petition challenging the statutory and constitutional authority for his confinement and seeking immediate release. Respondent moved to dismiss, asserting lawful detention under 8 U.S.C. § 1226(a) pending removal proceedings.
The district court entered a temporary restraining order on September 2, 2026, requiring respondent to provide a bond hearing before an immigration judge with seven days' notice and opportunity for counsel. A bond hearing was held on September 14, 2026; the immigration judge denied bond, finding petitioner a danger and flight risk based on the recency, extent, and seriousness of his criminal record. Respondent filed a notice of compliance with the hearing record. The magistrate judge now issues findings and recommendations under 28 U.S.C. § 636(b)(1), which are not yet a final order but are submitted to the assigned district judge for adoption, rejection, or modification.
The Court’s Holding
The magistrate judge recommends denying the habeas petition except as to the bond hearing already provided. The applicable detention authority is 8 U.S.C. § 1226(a), which affords discretionary detention with extensive procedural protections including a bond hearing before a neutral decisionmaker. Petitioner received that hearing, and the court may not second-guess the immigration judge's weighing of the evidence. The record contains a Form I-200 arrest warrant and Form I-286 custody determination, confirming lawful detention under § 1226(a). Petitioner fails to show a due process liberty interest in release or that his custody violates the Constitution or federal law.
The magistrate judge also recommends denying respondent's motion to dismiss as moot and directing the clerk to close the case. The findings and recommendations are submitted to the assigned district judge under 28 U.S.C. § 636(b)(1), with 14 days for objections. Any party may file written objections, and failure to object within the specified time may waive the right to appeal the district court's order.
Key Takeaways
- A noncitizen detained under 8 U.S.C. § 1226(a) pending removal proceedings is entitled to a bond hearing with procedural protections, but not to automatic release.
- Once a bond hearing is held and bond is denied based on danger and flight risk, a federal court will not reweigh the immigration judge's discretionary determination.
- The existence of a valid arrest warrant (Form I-200) and custody determination (Form I-286) supports the lawfulness of detention under § 1226(a).
- A habeas petitioner who has received a bond hearing cannot obtain immediate release absent a showing that the detention itself violates the Constitution or federal law.
- Magistrate judge findings and recommendations under § 636(b)(1) are subject to a 14-day objection period before district court adoption, and failure to object may waive appellate rights.
Why It Matters
This decision illustrates the limited scope of habeas review for immigration detainees under § 1226(a): once the government provides a constitutionally adequate bond hearing, the remedy for any procedural deficiency is the hearing itself, not release. The ruling reinforces that courts defer to immigration judges' bond determinations and that the presence of proper charging documents and custody paperwork defeats claims of unlawful detention.
The recommendation also clarifies the procedural posture of magistrate judge findings and recommendations in habeas cases: they are not self-executing orders but require district court adoption after an objection period. This preserves the distinction between the magistrate judge's advisory role and the district judge's ultimate authority over the case.