Cruz Alejandro Salazar Serrano v. Warden

• Court: District Court, E.D. California
• Decided: June 10, 2026
• Docket: 1:26-cv-02346
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRUZ ALEJANDRO SALAZAR No. 1:26-cv-02346 DAD SCR SERRANO (A# 221-000-531), 12 Petitioner, 13 FINDINGS & RECOMMENDATIONS v. 14 WARDEN, 15 Respondent. 16 17 Petitioner is a federal immigration detainee proceeding pro se with a habeas corpus action 18 pursuant to 28 U.S.C. § 2241. District Judge Drozd referred the matter to the undersigned on 19 April 1, 2026, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. ECF No. 8. 20 I. Factual and Procedural History 21 Petitioner is a citizen and national of Venezuela who has been in immigration detention 22 since February 26, 2026. ECF No. 1 at 1. On March 20, 2026, an immigration judge (“IJ”) 23 ordered Petitioner removed to Venezuela. ECF No. 7 at 7-8. Both Petitioner and the Department 24 of Homeland Security (“DHS”) waived appeal. Id. at 8. 25 On March 26, 2026, Petitioner filed a § 2241 petition and motion for temporary 26 restraining order (“TRO”) challenging his detention under the Due Process Clause of the Fifth 27 Amendment. ECF No. 1 at 2. By way of relief, he sought immediate release under appropriate 28 conditions of supervision or, in the alternative, an individualized bond hearing before an IJ in 1 which the government bears the burden of proof by clear and convincing evidence. Id. at 3. 2 Respondent opposed the petition and TRO motion on grounds that Petitioner has an 3 administratively final removal order and is thus subject to mandatory detention pursuant to 8 4 U.S.C. § 1231(a)(2). ECF No. 7 at 2-3. 5 On April 1, 2026, District Judge Drozd denied Petitioner’s TRO motion via minute order. 6 ECF No. 8. Citing his prior ruling in Singh v. Cruz, No. 1:26-CV-00591-DAD-CKD, 2026 WL 7 320410, at *3 (E.D. Cal. Feb. 6, 2026), Judge Drozd held that Petitioner was subject to mandatory 8 detention for 90 days following his removal order becoming administratively final and that due 9 process did not require Petitioner’s immediate release during that initial 90-day period of 10 mandatory detention. Id. Judge Drozd then referred the matter to the undersigned for further 11 proceedings. Id. 12 II. Legal Standards 13 The statutory and regulatory framework governing immigration detention is complex. 14 “Where a [noncitizen] falls within this statutory scheme can affect whether his detention is 15 mandatory or discretionary, as well as the kind of review process available to him if he wishes to 16 contest the necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 17 2008). 18 Detention is mandatory during the 90-day “removal period” following the entry of a final 19 order of removal. See 8 U.S.C. § 1231(a)(1)-(2). “This ‘removal period’ begins on the latest of 20 either (1) the date a noncitizen’s ‘order of removal becomes administratively final,’ (2) the date of 21 a court’s final order, if the noncitizen’s removal order is judicially reviewed and [the Ninth 22 Circuit Court of Appeals] stays the noncitizen’s removal, or (3) the date the noncitizen is released 23 from criminal detention or confinement.” Avilez v. Garland, 69 F.4th 525, 531 (9th Cir. 2023) 24 (quoting 8 U.S.C. § 1231(a)(1)(B)(i)-(iii)). 25 An order of removal becomes final “only upon the earlier of (i) a BIA determination 26 affirming the order or (ii) the expiration of the deadline to seek the BIA’s review of the order.” 27 Ocampo v. Holder, 629 F.3d 923, 926 (9th Cir. 2010) (citing 8 U.S.C. § 1101(a)(47)(B)). DHS 28 regulations further clarify that “[e]xcept when certified to the [BIA], the decision of the [IJ] 1 becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken 2 whichever occurs first.” 8 C.F.R. § 1003.39; see also 8 C.F.R. § 1241.1(b) (order of removal 3 becomes final “[u]pon waiver of appeal by the respondent”). 4 III. Analysis 5 The posture of Petitioner’s detention has not changed since Judge Drozd’s TRO ruling. 6 An IJ ordered Petitioner removed on March 20, 2026, and both DHS and Petitioner waived 7 appeal. ECF No. 7 at 7-8. By operation of statute and DHS regulation, Petitioner’s removal 8 became administratively final on that date. 8 U.S.C. § 1231(a)(1)(B)(i); 8 C.F.R. § 1003.39. 9 Therefore, Petitioner was within the 90-day “removal period” when he initiated this action on 10 March 26, 2026, and will be subject to mandatory detention through about June 18, 2026. 11 The Ninth Circuit has found that detention during the 90-day removal period pursuant to § 12 1231(a)(2)(A) passes constitutional scrutiny. Khotesouvan v. Morones, 386 F.3d 1298, 1301 (9th 13 Cir. 2004). Accordingly, pursuant to Khotesouvan and consistent with Judge Drozd’s reasoning 14 in Singh, 2026 WL 320410, at *3, the undersigned finds that Petitioner is lawfully subject to 15 mandatory detention under 8 U.S.C. § 1231(a)(2) and recommends his § 2241 petition be denied. 16 However, the undersigned observes that the removal period will end in a matter of weeks. 17 “If the [noncitizen] does not leave or is not removed within the removal period, the [noncitizen], 18 pending removal, shall be subject to supervision under regulations prescribed by the Attorney 19 General.” 8 U.S.C. § 1231(a)(3). Immigration officials “may” only continue to detain the 20 noncitizen after the 90-day removal period under certain circumstances, including when the 21 noncitizen is removable on grounds of being convicted of certain criminal offenses. 8 U.S.C. § 22 1231(a)(6). Therefore, the undersigned recommends that the denial be without prejudice and not 23 foreclose Petitioner’s ability to challenge the constitutionally of his immigration detention when 24 and if it should shift to 8 U.S.C. § 1231(a)(6). 25 //// 26 //// 27 //// 28 //// 1 CONCLUSION 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Petitioner Cruz Alejandro Salazar Serrano’s (A# 221-000-531) application for a 4 || writ of habeas corpus (ECF No. 1) be DENIED without prejudice. 5 2. Petitioner’s request for status and motion for appointment of counsel (ECF No. 9) 6 || be DENIED as moot. 7 3. The Clerk of the Court be directed to enter judgment for Respondent and close the 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 days after 11 | being served with these findings and recommendations, any party may file written objections with 12 | the court and serve a copy on all parties. The undersigned finds that a shortened objection period 13 | is warranted in this case given the nature of the relief at issue as well as the fact that the parties 14 | have had sufficient time to submit all of their arguments in written briefs. See United States v. 15 | Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (stating that 28 U.S.C. § 636(b)(1) sets 16 | the maximum objection period and not the minimum); see also Local Rule 304(b). The parties 17 || are advised that failure to file objections within the specified time may waive the right to appeal 18 | the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | DATED: June 9, 2026 □□ 21 SEAN C. RIORDAN 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28