Unreported / Non-Citable
Background
Elias Abelino Carreto-Mendez, a citizen of Guatemala held in ICE custody, filed a second amended habeas petition challenging his detention. He alleged that he was unlawfully detained under 8 U.S.C. § 1231(a) and was entitled to the procedures provided by 8 U.S.C. § 1226(a). The petition followed his entry into the United States as a minor in February 2012, his arrest by Border Patrol, and his release while removal proceedings were pending. He did not appear for a December 2013 removal hearing and was ordered removed. He alleged that he had not received notice of the hearing’s date and time and did not know about the removal order until his recent ICE arrest.
Respondents said they could not locate Carreto-Mendez to execute the removal order until May 2026. ICE arrested him on May 6, 2026, as he left the San Joaquin County jail, and served him that day with a warrant notifying him that he was subject to a final removal order. He then sought to rescind that order. The Board of Immigration Appeals dismissed his June 2026 appeal, after which he petitioned the Ninth Circuit for review and moved to stay removal. In August 2026, the Ninth Circuit temporarily stayed removal. At the time of this order, the stay was allegedly still effective and the petition for review remained pending.
The Court’s Holding
Judge Vince Chhabria held that the Ninth Circuit’s stay changed the statutory basis for the detention. Both parties agreed that § 1226(a) now governed, consistent with Prieto-Romero v. Clark, which holds that § 1231(a) does not authorize detention when a court of appeals has stayed removal pending a petition for review. Section 1226(a) permits detention pending a decision on removal but also gives the government discretion to release a noncitizen on bond or conditional parole.
The court nevertheless rejected Carreto-Mendez’s argument that earlier detention under § 1231(a) entitled him to release. Before the August 2026 stay, an administratively final removal order was in place, and § 1231(a) authorized detention following such an order. Citing Cui v. Garland, the court explained that an immigration judge’s in absentia removal order becomes final when the 180-day deadline to move to reopen expires. Because Carreto-Mendez had not been detained under the wrong statute, the court concluded that release was not warranted.
The appropriate relief was instead a bond hearing under § 1226(a), which respondents conceded Carreto-Mendez could receive upon request. The court declined to place the burden of proof on the government. It noted Rodriguez Diaz v. Garland’s rejection of the argument that due process requires the government to justify § 1226(a) detention by clear and convincing evidence. Although the court described the submitted Adelanto Immigration Court bond data as troubling, it found that the data did not necessarily establish that Carreto-Mendez would receive an unfair hearing without court-imposed safeguards.
Key Takeaways
- A court of appeals’ stay of removal made § 1226(a), rather than § 1231(a), the governing detention statute.
- The earlier detention was authorized because an administratively final removal order existed before the Ninth Circuit issued its stay.
- The court ordered respondents to arrange a bond hearing before a neutral immigration judge within fourteen days.
- Carreto-Mendez must be permitted to have counsel present, and the hearing may be rescheduled at his request.
- The court denied the requested burden-shifting safeguard because the cited precedent and bond data did not establish that it was necessary.
Why It Matters
The order distinguishes the statutory authority for detention before and after a judicial stay of removal. It grants a concrete procedural remedy—a timely bond hearing with access to counsel—without treating the prior statutory basis for detention as grounds for immediate release.
The decision also limits the relief to the circumstances shown in this case. General data about increased bond denials and amounts did not justify shifting the burden of proof, particularly given controlling Ninth Circuit precedent rejecting a clear-and-convincing-evidence requirement. The clerk was directed to close the case and enter judgment for Carreto-Mendez, and the order resolved all pending motions.