Opinion

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7 UNITED STATES DISTRICT COURT

8 FOR THE EASTERN DISTRICT OF CALIFORNIA

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10 VIRGILIO BERSAIN MORALES No. 1:26-cv-03279-DC-CSK

SAMAYOA (A-221-453-509),

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Petitioner,

12 ORDER AND FINDINGS AND

v. RECOMMENDATIONS

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WARDEN, CALIFORNIA CITY

14 IMMIGRATION PROCESSING

CENTER,

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Respondent.

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18 Petitioner Virgilio Bersain Morales Samayoa (A-221-453-509), a native and citizen of

19 Mexico, has filed a verified petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.1

20 Petitioner was admitted to the United States on December 16, 2022 as a nonimmigrant

21 agricultural worker with authorization to remain for a temporary period not to exceed June 15,

22 2023. Petitioner remained in the United States beyond June 15, 2023 without authorization. On

23 February 24, 2026, U.S. Immigration and Customs Enforcement (“ICE”) detained petitioner

24 following a traffic stop. This habeas action concerns petitioner’s detention. For the reasons that

25 follow, the Court recommends that respondent’s motion to dismiss be granted.

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1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72,

28 and Local Rule 302(c)(17).

1 I. FACTUAL BACKGROUND2

2 Petitioner is a citizen and native of Mexico. (ECF No. 1 at 5.) On December 16, 2022,

3 petitioner was admitted to the United States as a nonimmigrant H-2A agricultural worker with

4 authorization to remain for a temporary period not to exceed June 15, 2023. (ECF No. 5 at 9.)

5 Petitioner remained in the United States beyond June 15, 2023 without authorization. (Id.) On

6 February 24, 2026, ICE detained petitioner after encountering him following a traffic stop. (Id.)

7 ICE served petitioner with a Notice to Appear charging him with violation of Immigration and

8 Nationality Act (“INA”) § 237(a)(1)(B), 8 USC § 1227(a)(1)(B), as a nonimmigrant who

9 remained in the United States for a time longer than permitted. (See id.)

10 On April 21, 2026, an immigration judge provided petitioner with a bond hearing. (Id. at

11 12.) The immigration judge denied bond, finding petitioner was a flight risk. (Id.)

12 The parties do not dispute that petitioner is being detained pending removal proceedings

13 under 8 U.S.C. § 1226(a). (Id. at 5.) Petitioner has been in continuous detention since February

14 24, 2026. (ECF No. 1 at 1.) Respondent does not contest petitioner’s factual allegations. (See

15 ECF No. 5.)

16 II. PROCEDURAL BACKGROUND

17 On April 29, 2026, petitioner filed his petition for writ of habeas corpus. (ECF No. 1.)

18 On May 5, 2026, respondent timely filed a consolidated motion to dismiss and response to the

19 petition. (ECF No. 5.) On May 11, 2026, petitioner filed a motion to proceed in forma pauperis

20 and supplement to the petition. (ECF Nos. 6, 7.) Examination of the affidavit reveals petitioner

21 is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is

22 granted. 28 U.S.C. § 1915(a).

23 On June 4, 2026, petitioner filed an opposition to respondent’s motion to dismiss. (ECF

24 No. 8.) On June 18, 2026, petitioner filed a motion for expedited consideration of his petition.

25 (ECF No. 9.) On June 24, 2026, petitioner filed a supplemental notice regarding his medical

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2 Petitioner filed a verified habeas petition. (ECF No. 1 at 8.) A court “may treat the allegations

27 of a verified . . . petition [for writ of habeas corpus] as an affidavit.” L. v. Lamarque, 351 F.3d

919, 924 (9th Cir. 2003) (citing McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987)).

28 Respondent does not contest petitioner’s factual allegations. (See ECF No. 6.)

1 condition and continued detention. (ECF No. 10.) Briefing is now complete.

2 III. LEGAL STANDARDS

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

4 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)

5 (citing U.S. Const., Art I, § 9, cl. 2). “[T]he essence of habeas corpus is an attack by a person in

6 custody upon the legality of that custody, and . . . the traditional function of the writ is to secure

7 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas

8 corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the

9 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has

10 served as a means of reviewing the legality of Executive detention, and it is in that context that its

11 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s

12 habeas jurisdiction includes challenges to immigration detention. See Zadvydas v. Davis, 533

13 U.S. 678, 687 (2001).

14 Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4 of the Rules

15 Governing Section 2254 Cases in the United States District Court. The provisions of Rule 4,

16 which are applicable to a petition filed pursuant to 28 U.S.C. § 2241, provide in pertinent part: “If

17 it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to

18 relief in the district court, the judge must not dismiss the petition and direct the clerk to notify the

19 petitioner.” The Advisory Committee Notes to Rule 4 indicate that the court may dismiss a

20 petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to

21 respondent’s motion to dismiss, or after an answer to the petition has been filed.

