Opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ANA MIRIAN AGUILAR GUERRERO Case No. 1:26-cv-2499-TLN-JDP

(A-Number: 200-894-541),

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Petitioner,

13 FINDINGS AND RECOMMENDATIONS

v.

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WARDEN OF THE CALIFORNIA CITY

15 DETENTION FACILITY,

16 Respondent.

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18 Petitioner Ana Mirian Aguilar Guerrero was removed from the United States in 2010,

19 unlawfully re-entered in 2021, and was re-detained by ICE in 2025. Petitioner, now proceeding

20 with counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2241, claiming that her re-

21 detention has become prolonged such that it violates the Fifth Amendment. For the following

22 reasons, I recommend that the petition be granted and that petitioner be immediately released.

23 Background

24 Petitioner initially entered the United States at an unknown time. ECF No. 8 at 13. In

25 2010, petitioner was removed to Mexico, although she is from El Salvador. Id. at 13-14. In

26 2021, petitioner unlawfully re-entered the United States with her two minor children. Id. at 14.

27 Petitioner and her children were initially detained by immigration officers and then released on

28 their own recognizance. Id.

1 In June 2025, petitioner and her minor children were re-detained at a scheduled

2 appointment. Id. In July 2025, they were released. In October 2025, petitioner—this time by

3 herself—was re-detained at a scheduled appointment. Id.

4 On October 20, 2025, ICE reinstated petitioner’s prior order of removal from 2010. Id. at

5 17. While in ICE custody, petitioner expressed fear of returning to El Salvador. Id. at 14. In

6 October 2025, an asylum officer found that petitioner did not have a reasonable fear of

7 persecution. Id. at 19. In November 2025, an immigration judge (“IJ”) found that petitioner

8 established a reasonable possibility that she would be persecuted, and petitioner was placed in

9 withholding proceedings. Id. at 25.

10 In March 2026, an IJ denied petitioner’s withholding of removal to El Salvador. Id. at 28.

11 Petitioner appealed that order to the Board of Immigration Appeals (“BIA”), where it remains

12 pending. Id. at 32.

13 Procedural History

14 On April 2, 2026, petitioner, initially proceeding pro se, filed a petition for habeas corpus,

15 ECF No. 1, and a motion to appoint counsel, ECF No. 2. On the following day, the court referred

16 the matter to me. ECF No. 5. On April 20, 2026, respondent filed an answer.1 ECF No. 8. I

17 appointed counsel the following day, and appointed counsel appeared on April 27, 2026. See

18 ECF Nos. 10 & 11. On April 30, 2026, petitioner filed a traverse. ECF No. 12.

19 Legal Standard

20 A federal court may grant habeas relief when a petitioner shows that his custody violates

21 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75

22 (2000). “The essence of habeas corpus is an attack by a person in custody upon the legality of

23 that custody, and . . . the traditional function of the writ is to secure release from illegal custody.”

24 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus may be granted to a

25 petitioner who demonstrates that he is in custody in violation of the Constitution or federal law.

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27 1 Respondent concurrently filed a motion to dismiss all respondents other than petitioner’s

immediate custodian. ECF No. 9. Because the case should be closed, I recommend that this

28 motion be denied as moot.

1 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has served as a means of

2 reviewing the legality of Executive detention, and it is in that context that its protections have

3 been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s habeas jurisdiction

4 includes challenges to immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

5 Analysis

6 Petitioner claims that her re-detention has become prolonged and thus violates the Fifth

7 Amendment. ECF No. 1 at 13-14. Respondent counters that petitioner’s detention remains

8 constitutional. ECF No. 8 at 4-5.

9 Where a noncitizen is subject to a reinstated removal order, detention is governed by 8

10 U.S.C. § 1231. Johnson v. Guzman Chavez, 594 U.S. 523, 535 (2021). This section provides:

11 If the Attorney General finds that an alien has reentered the United

States illegally after having been removed or having departed

12 voluntarily, under an order of removal, the prior order of removal is

reinstated from its original date and is not subject to being reopened

13 or reviewed, the alien is not eligible and may not apply for any

relief under this chapter, and the alien shall be removed under the

14 prior order at any time after the reentry.

15 8 U.S.C. § 1231(a)(5).

16 “[R]einstatement only requires proof that (1) petitioner is an alien, (2) who was subject to

17 a prior removal order, and (3) who illegally reentered the United States.” Morales-Izquierdo v.

