Celino Bartolon Velasquez v. Warden of the Mesa Verde Detention Facility

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CELINO BARTOLON VELASQUEZ (A- Case No. 1:26-cv-1993-DAD-JDP Number: 221-489-817), 12 Petitioner, 13 ORDER; FINDINGS AND v. RECOMMENDATIONS 14 WARDEN OF THE MESA VERDE 15 DETENTION FACILITY, 16 Respondent. 17 18 Petitioner Celino Bartolon Velasquez entered the United States on an unknown date and 19 was detained by ICE in 2026. Petitioner, proceeding pro se, seeks a writ of habeas corpus under 20 28 U.S.C. § 2241. Respondent moves to dismiss. For the following reasons, I recommend that 21 respondent’s motion be denied, the petition be granted, and petitioner be immediately released. 22 Background 23 Petitioner entered the United States on “an unknown date . . . without being inspected, 24 admitted, or paroled by an Immigration Official.” ECF No. 8-1 at 3. There is no allegation or 25 evidence indicating that petitioner has previously been contacted by immigration officials, or that 26 petitioner has applied for asylum. Petitioner has no criminal history. Id. 27 On February 15, 2026, petitioner was detained by ICE in Maryland. Id. There is no 28 allegation or evidence that petitioner has received a bond hearing; on the contrary, the 1 government asserts that “petitioner is subject to mandatory detention and thus ineligible for a 2 bond hearing.” See ECF No. 8 at 2. 3 Procedural History 4 On March 12, 2026, petitioner filed a petition for writ of habeas corpus. ECF No. 1. On 5 April 7, 2026, respondent filed a motion to dismiss the petition. ECF No. 8. While petitioner has 6 not filed an opposition to respondent’s motion, it bears consideration that petitioner is 7 representing himself from custody. Under these circumstances, I do not construe petitioner’s 8 failure to file a timely opposition as a non-opposition to respondent’s motion. See Local Rule 9 230(c). Accordingly, the petition and motion to dismiss are submitted such that I may issue 10 findings and recommendations.1 See ECF No. 7 at 2; Local Rule 302(c)(17). 11 Legal Standard 12 A federal court may grant habeas relief when a petitioner shows that his custody violates 13 federal law. 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 14 (2000). “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of 15 that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” 16 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus may be granted to a 17 petitioner who demonstrates that he is in custody in violation of the Constitution or federal law. 18 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has served as a means of 19 reviewing the legality of Executive detention, and it is in that context that its protections have 20 been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s habeas jurisdiction 21 includes challenges to immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). 22 Analysis 23 Respondent argues that petitioner is subject to mandatory detention under 8 U.S.C. 24 § 1225(b)(2). ECF No. 8 at 1-2. I address this claim below. 25 Under section 1225(b)(2)(A), applicants “seeking admission” to the United States are 26 subject to mandatory detention: “in the case of an alien who is an applicant for admission, if the 27 1 Petitioner also filed a motion for the appointment of counsel, ECF No. 3. In light of my 28 recommendation that the case be closed, his motion will be denied as moot. 1 examining immigration officer determines that an alien seeking admission is not clearly and 2 beyond a doubt entitled to be admitted, the alien shall be detained . . . .” 8 U.S.C. 3 § 1225(b)(2)(A). Critically, no bond hearing is provided for a noncitizen detained under this 4 section. Id. By contrast, “[u]nder § 1226(a) and its implementing regulations, a detainee may 5 request a bond hearing before an [immigration judge] at any time before a removal order becomes 6 final.” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1197 (9th Cir. 2022). 7 For decades, the government applied section 1226(a)—and not section 1225(b)(2)(A)—to 8 noncitizens apprehended in the interior of the United States. See id. at 1196 (“The provision at 9 issue in this case, 8 U.S.C. § 1226, provides the general process for arresting and detaining aliens 10 who are present in the United States and eligible for removal.”). In July 2025, however, the 11 Department of Homeland Security (“DHS”) revisited its legal position and now maintains that 12 “all applicants for admission within the meaning of 8 U.S.C. 1225(a) are subject to mandatory 13 detention under 8 U.S.C. 1225(b).” See ECF No. 8 at 1 n.1. Respondent urges the court to follow 14 suit and find that petitioner is subject to mandatory detention. Id. at 1-2. 15 This issue is one of statutory interpretation, and so I begin with the plain text of the 16 Immigration and Nationality Act. See United States v. Lillard, 935 F.3d 827, 833-34 (9th Cir. 17 2019). Section 1225(b)(2)(A) provides that, “in the case of an alien who is an applicant for 18 admission, if the examining immigration officer determines that an alien seeking admission is not 19 clearly and beyond a doubt entitled to be admitted, the alien shall be detained.” 