The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 JOSE MILTON LOPEZ AREVALO, No. 1:26-cv-04853-DAD-CKD
(A208-150-269),
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Petitioner,
13 FINDINGS & RECOMMENDATIONS
v.
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WARDEN, et. al.,
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Respondents.
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17 Petitioner is a federal immigration detainee who filed this habeas corpus action pursuant
18 to 28 U.S.C. § 2241. The matter was referred to a United States Magistrate Judge pursuant to 28
19 U.S.C. § 636(b)(1)(B) and Local Rule 302.
20 I. Factual and Procedural History
21 Petitioner, a 27-year-old citizen of El Salvador, entered the United States in March 2015,
22 when he was 15 years old. ECF No. 7-1 at 3. He was released to the custody of his aunt after
23 approximately 20 days in detention. ECF No. 1 at 2, 16. After obtaining the requisite state court
24 findings, Petitioner filed a petition with U.S. Citizenship & Immigration Services (USCIS) for
25 Special Immigrant Juvenile Status (SIJS). Id; ECF No. 7-1 at 3. On October 10, 2016, USCIS
26 approved the SIJS petition and granted Petitioner deferred action, and on November 2, 2016, an
27 immigration judge terminated removal proceedings. Id. On the basis of his SIJS visa, Petitioner
28 submitted an application to adjust his status to that of a lawful permanent resident. Id. at 2.
1 USCIS denied that petition in 2022, indicating that Petitioner did not respond to a request for
2 evidence. Id; ECF No. 7-1 at 3.
3 Petitioner’s criminal history begins in 2018 with arrests for driving under the influence of
4 alcohol, driving without a license, hit and run, and possession of a controlled substance and
5 burglary tools, though it appears that these arrests did not result in convictions. ECF No. 7-3 at 6-
6 8. In 2020, Petitioner was arrested and convicted for false imprisonment (Cal. Penal Code § 236),
7 driving under the influence of alcohol (Penal § 23152(b)), and evading a peace officer (Penal §
8 2800.1(a). Id. at 9-12. In 2025, Petitioner was convicted under Cal. Penal Code § 245(a)(4) for
9 assault with force likely to produce great bodily injury and § 487(c) for grand theft. Id. at 14, 17.
10 While Petitioner was serving a criminal sentence, the county jail referred him to U.S.
11 Immigration and Customs Enforcement (ICE), who placed a detainer on him. ECF No. 7-1 at 2.
12 When Petitioner was released from criminal custody on February 11, 2026, ICE took him into
13 custody and re-initiated removal proceedings against him. ECF No. 7-1; 7-2.
14 Petitioner filed an application for writ of habeas corpus on June 24, 2026. ECF No. 1. He
15 raises both substantive and procedural due process claims and alleges that his re-detention
16 violates the Immigration and Nationality Act (INA). Id. Respondents assert that Petitioner is
17 subject to mandatory detention pursuant to 8 U.S.C. § 1226(c)(1)(A) because his conviction under
18 Cal. Penal Code § 245(a)(4) constitutes a crime involving moral turpitude. ECF No. 7.
19 II. Legal Standards
20 A. Constitutional Framework
21 The Constitution guarantees the availability of the writ of habeas corpus “to every
22 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)
23 (citing U.S. Const., Art I, § 9, cl. 2). A writ of habeas corpus may be granted to a petitioner in
24 custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3).
25 The Supreme Court has held that “the Due Process Clause applies to all ‘persons’ within
26 the United States, including [non-citizens], whether their presence here is lawful, unlawful,
27 temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The Due Process
28 Clause “protects individuals against two types of government action: violations of substantive due
1 process and procedural due process.” United States v. Quintero, 995 F.3d 1044, 1051 (9th Cir.
2 2021) (internal quotation omitted). An as-applied challenge “contends that the law is
3 unconstitutional as applied to the litigant's particular [circumstances], even though the law may be
4 capable of valid application to others.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir.
5 1998) (citation omitted).
6 B. Statutory Immigration Framework
7 The detention of a noncitizen pending removal proceedings is governed by 8 U.S.C §
8 1226. While § 1226(a) allows the Attorney General to either detain or release noncitizens while
9 their removal proceedings are pending, § 1226(c) imposes mandatory detention on certain
10 noncitizens. 8 U.S.C § 1226(c)(1) (“The Attorney General shall take into custody…) (emphasis
11 added). See also 8 U.S.C § 1226(c)(4) (allowing release only if the Attorney General (“AG”)
12 deems it necessary for witness protection and if the AG determines such noncitizen witness will
13 not pose a danger or flight risk). Subsection (c)(1)(A) requires detention without bond for any
14 noncitizen who is inadmissible under § 1182(a)(2) for certain criminal convictions, including a
15 crime involving moral turpitude. 8 U.S.C. § 1226(c)(1)(A); 8 U.S.C. § 1182(a)(2).
