1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERNARDO DUARTE BERNAL (A# No. 1:26-cv-01526 DJC SCR 096-325-103), 12 Petitioner, 13 FINDINGS & RECOMMENDATIONS v. 14 DEPARTMENT OF HOMELAND 15 SECURITY (DHS), et al., 16 Respondents. 17 18 Petitioner is a federal immigration detainee who is proceeding through counsel with a 19 habeas corpus action pursuant to 28 U.S.C. § 2241. The assigned District Judge referred the 20 matter to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. ECF No. 11. 21 For the reasons set forth below, the undersigned recommends that the petition be denied. 22 I. Factual and Procedural History 23 Petitioner is a citizen and national of Mexico and is currently detained at the Mesa Verde 24 Detention Center, within this judicial district. ECF No. 1 at 3, ¶ 11. Petitioner entered the United 25 States without inspection in 1996. ECF No. 9-1 at 4. On November 10, 2025, Immigration and 26 Customs Enforcement (ICE) agents arrested petitioner near his home. Id. at 3-4; ECF No. 1 at 2, 27 ¶ 5. Officials issued petitioner a notice to appear (“NTA”) and administratively charged him as a 28 noncitizen present without admission or parole, 8 U.S.C. § 1182(a)(6)(a)(i). ECF No. 9-1 at 3. 1 On December 23, 2025, petitioner received a custody redetermination hearing pursuant to 2 8 C.F.R. § 1236.1. ECF No. 9-2. The immigration judge (“IJ”) found petitioner was a 3 “significant flight risk” because he “attempted to evade arrest by immigration officials before 4 being taken into custody” and denied release. Id. at 2. On January 8, 2026, the IJ granted 5 petitioner’s unopposed motion to terminate removal proceedings. ECF No. 1 at 3, ¶ 7. On 6 January 23, 2026, DHS filed a motion to reconsider the IJ’s decision. ECF No. 9-3. DHS 7 explained that, “[d]ue to clerical error, [Duarte Bernal’s] Motion was not assigned to a 8 Department attorney for review and response.” Id. at 3. On February 4, 2026, the IJ granted the 9 government’s motion to reconsider, writing in full that “DHS’s failure to respond is insufficient 10 for administrative review.” ECF No. 9-4. Petitioner was issued new NTA on February 6, 2026. 11 ECF No. 9-5. 12 Petitioner filed the instant petition on February 23, 2026, raising two claims for relief. 13 First, petitioner alleges that his continued detention after the termination of removal proceedings 14 violates the INA. ECF No. 1 at 9, ¶¶ 36-37. Second, petitioner similarly alleges that his 15 continued detention after an IJ granted his motion to terminate violates the Due Process Clause of 16 the Fifth Amendment. Id. at 10, ¶¶ 38-41. Petitioner asks the Court to issue a writ of habeas 17 corpus and grant his immediate release. 18 Respondents failed an opposition/motion to dismiss the petition and argue that petitioner 19 was not entitled to release following the IJ’s grant of his motion to terminate removal 20 proceedings. ECF No. 9. Respondents argue that the IJ’s order never became final and because 21 removal proceedings remain ongoing the initial grant of the motion to terminate did not impact 22 the lawfulness of his detention. Id. at 2. On reply, petitioner argues that he acquired a liberty 23 interest upon the termination of his removal proceedings that “should not be impeded on the idea 24 that the government may choose to appeal.” ECF No. 10 at 2. 25 II. Discussion 26 On the same date he filed the § 2241 petition, petitioner filed a motion for temporary 27 restraining order (TRO) seeking his immediate release on due process grounds. ECF No. 3. 28 District Judge Calabretta denied the TRO and concluded that the reinstatement of petitioner’s 1 removal proceedings and the IJ’s denial of release provided lawful bases for his current detention. 2 ECF No. 11 at 2-3. Judge Calabretta further explained that petitioner “may have been entitled to 3 relief during the period in which he was no longer in removal proceedings,” but has not identified 4 any authorities indicating that his current detention pending removal is unlawful. Id. at 3. The 5 undersigned agrees with Judge Calabretta’s reasoning and recommends the petition be denied on 6 substantially similar grounds. 