8 U.S.C. 20 § 1225(b)(2)(A). There is only one exception to mandatory detention: a noncitizen may be 21 paroled into the United States “for urgent humanitarian reasons or significant public benefit” 22 under 8 U.S.C. § 1182(d)(5). Jennings v. Rodriguez, 583 U.S. 281, 288 (2018). 23 While the text of section 1225(b)(2)(A) limits its reach to applicants “seeking admission,” 24 section 1226(a) does not include the same qualifying language. Section 1226(a) provides that, for 25 a noncitizen who is arrested and detained “[o]n a warrant issued by the Attorney General,” the 26 Attorney General (1) “may continue to detain” the arrested noncitizen, (2) “may release” the 27 28 1 noncitizen on “bond,” or (3) “may release” the noncitizen on “conditional parole.”2 8 U.S.C. 2 §§ 1226(a)(1)-(2). 3 The government urges the court to read section 1225(b)(2)(A) as using the terms 4 “applicant for admission” and “seeking admission” interchangeably. See ECF No. 8 at 2. 5 According to the government, all noncitizens who have not been admitted to the United States— 6 i.e., “applicants for admission”—are necessarily “seeking admission” for purposes of section 7 1225(b)(2)(A). Id. Thus, the government contends, section 1225(b)(2)(A) applies to noncitizens 8 who are “applicants for admission.” Id. 9 I find that the government’s interpretation violates the rule against surplusage in three 10 ways. First, for section 1225(b)(2)(A)’s mandatory detention to apply, “a noncitizen must (1) be 11 an applicant for admission, (2) be ‘seeking admission’, and (3) be ‘not clearly and beyond a doubt 12 entitled to be admitted.’” J.S.H.M. v. Wofford, No. 1:25-cv-01309-JLT-SKO, 2025 WL 2938808, 13 *11 (E.D. Cal. Oct. 16, 2025). If, as the government argues, all “applicants for admissions” were 14 also individuals “seeking admission,” the phrase “seeking admission” would be unnecessary. The 15 government’s reading, therefore, runs contrary to the rule against surplusage. See United States, 16 ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023) (“[E]very clause and word 17 of a statute should have meaning.”); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“[N]o clause, 18 sentence, or word shall be superfluous, void, or insignificant.”). 19 Second, the government’s reading cannot be squared with the text of section 1226. Were 20 it possible to interpret section 1225(b)(2)(A) in the manner favored by the government, section 21 1226(a)’s requirement that noncitizens be afforded bond hearings—arguably the section’s 22 centerpiece—would serve no purpose because the government would be allowed to detain all 23 “applicants for admission” under section 1225(b)(2)(A). Further, as noted, under section 1226(c), 24 Congress mandated the detention of certain categories of noncitizens. 8 U.S.C. § 1226(c). If, as 25 the government now contends, section 1225(b)(2)(A) can be applied to all noncitizens who are 26

27 2 Section 1226(c) mandates detention of noncitizens falling into “one of several enumerated categories involving criminal offenses and terrorist activities.” Jennings, 583 U.S. at 28 289. There is no argument or evidence suggesting that this section applies to petitioner. 1 inadmissible, section 1226(c) would also be superfluous. 2 Third, the Laken Riley Act (“LRA”)—passed in January 2025—would also be rendered 3 superfluous. The LRA amended section 1226(c) to add new categories of mandatory detention. 4 See Garcia v. Noem, No. 25-cv-02180-DMS-MMP, 2025 WL 2549431, at *6 (S.D. Cal. Sept. 3, 5 2025). Under the government’s theory of section 1225(b)(2)(A), the LRA would be unnecessary; 6 if mandatory detention for all unauthorized noncitizens were already permitted—and, in fact, 7 required—by section 1225(b)(2)(A), the amendment would be surplusage. “When Congress acts 8 to amend a statute, [courts] presume it intends its amendment to have real and substantial effect.” 9 Stone v. I.N.S., 514 U.S. 386, 397 (1995). 10 Respondent’s theory, essentially, is that both sections 1226(a) and 1226(c) have been 11 taken out of commission, not by any new law or act of Congress, but by a shift in executive 12 branch policy. This interpretation collides squarely with the rule against surplusage. See Marx v. 13 Gen. Revenue Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against surplusage is strongest 14 when an interpretation would render superfluous another part of the same statutory scheme.”). 15 I also find that the government’s interpretation runs contrary to the DHS’s longstanding 16 practice prior to July 2025. As noted, the government previously interpreted these provisions in 17 the manner argued by petitioner. Prior agency practice, though not dispositive, may inform this 18 court’s determination of law. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 386 (2024) 19 (“[T]he longstanding practice of the government—like any other interpretive aid—can inform a 20 court’s determination of what the law is.”). Other courts have emphasized the persuasive value of 21 the DHS’s “longstanding agency practice.” See Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 22 1259 (W.D. Wash. 2025) (“Congress enacted the LRA against the backdrop of longstanding 23 agency practice applying Section 1226(a) to inadmissible noncitizens already residing in the 24 country.”). 