16 III. Analysis
17 A. Detention Authority
18 The undersigned turns first to Petitioner’s third claim that his current detention violates
19 the Immigration and Nationality Act (INA). Petitioner’s argument assumed that ICE claimed to
20 detain him under 8 U.S.C. § 1225(b). In their response, Respondents clarified that Petitioner is
21 subject to detention pursuant to § 1226(c) due to his 2025 assault conviction under Cal. Penal
22 Code § 245(a)(4).
23 While neither the Ninth Circuit nor the Board of Immigration Appeals (“BIA”) has ruled
24 specifically on whether Cal. Penal Code § 245(a)(4) is considered a crime involving moral
25 turpitude, both have held that a conviction under a preceding subsection, Cal. Penal Code §
26 245(a)(1), is a crime involving moral turpitude. See Safaryan v. Barr, 975 F.3d 976 (9th Cir.
27 2020), giving Chevron deference to the BIA’s determination in Matter of Wu, 27 I&N Dec. 8
28 (BIA 2017). The same analysis can be used to deem § 245(a)(4) a crime involving moral
1 turpitude. Safaryan and Wu utilized the categorical approach to determine that the elements of §
2 245(a)(1) fall within the generic federal definition of a crime involving moral turpitude. To
3 identify the elements of § 245(a)(1), the courts consulted the California criminal pattern jury
4 instructions. Safaryan, 975 F.3d 976 at 984. They then found that the statute’s elements combine
5 a sufficiently reprehensible actus reus - the use of a deadly weapon - with a sufficiently culpable
6 mens rea – acting willfully with the knowledge that the action was likely to apply force to another
7 person – and therefore constitute a crime involving moral turpitude. Id. at 987. Notably, the jury
8 instructions for § 245(a)(1)-(4) and (b) are written together; they include the same elements of the
9 crime and only list the use of force likely to produce great bodily injury (§ 245(a)(4)) versus a
10 deadly weapon (§ 245(a)(1)) as alternative means of committing the same crime. See Judicial
11 Council of California, Criminal Jury Instructions (CALCRIM) No. 875. The statute also imposes
12 the same punishment for the use of force likely to produce great bodily injury (§ 245(a)(4)) as it
13 does for the use of deadly weapon (§ 245(a)(1)). See Cal. Penal Code § § 245(a)(1), (b). This
14 implies that the use force in § 245(a)(4) makes the crime’s actus reus just as “reprehensible” as
15 the use of a deadly weapon in § 245(a)(1). In other words, the courts’ reasoning for finding that §
16 245(a)(1) constitutes a crime involving moral turpitude logically follows for § 245(a)(4).
17 Therefore, the undersigned finds that Petitioner’s conviction under Cal. Penal Code § 245(b) is
18 correctly classified as a crime involving moral turpitude that § 1226(c) governs Petitioner’s
19 current detention.
20 B. Substantive Due Process
21 Petitioner’s first claim is that his current detention violates his substantive due process
22 rights, in that it is punitive and bears no reasonable relation to the legitimate government purpose
23 of protecting the community or preventing flight. “At the least, due process requires that the
24 nature and duration of commitment bear some reasonable relation to the purpose for which the
25 individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972). In the context of pretrial
26 detention, the Ninth Circuit has held that “[a] [substantive] due process violation occurs when
27 detention becomes punitive rather than regulatory, meaning there is no regulatory purpose that
28 can rationally be assigned to the detention or the detention appears excessive in relation to its
1 regulatory purpose.” United States v. Torres, 995 F.3d 695, 708 (9th Cir. 2021) (citing United
2 States v. Salerno, 481 U.S. 739, 747 (1987)).
3 In support of his argument regarding the punitive nature of this detention, Petitioner
4 alleges that he was detained to assist ICE in meeting detention quotas and pressure him into
5 abandoning his application for lawful permanent residency. While the undersigned acknowledges
6 the government’s expanded use of § 1225(b) detention, the purported detention authority here is §
7 1226(c), triggered by a qualifying criminal conviction, not a pretextual justification. The
8 detention also appears unrelated to any purpose of preventing Petitioner’s adjustment of status, as
9 his application was denied years before his current detention.
