Unreported / Non-Citable
Background
Ricardo Brochero-Carreno, a Venezuelan citizen, entered the United States without admission on September 27, 2023. An immigration judge ordered his removal on October 5, 2026, but the court noted the order is not administratively final; he has until November 4, 2026, to appeal to the Board of Immigration Appeals. He was arrested for driving under the influence in Fort Myers, Florida, in June 2026, and transferred to ICE custody on June 15, 2026, where, per the government's own record, he remained without an individualized bond hearing. He has been held at the California City ICE Processing Center since July 3, 2026.
Proceeding pro se, he filed a 28 U.S.C. § 2241 petition on July 27, 2026, alleging that detention without notice or a pre-deprivation hearing violates Fifth Amendment due process and that facility conditions resemble penal confinement. These are allegations; the court made no findings on conditions. He seeks release or a bond hearing at which the government must prove flight risk or danger by clear and convincing evidence. Respondent maintained detention was under 8 U.S.C. § 1225(b)(2)(A) but acknowledged that Rodriguez Vazquez v. Bostock holds § 1226(a) governs, and argued the case differs from the court's earlier orders because petitioner was detained from jail after a new criminal arrest.
The Court’s Holding
This is a magistrate judge's recommendation, not a final order. Relying on Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026), the court found that noncitizens present without admission who are apprehended in the interior are subject to § 1226(a), not § 1225(b)(2)(A), a point respondent appeared to concede. Section 1226(a) provides an initial bond hearing before a neutral decisionmaker, counsel, appeal rights, and renewed hearings on changed circumstances, and respondent had not shown compliance with those protections.
The court found the DUI arrest inconsequential. Respondent did not argue flight risk or danger, no neutral arbiter had made such a finding, and respondent identified no urgent concerns preventing a pre-deprivation hearing, which, citing Guillermo M.R. v. Kaiser, due process then requires. A footnote said the facts do not suggest § 1226(c) applies. The court did not reach petitioner's remaining arguments because they seek the same relief.
The recommended relief is immediate release with return of documents and possessions, and no added restrictions unless a future hearing finds them necessary. Respondents would be enjoined from re-detaining him without seven days' written notice and a pre-deprivation bond hearing where they bear a clear-and-convincing burden. The order would not address detention after an executable final removal order. Respondents would certify compliance within three days of an adopting order; the clerk would enter judgment and close the case. Objections were due within three days, and the materials do not show whether the district judge has acted.
Key Takeaways
- Under Rodriguez Vazquez v. Bostock, noncitizens present without admission who are arrested in the interior fall under § 1226(a), a rule respondent acknowledged despite maintaining its § 1225(b)(2)(A) position.
- A recent DUI arrest, without a neutral finding of danger or flight risk or a showing of urgent concerns, did not distinguish this case from the court's earlier release orders.
- The court recommended release rather than a bond hearing because respondent offered no alternative basis or extenuating circumstances justifying continued detention pending one.
- Any re-detention would require seven days' written notice and a hearing at which the government bears a clear-and-convincing burden, while detention after an executable final removal order is left open.
- Because these are findings and recommendations, they have no binding effect unless the district judge adopts them, and this unreported ruling is not precedent.
Why It Matters
The recommendation illustrates how the Eastern District of California applies Rodriguez Vazquez v. Bostock to interior arrests: a prior criminal arrest, standing alone, did not take a case outside the court's earlier line of release orders, particularly after respondent was warned that failing to distinguish them would be treated as a concession. The reasoning relies heavily on incorporating other district decisions, so its persuasive force depends on those decisions.
Its limits matter. It is a recommendation on a pro se petition, issued with a shortened objection period, and these materials do not show adoption. It does not decide the removal case, which was not administratively final when decided, does not resolve the facility-conditions allegations, and does not hold that § 1226(c) can never apply to people with criminal arrests; it observed only that these facts do not suggest it.