Unreported / Non-Citable
Background
Jose De La Cruz Marquez, a citizen of Mexico who entered the United States without inspection on or about September 17, 2002, was detained by ICE agents on or about October 5, 2026. The government did not issue a notice to appear or provide him with an initial custody determination until on or about October 21, 2026 — sixteen days after his arrest. On October 28, 2026, Marquez filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the Eastern District of California, challenging his detention by ICE. That same day, he also filed a motion for a temporary restraining order and a motion to appoint counsel.
On October 29, 2026, the court set a briefing schedule and directed the respondent to address whether any provision of law or fact distinguished the case from several prior cases the court had decided. The court also directed the respondent to state any opposition to the court's stated intention to rule on the underlying petition based on the current briefing. On November 2, 2026, the respondent filed an opposition to the motion for temporary restraining order in which it conceded that Marquez is detained pursuant to 8 U.S.C. § 1226(a) and is therefore entitled to a bond hearing. The respondent also stated that it did not oppose the court ruling on the merits of the petition based on the briefing presently before it.
The Court’s Holding
The court granted the habeas petition, concluding that Marquez's detention was unlawful. The court relied on its prior decision in Zurita Navarro v. Warden, which held that the government must provide noncitizens subject to § 1226(a) with an initial custody determination and issue a notice to appear prior to or contemporaneously with their detention, and that failure to comply with either requirement provides a sufficient basis mandating release. Here, ICE arrested Marquez pursuant to a warrant on October 5, 2026, but failed to issue a notice to appear or provide an initial custody determination until October 21, 2026. The court also cited Giancarlo A.M. v. Cal. City Warden, which concluded that a petitioner's detention was unlawful where the government failed to issue a notice to appear until approximately one month after arresting him.
The court ordered the respondent to immediately release Marquez from custody. The court further enjoined and restrained the respondent from re-detaining Marquez for any purpose, absent exigent circumstances, without providing him notice and a pre-detention hearing before an immigration judge at which the burden will be set in accordance with 8 U.S.C. § 1226(a) and its implementing regulations. The court denied as moot Marquez's motions for a temporary restraining order and for appointment of counsel, directed the Clerk to serve a copy of the order on the Golden State Annex Detention Facility, and directed the Clerk to enter judgment in favor of the petitioner and close the case.
Key Takeaways
- The government must provide noncitizens detained under 8 U.S.C. § 1226(a) with an initial custody determination and issue a notice to appear prior to or contemporaneously with their detention.
- Failure to comply with either the notice-to-appear or initial-custody-determination requirement provides a sufficient basis mandating the detainee's release.
- A sixteen-day gap between arrest and the issuance of a notice to appear and initial custody determination rendered the detention unlawful.
- The court not only ordered immediate release but also enjoined re-detention absent exigent circumstances without notice and a pre-detention hearing before an immigration judge.
- The respondent's concession that the petitioner was detained under § 1226(a) and entitled to a bond hearing streamlined the court's path to ruling on the merits.
Why It Matters
This order reinforces a growing body of case law in the Eastern District of California holding that ICE's failure to timely issue a notice to appear or provide an initial custody determination renders detention under § 1226(a) unlawful and warrants immediate release. The decision extends the reasoning of Zurita Navarro and Giancarlo A.M., signaling that the court will continue to scrutinize the timing of these procedural requirements and grant habeas relief when the government fails to comply.
The injunction against re-detention without notice and a pre-detention hearing is a significant protective measure that goes beyond simply ordering release, placing affirmative constraints on the government's ability to re-detain the petitioner without satisfying procedural safeguards. For practitioners and detainees in the Eastern District of California, this order underscores the availability of habeas relief as a meaningful check on ICE detention practices.