Unreported / Non-Citable
Background
Fulvio Castillo Gomez, a native and citizen of El Salvador, entered the United States in 2006 and was ordered removed in absentia two months later on a notice he alleges was never communicated to him; the parties agree the removal order was never served.
He has lived in Napa, California for twenty years, married, raised children, built a business, and is the sole financial support for his wife, who was treated for cancer.
On March 2, 2026, ICE officers arrested him; he filed a habeas petition (No. 26-CV-01790-NW), and Judge Noel Wise granted a TRO, ordered his release, and enjoined re-detention without notice and a pre-deprivation hearing.
After the government disclosed the 2006 in absentia order, Judge Wise granted a preliminary injunction holding Gomez entitled to a pre-deprivation hearing.
On August 5, 2026, Gomez filed a motion to rescind the in absentia order and reopen proceedings in Harlingen Immigration Court, which remains pending and stays his removal.
On August 10, 2026, an immigration judge found Gomez not a danger but a flight risk and concluded he could be re-detained; Gomez appealed to the BIA on September 8, 2026.
Gomez moved to enforce the preliminary injunction, arguing the hearing did not comply; Judge Wise denied the motion on September 30, 2026.
On September 29, 2026, Gomez reported for his check-in and was taken into custody; he filed the instant habeas petition and motion for TRO.
Judge Beth Labson Freeman, acting as general duty judge, granted the TRO and ordered his immediate release, also issuing an Order to Show Cause why a preliminary injunction should not issue.
The government responded on October 5, 2026; Gomez replied on October 6; oral argument was held October 9, 2026.
The Court’s Holding
The court granted the preliminary injunction.
It held the instant petition is not an abuse of the writ because the current claims challenge detention following the August 10 hearing that resulted from the first petition, and the prior court did not address these claims on the merits.
On the merits, the court found serious questions whether detention is authorized under 8 U.S.C. § 1231(a)(6) because removal is not “reasonably foreseeable” while Gomez’s motion to reopen is pending and automatically stays the removal order.
The court rejected the government’s argument that the six-month presumption of reasonable foreseeability begins upon detention, finding persuasive authority that the period runs from the removal order date (2006).
The government failed to demonstrate a significant likelihood of removal in the reasonably foreseeable future.
The court also found irreparable harm (Gomez is sole support for his wife with cancer, requires daily blood pressure medication, and was denied medication during recent detention), and that the balance of equities and public interest favor Gomez.
The injunction enjoins re-detention absent a material change in circumstances, removal from the United States, transfer out of the Northern District of California, and imposition of new conditions of release; no security bond is required.
Key Takeaways
- A second habeas petition challenging detention after a pre-deprivation hearing ordered by the first petition is not an abuse of the writ where the first court did not adjudicate the merits of the continued detention claim.
- The six-month presumption of reasonable foreseeability of removal under Zadvydas v. Davis runs from the date of the removal order, not from the date of detention; here, the 2006 removal order makes the presumption inapplicable.
- When a noncitizen’s motion to reopen is pending and automatically stays the removal order, removal is not “reasonably foreseeable” under § 1231(a)(6) absent government evidence rebutting that showing.
- Irreparable harm is established where the detainee is the sole financial support for a spouse with cancer, requires daily medication, and was denied medication during detention.
- The public interest favors upholding procedural protections against unlawful detention, and the government cannot claim harm from being enjoined from constitutional violations.
Why It Matters
This decision reinforces limits on post-removal-period detention under Zadvydas, clarifying that the six-month presumption of reasonable foreseeability is tethered to the removal order date, not detention date, and that a pending motion to reopen that stays removal undermines the government’s ability to show removal is reasonably foreseeable.
It also affirms that successive habeas petitions are permissible when they challenge new detention decisions arising from process the first petition secured.
The ruling protects long-term residents with deep community ties from indefinite detention while collateral challenges to decades-old in absentia orders are pending.