Jubenal Alba-Perez v. Warden, Mesa Verde Detention Facility

• Court: District Court, E.D. California
• Decided: June 8, 2026
• Docket: 1:26-cv-03137
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUBENAL ALBA-PEREZ (A# 214-360- No. 1:26-cv-03137 DJC SCR 919) 12 Petitioner, 13 FINDINGS & RECOMMENDATIONS v. 14 WARDEN, MESA VERDE DETENTION 15 FACILITY, 16 Respondent. 17 18 Petitioner is a federal immigration detainee who filed this habeas corpus action pursuant 19 to 28 U.S.C. § 2241. District Judge Calabretta referred the matter to the undersigned pursuant to 20 Local Rule 302(c)(17). ECF No. 4. Examination of the in forma pauperis application reveals that 21 petitioner is unable to afford the costs of suit. ECF No. 7. Accordingly, the application to 22 proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). However, because Petitioner’s § 23 1226(c)(1)(A) detention is still within the brief, constitutionally permissible period contemplated 24 by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003) (“Demore”), the undersigned 25 recommends the petition be denied without prejudice. 26 I. Factual and Procedural History 27 Petitioner, a citizen and national of Mexico, entered the United States without inspection 28 on an unknown date and time. ECF No. 9-8 at 2. On August 23, 2017, Petitioner was approved 1 for an application for provisional unlawful presence waiver, Form I-601A.1 Id. Petitioner has a 2 U.S. citizen spouse and three U.S. citizen children. Id. at 3; ECF No. 1 at 5. 3 Petitioner has an extensive criminal history in the United States. See ECF No. 9-7 (FBI 4 “rap sheet”). Most recently, on September 23, 2025, petitioner was convicted on three charges 5 and sentenced to state prison for two years, minus time served, for: (1) criminal threat, Cal. Penal 6 Code § 422(a); (2) felon in possession of firearm, Cal. Penal Code § 29800(a)(1); and (3) 7 obstruction of a peace officer, Cal. Penal Code § 148(a)(1). ECF No. 9-4. Immigration and 8 Customs Enforcement (ICE) detained petitioner on April 10, 2026, upon his parole from state 9 prison and administratively charged him as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) 10 (present without admission or parole). ECF No. 9-8 at 2. 11 Petitioner filed the instant § 2241 petition on April 24, 2026, challenging his “ongoing, 12 prolonged” detention under the Due Process Clause of the Fifth Amendment. ECF No. 1. By 13 way of relief, Petitioner seeks his immediate release or, in the alternative, a bond hearing before 14 an immigration judge (“IJ”) where the government bears the burden of establishing that he is a 15 risk of flight or danger. Id. at 17. Respondent opposes the petition on grounds that Petitioner is 16 subject to mandatory detention under 8 U.S.C. § 1225(b)(2) or, in the alternative, 8 U.S.C. § 17 1226(c). ECF No. 9. 18 II. Applicable Detention Statute 19 The statutory and regulatory framework governing immigration detention is complex. 20 “Where a [noncitizen] falls within this statutory scheme can affect whether his detention is 21 mandatory or discretionary, as well as the kind of review process available to him if he wishes to 22 contest the necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 23

24 1 “Certain immigrant visa applicants who are relatives of U.S. citizens or lawful permanent residents may use this application to request a provisional waiver of the unlawful presence 25 grounds of inadmissibility under [8 U.S.C . § 1182(a)(9)(B)] before departing the United States to 26 appear at a U.S. Embassy or Consulate for an immigrant visa interview.” U.S. Citizenship and Immigration Services, I-601A, Application for Provisional Unlawful Presence Waiver, 27 https://www.uscis.gov/i-601a. “A pending or approved provisional unlawful presence waiver does not constitute a grant of a lawful immigration status or a period of stay authorized by the 28 Secretary.” 8 C.F.R. § 212.7(e)(2)(i). 1 2008). 2 Respondent asserts that Petitioner is subject to mandatory detention under 8 U.S.C. § 3 1225(b)(2), or in the alternative, 8 U.S.C. § 1226(c)(1)(A). Respondent’s arguments for § 4 1225(b)(2) rely on the minority view of cases. See H.F. v. Albarran, No. 1:25-cv-1795 TLN 5 EFB, 2025 WL 3691081, at *3 (E.D. Cal. Dec. 19, 2025); Salcedo Aceros v. Kaiser, No. 25-cv- 6 6924 EMC, 2025 WL 2637503, at *8 (N.D. Cal. Sept. 12, 2025) (collecting cases). 