Andrews

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 R.E., No. 1:26-cv-1819 TLN CKD P

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 TONYA ANDREWS, et al.,

15 Respondents.

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18 Petitioner is detained by the Immigration and Customs Enforcement Agency (ICE) at the

19 Golden State Annex ICE Detention Facility in McFarland. ECF No. 1 at 2. He has filed a

20 petition for writ of habeas corpus under 28 U.S.C. § 2241. This proceeding was referred to this

21 court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Based upon the following, the court

22 recommends that the petition be denied.

23 I. Facts

24 Petitioner, a native of El Salvador, entered the United States without authorization in

25 March, 2007 when he was 17. ECF No. 13 at 4. On September 5, 2017, petitioner pled no

26 contest to assault with a semi-automatic firearm and was sentenced to 11 years in prison. Id. at 5.

27 Upon completion of his sentence on August 22, 2022, petitioner was detained by ICE and has

28 been in continuous ICE detention since that date. Id. at 4.

1 On April 7, 2025, petitioner’s conviction was vacated as it was determined that when he

2 pled guilty, he did not understand the adverse immigration consequences of his plea. Id. at 89-90.

3 At the same time, petitioner pled guilty to two counts of dissuading a witness and was sentenced

4 to 180 days in jail with time having already been served. Id. at 92-93.

5 As a result of the change with respect to petitioner’s criminal history, petitioner was

6 provided with a bond hearing pursuant to 8 C.F.R. § 1236 on May 8, 2025. Id. at 204. Bond was

7 denied as the immigration judge found petitioner did not establish he is neither a flight risk, nor a

8 danger to the community. Id. at 208. That decision was affirmed by the Board of Immigration

9 Appeals (BIA) in a decision rendered September 29, 2025. Id. at 217.

10 On March 24, 2026, petitioner was found inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i)

11 and ordered removed. ECF No. 14-1. Petitioner is appealing that decision to the Board of

12 Immigration Appeals. ECF No. 16-1. The court assumes removal is stayed.

13 II. Standard for Habeas Relief

14 The Constitution guarantees the availability of the writ of habeas corpus “to every individual

15 detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const.,

16 Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in custody upon the legality

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

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

19 petitioner in custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3).

20 Historically, “the writ of habeas corpus has served as a means of reviewing the legality of Executive

21 detention, and it is in that context that its protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S.

22 289, 301 (2001). A district court’s habeas jurisdiction includes challenges to immigration detention.

23 See Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

24 III. Analysis

25 A. Petitioner’s Detention Governed by 8 U.S.C. § 1226

26 Respondent claims petitioner is subject to mandatory detention under 8 U.S.C. § 1225(b).

27 As the court recently held in Puac v. Warden, Cal. City ICE Det. Facility, No 1:26-cv-1388 TLN

28 CKD P, 2026 WL 1133274, *2 (E.D. Cal. April 27, 2026), 8 U.S.C. § 1226, rather than § 1225,

1 applies to individuals such as petitioner who were arrested inside the United States as opposed to

2 at the border around the time of entry. Accord Fernandez Alvarez v. Warden, Fed. Det. Cntr.

3 Miami, No. 25-14065, 2026 WL 1243395, *18 (11th Cir. May 6, 2025) (Ҥ 1226 supplies the

4 default rule of detention for an alien arrested and detained in the interior”); Barbosa da Cunha v.

5 Freden, No. 25-3141-pr, 2026 WL 1146044, at *2, 3 (2nd Cir. Apr. 28, 2026) (8 U.S.C. § 1226(a)

6 governed petitioner's detention where petitioner was arrested within the interior of the United

7 States after living here for over twenty years); Castañon-Nava v. DHS, 161 F.4th 1048, 1061 (7th

8 Cir. 2025) (generally speaking, “ICE's authority to detain a noncitizen discovered within the

9 country derives from § 1226(a) and not from § 1225(b)”). But see Buenrostro-Mendez v. Bondi,

10 166 F.4th 494, 502 (5th Cir. 2026) (individuals who have never been formally admitted into the

11 United States and who are arrested in the interior of the country are properly subject to detention

12 under § 1225(b)(2)); Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026) (same).

13 Section 1226(a) expressly authorizes release on bond, and its authorizing regulations

14 provide for immigration judges to convene bond hearings. After arrest, the government “may

15 continue to detain the arreste[e]” until a final removal decision is made or “may release” them on

16 “bond” or “conditional parole.” 8 U.S.C. § 1226(a)(1)-(2). If the arrestee wishes to contest the

17 initial custody determination—i.e., the denial or amount of bond—the noncitizen has a right to do

18 so before an immigration judge. 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1). As indicated above,

19 petitioner was provided a bond hearing and the ability to appeal that decision. It does not appear

20 petitioner has been denied any other process afforded to him under 8 U.S.C. § 1226. Under 8

21 C.F.R. § 1003.19(e) petitioner has a right to follow-up custody redetermination hearings upon a

22 showing of material change in circumstances. It does not appear petitioner has requested such a

23 hearing.