7 First, petitioner has not identified any statutory or regulatory authority to support his claim 8 that he should have been released upon the IJ’s termination of removal proceedings.1 To the 9 contrary, the IJ’s termination decision was not final at the time she reinstated proceedings because 10 DHS’ deadline to appeal to the BIA had not yet expired. See 8 C.F.R. § 1003.39 (“[T]he decision 11 of the [IJ] becomes final upon waiver of appeal or upon expiration of the time to appeal if no 12 appeal is taken whichever occurs first[.]”). Further, DHS timely sought reconsideration of the 13 IJ’s termination ruling. See 8 C.F.R. § 1003.23(b)(1) (30 days to seek reconsideration). 14 Next, petitioner points to Matter of Valles, 21 I. & N. Dec. 769 (BIA 1997) for support 15 and cites it as the “exact same case here.” ECF No. 10 at 2. Valles is on point, but it does 16 support petitioner’s position. Unlike petitioner, the noncitizen in Valles affirmatively requested 17 custody re-determination after the IJ terminated removal proceedings. The IJ granted release 18 based on the termination of removal proceedings and the government appealed that determination 19 to the BIA. Id. at 770. Because the government had separately appealed the IJ’s termination 20 decision, the BIA determined that ruling was not final and the noncitizen “remain[ed] subject to 21 deportation proceedings.” Id. at 773. Therefore, the BIA concluded, the IJ erred in subsequently 22 granting release “based on his prior decision to terminate removal proceedings” and remanded. 23 Id. at 773-74. Thus, Valles appears to support respondents’ position that as far as the INA and its 24 implementing regulations go, termination of removal proceedings is not a proper basis for release
25 1 Petitioner also complains that the IJ’s reason for granting the motion for reconsideration—that 26 “DHS’s failure to respond is insufficient for administrative review,” ECF No. 9-4 at 2—“makes no sense” and is “unintelligible.” ECF No. 1 at 3, ¶ 9; ECF No. 3-1 at 2. Without addressing the 27 legal adequacy of the IJ’s decision—a question that is not before the Court—the undersigned observes that the IJ appears to be addressing DHS’s reconsideration arguments that her decision 28 did not provide the BIA with a sufficient roadmap for review. See ECF No. 9-3 at 7-8. 1 until the IJ’s termination ruling becomes final. 2 Finally, even assuming that either the INA or Constitution required respondents to 3 immediately release petitioner upon the IJ’s termination of his removal proceedings, the 4 reinstatement of those proceedings, combined with the IJ’s prior bond determination, provides a 5 lawful basis for his current detention. Petitioner cites no authorities supporting his request for 6 immediate release under such factual circumstances. To be clear, the undersigned believes that a 7 non-citizen’s continued detention during a period when removal proceedings are terminated 8 violates due process. However, a writ of habeas corpus does not provide a retrospective remedy 9 for the roughly two weeks of such unconstitutional detention in petitioner’s case.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERNARDO DUARTE BERNAL (A# No. 1:26-cv-01526 DJC SCR 096-325-103), 12 Petitioner, 13 FINDINGS & RECOMMENDATIONS v. 14 DEPARTMENT OF HOMELAND 15 SECURITY (DHS), et al., 16 Respondents. 17 18 Petitioner is a federal immigration detainee who is proceeding through counsel with a 19 habeas corpus action pursuant to 28 U.S.C. § 2241. The assigned District Judge referred the 20 matter to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. ECF No. 11. 21 For the reasons set forth below, the undersigned recommends that the petition be denied. 22 I. Factual and Procedural History 23 Petitioner is a citizen and national of Mexico and is currently detained at the Mesa Verde 24 Detention Center, within this judicial district. ECF No. 1 at 3, ¶ 11. Petitioner entered the United 25 States without inspection in 1996. ECF No. 9-1 at 4. On November 10, 2025, Immigration and 26 Customs Enforcement (ICE) agents arrested petitioner near his home. Id. at 3-4; ECF No. 1 at 2, 27 ¶ 5. Officials issued petitioner a notice to appear (“NTA”) and administratively charged him as a 28 noncitizen present without admission or parole, 8 U.S.C. § 1182(a)(6)(a)(i). ECF No. 9-1 at 3. 