Unreported / Non-Citable
Background
Omar Pena Alcazar, a federal immigration detainee represented by counsel, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 challenging his prolonged detention. He applied for admission to the United States from Mexico at the San Ysidro port of entry in September 2021 and was issued a Notice to Appear. After a 2022 conviction for false imprisonment, he was re-detained on May 9, 2025, when he reported for a scheduled ICE office visit, and his probation was formally terminated on October 15, 2025. On February 2, 2026, he filed his habeas petition along with a motion for a temporary restraining order; the assigned district judge denied the TRO as untimely, appointed counsel, and ordered that he not be removed from the United States or transferred out of the district.
An immigration judge ordered Petitioner removed on March 30, 2026. Respondents moved to dismiss the petition, arguing that he was an applicant for admission subject to mandatory detention under 8 U.S.C. § 1225(b)(2). The Board of Immigration Appeals rejected his appeal on June 24, 2026, with fifteen days to cure a defect, and he had not perfected the appeal by July 9, 2026. On August 14, 2026, the magistrate judge recommended dismissing the petition as moot, concluding that detention authority had shifted to 8 U.S.C. § 1231. Petitioner objected, and new evidence showed that he had repeatedly refiled his notice of appeal with fee waiver requests that the BIA kept rejecting, each rejection triggering a new fifteen-day cure period that tolled the appeal deadline.
The Court’s Holding
The magistrate judge vacated the August 14, 2026 findings and recommendation in light of the new evidence. Because the BIA's repeated rejections of his fee waiver requests continuously tolled the appeal deadline under 8 C.F.R. § 1003.8(a)(3), the removal order never became administratively final, the removal period under 8 U.S.C. § 1231(a) never commenced, and § 1231 therefore did not govern Petitioner's detention. The court also rejected Respondents' argument that he was subject to mandatory detention under 8 U.S.C. § 1225(b)(2), citing the Ninth Circuit's decision in Rodriguez Vazquez v. Bostock, and concluded that 8 U.S.C. § 1226(a), which authorizes discretionary detention, applied instead.
On the due process claim, the magistrate judge rejected Respondents' reliance on DHS v. Thuraissigiam, noting that the Ninth Circuit in Padilla v. United States Immigration & Customs Enforcement held that Thuraissigiam was an admission case with no application to immigration detention due process challenges. The court found that noncitizens who arrive illegally and are found away from the border well after arrival are protected from arbitrary detention under the Due Process Clause, and it cited numerous prior Eastern District of California decisions holding that re-detention without a pre-deprivation hearing after a prior release violates due process. Because Respondents made no new arguments and identified no distinguishing facts, the magistrate judge recommended granting the petition, denying the motion to dismiss, denying the motion to lift the no-transfer order as moot, and directing Respondents to provide a bond hearing before an immigration judge at which the government must prove by clear and convincing evidence that Petitioner is a flight risk or danger to the community.
Key Takeaways
- The magistrate judge vacated the August 14, 2026 findings and recommendation after new evidence showed the BIA's repeated fee-waiver rejections had continuously tolled the appeal deadline, so the removal order never became administratively final.
- The court recommended finding that Petitioner's detention is governed by 8 U.S.C. § 1226(a), which permits discretionary detention, rather than § 1225(b)(2) or the post-removal authority of § 1231(a).
- Relying on recent Ninth Circuit precedent, the court concluded that noncitizens re-detained after a prior release are protected by the Due Process Clause and entitled to a hearing at which the government bears the burden of justifying continued detention.
- The magistrate judge recommended granting the habeas petition and directing Respondents to provide a bond hearing before an immigration judge, where the government must prove by clear and convincing evidence that Petitioner is a flight risk or danger to the community.
- The court recommended denying Respondents' motion to dismiss and denying their motion to lift the no-transfer order as moot.
Why It Matters
This decision highlights the due process protections available to immigration detainees who are re-detained after having been previously released, particularly when the government seeks to hold them without a hearing. The magistrate judge's reliance on recent Ninth Circuit authority makes clear that such detainees are protected from arbitrary detention and that the government bears the burden of justifying re-detention by clear and convincing evidence at a bond hearing.
The ruling also underscores the practical consequences of administrative barriers to perfecting appeals. By recognizing that repeated fee-waiver rejections and cure periods can indefinitely toll the appeal deadline and prevent a removal order from becoming final, the court kept Petitioner's detention authority under the discretionary statute rather than the mandatory post-removal framework.