Unreported / Non-Citable
Background
Henry Pena Nunez entered the United States near El Paso, Texas, around September 21, 2023, was detained, received a Notice to Appear, and was charged as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) for presence without admission or parole. He was released on conditional parole on October 16, 2023. According to his petition, he then lived at liberty for about two and a half years in Calexico, pursued an asylum claim, obtained employment authorization and a social security card, and complied with immigration laws.
On March 22, 2026, the Imperial County Sheriff's Office arrested him for misdemeanor battery, felony vandalism, and felony child abuse under California Penal Code § 273a(a). Respondents sought a detainer under the Laken Riley Act, and he was transferred to DHS custody on March 25, 2026. After a July 15, 2026 hearing, an immigration judge denied asylum relief and found him inadmissible under § 1182(a)(6)(A)(i); his appeal is pending. Nunez then petitioned for habeas corpus under 28 U.S.C. § 2241 on October 9, 2026. Respondents argued that 8 U.S.C. § 1226(c)(1)(E) required his detention. He argued that neither of its two prongs was met and that re-detaining him without notice or a hearing violated due process.
The Court’s Holding
Section 1226(c)(1)(E) mandates detention only if a noncitizen is both inadmissible under a listed ground and charged with, arrested for, or convicted of (or admits) a qualifying offense, including any crime that results in death or serious bodily injury. On the first prong, the court acknowledged that the law is unsettled on whether humanitarian parole under § 1182(d)(5)(A) forecloses an inadmissibility finding based on presence without parole, although the statute says such parole is not an admission. It declined to decide the question and assumed the first prong was met.
The court held that the second prong was not met. It did not decide whether an assertion of pending charges, backed only by a Form I-213 stating that Nunez was arrested, shows a qualifying action, though it noted that many district courts, including in its own district, treat arrest without charge as insufficient. Instead, following other district court decisions, it read the statute to reach crimes that necessarily result in death or serious bodily injury. Section 273a(a) requires only circumstances likely to produce great bodily harm or death, and nothing in the record showed such harm occurred. Respondents therefore failed to establish a qualifying crime, and Nunez was not subject to mandatory detention under that provision.
The court granted the petition on due process grounds. It held that parole under § 1182(d)(5)(A) created a liberty interest that did not expire with the parole, rejected Respondents' argument that expiration extinguished the claim, and found the interest especially weighty given the life Nunez built in the community. Because Nunez alleged he was re-detained without notice or an opportunity to be heard, the court found that Respondents violated his due process rights in March 2026. It ordered immediate release subject to any conditions of his preexisting parole, required a joint status report by November 6, 2026 confirming release, and directed the clerk to close the case.
Key Takeaways
- A state offense that requires only circumstances likely to produce great bodily harm, such as § 273a(a), was held not to be a crime that results in death or serious bodily injury under § 1226(c)(1)(E).
- The court left open whether humanitarian parole defeats the inadmissibility prong, so that question remains unresolved in this order.
- The court also did not decide whether an arrest supported only by an I-213 and an assertion of pending charges is a qualifying action.
- Under this ruling, a liberty interest created by parole survives the parole's expiration, and re-detention requires meaningful notice and an opportunity to be heard.
- The relief was release subject to prior parole conditions; the order did not resolve the asylum appeal or the underlying criminal charges.
Why It Matters
This is a single unreported district court order, not binding precedent, and it relies heavily on other district court decisions. Its practical value lies in showing how courts in the Southern District of California are reading the Laken Riley Act's mandatory-detention provision narrowly when the state offense does not require death or serious bodily injury, and in applying due process protections to people previously released on parole.
Its reach is limited. The court expressly avoided the parole-and-inadmissibility question and the sufficiency of evidence of charges. The due process finding rested on Nunez's allegation of no notice or hearing, which the order does not describe Respondents as disputing. Removal proceedings, the pending asylum appeal, and the criminal charges remain outside what the order decided.