The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JESUS BALTIERRA ROCHA, Case No. 26-cv-04205-BAS-MSB
12 Petitioner,
ORDER DENYING PETITION FOR
13 v. WRIT OF HABEAS CORPUS
(ECF No. 1)
14 PATRICK DIVVER, et al.,
15 Respondents.
16
17
18
19 Petitioner Jesus Baltierra Rocha filed a Petition for Writ of Habeas Corpus pursuant
20 to 28 U.S.C. § 2241, claiming he has been detained without bond when he should be subject
21 to discretionary detention under 8 U.S.C. § 1225(b). (ECF No. 1.) In addition, Petitioner
22 claims he has been subject to prolonged detention. (Id.) The Government provides evidence
23 that Petitioner is subject to a final order of removal and thus is subject to mandatory
24 detention under § 1231. (ECF No. 4.) Petitioner does not reply. For the reasons stated
25 below, the Court DENIES the Petition.
26 I. LEGAL STANDARD
27 A writ of habeas corpus is “available to every individual detained within the United
28 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). “The traditional function of the
1 writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484
2 (1973). A court may grant a writ of habeas corpus to a petitioner who demonstrates he or
3 she is in custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3). It
4 applies to non-citizens detained within the United States. Zadvydas v. Davis, 533 U.S. 678,
5 687 (2001). Since Petitioner is in custody and since he is seeking release from custody, he
6 has standing to pursue this Petition.
7 II. STATEMENT OF FACTS
8 Petitioner was originally arrested for illegal entry on July 9, 2008. (ECF No. 4, Ex.
9 1.) An Immigration Judge ordered him removed to Mexico, which was accomplished on
10 July 21, 2008. (Id., Exs. 2, 3.) Immigration and Customs Enforcement (“ICE”) re-arrested
11 Petitioner on January 20, 2026, after he again illegally entered the United States. (ECF No.
12 1.) On April 9, 2026, Petitioner moved to reopen his removal proceedings and to apply for
13 asylum and withholding of removal. (Id.) An Immigration Judge denied these requests.
14 (ECF No. 4, Exs. 4, 5.) Petitioner has appealed the Immigration Judge’s ruling. However,
15 he is still subject to a final order of removal unless or until the motion to reopen is
16 successful.
17 III. ANALYSIS
18 To the extent Petitioner argues he should have a bond hearing under 8 U.S.C.
19 § 1225(b), he is incorrect. Because he is subject to a final order of removal, he is subject to
20 mandatory detention under 8 U.S.C. § 1231(a). See Diouf v. Napolitano, 634 F.3d 1081,
21 1085 (9th Cir. 2011) (“Section 1231(a)(6) encompasses aliens such as Diouf, whose
22 collateral challenge to his removal order (a motion to reopen) is pending in the court of
23 appeals, as well as to aliens who have exhausted all direct and collateral review of their
24 removal orders but who, for one reason or another, have not yet been removed from the
25 United States.”), abrogated on other grounds as recognized in Rodriguez Diaz v. Garland,
26 53 F.4th 1189 (9th Cir. 2022).
27 The Supreme Court has ruled that an individual subject to a final order of removal
28 can raise a claim of unreasonably prolonged detention. Zadvydas v. Davis, 533 U.S. 678
1 (2001); see also Clark v. Martinez, 543 U.S. 371, 386 (2005). After six months of detention
2 || without removal, “once [a non-citizen] provides good reason to believe that there is no
3 || significant likelihood of removal in the reasonably foreseeable future, the Government
4 || must respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701.
5 Petitioner in this case fails to meet the first prong. He fails to provide a reason to
6 || believe that there is no significant likelihood of removal in the reasonably foreseeable
7 || future. In fact, he has been removed to Mexico in the past. He could be removed again
8 ||immediately but for his attempt to reopen his previous removal proceedings. If the Board
9 || of Immigration Appeals affirms the Immigration Judge’s refusal to reopen the proceedings,
10 || Petitioner could be removed immediately. Thus, he is not facing a potentially indefinite
11 || detention like that faced by the two petitioners in Zadvydas.
12 CONCLUSION
13 Because Petitioner is subject to mandatory detention under § 1231, and because he
14 || fails to show that there is no significant likelihood of his removal in the reasonably
15 || foreseeable future, the Petition seeking release or a bond hearing is DENIED. The Clerk
16 || of Court shall close the case.
17 IT IS SO ORDERED.
18
19 || DATED: August 7, 2026 ji ly A (Dipharb
20 Hén. Cynthia Bashant, Chief Judge
5 United States District Court
22
23
24
25
26
27
28
□□□