The opinion
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7 UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
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10 JOSE AVILA VARELA, A-094-301-240, No. 1:26-cv-1869-DJC-CKD P
11 Petitioner,
12 v. FINDINGS & RECOMMENDATIONS
13 WARDEN, GOLDEN STATE
DETENTION FACILITY,
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Respondents.
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17 Petitioner Jose Avila Varela is detained by Immigrations and Customs Enforcement
18 (“ICE”) and seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. This case is referred to
19 the undersigned by operation of Local Rule 302(c)(17) pursuant to 28 U.S.C. § 636 and the
20 court’s order dated March 10, 2026. (ECF No. 6.) The first amended petition, respondent’s
21 answer, and petitioner’s reply are before the court. (ECF Nos. 14, 16, 17.) For following reasons,
22 the undersigned recommends the petition be granted.
23 I. Background
24 Petitioner is a native and citizen of Honduras. (ECF No. 16-1 at 1.) Petitioner was ordered
25 removed to Honduras by an immigration judge on September 26, 2007, and was removed on
26 September 30, 2010. (Id. at 2.) Petitioner re-entered the United States on an unknown date and
27 has resided in the United States for many years since then.
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1 Under the petition’s allegations, petitioner has two children, both born in the United
2 States. (ECF No. 14 at 6.) Petitioner’s now-adult daughter is a sailor in the United States Navy for
3 the past six years and is currently deployed to the Middle East. (Id. at 6.) Based on his daughter’s
4 ongoing military service, Petitioner is pursuing Military Deferred Action, a program under which
5 DHS has the discretion to defer deportation and issue a work permit for a designated period of
6 time. (Id.) Petitioner has shared custody of his son, age six, with his son’s mother. (Id.) Prior to
7 his detention in October 2025, petitioner had been working steadily and made regular monthly
8 child support payments for his son in the amount of $543 monthly. (Id.) Since being detained,
9 petitioner has been unable to make these payments which are critical for his son’s well-being
10 because his son’s mother depends on that source of income for their son. (Id. at 6-7.)
11 The parties dispute the nature of petitioner’s criminal history in the United States, with
12 respondents asserting petitioner has a “lengthy criminal history” and pending charges. (ECF No.
13 16 at 2-3.) In contrast, petitioner argues and submits evidence that the government has identified
14 only one still-valid conviction for a misdemeanor offense of reckless driving under the influence
15 which occurred 16 years ago. (ECF No. 17 at 3, 7-10.)
16 Petitioner was detained by ICE on October 20, 2025, and has not been provided a bond
17 hearing at any time to determine whether his detention is justified based on his being a danger or
18 a flight risk. (ECF No. 16-1 at 2-3; ECF No. 14 at 7.) He asserts he is being held in punitive, jail
19 like conditions that are negatively affecting his physical, emotional, and mental health. (ECF No.
20 14 at 7.)
21 On November 4, 2025, petitioner had a hearing before the immigration court, which
22 determined he had “established a reasonable possibility that [he] would be persecuted on the basis
23 of a protected ground, or a reasonable possibility that [he] would be tortured in the country of
24 removal.” (ECF No. 16-5 at 1.) Petitioner was placed in “withholding-only” proceedings and a
25 hearing to determine whether he can be deported to Honduras is scheduled for June 8, 2026. (Id.)
26 Proceeding pro se, petitioner initiated this case on March 9, 2026. (ECF No. 1.) The court
27 appointed counsel, who filed a first amended petition on April 8, 2026, seeking relief under the
28 Due Process Clause of the Fifth Amendment. (ECF No. 14 at 3.)
1 II. Legal Standard
2 The Constitution guarantees the availability of the writ of habeas corpus “to every
3 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)
4 (citing U.S. Const., Art I, § 9, cl. 2). A writ of habeas corpus may be granted to a petitioner in
5 custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the
6 writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and
7 it is in that context that its protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301
8 (2001). A district court’s habeas jurisdiction includes challenges to immigration detention. See
9 Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
10 III. Discussion
11 As petitioner’s final removal order was reinstated and he was placed in “withholding-
12 only” proceedings, he is detained under 8 U.S.C. § 1231(a). See 8 U.S.C. § 1231(a)(5); Johnson
13 v. Guzman Chavez, 594 U.S. 523, 530-32 (2021) (detailing withholding-only procedures);
14 Padilla-Ramirez v. Bible, 882 F.3d 826, 832 (9th Cir. 2017) (holding that reinstated removal
15 orders are administratively final for purposes of detention, even if there are ongoing withholding-
16 only proceedings). Noncitizens who have final removal orders “shall” be detained for the first 90
17 days after their removal orders are finalized (known as the “removal period”), 8 U.S.C. §
18 1231(a)(2), and “may be detained beyond the removal period,” id., § 1231(a)(6).
19 The presumptively reasonable timeframe for detaining a noncitizen is six months after
20 issuance of a final removal order. Zadvydas, 533 U.S. at 701. “After this 6–month period, once
21 the [noncitizen] provides good reason to believe that there is no significant likelihood of removal
22 in the reasonably foreseeable future, the Government must respond with evidence sufficient to
23 rebut that showing.” Id.
24 Respondents acknowledge that on April 16, 2026, the date they filed their opposition to
25 the petition, petitioner’s detention was four days away from exceeding the presumptively
26 reasonable six-month period established in Zadvydas. As of the filing date of these findings and
27 recommendations, petitioner’s detention has exceeded that presumptively reasonable period.