10 Petitioner argues that his current detention is unrelated to the government’s purpose of
11 effectuating removal because a grant of deferred action prevents removal. Petitioner states that
12 USCIS granted him deferred action upon the approval of his Special Immigrant Juvenile Status
13 petition in 2016. Nothing in the record indicates the duration of the deferred action grant or
14 whether it is still in effect. The undersigned takes judicial notice of a March 7, 2022 USCIS
15 policy alert that discusses a previous directive to defer removal “until USCIS makes a final
16 determination on the pending victim-based immigration benefit application(s) or petition(s),
17 including adjustment of status for noncitizens with approved Special Immigrant Juvenile Status.”
18 U.S. Dep’t of Homeland Security, Citizenship & Immigration Services, PA-2022-10, Special
19 Immigrant Juvenile Classification and Deferred Action (2022). The 2022 policy directs USCIS to
20 grant deferred action for a period of four years. Id. at 2. Petitioner’s period of deferred action
21 would have therefore likely ended either when USCIS denied his application for lawful
22 permanent resident status, or four years after the 2016 grant. Absent evidence that the grant of
23 deferred action is still in effect, the undersigned does not find that the prior deferred action has
24 any effect on the government’s ability to remove Petitioner.
25 Petitioner also argues that his detention does not bear a reasonable relation to protecting
26 the community or preventing flight because there has been no individualized determination that
27 he poses any danger or risk of flight. Respondents maintain that Petitioner is subject to
28 mandatory detention under 8 U.S.C. § 1226(c), which does not permit, let alone require,
1 individualized hearings to make such a determination. 8 U.S.C § 1226(c)(1) (“The Attorney
2 General shall take into custody…) (emphasis added); see also 8 U.S.C § 1226(c)(4) (allowing
3 release only if the Attorney General (“AG”) deems it necessary for witness protection and if the
4 AG determines such noncitizen witness will not pose a danger or flight risk); Demore v. Kim, 538
5 U.S. 510, 518-531 (2003). If Petitioner is indeed subject to § 1226(c)’s mandatory detention
6 scheme, no such individualized finding is required.1
7 C. Procedural Due Process
8 Next, Petitioner claims that re-detention without notice, hearing, or changed
9 circumstances violated his procedural due process rights.
10 Courts in this district have found due process violations where petitioners have been re-
11 detained pursuant to § 1225(b) or § 1226(a) after a previous release or parole. See e.g. Chavarria
12 v. Chestnut, No. 1:25-cv-01755-DAD-AC, 2025 WL 3533606 (E.D. Cal. Dec. 9, 2025) Selis
13 Tinoco v. Noem, 1:25-cv-01762-DC-JDP, 2025 WL 3567862 (E.D. Cal. Dec. 14, 2025); F.S.S.M.
14 v. Wofford, No. 1:25-cv-01518-TLN-AC, 2025 WL 3526671 (E.D. Cal. Dec. 9, 2025). In those
15 cases, the Court found that the petitioners acquired a strong liberty interest upon release, and
16 detention without a hearing risked erroneous deprivation of liberty. In the context of § 1226(a)
17 detention, courts in this district have granted habeas relief and ordered post-deprivation hearings
18 where, as here, respondents have provided non-pretextual justifications for re-detention after
19 release. See e.g. Calvillo v. Chestnut, No. 1:26-cv-00569-DC-CSK, 2026 WL 253627 (E.D. Cal.
20 Jan. 31, 2026). Here, though, Petitioner is detained under § 1226(c), which, as discussed in
21 section III.B., supra, does not require an individualized determination of danger or flight risk.
22 Where courts in this district have found due process violations in § 1226(c) detention after prior
23 release, they have done so when the government has known about the criminal convictions at
24 time of prior detention and release, or has delayed the detention until many years after the
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26 1As discussed in section III.C., Petitioner is entitled to a hearing to determine whether he is properly
detained under § 1226(c). Should the immigration judge find that Petitioner’s detention is instead
27 governed by § 1226(a), then the appropriate relief would be a bond hearing to determine individualized
risk.
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1 criminal conviction. See Belisario v. Warden, No. 1:26-cv-04580-DJC-SCR, 2026 WL 2225662
2 (E.D. Cal. Aug. 3, 2026) (finding that detention after prior release violated due process because
3 respondents were aware of qualifying crime at the time of release); Carballo v. Andrews, No.
4 1:25-cv-00978-KES-EPG, 2025 WL 2381464 (E.D. Cal. Aug. 15, 2025) (ordering a bond hearing
5 for petitioner who had previously been detained then released after a qualifying criminal
6 conviction); Faubricio M.M. v. Warden, No. 1:25-cv-01725-KES-EGC, 2026 WL 2333518 (E.D.
