Unreported / Non-Citable
Background
Marcos Jose Barboza Valenilla, a Venezuelan citizen, was first ordered removed on March 5, 2002, apparently after an October 2000 federal conviction for a false statement in acquiring a firearm. In August 2019 he and his family applied for admission at the border near Eagle Pass, Texas. On October 21, 2020, an immigration judge granted him deferral of removal under the Convention Against Torture, denied other relief, and did not order him removed because of the existing order. He appealed to the Board of Immigration Appeals, and on October 27, 2020, DHS released him on an Order of Supervision.
DHS revoked the supervision on November 24, 2025, and he has remained in ICE custody at the California City Immigration Processing Center. The BIA dismissed his appeal on May 16, 2026. He filed a 28 U.S.C. § 2241 petition on July 8, 2026, alleging that indefinite detention under 8 U.S.C. § 1231(a)(6) violates due process under Zadvydas v. Davis and, as Count Two, that revoking his supervision after years of successful compliance was arbitrary. A parallel Florida habeas case briefly stayed this one until he dismissed it voluntarily. The government opposed, saying DHS is pursuing removal to Mexico under 8 U.S.C. § 1231(b) and that he could be removed if he cooperated. The record contains at least eight notices of removal to Mexico, the earliest dated May 26, 2026.
The Court’s Holding
The magistrate judge found that the Zadvydas burden-shifting framework does not apply because Petitioner was released in 2020 and later re-detained. Following other district court decisions, the findings place the burden on the government under 8 C.F.R. § 241.13(i)(2), which permits revoking release only if, on account of changed circumstances, DHS determines removal is significantly likely in the reasonably foreseeable future. The findings also reject Petitioner's view that his § 1231(a)(6) detention began only after the BIA ruling, because the 2002 order was long final and he was under supervision well before then.
On the facts, the revocation notice's explanation field was blank, and the judge found no other record evidence of changed circumstances in November 2025. The CAT grant foreclosed any argument that removal to Venezuela was then reasonably foreseeable. Efforts to remove Petitioner to Mexico began months after re-detention and cannot retroactively justify the revocation. A notice of removal to Mexico, without evidence that Mexico agreed to accept him, does not meet the government's burden, and his refusal to cooperate in removal to a third country does not justify indefinite detention. For judicial economy, the judge did not address the petition's remaining claim.
The recommended disposition is to grant the petition on Count Two, order Petitioner's immediate release under conditions of supervision dictated by applicable statutes and regulations, direct service of any final release order on the facility, enjoin re-detention unless the government complies with 8 C.F.R. § 241.13(i) and other applicable rules, and enter judgment and close the case. These are only recommendations to District Judge Dale A. Drozd; objections are due within three days, and no release is ordered unless the district judge adopts them.
Key Takeaways
- Once a noncitizen released on supervision is re-detained, this recommendation places the burden on the government to show changed circumstances making removal significantly likely, rather than applying Zadvydas burden-shifting.
- A blank explanation on a revocation notice, with no other record evidence of changed circumstances, cannot support revoking release under 8 C.F.R. § 241.13(i)(2).
- Third-country removal efforts that begin months after re-detention cannot retroactively validate an earlier revocation.
- A notice of removal to a third country, without evidence that country will accept the person, does not show a significant likelihood of removal.
- Refusing to cooperate in removal to a country the person has no obligation to go to does not justify indefinite detention.
Why It Matters
This is a magistrate judge's unpublished recommendation, not a final judgment, and it carries no precedential weight. It takes effect only if the district judge adopts it, and the three-day objection window is short.
It is nonetheless a useful example of how Eastern District of California judges are treating re-detention after long-term supervision. It leaves open the Zadvydas indefinite-detention claim. It also does not decide whether DHS could lawfully re-detain Petitioner later; it recommends enjoining re-detention unless DHS follows § 241.13(i) and the other applicable rules.