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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 OMAR ROLAND JACQUES, No. 1:26-cv-2651-DC-EFB

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 WARDEN OF THE GOLDEN STATE

ANNEX DETENTION FACILITY, et al.

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Respondent.

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18 Petitioner is a person detained in an immigration detention facility who has brought a

19 petition for writ of habeas corpus under 28 U.S.C. § 2241. For the reasons set forth below, the

20 undersigned recommends that the petition be granted.

21 BACKGROUND

22 In his verified petition for writ of habeas corpus, petitioner alleges he is a native of

23 Jamaica.1 ECF No. 1 at ¶ 1; ECF No. 12 at ¶ 11. He entered the United States as a teenager on

24 October 15, 2004 on a B2 visa,2 which authorized him to stay until April 14, 2005. ECF No. 12

25 1 Petitioner had pro se status when he filed his petition initiating this action. His court-

appointed counsel subsequently filed a supplemental petition. ECF No. 12. Respondents filed

26 opposition, and petitioner replied. ECF No. 13; ECF No. 14.

27 2 B2 visas are issued to persons entering the United States for purposes of personal

pleasure and limited business activities. 22 C.F.R. § 41.31; United States v. Singh, 979 F.3d 697,

28 723 (9th Cir. 2020).

1 at ¶ 11; ECF No. 12-1 at 3. He has three United States citizen children, the youngest has Downs

2 Syndrome and cannot speak. ECF No. 12 at ¶ 13.

3 In 2021, he was convicted of possession with intent to distribute a controlled substance

4 (marijuana). Id. at ¶ 14. The Department of Homeland Security (DHS) notified him that he was

5 removable on the grounds that he had overstayed his visa and took him into custody in October

6 2021. Id.; ECF No. 12-1 at 3. He has been detained continuously since then. ECF No. 12 at ¶

7 14.

8 Petitioner applied for cancellation of removal and withholding of removal under the

9 Convention Against Torture (CAT).3 ECF No. 12 at ¶ 15. An immigration judge (IJ) granted

10 withholding of removal on June 6, 2022, but the Board of Immigration Appeals (BIA) reversed

11 on the grounds that petitioner’s 2021 conviction “should have been deemed a particularly serious

12 crime and a bar to withholding of removal.” Id. at ¶ 16. On remand, the IJ once again granted

13 withholding of removal, but the BIA once again reversed on the same grounds. Id. at ¶¶ 17, 18.

14 Petitioner’s appeal to the Ninth Circuit Court of Appeals is pending.4 Id. at ¶ 18.

15 On April 11, 2024, an IJ held that the immigration court lacked jurisdiction to consider

16 petitioner’s request for bond (also described as his request for “a change in custody status”)

17 because of the final administrative decision of the BIA and the pending appeal to the Ninth

18 Circuit Court. ECF No. 12 at ¶ 19; ECF No. 12-1 at 37.

19 Respondents do not dispute petitioner’s account. ECF No. 13 at 1-2. They add that 1)

20 petitioner requested and received multiple extensions to submit briefing at the Ninth Circuit

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3 The CAT is a treaty, whose provisions have been implemented in immigration statutes

22 and regulations. S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 113 (Dec. 10, 1984); see Johnson v.

Guzman Chavez, 594 U.S. 523, 530-531 (citing 8 U.S.C. § 1231(b)(3)(A), 8 C.F.R. §§ 208.16-

23 208.17, and 1208.16-1208.17); see also Castillo v. Chestnut, No. 1:25-cv-01296-SAB-HC, 2026

WL 121652, at *3-4 (E.D. Cal. Jan. 16, 2026) (“Congress has implemented the treaty by statute

24 as part of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA)” (citations

omitted)).

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4 The court takes judicial notice that the Ninth Circuit Court’s docket for Jacques v.

26 Blanche, No. 23-3015, retrieved on Westlaw, indicates that no decision has issued as of July 30,

2026. See Fed. R. Evid. 201(c)(1) & (d) (a court may take judicial notice on its own at any stage

27 of the proceeding); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (a court may

take judicial notice of court records); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

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1 Court, 2) oral argument has been heard, and 3) the case was submitted on October 10, 2025. Id.