18 Gonzales, 486 F.3d 484, 495 (9th Cir. 2007). “These determinations are made by an immigration

19 officer, and a noncitizen who has illegally reentered the country after having previously been

20 removed has no right to a hearing before an immigration judge in such circumstances.” Tomczyk

21 v. Garland, 25 F.4th 638, 643 (9th Cir. 2022) (cleaned up).

22 Here, ICE determined that petitioner is a noncitizen who was subject to a prior removal

23 order and who unlawfully re-entered the country. ECF No. 8 at 17. Accordingly, petitioner’s

24 detention is governed by section 1231. Notably, the initiation of withholding proceedings neither

25 alters the applicable detention authority, nor does it “render non-final” her “reinstated order of

26 removal.” See Johnson, 594 U.S. at 536, 540.

27 Under section 1231, a noncitizen with a final order of removal is subject to mandatory

28 detention for ninety days. 8 U.S.C. §§ 1231(a)(1)(A), (2)(A). This time period is known as the

1 removal period, and it typically begins on the date the order of removal becomes administratively

2 final. Id. § 1231(a)(1)(B)(i). Where a noncitizen is not removed by the expiration of the removal

3 period, they are ordinarily released on an order of supervision. Id. § 1231(a)(3). Some

4 noncitizens, however, “may be detained beyond the removal period.” Id. § 1231(a)(6).

5 In Zadvydas, the Supreme Court held that discretionary detention under section 1231 is

6 “presumptively reasonable” for up to six months, at which point the noncitizen may provide

7 “good reason to believe that there is no significant likelihood of removal in the reasonably

8 foreseeable future,” and the government “must respond with evidence sufficient to rebut that

9 showing.” Zadvydas, 533 U.S. at 701. The six-month period of presumptive reasonability

10 includes the removal period. Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1102 n.5 (9th Cir. 2001).

11 Here, the removal period began on October 20, 2025, when petitioner’s prior removal

12 order was reinstated. See ECF No. 8 at 17; Castillo v. Chestnut, No. 1:25-cv-1296-SAB, 2026

13 WL 121652, at *13 (E.D. Cal. Jan. 16, 2026) (finding that “the removal period began to run on

14 . . . the date that Petitioner’s removal order was reinstated after his reentry into the United

15 States”); Rodriguez-Garcia v. Warden, FCI-Herlong, No. 2:23-cv-0849-TLN-SCR, 2025 WL

16 3089355, at *4 (E.D. Cal. Nov. 5, 2025) (“Accordingly, the court finds that a reinstated order of

17 removal . . . becomes final immediately upon issuance.”), report and recommendation adopted,

18 2026 WL 257636 (E.D. Cal. Jan. 30, 2026). As such, the presumption that petitioner’s detention

19 is reasonable expired on April 20, 2026. See Zadvydas, 533 U.S. at 701; Kim Ho Ma, 257 F.3d at

20 1102 n.5.

21 Petitioner has provided “good reason to believe that there is no significant likelihood of

22 removal in the reasonably foreseeable future.” See Zadvydas, 533 U.S. at 701. Specifically,

23 petitioner asserts that she “may languish in detention for many more months while her appeals of

24 the decision to deny her withholding of removal continue.” ECF No. 12 at 3. Petitioner, as

25 noted, appealed the IJ’s order that denied withholding, and the appeal is pending before the

26 BOA.2 ECF No. 8 at 32. While her withholding proceedings are ongoing, petitioner cannot be

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2 If that appeal is unsuccessful, it appears that petitioner may seek limited judicial review.

28 See Padilla-Ramirez v. Bible, 882 F.3d 826, 830 (9th Cir. 2017). However, even if petitioner did

1 removed to El Salvador. See Johnson, 594 U.S. at 531. Thus, there is “good reason to believe

2 that there is no significant likelihood of removal in the reasonably foreseeable future.” See

3 Zadvydas, 533 U.S. at 701.

4 Respondent fails to “respond with evidence sufficient to rebut” petitioner’s showing. See

5 Zadvydas, 533 U.S. at 701. Respondent asserts that “[i]f the BIA agrees with the IJ and dismisses

6 the appeal, Petitioner can be removed to El Salvador on her existing final order of removal.” ECF

7 No. 8 at 5. Respondent, however, does not provide any reason to believe that the BIA appeal will

8 so conclude in the reasonably foreseeable future. What is more, respondent does not show that

9 petitioner’s removal to El Salvador would be effectuated promptly if her withholding request is

10 ultimately denied; for example, respondent gives no indication that a travel document has been

11 issued or could be issued soon.