22 IV. DISCUSSION

23 Generally, noncitizens are subject to civil immigration detention only if the noncitizen

24 presents a risk of flight or danger to the community. See Zadvydas, 533 U.S. at 690 (holding that

25 8 U.S.C. § 1231(a)(6) does not authorize indefinite detention). Because petitioner is proceeding

26 pro se and pro se pleadings are liberally construed, the Court construes the petition as challenging

27 his continued detention based on the violation of (1) the Fifth Amendment procedural due process

28 clause; and (2) the Immigration and Nationality Act (“INA”). (See ECF No. 1 at 2; ECF No. 8 at

1 2.) In the motion to dismiss and response to the petition, respondent asserts petitioner is lawfully

2 detained under 8 U.S.C. § 1226(a); he failed to exhaust his administrative remedies; and any due

3 process claims fail. (ECF No. 5 at 2-5.)

4 A. Statutory Basis for Detention and Due Process Claim

5 8 U.S.C. § 1226 governs the arrest, detention, and release of noncitizens like petitioner

6 who are in removal proceedings. 8 U.S.C. § 1226; see also Demore v. Kim, 538 U.S. 510, 530

7 (2003). Under § 1226(a), the Department of Homeland Security (“DHS”) has discretionary

8 authority to detain a noncitizen, release them on bond, or release them on conditional parole

9 pending removal proceedings. This discretionary authority does not apply to noncitizens who fall

10 within the criminal categories described in § 1226(c), for whom detention is mandatory.

11 When a noncitizen is taken into immigration custody under § 1226(a), ICE makes an

12 initial custody determination, which may include setting bond. 8 C.F.R. § 236.1(c)(8). A

13 detainee may then request a bond redetermination hearing before an immigration judge. 8 C.F.R.

14 § 236.1(d)(1). At that hearing, the detainee bears the burden of demonstrating to the immigration

15 judge that the detainee warrants release on bond. See In re Guerra, 24 I. & N. Dec. 37, 40 (BIA

16 2006). The immigration judge must consider whether the detainee “is a threat to national

17 security, a danger to the community at large, likely to abscond, or otherwise a poor bail risk.” Id.

18 (citing Matter of Patel, 15 I. & N. Dec. 666 (BIA 1976)). The immigration judge may also weigh

19 other discretionary factors. Id.

20 If the immigration judge denies bond, the detainee may appeal to the Board of

21 Immigration Appeals (“BIA”). 8 C.F.R. § 236.1(d)(3). If the BIA affirms, the detainee may seek

22 habeas relief in federal district court. Leonardo v. Crawford, 646 F.3d 1157, 1159-61 (9th Cir.

23 2011). While district courts have jurisdiction to review bond determinations for constitutional

24 error, Rodriguez Diaz v. Garland, 53 F.4th 1189, 1209 (9th Cir. 2022), district courts may not

25 review discretionary judgments regarding the detention and release of noncitizens in removal

26 proceedings under § 1226(a). 8 U.S.C. § 1226(e).

27 Further, an individual detained pursuant to § 1226(a) may request an additional bond

28 hearing whenever he experiences a material change in circumstances. See 8 C.F.R. § 1003.19(e).

1 In the motion to dismiss and answer, respondent asserts that petitioner is lawfully detained

2 pursuant to 8 U.S.C. § 1226(a). (ECF No. 5 at 5.) Petitioner does not dispute this. (See ECF No.

3 8.) As discussed above, an immigration judge held a bond hearing in petitioner’s case and issued

4 an order denying bond on April 21, 2026. (ECF No. 5 at 12-13.) Petitioner acknowledges he did

5 not appeal the immigration judge’s decision denying bond. (ECF No. 8 at 1-2.)

6 When the procedures called for by § 1226(a) were provided, as in the facts of this specific

7 case where petitioner was detained pursuant to § 1226(a) and received a bond hearing before an

8 immigration judge, this Court finds no due process violation. Accordingly, the Court

9 recommends denying petitioner’s due process claim.

10 B. Exhaustion of Administrative Remedies

11 Respondent argues that petitioner failed to exhaust administrative remedies where he did

12 not appeal the immigration judge’s April 21, 2026 order denying his request for bond. (ECF No.

13 5 at 2-4.) Petitioner argues that exhaustion should be waived as he has been detained and is

14 proceeding pro se. (ECF No. 8 at 1-2.)

15 28 U.S.C. § 2241 “does not specifically require petitioners to exhaust direct appeals

16 before filing petitions for habeas corpus.” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004).

17 However, “[a]s a prudential matter, courts require that habeas petitioners exhaust all available

18 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678

19 F.3d 1042, 1045 (9th Cir. 2012). Because exhaustion is not required by statute, it is not

20 jurisdictional. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by

21 Reno v. Koray, 515 U.S. 50, 54-55 (1995) (citing Morrison-Knudsen Co., Inc. v. CHG Int'l, Inc.,

22 811 F.2d 1209, 1223 (9th Cir. 1987)). If a petitioner has not properly exhausted his claims, the

23 district court, in its discretion, may “determine whether to excuse the faulty exhaustion and reach

24 the merits or require the petitioner to exhaust his administrative remedies before proceeding in

25 court.” Id. “Courts may require prudential exhaustion if (1) agency expertise makes agency

26 consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of

27 the requirement would encourage the deliberate bypass of the administrative scheme; and

28 (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude

1 the need for judicial review.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (internal

2 citation and quotation marks omitted). However, the court may waive the exhaustion requirement

3 when administrative remedies are inadequate, irreparable injury may occur without immediate

4 judicial relief, or exhaustion otherwise would be futile. Laing, 370 F.3d at 1000-01 (“[D]istrict

5 court’s habeas jurisdiction under 28 U.S.C. § 2241 is ordinarily reserved for instances in which

6 no other judicial remedy is available.”).