2 at 2.

3 LEGAL STANDARD

4 The federal court should grant a writ of habeas corpus under 28 U.S.C. § 2241 when the

5 petitioner is in custody in violation of the Constitution or federal law. See, e.g., Dominguez v.

6 Kernan, 906 F.3d 1127, 1134 (9th Cir. 2018). The petitioner bears the burden to prove the

7 unlawfulness of his detention by a preponderance of evidence. Sepulveda Ayala v. Bondi, 794 F.

8 Supp. 3d 901, 911 (W.D. Wash. 2025).

9 DISCUSSION

10 Petitioner asserts that his ongoing detention violates his rights under the Fifth Amendment

11 due process clause. He asks the court to order a bond hearing or his immediate release from

12 custody. ECF No. 1 at 30-31; ECF No. 12 at 11-12.

13 A. Merits Of The Petition

14 The court construes liberally the allegations of petitioner's pro se complaint. See Hughes

15 v. Rowe, 449 U.S. 5, 9 (1980); Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v.

16 Block, 832 F.2d 1132, 1137 (9th Cir. 1987).

17 B. Petitioner Is Detained Pursuant To 8 U.S.C. § 1226(a)

18 There are four statutes that allow the detention of non-citizens placed in removal

19 proceedings: 8 U.S.C. § § 1225(b), 1226(a), 1226(c), and 1231(a). Avilez v. Garland, 69 F.4th

20 525, 529 (9th Cir. 2023). “A non-citizen’s place within this web of statutes is significant as it can

21 affect whether their detention is mandatory or discretionary, as well as the kind of review process

22 available to them if they wish to challenge their detention.” L.R. v. Noem, 826 F. Supp. 3d 1252,

23 1263, 2026 WL 161605, at *4 (D. Nev. 2026) (quoting in part Avilez, 69 F.4th at 529) (cleaned

24 up).

25 The parties’ positions are somewhat equivocal as to the statutory authority for petitioner’s

26 detention. Petitioner suggests that he is detained under either 8 U.S.C. § 1231(a)(1)-(2), or 8

27 U.S.C. § 1226(c). ECF No. 12 at 5-11. Respondents assert that petitioner is detained pursuant to

28 § 1231(a) because he is removable under 8 U.S.C. § 1227(a)(2), and that because they claim

1 petitioner is a risk to the community or unlikely to comply with his order of removal, §

2 1231(a)(6) authorizes continued detention for longer than 90 days. See ECF No. 13 at 2-3. In his

3 reply, petitioner only tentatively agrees with respondents as to statutory authority. ECF No. 14 at

4 3 (respondents “[a]ssum[e], arguendo, [that] Respondents are correct” that petitioner is detained

5 pursuant to § 1231(a)).5

6 But according to the immigration records submitted by respondents, the reason petitioner

7 was detained was because he overstayed his visa.6 This means that at the outset his detention fell

8 under § 1226(a) rather than § 1231(a) or § 1226(c). See Carias Valenzuela v. Warden, No. 1:26-

9 cv-1249-DJC-SCR, 2025 WL 901337, at *3 (E.D. Cal. Apr. 2, 2026) (§ 1226(a) as the “default

10 detention provision” applies to detention on the basis of visa overstay). There is no indication in

11 this record that the statutory basis for petitioner’s continued detention has changed over time.7

12 The other statutes cited by the parties do not clearly appear to apply to petitioner’s

13 circumstances. Subsection 1231(a)(6) authorizes continued detention of persons removable under

14 § 1227(a)(1)(C), § 1227(a)(2), or § 1227(a)(4). See Escobar v. Chestnut, No. 1:26-cv-3568-DJC-

15 EFB, 2026 WL 1587466, at *2 (E.D. Cal. June 3, 2026). Respondents claim in conclusory

16 fashion that that petitioner is removable pursuant to § 1227(a)(2), but it is not clear whether this

17 true and respondents do not provide documentation showing that petitioner has been found

18 5 Petitioner claims that Enrique M.S. v. Andrews, 821 F. Supp. 3d 1197, No. 25-cv-1911-

TLN-CSK, 2026 WL 124863, at *3 (E.D. Cal. Jan. 16, 2026), “held to the contrary.” ECF No. 14

19 at 3. But Enrique merely held that the petitioner there was allowed to contest his continuing

detention under § 1231(a), 821 F. Supp. 3d at 1202-1203, which does not appear contrary or

20 relevant to the statutory basis for petitioner’s detention.