12 Moreover, while petitioner could be removed to an unidentified third country during her

13 withholding proceedings, respondent does not provide any argument or evidence that such a

14 removal has been contemplated, much less that there is a significant likelihood of it occurring in

15 the reasonably foreseeable future. See Johnson, 594 U.S. at 531; Zarate v. Blanche, No. 2:26-cv-

16 0320-GMN-MDC, 2026 WL 1005872, at *4 (D. Nev. Apr. 14, 2026) (finding that the

17 government failed to rebut the petitioner’s showing where it did not provide any argument or

18 evidence indicating that the petitioner would be removed to a third country).

19 Lastly, respondent argues that petitioner’s “choice to appeal the IJ’s order of removal to

20 the BIA is a major contributing factor to her continued detention.” ECF No. 8 at 7. Respondent,

21 however, provides no authority supporting its proposition that prolonged detention under section

22 1231 is constitutionally permissible if the petitioner has contributed to the length of detention.

23 Indeed, none of the cases cited by respondent for this argument applied the Zadvydas framework.

24 See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1208 (9th Cir. 2022) (detention under 8 U.S.C.

25 § 1226); Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) (decided before Zadvydas);

26 Rivas Avalos v. Sessions, No. 18-CV-02342-HSG, 2018 WL 11402701, at *2 (N.D. Cal. May 25,

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not seek judicial review, her appeal to the BIA alone precludes the finding that that there is a

28 significant likelihood of her removal in the reasonably foreseeable future.

1 2018) (detention under 8 U.S.C. § 1226). To be sure, this court is not tasked with weighing the

2 factors that have contributed to petitioner’s prolonged detention. Rather, because petitioner has

3 provided good reason to believe that there is no significant likelihood of her removal in the

4 reasonably foreseeable future, this court’s task is to determine if respondent has provided

5 sufficient evidence to rebut that showing. See Zadvydas, 533 U.S. at 701. I find that respondent

6 has not.

7 Accordingly, petitioner’s “continued detention is no longer authorized by statute,” and

8 petitioner should be released on the conditions under which she was previously released. See

9 Zadvydas, 533 U.S. at 699-700. “Moreover, when a court considers a due process claim, it may

10 tailor relief to the specific problem that gives rise to the due process violation.” Zarate, 2026 WL

11 1005872, at *4 (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Petitioner requests

12 injunctive relief preventing her from being removed to an unidentified third country without

13 notice and an opportunity for her to reopen her immigration proceedings. See ECF No. 1 at 19-

14 20. I find that such relief is appropriately tailored to the circumstances that give rise to the

15 violation of her due process rights. See Zarate, 2026 WL 1005872, at *4.

16 Conclusion

17 Accordingly, it is hereby RECOMMENDED that:

18 1. The petition for writ of habeas corpus, ECF No. 1, be GRANTED.

19 2. Respondent be ordered to immediately release petitioner (A-Number: 200-894-541)

20 from its custody.

21 3. Respondent be enjoined and restrained from re-detaining petitioner absent compliance

22 with 8 C.F.R. § 241.13(i).

23 4. Respondent be enjoined and restrained from removing petitioner to a third country

24 without providing petitioner a minimum of ten days to raise a fear-based claim for relief from

25 removal to the identified country. If petitioner does assert a fear-based claim for relief from

26 removal, petitioner may not be removed to the third country without providing her a meaningful

27 opportunity to be heard on her fear-based claim before an immigration judge in compliance with

28 due process.

1 5. Respondent’s motion to dismiss, ECF No. 9, be DENIED.

2 6. The Clerk of Court be directed to serve California City Detention Facility with a copy

3 | of this order.

4 7. The Clerk of Court be ordered to enter judgment accordingly and close this case.

5 These findings and recommendations are submitted to the United States District Judge

6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven days of

7 || service of these findings and recommendations, any party may file written objections with the

8 | court and serve a copy on all parties. Any such document should be captioned “Objections to

9 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed

10 | within seven days of service of the objections. The parties are advised that failure to file

11 | objections within the specified time may waive the right to appeal the District Court’s order. See

12 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir.

13 1991).

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15 IT IS SO ORDERED.

Dated: _ May 13, 2026 ow——

17 JEREMY D. PETERSON

18 UNITED STATES MAGISTRATE JUDGE

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