1 On December 23, 2025, petitioner received a custody redetermination hearing pursuant to 2 8 C.F.R. § 1236.1. ECF No. 9-2. The immigration judge (“IJ”) found petitioner was a 3 “significant flight risk” because he “attempted to evade arrest by immigration officials before 4 being taken into custody” and denied release. Id. at 2. On January 8, 2026, the IJ granted 5 petitioner’s unopposed motion to terminate removal proceedings. ECF No. 1 at 3, ¶ 7. On 6 January 23, 2026, DHS filed a motion to reconsider the IJ’s decision. ECF No. 9-3. DHS 7 explained that, “[d]ue to clerical error, [Duarte Bernal’s] Motion was not assigned to a 8 Department attorney for review and response.” Id. at 3. On February 4, 2026, the IJ granted the 9 government’s motion to reconsider, writing in full that “DHS’s failure to respond is insufficient 10 for administrative review.” ECF No. 9-4. Petitioner was issued new NTA on February 6, 2026. 11 ECF No. 9-5. 12 Petitioner filed the instant petition on February 23, 2026, raising two claims for relief. 13 First, petitioner alleges that his continued detention after the termination of removal proceedings 14 violates the INA. ECF No. 1 at 9, ¶¶ 36-37. Second, petitioner similarly alleges that his 15 continued detention after an IJ granted his motion to terminate violates the Due Process Clause of 16 the Fifth Amendment. Id. at 10, ¶¶ 38-41. Petitioner asks the Court to issue a writ of habeas 17 corpus and grant his immediate release. 18 Respondents failed an opposition/motion to dismiss the petition and argue that petitioner 19 was not entitled to release following the IJ’s grant of his motion to terminate removal 20 proceedings. ECF No. 9. Respondents argue that the IJ’s order never became final and because 21 removal proceedings remain ongoing the initial grant of the motion to terminate did not impact 22 the lawfulness of his detention. Id. at 2. On reply, petitioner argues that he acquired a liberty 23 interest upon the termination of his removal proceedings that “should not be impeded on the idea 24 that the government may choose to appeal.” ECF No. 10 at 2. 25 II. Discussion 26 On the same date he filed the § 2241 petition, petitioner filed a motion for temporary 27 restraining order (TRO) seeking his immediate release on due process grounds. ECF No. 3. 28 District Judge Calabretta denied the TRO and concluded that the reinstatement of petitioner’s 1 removal proceedings and the IJ’s denial of release provided lawful bases for his current detention. 2 ECF No. 11 at 2-3. Judge Calabretta further explained that petitioner “may have been entitled to 3 relief during the period in which he was no longer in removal proceedings,” but has not identified 4 any authorities indicating that his current detention pending removal is unlawful. Id. at 3. The 5 undersigned agrees with Judge Calabretta’s reasoning and recommends the petition be denied on 6 substantially similar grounds. 7 First, petitioner has not identified any statutory or regulatory authority to support his claim 8 that he should have been released upon the IJ’s termination of removal proceedings.1 To the 9 contrary, the IJ’s termination decision was not final at the time she reinstated proceedings because 10 DHS’ deadline to appeal to the BIA had not yet expired. See 8 C.F.R. § 1003.39 (“[T]he decision 11 of the [IJ] becomes final upon waiver of appeal or upon expiration of the time to appeal if no 12 appeal is taken whichever occurs first[.]”). Further, DHS timely sought reconsideration of the 13 IJ’s termination ruling. See 8 C.F.R. § 1003.23(b)(1) (30 days to seek reconsideration). 14 Next, petitioner points to Matter of Valles, 21 I. & N. Dec. 769 (BIA 1997) for support 15 and cites it as the “exact same case here.” ECF No. 10 at 2. Valles is on point, but it does 16 support petitioner’s position. Unlike petitioner, the noncitizen in Valles affirmatively requested 17 custody re-determination after the IJ terminated removal proceedings. The IJ granted release 18 based on the termination of removal proceedings and the government appealed that determination 19 to the BIA. Id. at 770. Because the government had separately appealed the IJ’s termination 20 decision, the BIA determined that ruling was not final and the noncitizen “remain[ed] subject to 21 deportation proceedings.” Id. at 773. Therefore, the BIA concluded, the IJ erred in subsequently 22 granting release “based on his prior decision to terminate removal proceedings” and remanded. 23 Id. at 773-74. Thus, Valles appears to support respondents’ position that as far as the INA and its 24 implementing regulations go, termination of removal proceedings is not a proper basis for release