7 In Leonardo v. Crawford, 646 F.3d 1157 (9th Cir. 2011), the petitioner was a noncitizen

8 held in immigration detention pursuant to 8 U.S.C. § 1226(a) and filed a petition for writ of

9 habeas in the federal district court under 28 U.S.C. § 2241, alleging that his prolonged detention

10 without a bond hearing violated his due process rights. See Leonardo, 646 F.3d at 1159. The

11 district court entered an order directing respondent to hold a bond hearing consistent with the

12 requirements set forth in Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942

13 (9th Cir. 2008), and refrained from entering judgment on the habeas corpus petition until

14 respondents had reported to the court that such a hearing had been held. See Leonardo, 646 F.3d

15 at 1159. Respondents complied with the order and an Immigration Judge held a bond hearing, at

16 which he denied bond upon finding petitioner was a danger to the community. See id. The

17 petitioner did not appeal this determination to the BIA but instead filed in the district court in his

18 pending habeas corpus proceeding a motion for the court to review and reverse the Immigration

19 Judge’s bond order, arguing that the bond hearing did not conform to the court’s prior order nor

20 satisfy due process. Id. The Ninth Circuit held that the petitioner’s request should have been

21 denied, and his underlying claim dismissed without prejudice, due to his failure to exhaust

22 administrative remedies by seeking review of the bond decision to the BIA. See id. at 1160. The

23 Ninth Circuit explained that the statutory and regulatory scheme of § 1226(a)

24 entitle[s] [detainees] to a bond hearing before an immigration judge.

If they are dissatisfied with the IJ's bond determination, they may file

25 an administrative appeal so that “the necessity of detention can be

reviewed by ... the BIA.” If they remain dissatisfied, they may file a

26 petition for habeas corpus in the district court.

27 Id. (citations omitted). As such, it was “improper” for petitioner to employ the “short cut” of

28 seeking review of the immigration judge’s bond decision in the district court before seeking

1 review in the BIA. See id. Instead, petitioner “should have exhausted administrative remedies by

2 appealing to the BIA before asking the federal district court to review the immigration judge’s

3 decision” and “[o]nce the BIA rendered its decision, [petitioner] could have properly pursued

4 habeas relief in the district court and the district court’s decision would have been subject to

5 review in this court.” Id. Because petitioner had not shown that his request should be excused

6 from the prudential exhaustion requirement, nor that the proceeding should be stayed to permit

7 him to exhaust the new claim, the Ninth Circuit held that the petition should be dismissed without

8 prejudice due to petitioner’s failure to exhaust his claim challenging the adequacy of the bond

9 determination. See id. at 1160-61.

10 Under the circumstances of this case, this Court finds that petitioner should not be excused

11 from exhausting administrative remedies. Petitioner did not seek review of the immigration

12 judge’s April 21, 2026 decision. Petitioner contends he did not file an appeal as he was detained,

13 proceeding pro se, and uninformed of the administrative procedures available to him. (ECF No. 8

14 at 2.) Though the Court acknowledges the challenges pro se petitioners face and that petitioner

15 has been transferred between detention facilities (see ECF No. 1 at 1), the immigration judge’s

16 decision indicates petitioner reserved appeal and relaxing the exhaustion requirement under these

17 circumstances would encourage others to bypass the administrative exhaustion process. (See

18 ECF No. 5 at 13.) Further, administrative review allows the agency to correct its own mistakes

19 and thus avoid the need for judicial review. Accordingly, as to petitioner’s challenges to the

20 April 21, 2026 decision by the immigration judge denying his request for bond, this Court finds

21 petitioner’s claim should be dismissed based on his failure to exhaust administrative remedies.

22 See Leonardo, 646 F.3d at 1160.

23 V. CONCLUSION

24 In summary, IT IS HEREBY ORDERED that:

25 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 6) is granted; and

26 2. Petitioner’s motion for expedited consideration (ECF No. 9) is denied as moot.

27 Further, IT IS HEREBY RECOMMENDED that:

28 1. Respondent’s motion to dismiss (ECF No. 5) be GRANTED.

] 2. The petition for writ of habeas corpus (ECF No. 1) be DISMISSED.

2 3. The Clerk of the Court be directed to enter judgment in favor of respondent and close

3 this case.

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

5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days of the

6 || date of these findings and recommendations, any party may file written objections with the court

7 || and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate

8 | Judge’s Findings and Recommendations.” Any response to the objections shall be filed and

9 || served within seven days after service of the objections. The parties are advised that failure to

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

11 || See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

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13 | Dated: July 22, 2026 CC (i S$ \C

14 CHI SOO KIM

15 UNITED STATES MAGISTRATE JUDGE

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