7 Cal. Aug. 12, 2016) (relief granted where petitioner was detained more than six years after
8 qualifying criminal offense). Here, the § 1226(c) detention was immediately preceded by
9 Petitioner’s conviction for a crime involving moral turpitude. See ECF No. 7-1.
10 While § 1226(c) detention does not allow for a bond hearing, some process may be
11 required to determine whether detention under § 1226(c) is appropriate. The Board of
12 Immigration Appeals (BIA) has found that noncitizens are entitled to notice of the circumstances
13 that provide the basis for mandatory detention and an opportunity to challenge the detention
14 before an immigration judge. In re Kotliar, 24 I. & N. Dec. 124, 127 (BIA 2007). This is a
15 different process than a hearing pursuant to Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). In
16 a Joseph hearing, an immigration judge determines whether it is substantially unlikely that the
17 charges of removability that subject the noncitizen to mandatory detention will be sustained.
18 Kotliar, 24 I. & N. Dec. 124, 126 (citing Joseph, 22 I. & N. Dec. 799, 808). In the instant case, the
19 factor that subjects Petitioner to mandatory detention – the conviction for a crime involving moral
20 turpitude (8 U.S.C. § 1182(a)(2)(A)(i)(I)) – is not mentioned in the Notice to Appear. Petitioner
21 is charged under 8 U.S.C. § 1182(a)(6)(A)(i) (present without admission or parole) but not §
22 1182(a)(2)(A)(i)(I). ECF No. 7-2. Where the record reflects that a noncitizen has committed any
23 of the offenses covered in the relevant subsections enumerated in § 1226(c), the noncitizen is
24 subject to mandatory detention without regard to whether the government has also lodged a
25 removability charge based on the offense. Kotliar, 24 I. & N. Dec. 124, 126. The record in this
26 case contains evidence that Petitioner committed a crime involving moral turpitude. See ECF No.
27 7-3 at 13-14, showing conviction under Cal. Penal Code § 245(a)(4). However, if the basis for
28 detention is not included in the Notice to Appear, the noncitizen “must be given notice of the
1 circumstances or convictions that provide the basis for mandatory detention and an opportunity to
2 challenge the detention before the Immigration Judge during the bond redetermination hearing.”
3 Id. The basis for Petitioner’s detention was not included in the Notice to Appear, and, given that
4 his habeas filings assumed he was being detained under § 1225(b) rather than § 1226(c), it
5 appears he was not otherwise given notice of the basis of his detention. Nor has he been provided
6 a hearing to challenge the detention. The lack of notice and opportunity for a hearing in this
7 context violates Petitioner’s procedural due process rights.
8 IV. Recommendation
9 Accordingly, IT IS HEREBY RECOMMENDED that:
10 1. The petition for writ of habeas corpus be GRANTED on Count 2 (procedural due
11 process);
12 2. Within seven (7) days of this court’s order, Petitioner Jose Milton Lopez Arevalo (A
13 208-150-269) be provided the following:
14 a. Formal notice of the circumstances which provide the basis of his detention; and
15 b. A hearing before an immigration judge to determine whether such
16 circumstances warrant detention pursuant to 8 U.S.C. § 1226(c).2
17 3. Should an immigration judge determine that Petitioner is not properly subject to §
18 1226(c) detention, Petitioner must, within seven (7) of any such determination, be
19 provided a hearing in accordance with 8 U.S.C. § 1226(a) and its implementing
20 regulations, at which Petitioner’s eligibility for bond must be considered.
21 4. The Clerk of Court be ordered to enter judgment accordingly and close this case.
22 These findings and recommendations are submitted to the United States District Judge
23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven (7) days
24 after being served with these findings and recommendations, any party may file written
25 objections with the court and serve a copy on all parties. The undersigned finds that a shortened
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27 2 The undersigned acknowledges Petitioner’s factual allegations regarding immigration judges’ ability to
render impartial adjudications under the current executive administration’s policies, but finds the record
28 evidence insufficient to determine that immigration judges are wholly unable to act as neutral adjudicators.
1 | objection period is warranted in this case given the nature of the relief at issue as well as the fact
2 || that the parties have had sufficient time to submit all of their arguments in written briefs. See
3 || United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (stating that 28 U.S.C. §
4 | 636(b)(1) sets the maximum objection period and not the minimum); see also Local Rule 304(b).
5 || The parties are advised that failure to file objections within the specified time may waive the right
6 || to appeal the District Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).
7 | Dated: 08/26/26 / hice
CAROLYN K DELANEY?
9 UNITED STATES MAGISTRATE JUDGE
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