Unreported / Non-Citable
Background
Petitioner Eduardo Luis Belen Villanueva is held in immigration custody at Mesa Verde Detention Center and has a habeas corpus petition pending in the Eastern District of California. Chief District Judge Nunley earlier issued a no-transfer order in the case, and an earlier recommendation, ECF No. 22, proposed that Petitioner receive a hearing under 8 C.F.R. § 1003.19(e). The opinion does not set out the petition's claims in full or describe that earlier filing further.
Respondent moved to dissolve the no-transfer order and to dismiss the action. Respondent submitted evidence that an immigration judge granted Petitioner's application for voluntary departure on September 23, 2026. That order states that an order of removal will become immediately effective if Petitioner does not depart within 60 days, citing 8 C.F.R. § 1240.26(d). Respondent contended that the grant shifted Petitioner's detention to 8 U.S.C. § 1231(a).
The filing is a magistrate judge's findings and recommendations referred to Judge Troy L. Nunley, not a final order. The court noted that the parties had been able to submit their arguments in written briefs.
The Court’s Holding
The magistrate judge recommends granting the motion to lift the no-transfer order. If Petitioner wishes to voluntarily depart and remains in ICE custody, ICE may need to transfer him outside the district to facilitate departure. The court adds that the no-transfer order will dissolve upon the District Judge's final order resolving the petition.
The magistrate judge recommends denying the motion to dismiss. Respondent offered no authority that voluntary departure shifts detention to § 1231(a), and the immigration judge did not order Petitioner removed; removal becomes effective only if he fails to depart within 60 days. The court's reasoning turns on the text of that order as described in the filing, which makes any removal order contingent on a future failure to depart, so the premise of Respondent's argument was missing. With no removal order, the court concluded Petitioner remains detained under § 1226(a) and continued to recommend a hearing under 8 C.F.R. § 1003.19(e).
These are recommendations only. Objections are due within three days of service, a period shortened because of the nature of the relief and the parties' adequate briefing, and failure to object in time may waive the right to appeal the District Court's order. The opinion does not decide the outcome of any hearing, whether release will be ordered, or what follows if Petitioner does not depart within 60 days.
Key Takeaways
- A grant of voluntary departure is not itself a removal order, and here it did not move detention from § 1226(a) to § 1231(a).
- The court treated a removal order that takes effect only upon a failure to depart within 60 days as not yet existing.
- A no-transfer order may be lifted when ICE could need to move a person outside the district to carry out voluntary departure.
- Respondent's failure to cite authority for its § 1231(a) theory supported the recommendation against dismissal.
- The ruling is only a recommendation, and the District Judge's final decision remains pending.
Why It Matters
The recommendation addresses whether arranging a person's departure ends a court's review of detention. The court said it did not, where the immigration judge granted voluntary departure without ordering removal. That keeps the § 1226(a) hearing question alive and signals that the government needs supporting authority to obtain dismissal on a § 1231(a) theory. For detained noncitizens, the practical point is that accepting voluntary departure does not, by itself, end the court's recommended hearing while the 60-day period runs.
As a magistrate judge's recommendation, this is not a published or precedential decision and has persuasive value at most, and only if the District Judge adopts it. It rests on a short record, and open issues include adoption by Judge Nunley, whether Petitioner departs, and what happens if the 60-day period lapses. The recommendation to lift the no-transfer order is separate from the merits and was driven by the practical needs of departure.