Unreported / Non-Citable
Background
Sara Abigail Cubias Cornejo, a citizen of El Salvador, applied for admission at the El Paso, Texas port of entry on December 24, 2020, without valid entry documents. After an asylum officer found a credible fear of persecution, she was placed in removal proceedings and released on bond in 2021. She then remained at liberty for more than five years, appearing for ICE check-ins and immigration-court hearings, with no known criminal history. On August 6, 2026, an Immigration Judge denied asylum, withholding of removal, and Convention Against Torture protection and ordered her removed.
The Board of Immigration Appeals received her notice of appeal on August 31, 2026, but rejected it on September 3 for a defective fee-waiver request, allowing fifteen days to cure. The petition alleges the rejection was mailed to an address omitting her apartment number, and a BIA clerk later acknowledged in writing that it was erroneously mailed. Counsel learned of the rejection on September 29, when she was already in ICE custody, and re-filed that day. BIA records show the appeal pending, and on October 1 ICE confirmed in writing that it qualifies for an automatic stay of removal. The petition does not say when or where she was re-arrested. She is held at Adelanto, alleges she received no Form I-286 or written custody determination, and sought a bond redetermination on October 6, with no hearing set. Respondents did not respond to her counseled 28 U.S.C. § 2241 petition.
The Court’s Holding
Respondents' failure to appear did not itself entitle Petitioner to relief, so the magistrate judge treated the petition's well-pleaded allegations as uncontested and reached the merits. Because the removal order was on appeal and ICE confirmed a pending appeal with an automatic stay, the court found that on this record no administratively final removal order had issued, so detention is governed by 8 U.S.C. §§ 1225 and 1226, not § 1231. The record did not disclose the provision Respondents invoke or the instrument of the 2021 release, but the court said its analysis turned on neither.
Relying on Morrissey v. Brewer, the court reasoned that a noncitizen released from immigration custody who complies with release conditions acquires a protected interest in continued release, as Petitioner did over five years. Under the Mathews v. Eldridge factors, applied in Rodriguez Diaz v. Garland, each favored her: her liberty interest was substantial; the risk of erroneous deprivation was high because, on the uncontested record, she received no notice, written custody determination, or hearing; and Respondents asserted no governmental interest. The one apparent reason for arrest, a seeming lapse of her appeal deadline after the misaddressed notice, no longer held, and no danger, flight risk, or release violation was identified. Continued detention violated procedural due process.
The court granted the petition in part and ordered release forthwith on the conditions of release in effect immediately before her 2026 re-detention, with a status report due within five days. Because release gave complete relief, it did not reach her alternative request for a custody hearing or her requests about removal and transfer; other relief was denied. It expressed no view on any future re-detention on a different record, and the BIA appeal remains pending.
Key Takeaways
- On an uncontested record, more than five years of compliant release after immigration custody gave the petitioner a protected liberty interest in remaining free.
- Re-detention without notice, a written custody determination, or any hearing failed the Mathews balancing where the government asserted no interest.
- A pending BIA appeal with an automatic stay meant, on this record, that no administratively final removal order existed, so §§ 1225 and 1226 rather than § 1231 governed.
- The government's non-appearance does not by itself entitle a petitioner to habeas relief, but the court may treat well-pleaded allegations as uncontested.
- The remedy was restoration of the prior release conditions, not a custody hearing, which the court did not reach.
Why It Matters
This is an unreported magistrate judge order on an unopposed petition. It binds only the parties and carries no precedential weight, though it shows how one court applies Mathews to the re-detention of a long-compliant released noncitizen.
It rests on an uncontested record, so a contested case could come out differently. The court did not decide the specific statutory basis for the detention or the legal effect of the release instrument, and it did not address the merits of the pending BIA appeal.