25 1 Petitioner also complains that the IJ’s reason for granting the motion for reconsideration—that 26 “DHS’s failure to respond is insufficient for administrative review,” ECF No. 9-4 at 2—“makes no sense” and is “unintelligible.” ECF No. 1 at 3, ¶ 9; ECF No. 3-1 at 2. Without addressing the 27 legal adequacy of the IJ’s decision—a question that is not before the Court—the undersigned observes that the IJ appears to be addressing DHS’s reconsideration arguments that her decision 28 did not provide the BIA with a sufficient roadmap for review. See ECF No. 9-3 at 7-8. 1 until the IJ’s termination ruling becomes final. 2 Finally, even assuming that either the INA or Constitution required respondents to 3 immediately release petitioner upon the IJ’s termination of his removal proceedings, the 4 reinstatement of those proceedings, combined with the IJ’s prior bond determination, provides a 5 lawful basis for his current detention. Petitioner cites no authorities supporting his request for 6 immediate release under such factual circumstances. To be clear, the undersigned believes that a 7 non-citizen’s continued detention during a period when removal proceedings are terminated 8 violates due process. However, a writ of habeas corpus does not provide a retrospective remedy 9 for the roughly two weeks of such unconstitutional detention in petitioner’s case. While not 10 necessarily offering a clear doctrinal path to relief, a claim for damages challenging the period in 11 which petitioner was allegedly detained in violation of the Fifth Amendment is a potential vehicle 12 for petitioner’s claim. See Lanuza v. Love, 899 F.3d 1019, 1026 (9th Cir. 2018) (emphasizing 13 that the Supreme Court in Ziglar v. Abbasi, 582 U.S. 120 (2017) did not “bar[] extending Bivens 14 remedies to an immigration case” or preclude the possibility of extending Bivens “to a case 15 involving the substantive and procedural clauses of the Fifth Amendment”); but see Mirmehdi v. 16 United States, 689 F.3d 975, 984 (9th Cir. 2012) (decision to detain noncitizen pending resolution 17 of immigration proceedings fell within discretionary function exception to waiver of sovereign 18 immunity under Federal Tort Claims Act). 19 For these reasons, the undersigned recommends that the § 2241 petition be denied without 20 prejudice. As the petition sought relief only as to respondents’ alleged failure to release petitioner 21 following the IJ’s termination ruling, the undersigned declines to resolve whether petitioner may 22 be entitled to other habeas relief in the future. 23 CONCLUSION 24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. Petitioner’s (A# 096-325-103) petition for writ of habeas corpus (ECF No. 1) be 26 DENIED without prejudice; and 27 2. Respondents’ motion to dismiss (ECF No. 9) be DENIED. 28 These findings and recommendations are submitted to the United States District Judge 1 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven days after 2 || being served with these findings and recommendations, any party may file written objections with 3 || the court and serve a copy on all parties. The undersigned finds that a shortened objection period 4 || 1s warranted in this case given the nature of the relief at issue as well as the fact that the parties 5 || have had sufficient time to submit all of their arguments in written briefs. See United States v. 6 || Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (stating that 28 U.S.C. § 636(b)(1) sets 7 || the maximum objection period and not the minimum); see also Local Rule 304(b). The parties 8 | are advised that failure to file objections within the specified time may waive the right to appeal 9 || the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 10 | DATED: May 8, 2026 1]
13 SEAN C. RIORDAN 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28