24 B. Due Process

25 As indicated above, petitioner has been given all process required by statute. Petitioner

26 claims he is either entitled to additional process or release as his “prolonged” and / or “punitive”

27 ICE detention violates the Due Process Clause of the Fifth Amendment. As indicated above,

28 petitioner has been in ICE custody for 44 months. From the date of his detention on August 22,

1 2022, until his conviction for assault with a semi-automatic firearm was vacated on April 7, 2025,

2 petitioner was subject to mandatory detention under 8 U.S.C. 1226(c). During that period

3 petitioner was in “withholding only” proceedings and delay of the proceedings was occasioned by

4 his challenge to a final order of removal. This being the case, petitioner’s mandatory detention

5 during that period did not violate the Due Process Clause. E.g. Ambriz v. Albarran, 1:26-cv-2230

6 DC CKD P, ECF No. 17, May 28, 2026.

7 After the conviction was vacated, petitioner’s detention, which includes the right to

8 release if petitioner can establish he is neither dangerous, nor a flight risk, is authorized under 8

9 U.S.C. § 1226(a) as indicated above.

10 The Ninth Circuit has held the Due Process Clause protects persons in the removal

11 process from “arbitrary prolonged detention” without any process. Rodriguez v. Marin, 909 F.3d

12 252, 256 (9th Cir. 2018). But, petitioner has received process in the form of a bond hearing, the

13 appeal of the denial of his release and, petitioner is eligible for a follow up hearing. Petitioner

14 fails to point to anything suggesting ICE or DHS have inordinately delayed removal proceedings,

15 that he ultimately will not be subjected to removal or that he is not free to leave detention by

16 agreeing to return to El Salvador. On this record, the court cannot find that petitioner is being

17 subjected to arbitrary prolonged detention and the court is not aware of any binding precedent

18 suggesting the Due Process Clause demands any more than petitioner has received or is entitled to

19 receive.

20 As for petitioner’s assertion that he is entitled to a hearing with the result being release

21 unless the government demonstrates by clear and convincing evidence that petitioner is either a

22 fight risk or danger to the community, ECF No. 1 at 30, as opposed to the process to which he is

23 entitled under statute (a follow-up hearing if materially changed circumstances are shown), the

24 Ninth Circuit’s decision in Rodriguez Diaz v. Garland, 53 F.4th 1189, 1210-11 (9th Cir. 2022)

25 indicates otherwise. In Rodriguez Diaz, 53 F.4th at 1212, the Ninth Circuit rejected the notion

26 that the passage of 14 months from the first § 1226(a) bond hearing justified an order of process

27 above that required by statute. “[D]uration [of detention] alone cannot sustain a due process

28 challenge by a detainee who has been afforded the process contemplated by § 1226(a) and its

1 implementing regulations.” Id. Here, petitioner’s first bond hearing was a little over a year ago

2 and his appeal was denied a little over 8 months ago.

3 Other than duration of confinement, petitioner asks that the court consider petitioner’s

4 conditions of confinement in determining whether confinement is appropriate or whether

5 petitioner is entitled to some other process as to his confinement. ECF No. 1 at 24, The court

6 agrees with the reasoning in Moya v. Blanche, No. 2:26-cv-0675 APG DJA, 2026 WL 1481604,

7 *8-9 (D. Nev. May 27, 2026) and Chavez v. Becerra, 1:25-cv-2058 KES SAB HC, 2026 WL

8 603742, *2 (E.D. Cal. March 4, 2026) and the conclusion that habeas relief is generally not

9 available based upon a challenge to conditions of confinement and conditions of confinement

10 should be challenged in a civil rights action or possibly a claim under Federal Tort Claims Act, 28

11 U.S.C. §§ 2671-2680. If conditions are unlawful, the relief is either damages or injunctive relief

12 removing the unlawful conditions, not a determination that petitioner is unlawfully detained.

13 Petitioner also suggests the court has the authority to review an immigration judge’s

14 determination or BIA finding that a detainee is dangerous and / or a flight risk resulting in

15 continued detention under 8 U.S.C. § 1226(a). ECF No. 1 at 24. Title 8 U.S.C. §§ 1226(e)

16 provides “[n]o court may set aside any action or decision by the Attorney General under this

17 section regarding the detention or release of any alien or the grant, revocation, or denial of bond

18 or parole.” In Martinez v. Clark, 36 F.4th 1219 (9th Cir. 2022), (vacated on other grounds), the

19 Ninth Circuit recognized that 8 U.S.C. § 1226(e) renders “determination of whether a particular

20 noncitizen poses a danger to the community . . . a discretionary determination, which a federal

21 court may not review.” Martinez, 36 F.4th at 1228. Accordingly, the court is precluded under

22 binding precedent from reviewing the determination that petitioner is both a flight risk and

23 dangerous.

24 Finally, petitioner suggests this court should hold a bond hearing instead of an

25 immigration judge. ECF No. 1 at 24. Nothing suggests the court has jurisdiction to hold such a

26 hearing.

27 /////

28 /////

1 | IV. Conclusion

2 Because petitioner does not show his confinement violates either federal statutory law, or

3 || the Due Process Clause of the Fifth Amendment, the court recommends that his petition for a writ

4 || of habeas corpus be denied and this case be closed.

5 Accordingly, IT IS HEREBY RECOMMENDED that:

6 1. Petitioner’s petition for a writ of habeas corpus (ECF No. 1) be DENIED.

7 2. This case be closed.

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 fourteen 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 served and filed within fourteen 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: June 8, 2026 fed) / Fac

CAROLYNK.DELANEY

18 UNITED STATES MAGISTRATE JUDGE

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