21 6 Form I-831 indicates that petitioner was encountered at the Washington County Jail in

Saint George, Utah on September 1, 2021, where he was serving his sentence for marijuana

22 possession. ECF No. 13-1 at 2. This form states that his “current administrative charges” as of

that date were “nonimmigrant overstay” and it cites “237a1B,” which the court construes as a

23 reference to 8 U.S.C. § 1227(a)(1)(B). It thus appears that petitioner was initially placed in

detention pursuant to this statute which provides that he may be “deportable as an overstay when

24 his period of admission expires unless he receives an extension.” Samimi v. INS, 714 F.2d 992,

994 (9th Cir. 1983) (emphasis in original).

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7 It is possible that “additional or substituted charges of inadmissibility and/or

26 deportability and/or factual allegations” may have been lodged against petitioner during the

course of his removal proceedings. See 8 C.F.R. § 1240.10(e); Mier-Fiorito v. Mukasy, 282 F.

27 App’x 536, 538 (9th Cir. 2008). But the record does not clearly indicate whether this has

occurred and there is no indication that the charge of visa overstay has been dropped.

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1 removable under this provision.8 Section 1226(c) authorizes the detention of persons convicted

2 of certain crimes, and it appears inapplicable for similar reasons. Also, respondents do not

3 suggest that § 1226(c) is any part of the authority for petitioner’s detention and petitioner only

4 tentatively cites § 1226(c) as a possibility.

5 For these reasons, the court proceeds on the understanding that petitioner is detained

6 pursuant to § 1226(a) as a person who overstayed his visa according to § 1227(a)(1). See Carias

7 Valenzuela, 2025 WL 901337, at *3.

8 C. Petitioner Must Receive Immediate Release

9 Petitioner requests that he be granted immediate release, or alternatively a bond hearing.

10 ECF No. 1 at 30-31; ECF No. 12 at 12-13. In cases where a person is detained pursuant to §

11 1226(a), “[c]ourts in this circuit have ordered both forms of relief.” Lopes Santana v. Marin, No.

12 1:26-CV-0915-DJC-JDP, 2026 WL 746995, at *5 (E.D. Cal. Mar. 17, 2026).

13 Petitioner was denied a bond hearing in 2024 on a finding that the IJ lacked jurisdiction

14 because of the procedural circumstances of his case. ECF No. 12 at ¶ 19; ECF No. 12-1 at 37.

15 As a person whose detention is governed by § 1226(a), he is entitled to a bond hearing, but courts

16 have instead granted immediate release in circumstances similar to those presented here. See

17 Feng v. Lyons, No. 1:26-cv-0235-DJC-SCR, 2026 WL 472635, at *1 (E.D. Cal. Feb. 19, 2026)

18 (ordering immediate release of petitioner who was denied a bond hearing on grounds the IJ lacked

19 jurisdiction9); Leo Huayen v. Chestnut, No. 1:26-cv-3696-DAD-AC, 2026 WL 1363089, at *1-2

20 (E.D. Cal. May 15, 2026) (petitioner with expired visa who was held for six months without a

21 bond hearing was granted immediate release because a bond hearing would not adequately

22 remedy the due process violation of “being deprived of an opportunity to be heard at a

23 8 Subsection 1227(a)(2)(B) classifies as deportable persons with convictions for

possession of controlled substances (“other than a single offense for one’s own use of 30 grams or

24 less of marijuana”). The parties have not addressed whether or how petitioner’s conviction might

fall within this provision or its carve-out exception. Without benefit of briefing by the parties or

25 any indication in petitioner’s immigration records that he has been explicitly classified as

deportable under § 1227(a)(2)(B), the court will not opine whether this provision applies.