7 Courts in this Circuit have found that Section 1225 applies to those apprehended upon arrival to the United States while Section 1226 8 applies to those already living within the United States. See, e.g., Bostock, 779 F. Supp. 3d at 1257 (finding petitioner likely to succeed 9 on merits of argument that 1225(b)(2)(A) “should be read to narrow mandatory detention under that subsection to noncitizens who are 10 apprehended while seeking to enter the country, and that noncitizens already residing in the United States, including those who are 11 charged with inadmissibility, continue to fall under the discretionary detention scheme in Section 1226”) (internal quotation marks 12 omitted); J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO-HC, 2025 WL 3013328, at *6–7 (E.D. Cal. Oct. 27, 2025). 13 14 E.L.D.M. v. Becerra, No. 1:25-cv-1906 DJC JDP, 2025 WL 3707140, at *3 (E.D. Cal. Dec. 22, 15 2025). The undersigned agrees with this analysis and follows the majority view in finding that 16 the applicable statute governing petitioners’ detention here is § 1226, and not § 1225(b)(2). The 17 fact that the administrative warrant for Petitioner’s arrest (Form I-200) identifies 8 U.S.C. § 1226 18 as its statutory authority further supports this conclusion. ECF No. 9-5 at 1. 19 In the alternative, Respondent argues that Petitioner is detained under 8 U.S.C. § 20 1226(c)(1)(A). Under § 1226(c), “the Attorney General ‘shall take into custody any alien’ who 21 falls into one of the enumerated categories involving criminal offenses and terrorist activities[.]” 22 Jennings v. Rodriguez, 583 U.S. 281, 289 (2018) (quoting 8 U.S.C. § 1226(c)(1)). Subsection 23 (c)(1)(A) applies to noncitizens who are “inadmissible by reason of having committed any 24 offense covered in section 1182(a)(2) of this title[.]” 8 U.S.C. § 1226(c)(1)(A). Respondents 25 specifically claim that Petitioner’s conviction under Cal. Penal Code § 422(a) constitutes a “crime 26 involving moral turpitude” (“CIMT”) under 8 U.S.C. § 1182(a)(2)(A)(ii)(I). ECF No. 9 at 2-3. 27 The undersigned agrees that Petitioner’s conviction under Cal. Penal Code § 422(a) is a 28 CIMT for purposes of § 1182(a)(2)(A)(ii)(I). See Latter-Singh v. Holder, 668 F.3d 1156, 1158 1 (9th Cir. 2012) (a conviction under Cal. Penal Code § 422 is categorically a crime involving 2 moral turpitude). Because Respondent identifies only this one CIMT, the undersigned will next 3 consider whether Petitioner’s conviction falls under the provision’s “petty offense” exception.2 4 “Under the exception, § 1182(a)(2)(A)(i)(I) ‘shall not apply’ if (1) the alien ‘committed only one 5 crime,’ (2) ‘the maximum penalty possible for the [predicate CIMT] . . . did not exceed 6 imprisonment for one year,’ and (3) ‘if the alien was convicted of such crime, the alien was not 7 sentenced to a term of imprisonment in excess of 6 months.’” Cervantes v. Holder, 772 F.3d 583, 8 587 (9th Cir. 2014) (quoting 8 U.S.C. § 1182(a)(2)(A)(ii)(II)). 9 The record reflects that Petitioner received a one-year, concurrent sentence in the custody 10 of the Kern County Sheriff for his Penal Code § 422(a) conviction. ECF No. 9-4 at 9. 11 Accordingly, because Petitioner’s sentence on his lone CIMT exceeded six months, the petty 12 offense exception does not apply and Petitioner is currently subject to mandatory detention under 13 8 U.S.C. § 1226(c)(1)(A). 14 III. Due Process Analysis 15 A. Legal Framework 16 The undersigned construes the petition as raising an as-applied, procedural due process 17 challenge to the constitutionality of Petitioner’s mandatory detention. The Supreme Court upheld 18 the facial constitutionality of mandatory detention under § 1226(c) in Demore, 538 U.S. at 531. 