25 Finally, I note that arguments substantially similar to those made by the government here 26 have been rejected by a large majority of district courts nationwide. See, e.g., Lepe v. Andrews, 27 801 F. Supp. 3d 1104, 1112 (E.D. Cal. 2025) (collecting cases). The government’s argument also 28 runs contrary to Jennings, which held that section 1225(b) “applies primarily to aliens seeking 1 entry into the United States,” whereas sections 1226(a) and (c) “authorize[] the Government to 2 detain certain aliens already in the country pending the outcome of removal proceedings . . . .” 3 583 U.S. at 289, 297. While the government’s interpretation was endorsed by the Board of 4 Immigration Appeals in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), the persuasive 5 power of an agency ruling is limited. See Loper Bright, 603 U.S. at 400. 6 Accordingly, because petitioner was detained in the interior of the United States, I find 7 that his detention is governed by section 1226(a) and not, as respondent argues, by section 8 1225(b). Given this finding, I must determine whether the appropriate relief is release or a bond 9 hearing. Petitioner requests immediate release or, in the alternative, a bond hearing. ECF No. 1 10 at 17. Respondent does not address this issue. See ECF No. 8. 11 The Supreme Court has recognized that “[h]abeas is at its core a remedy for unlawful 12 executive detention” and the “typical remedy for such detention is, of course, release.” Munaf v. 13 Geren, 553 U.S. 674, 693 (2008); see also Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 14 103, 107 (2020) (“Habeas has traditionally been a means to secure release from unlawful 15 detention.”). Moreover, where the government has erroneously applied section 1225(b) to a 16 petitioner, courts have ordered immediate release. See, e.g., Morillo v. Albarran, No. 1:25-cv- 17 1533-DJC-AC, 2025 WL 3190899, at *5 (E.D. Cal. Nov. 15, 2025). In Feng v. Lyons, the court 18 held that a delay “in providing the statutorily mandated bond hearing violates [a petitioner’s] due 19 process rights” and found that the “[p]rovision of a bond hearing after months of detention 20 without the opportunity to seek release on bond cannot be said to satisfy due process where that 21 bond hearing is a matter of statutory right.” No. 1:26-cv-0235-DJC-SCR, 2026 WL 472635, at *1 22 (E.D. Cal. Feb. 19, 2026) (citations omitted). 23 Here, I find that the “typical remedy” of release is appropriate because the government has 24 not provided a lawful justification for petitioner’s detention and has deprived him of his statutory 25 right to a bond hearing. See Munaf, 553 U.S. at 693. As such, petitioner’s due process rights 26 have been violated such that the provision of a bond hearing is a constitutionally insufficient 27 remedy. See Feng, 2026 WL 472635, at *1. Moreover, the evidence shows that petitioner has no 28 criminal history, and respondent does not argue that petitioner is a danger to the community or a 1 flight risk. See ECF No. 8-1 at 3; ECF No. 8. 2 Conclusion 3 Accordingly, it is hereby ORDERED that petitioner’s motion for the appointment of 4 counsel, ECF No. 3, is DENIED as moot. 5 Further, it is hereby RECOMMENDED that: 6 1. The petition for writ of habeas corpus, ECF No. 1, be GRANTED. 7 2. Respondent’s motion to dismiss, ECF No. 8, be DENIED. 8 3. Respondent be ordered to immediately release petitioner (A-Number: 221-489-817) 9 from their custody. Respondent shall not impose any additional restrictions on petitioner, unless 10 that is determined to be necessary at a future pre-deprivation/custody hearing. If the government 11 seeks to re-detain petitioner, it must provide no less than seven days’ notice to petitioner and must 12 hold a pre-deprivation bond hearing before a neutral arbiter pursuant to section 1226(a) and its 13 implementing regulations, at which petitioner’s eligibility for bond must be considered. This 14 order does not address the circumstances in which respondent may detain petitioner in the event 15 petitioner becomes subject to an executable final order of removal. 16 4. The Clerk of Court be directed to serve Mesa Verde Detention Facility with a copy of 17 this order. 18 5. The Clerk of Court be further directed to enter judgment accordingly and close this 19 case. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven days of 22 service of these findings and recommendations, any party may file written objections with the 23 court and serve a copy on all parties. Any such document should be captioned “Objections to 24 Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 25 within seven days of service of the objections. The parties are advised that failure to file 26 objections within the specified time may waive the right to appeal the District Court’s order. See 27 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 28 1991). 1 IT IS SO ORDERED.

Dated: _ April 23, 2026 Q_———— 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28