Unreported / Non-Citable
Background
Byron Barrera Lopez, a citizen of Guatemala, has a lengthy history of encounters with law enforcement and immigration authorities in the United States. ICE first encountered him in 2009 at Marin County Jail, initiated removal proceedings, and released him on an Intensive Supervision Appearance Program. After an immigration judge granted voluntary departure, he returned to Guatemala in February 2011 but re-entered the U.S. in March 2011. ICE took him into custody again in September 2013 and released him at some point before 2016. Between February 2016 and April 2026, he accumulated four DUI convictions, completed diversion for two disorderly conduct charges, and received a felony conviction for assault with intent to commit rape (Cal. Penal Code § 220(a)(1)). ICE arrested and detained him again on June 20, 2026.
Lopez filed a pro se habeas petition under 28 U.S.C. § 2241 on July 17, 2026. After counsel was appointed, he filed an amended petition clarifying that he does not challenge ICE's authority to arrest and detain him initially—assuming his criminal history renders him subject to mandatory detention—but rather claims that his ongoing, prolonged detention without an individualized determination of danger and flight risk violates his Fifth Amendment due process rights. He also asserted membership in a nationwide class certified in Immigration Center for Women and Children v. Noem, 351 F.R.D. 324 (C.D. Cal. May 20, 2026), which restored an ICE directive to defer enforcement against noncitizens with pending U-visa petitions. The respondent argued that detention is governed by 8 U.S.C. § 1225(b)(2)(A), that Lopez failed to exhaust administrative remedies by not seeking a bond hearing before an immigration judge, and that the ICWC class certification does not bar detention for individuals posing an articulable risk of death, violence, or physical harm.
The Court’s Holding
The magistrate judge first determined that 8 U.S.C. § 1226(a), not § 1225(b)(2) or § 1226(c), governs Lopez's detention. Relying on Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026), the court held that noncitizens present without admission who are apprehended in the interior are subject to § 1226. Because Lopez had been present in the U.S. for years at each detention, § 1226 applies. The court deferred to the respondent's assertion that Lopez's conviction under Cal. Penal Code § 220(a)(1) does not clearly qualify as a crime involving moral turpitude triggering mandatory detention under § 1226(c), leaving § 1226(a) as the operative authority.
The court waived the exhaustion requirement, finding that Lopez's petition poses a constitutional issue separate from the administrative remedy. A § 1226(a) bond hearing places the burden on the detainee to show he is not a danger or flight risk, whereas Lopez seeks a hearing where the government must justify continued detention after a prior release. The Executive Office for Immigration Review offers no such remedy. On the merits, the court found Lopez has a protected liberty interest in his continued freedom arising from his release after September 2013, citing numerous district court decisions. Applying the Mathews v. Eldridge balancing test, the court concluded that due process requires a post-deprivation hearing at which the government bears the burden of proving by clear and convincing evidence that Lopez poses a danger or flight risk, and that the immigration judge must consider his ICWC class membership. The court recommended granting the petition and ordering a bond hearing within seven days with the burden on the government, notice of reasons for revoking prior release, and a status report within three days of the hearing. If the government fails to provide a compliant hearing, Lopez must be immediately released on the same terms as his most recent release.
Key Takeaways
- Noncitizens apprehended in the interior of the United States are governed by 8 U.S.C. § 1226, not § 1225(b)(2), regardless of their admission status.
- Exhaustion of administrative remedies may be waived in habeas cases where the petition raises a constitutional due process claim that the administrative scheme cannot address, such as a challenge to the burden of proof in detention hearings.
- A prior release from ICE custody creates a protected liberty interest under the Due Process Clause, triggering procedural protections upon re-detention.
- Due process requires a post-deprivation bond hearing where the government bears the burden of proving danger or flight risk by clear and convincing evidence when a noncitizen is re-detained after a prior release, especially where intervening criminal convictions exist but do not automatically justify detention.
- Membership in the ICWC "Pending Petition Class" for U-visa applicants is a factor the immigration judge must consider in the bond determination.
Why It Matters
This decision reinforces a growing line of district court rulings in the Ninth Circuit holding that re-detention of noncitizens after a prior release from ICE custody requires a hearing at which the government bears the burden of justification, rather than the standard § 1226(a) bond hearing where the detainee bears the burden. The ruling clarifies that Rodriguez Vazquez v. Bostock extends to bar application of § 1225(b)(2) to interior apprehensions, and it recognizes the practical significance of the ICWC class certification by requiring immigration judges to consider pending U-visa petitions as a factor weighing against detention. The recommended remedy—a seven-day deadline for a government-burden hearing with automatic release for noncompliance—provides a concrete procedural safeguard for detainees challenging prolonged detention.