Unreported / Non-Citable
Background
Lazaro Tomas Victores, a Cuban citizen admitted to the United States in 2001 and a lawful permanent resident since 2005, is held at the California City Detention Facility. Representing himself, he filed a habeas petition under 28 U.S.C. § 2241 on August 24, 2026. He argued that detention without a bond hearing violates Fifth Amendment due process and asked for immediate release. ICE took him into custody on April 1, 2026, after his release from criminal custody, and served a Notice to Appear charging removability based on a 2025 controlled substance conviction for fentanyl trafficking.
Respondent Christopher Chestnut opposed the petition. He contended that Victores is subject to mandatory detention under 8 U.S.C. § 1226(c)(1)(B) because of that conviction, and that the petition should be dismissed because Victores never sought a hearing under Matter of Joseph. After the petition was filed, an immigration judge ordered removal. According to Respondent, a Board of Immigration Appeals appeal was rejected. On September 1, 2026, Victores's immigration counsel filed a motion to reopen, which remains pending. In reply, Victores contended that Cuba is not repatriating its citizens.
The Court’s Holding
These are findings and recommendations, not a final order. The court first agreed with Respondent on the statute. After taking judicial notice of state court records, it concluded that Victores is properly detained under § 1226(c) because fentanyl is a Schedule II controlled substance and his conviction is an offense covered by § 1227(a)(2)(B)(i). It recommended denying the exhaustion-based request for dismissal. Victores challenges the prolonged duration of his detention rather than its statutory authority, so a Joseph hearing would be futile.
Liberally construing the petition as an as-applied procedural due process challenge, the court reasoned that Demore v. Kim upheld § 1226(c) on its face and does not bar such claims. It cited Nielsen v. Preap, Ninth Circuit expressions of doubt about arbitrary prolonged detention, and the Second Circuit's decision in Black v. Decker. Applying the Mathews v. Eldridge test, it found a substantial private interest because the detention was prolonged, given the time in custody without a bond hearing and the likelihood of further proceedings, including the pending motion to reopen and the question whether removal to Cuba is foreseeable. It found a high risk of erroneous deprivation, since no neutral decisionmaker has held a hearing, and a minimal government interest, since a bond hearing tests flight risk and danger at low administrative cost.
The court recommended granting the petition on claim one only and did not reach the remaining claims. It recommended a bond hearing before an immigration judge within fourteen days of any order resolving the petition, with the government bearing the burden of proving flight risk or danger by clear and convincing evidence. It also recommended seven days' written notice, a compliance notice within seven days after the hearing, and return of belongings if bond is granted. Release was not recommended. The final order would not address detention if Victores becomes subject to an executable final removal order.
Key Takeaways
- The court treated the fentanyl trafficking conviction as triggering mandatory detention under § 1226(c), so the dispute concerned constitutional limits on duration, not whether the statute applies.
- A detainee who challenges the prolonged length of detention, rather than its statutory basis, was not required to seek a Joseph hearing first, because the court viewed that step as futile.
- The recommendation announces no fixed time cutoff. It applies the Mathews factors and weighs both detention so far and the likely length of continued proceedings.
- The recommended remedy is a bond hearing at which the government carries a clear and convincing burden, not release, and the petition's other claims were left undecided.
- This is a non-final, unreported recommendation. The assigned district judge must decide whether to adopt it, and it carries no binding precedential weight.
Why It Matters
The recommendation adds to Eastern District of California decisions that permit as-applied due process challenges to prolonged mandatory detention under § 1226(c). It leans on persuasive Second Circuit authority in Black v. Decker. The Supreme Court granted review in that litigation, but the case was dismissed by agreement of the parties, so no Supreme Court merits ruling resulted. The opinion also notes that the Ninth Circuit has not decided whether due process requires a bond hearing in these circumstances.
Its practical weight is limited. It awaits adoption by a district judge and is not a published decision. Its reasoning also rests on facts that may change, such as the pending motion to reopen and the contested claim that Cuba is not accepting removals. Outcomes in other cases will depend on their own detention length and procedural posture.