Unreported / Non-Citable
Background
Petitioner Marcos Francisco Cabrera Perez, a noncitizen who entered the United States as a child, was arrested by deportation officers on May 1, 2026, while attempting to attend state criminal proceedings in Fresno County.
He was charged with Resisting an Executive Officer under California Penal Code § 69 and Possession of a Firearm with a Prior Conviction under § 29805.
Immigration authorities placed him in removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i) and detained him pursuant to 8 U.S.C. § 1226(c)(1)(E), which mandates detention for noncitizens charged with, inter alia, ‘assault of a law enforcement officer.’ Respondents argued that the § 69 charge categorically qualifies as such an assault, requiring mandatory detention without a bond hearing.
Petitioner filed a pro se habeas corpus petition challenging the lawfulness of his mandatory detention.
The Court’s Holding
The Court granted the petition and ordered Respondents to provide Petitioner a bond hearing within 14 days.
Applying the categorical approach as directed by 8 U.S.C. § 1226(c)(2)—which requires reference to the law of the jurisdiction where the act occurred (California)—the Court determined that California Penal Code § 69(a) is divisible.
Using the modified categorical approach, the Court found Petitioner was charged under the second prong of § 69(a), which requires resisting an officer by force or violence.
However, relying on the California Supreme Court’s decision in People v.
Morgan, 19 Cal.5th 132 (2026), the Court held that the second prong of § 69(a) does not require the ‘present ability’ to commit injury, an essential element of assault under California Penal Code § 240.
Because § 69(a) criminalizes conduct broader than generic assault under California law—such as throwing a brick at an officer too far away to be injured—the mandatory detention provision of § 1226(c)(1)(E) does not apply.
Petitioner’s detention is instead governed by § 1226(a), entitling him to an individualized bond hearing.
If no hearing occurs within that period, the order requires immediate release; respondents must file a status report within five days after the hearing or release.
Key Takeaways
- Mandatory detention under 8 U.S.C. § 1226(c)(1)(E) for ‘assault of a law enforcement officer’ requires a categorical match with the state-law definition of assault in the jurisdiction where the offense occurred.
- California Penal Code § 69(a) is divisible; the second prong (resisting by force or violence) was the basis of Petitioner’s charge.
- Under People v. Morgan, the second prong of § 69(a) does not require ‘present ability’ to inflict injury, making it broader than California assault (§ 240).
- Because the state offense is broader than the generic federal offense as defined by state law, § 1226(c) mandatory detention does not apply.
- Petitioner is entitled to a bond hearing under § 1226(a) before a neutral arbiter within 14 days, or immediate release if no hearing is held.
Why It Matters
The ruling gives California practitioners a concrete example of how federal courts separate the statutory source of immigration detention from the process constitutionally required after release and re-detention.
It also shows why the precise remedy and procedural posture matter: a briefing order, recommendation, bond-hearing order, and final release order have different immediate consequences.
Counsel should preserve the governing custody documents, dates, notices, and evidence concerning danger, flight risk, and removal feasibility.