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9 Background information describing the Feng petitioner’s circumstances was set forth in

27 the Magistrate Judge’s findings and recommendations. Feng v. Lyons, No. 1:26-cv-0235-DJC-

SCR, 2026 WL 369800, at *1 (E.D. Cal. Feb. 10, 2026).

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1 meaningful time and in a meaningful manner” (internal quotation marks and citation omitted));

2 Ramirez Quintero v. Warden, No. 1:26-cv-4251-DAD-JDP, 2026 WL 2018614, at *2 (E.D. Cal.

3 July 13, 2026), vacated on reconsideration on grounds that removal had mooted the habeas

4 petition, 2026 WL 2112425 (E.D. Cal. July 21, 2026) (person detained for 15-year visa overstay

5 upon his arrest for petit theft was not inadmissible under Laken Riley Act and his release was the

6 appropriate remedy). Courts have chosen a bond hearing as the more appropriate remedy where

7 the person has a more extensive and/or more violent criminal history. Lopes Santana, 2026 WL

8 746995, at *1 (recommending a bond hearing where petitioner had pending charges for assault

9 after threatening his ex-wife with a gun); Perez-Paredes v. Warden, No. 1:26-cv-3356-DC-JDP,

10 2026 WL 1470605, at *1, 4 (E.D. Cal. May 26, 2026) (bond hearing was appropriate remedy for

11 petitioner with criminal convictions for two DUIs and for preventing a victim from testifying,

12 who had also been arrested for crimes including unlawful possession of tear gas, paraphernalia,

13 and appropriation of lost property, possession of a controlled substance, possession of marijuana

14 for sale, willful cruelty to a child, battery against a spouse/ex-spouse, and rape by means of force

15 or fear); Colamenares-Pinto v. Warden, No. 1:26-cv-0812-DAD-SCR, 2026 WL 923804, at *1, 4

16 (E.D. Cal. Apr. 6, 2026) (bond hearing was appropriate remedy for person who overstayed visa

17 by over four years then was detained for four months without a bond hearing after pleading guilty

18 to twelve counts of felony smuggling of persons).

19 Under the circumstances presented, the undersigned finds that petitioner’s immediate

20 release is the proper remedy. His very lengthy detention of over four and a half years without a

21 bond hearing is a due process violation that has deprived him of an opportunity to be heard at a

22 meaningful time and in a meaningful manner. Also, as in Feng, there is no indication in this

23 record “of prima facie evidence that Petitioner could be found to be a risk of flight or a danger to

24 the community.” 2026 WL 472635, at *1.

25 CONCLUSION

26 Accordingly, IT IS HEREBY RECOMMENDED that

27 1. Petitioner’s petition for writ of habeas corpus (ECF No. 1) be GRANTED;

28 2. Respondents be ORDERED to immediately release Petitioner (Omar Jacques, A-216-

1 || 677-298) from their custody. Respondents shall not impose any additional restrictions on

2 || Petitioner, unless that is determined to be necessary at a future pre-deprivation/custody hearing.

3 || Ifthe government seeks to re-detain Petitioner, it must provide no less than seven (7) days’ notice

4 || to Petitioner and must hold a pre-deprivation bond hearing before a neutral arbiter pursuant to

5 || section 1226(a) and its implementing regulations, at which Petitioner’s eligibility for bond must

6 | be considered; and

7 3. The Clerk of Court be directed to enter judgment in favor of petitioner and close this

8 || case.

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

10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days

11 | after being served with these findings and recommendations, any party may file written

12 || objections with the court and serve a copy on all parties. Such a document should be captioned

13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

14 || within the specified time may waive the right to appeal the District Court’s order. Turner v.

15 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

16 || Dated: August 3, 2026

17 atti, □

EDMUND F. BRENNAN

18 UNITED STATES MAGISTRATE JUDGE

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