Unreported / Non-Citable
Background
Immigration authorities released Leisby Alberto Carpio-Guerra into the United States on his own recognizance in December 2023, after he entered without permission and was arrested, with a date to appear in immigration court. His asylum application remains pending, and he holds employment authorization valid through August 2030. According to the petition, which the court credited where it differed from an ICE record, he went in June 2026 to help a friend whose vehicle had been stopped by local police. He was not the driver. Officers asked for his immigration documents, which he provided, and then called ICE, which detained him under 8 U.S.C. § 1225(b)(2)(A). He has no criminal history and has had no bond hearing.
He filed a habeas petition under 28 U.S.C. § 2241 in the Eastern District of California, arguing that re-detention without a pre-deprivation hearing violates due process, and separately moved to bar transfer to another facility. The respondent warden defended the detention under the mandatory-detention provision but acknowledged that Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026), rejects that reading and that his detention falls under it. Respondent also said he could seek a custody redetermination from an immigration judge, but gave no assurance that a judge would have authority to hold one, given the Board of Immigration Appeals' decision in Matter of Yajure Hurtado that judges lack jurisdiction over bond requests under § 1225(b)(2)(A). Respondent did not argue that he is dangerous or a flight risk.
The Court’s Holding
Magistrate Judge Jeremy D. Peterson found that section 1226(a), not section 1225, governs detention of a person who was released and later arrested in the interior. He noted that the Ninth Circuit mandate in Rodriguez Vazquez had not yet issued, so he took advisory notice of it, and that five other circuits have reached the same result. He then recognized a protected liberty interest arising from two and a half years of release and applied the Mathews v. Eldridge factors. The private interest was significant. The risk of erroneous deprivation was high because the government had earlier released him, no neutral decisionmaker had assessed flight risk or danger since, and respondent pointed to no safeguards. The government's interest was low because bond hearings are routine and respondent identified no real burden.
On remedy, the judge reasoned that habeas typically yields release and that due process usually requires a hearing before a person is deprived of liberty. Because a pre-deprivation hearing was owed, a later bond hearing would not cure the violation, and release restoring the status quo ante was appropriate. He therefore recommended that the petition be granted and that respondent release petitioner on the same conditions as his prior release, without added restrictions unless a future pre-deprivation hearing finds them necessary. Any re-detention would require at least seven days' notice and a hearing before a neutral arbiter at which the government must prove flight risk or danger by clear and convincing evidence. The recommendation does not address detention if petitioner becomes subject to an executable final removal order. The only operative order denied the transfer motion as moot.
Key Takeaways
- This is a magistrate judge's findings and recommendations, not a final judgment; the district judge must still decide whether to adopt it, and objections were due within three days.
- A noncitizen released from immigration custody and living at liberty for years may have a protected liberty interest in continued release that bars re-detention without process.
- Where the government wrongly relies on section 1225(b)(2)(A), the court treated a belated bond hearing as insufficient and recommended release rather than a hearing.
- The recommended relief is limited to this petitioner and expressly leaves open detention after an executable final removal order.
Why It Matters
The recommendation applies Ninth Circuit authority on section 1226(a) and builds on a line of Eastern District decisions ordering release when the government wrongly invokes mandatory detention. Its notable feature is the remedy: release plus heightened requirements for any re-detention, including notice and a clear and convincing burden on the government. These terms go beyond a bare bond hearing and may be cited by similarly situated petitioners.
Its weight is limited. It is a recommendation by a magistrate judge, is not precedent, and has no effect unless adopted by the district judge. It also relies on a Ninth Circuit decision whose mandate had not issued, and it does not resolve what happens once a final removal order becomes executable.