Unreported / Non-Citable
Background
Fulvio Castillo Gomez, a native and citizen of El Salvador, entered the United States in 2006 and was ordered removed in absentia two months later on a notice he alleges was never served. He has lived in Napa, California for twenty years, married, raised children, built a business, and is the sole financial support for his wife, a cancer survivor. On March 2, 2026, ICE arrested him; he filed a habeas petition (No. 26-CV-01790-NW) before Judge Noel Wise, who granted a TRO, ordered his release, and later a preliminary injunction requiring a pre-deprivation hearing before re-detention. After Gomez filed a motion to reopen his removal proceedings on August 5, 2026 (which automatically stays removal), he attended a pre-deprivation hearing on August 10, 2026. The immigration judge found he was not a danger but was a flight risk and ordered him re-detained.
Judge Wise denied Gomez’s motion to enforce the preliminary injunction, ruling the hearing satisfied the injunction. On September 29, 2026, Gomez reported for a check-in and was taken into custody. He filed the instant habeas petition; Judge Beth Labson Freeman, acting as duty judge, granted a TRO ordering his release and issued an Order to Show Cause why a preliminary injunction should not issue. The government opposed, arguing abuse of the writ and that detention is authorized under 8 U.S.C. § 1231(a)(6). Judge Orrick heard oral argument on October 9, 2026.
The Court’s Holding
The court granted the preliminary injunction. It held the petition is not an abuse of the writ because the current petition challenges detention following the pre-deprivation hearing that resulted from the first petition, and the prior court did not address the merits of the current claims. On the merits, the court found serious questions whether detention is authorized under § 1231(a)(6) because removal is not “reasonably foreseeable” while a motion to reopen automatically stays the removal order.
The court rejected the government’s argument that the six-month presumption of reasonable foreseeability begins upon detention, adopting the view that the period runs from the removal order date (here, 2006). The government failed to rebut Gomez’s showing that removal is not significantly likely in the foreseeable future. The court also found irreparable harm (Gomez is sole support for his ailing wife and was denied medication in detention), and that the balance of equities and public interest favor Gomez. The injunction bars re-detention absent a material change in circumstances, bars removal or transfer out of the district, and prohibits new conditions of release such as electronic monitoring or check-ins, with no bond required.
Key Takeaways
- A second habeas petition challenging detention after a pre-deprivation hearing ordered by the first petition is not an abuse of the writ, even if some facts were known earlier, because the claims depend on the additional period of detention following the first court’s resolution.
- The six-month presumption of reasonable foreseeability of removal under Zadvydas v. Davis runs from the date of the final removal order, not from the date of detention; where the removal order was issued in 2006, the presumption does not apply.
- When a noncitizen files a motion to reopen that automatically stays removal, the government bears the burden to show a significant likelihood of removal in the reasonably foreseeable future; mere expectation that the immigration court will adjudicate the motion within 180 days is insufficient.
- Irreparable harm is established where the detainee is the sole financial support for a spouse with a serious medical condition and is denied necessary medication in custody.
- A preliminary injunction may bar not only re-detention and removal but also the imposition of new conditions of release such as electronic monitoring or in-person check-ins.
Why It Matters
This decision reinforces procedural protections for long-term residents facing re-detention under decades-old in absentia orders. By holding that the Zadvydas six-month presumption runs from the removal order date, the court limits the government’s ability to indefinitely detain noncitizens whose removal is stayed by pending motions to reopen.
The ruling clarifies that successive habeas petitions are permissible when they challenge new periods of detention arising from process the first petition compelled. It also affirms that courts may enjoin supervisory conditions like check-ins that serve as precursors to re-detention, preserving jurisdiction and liberty interests during prolonged immigration proceedings.