28 Respondents nevertheless argue petitioner is not entitled to relief under Zadvydas because the
1 first amended petition did not meet the burden to show therein that his removal is not reasonably
2 foreseeable. (ECF No. 16 at 4-5.)
3 In reply, petitioner argues the statutory basis for the detention was unknown at the time he
4 filed the first amended petition and points to the request for relief in the petition for respondent to
5 provide that information. (ECF No. 17 at 2.) He argues he should not be penalized for not
6 knowing the grounds upon which the government was asserting the right to detain him, or for not
7 being able to convey that information to counsel in the short time after counsel’s appointment.
8 (Id.)
9 Petitioner “provides good reason to believe that there is no significant likelihood of
10 removal in the reasonably foreseeable future,” Zadvydas, 533 U.S. at 701, given the procedural
11 posture of his withholding-only proceedings with a hearing date scheduled for June 8, 2026,
12 before which he cannot be removed, and after which other delays are likely to occur, as set forth
13 below. “A pending application in which a petitioner has requested withholding of removal
14 supports a finding that there is not a significant likelihood of removal in the reasonably
15 foreseeable future.” Rodriguez v. Warden, Golden State Annex Det. Facility, No. 1:26-CV-
16 00694-DAD-CKD, 2026 WL 770527, at *3 (E.D. Cal. Mar. 18, 2026). Although respondents
17 acknowledged petitioner’s detention would exceed the presumptively reasonable six-month
18 period on April 20, 2026, and clearly anticipated his Zadvydas arguments on that basis, they did
19 not put forth anything in the record to indicate there is any reason to believe he will be removed
20 in the reasonably foreseeable future.
21 Respondents provide no information, for example, about how long it could take to identify
22 a new country, receive approval from that country, and obtain travel documents for petitioner in
23 the event he is granted withholding of removal. In such a situation, petitioner argues, he has no
24 ties to any other country and removal to a third country would likely be subject to delay for
25 challenge. (ECF No. 17 at 5-6.) Moreover, any such timeline would be extended further if
26 petitioner raised a fear-based claim for removal to that newly identified country. See Vishal, 811
27 F. Supp. 3d at 1185 (rejecting as insufficient generalizations regarding the likelihood of third
28 country removal upon granting of withholding).
1 In the other possible scenario, if petitioner is not granted withholding, petitioner indicates
2 he will appeal and argues and submits evidence that appeals from the immigration court to the
3 Board of Immigration Appeals typically take months, while proceedings in the Ninth Circuit can
4 take longer. (ECF No. 17 at 5-6; ECF No. 17-3.) On this record, the undersigned finds petitioner’s
5 removal is not reasonably foreseeable, regardless of any possible outcome of the June 8, 2026,
6 hearing. See A.A.M., Petitioner, v. TONYA ANDREWS et. al., Respondents, No. 1:25-CV-
7 01514-DC-DMC (HC), 2026 WL 1099063, at *7 (E.D. Cal. Apr. 21, 2026) (finding the
8 petitioner’s removal was not reasonably foreseeable where the government provided no evidence
9 of the timeline for how long it could take to identify a new country in the event withholding was
10 granted, and no evidence how long it would take to remove the petitioner in the event withholding
11 was denied).
12 To any extent respondents would argue petitioner has not shown he is stuck in
13 “removable-but-unremovable limbo,” Prieto-Romero v. Clark, 534 F.3d 1053, 1063 (9th Cir.
14 2008), because withholding could be denied and he has not alleged no third country will accept
15 him, the undersigned rejects the notion. Zadvydas rejected the argument that a noncitizen must
16 “show that deportation will prove ‘impossible’” or “show the absence of any prospect of
17 removal—no matter how unlikely or unforeseeable.” Zadvydas, 533 U.S. at 702.
18 Accordingly, the undersigned finds petitioner’s continued detention is no longer
19 authorized by 8 U.S.C. § 1231(a) and that he should be released on appropriate conditions. See 8
20 U.S.C. § 1231(a)(3) (“If the [non-citizen] does not leave or is not removed within the removal
21 period, the [non-citizen], pending removal, shall be subject to supervision under regulations
22 prescribed by the Attorney General.”); 8 C.F.R. § 241.5 (conditions for release after removal
23 period). While the parties dispute the nature and extent of petitioner’s criminal history,
24 respondents do not argue he is a danger to the community or flight risk. Regardless, any such
25 concerns can be addressed through the conditions of supervision imposed on petitioner’s release.
26 See Thai v. Ashcroft, 366 F.3d 790, 797 (9th Cir. 2004); Vishal, 811 F. Supp. 3d at 1186.
27 ////
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1 IV. Recommendation
2 In accordance with the above, IT IS RECOMMENDED as follows:
3 1. Petitioner JOSE AVILA VARELA’S (A-094-301-240) application for a writ of
4 habeas corpus under 28 U.S.C. § 2241 be granted.
5 2. Respondents be ordered to immediately release petitioner from custody subject to
6 reasonable terms of supervision as set forth in 8 U.S.C. § 1231(a)(3), 8 C-F.R. § 241.5.
7 3. The Clerk of the Court be directed to close this case.
8 These findings and recommendations are submitted to the United States District Judge
9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days
10 || after being served with these findings and recommendations, any party may file written
11 || objections with the court and serve a copy on all parties. Such a document should be captioned
12 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
13 || objections shall be filed and served within seven (7) days after service of the objections. The
14 | parties are advised that failure to file objections within the specified time may waive the right to
15 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).
16 | Dated: April 28, 2026 / ae □□ / a Ly a
18 UNITED STATES MAGISTRATE JUDGE
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