19 However, the Supreme Court did so with the understanding that § 1226(c) detention is relatively 20 “brief” and “limited,” and “lasts roughly a month and a half in the vast majority of cases” and 21 “about five months in the minority of cases in which the alien chooses to appeal.” Id. at 513, 529 22 n.12, 530. Justice Kennedy joined the opinion in full, but wrote a concurring opinion recognizing 23 2 Respondent argues that the Court need not consider the petty offense exception because 24 Petitioner “committed more than one crime.” ECF No. 9 at 3. However, the exception applies to convictions for more than one crime involving moral turpitude. See Cervantes, 772 F.3d at 589 25 (remanding to BIA to consider whether petty offense exception applies to Cal. Penal Code § 422 26 conviction after reversing BIA’s finding that the petitioner was convicted of a second CIMT); cf. United States v. Nunez-Garcia, 262 F. Supp. 2d 1073, 1081 (C.D. Cal. 2003) (finding petty 27 offense exception inapplicable because the defendant “committed, and was convicted of, more than one crime involving moral turpitude.”). Petitioner was convicted on three charges, but 28 Respondents only identify one, Cal. Penal Code § 422, as a CIMT. See ECF No. 9 at 3. 1 the viability of as-applied challenges under the majority’s framework: “[S]ince the Due Process 2 Clause prohibits arbitrary deprivations of liberty, a lawful permanent resident [noncitizen] . . . 3 could be entitled to an individualized determination as to his risk of flight and dangerousness if 4 the continued detention became unreasonable or unjustified.” Demore, 538 U.S. at 532 5 (Kennedy, J., concurring). Later, in Nielsen v. Preap, 586 U.S. 392 (2019), the Supreme Court 6 recognized the right to bring as-applied challenges: “Our decision today on the meaning of that 7 statutory provision [8 U.S.C. § 1226(c)] does not foreclose as-applied challenges—that is, 8 constitutional challenges to applications of the statute as we have now read it.” Preap, 586 U.S. at 9 420. 10 The Ninth Circuit Court of Appeal has expressly declined to address “[w]hether due 11 process requires a bond hearing” in such situations. Martinez v. Clark, 36 F.4th 1219, 1223 (9th 12 Cir. 2022), cert. granted, judgment vacated, 144 S. Ct. 1339 (2024). However, the Court has 13 expressed “grave doubts that any statute that allows for arbitrary prolonged detention without any 14 process is constitutional.” Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018). Other Circuit 15 Courts of Appeal have concluded that Demore does not foreclose as-applied challenges to 16 prolonged detention under § 1226(c). For instance, the Second Circuit has held that “[t]he 17 Constitution does not permit the Executive to detain a noncitizen for an unreasonably prolonged 18 period under section 1226(c) without a bond hearing; at some point, additional procedural 19 protections—like a bond hearing—become necessary.” Black v. Decker, 103 F.4th 133, 145 (2d 20 Cir. 2024); see also German Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 210 (3d 21 Cir. 2020) (holding that due process affords noncitizens detained under § 1226(c) a bond hearing 22 once detention becomes unreasonable). The undersigned finds these authorities persuasive and 23 agrees that Demore does not bar an as-applied challenge to prolonged detention without a hearing 24 to determine whether such detention is justified. The next step is to determine the appropriate 25 framework in which to analyze Petitioner’s procedural due process argument. 26 The Due Process Clause protects persons in the United States from being deprived of life, 27 liberty, or property without due process of law. U.S. Const. amend. V. The Supreme Court has 28 concluded that “the Due Process Clause applies to all ‘persons’ within the United States, 1 including [non-citizens], whether their presence here is lawful, unlawful, temporary, or 2 permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Courts examine procedural due 3 process claims in two steps: the first step is determining whether there exists a protected liberty 4 interest under the Due Process Clause. The second step examines the procedures necessary to 5 ensure any deprivation of that protected liberty interest accords with the Constitution. See 6 Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989); Morrissey v. Brewer, 7 408 U.S. 471, 481 (1972) (“Once it is determined that due process applies, the question remains 8 what process is due.”). 9 The undersigned has considered the various tests used by district courts within the Ninth 10 Circuit and finds that Mathews v. Eldridge, 424 U.S. 319 (1976), provides the appropriate test for 11 due process challenges to prolonged detention under § 1226(c). Under Mathews, the court 12 considers three factors: (1) the private interest affected; (2) the risk of an erroneous deprivation of 13 that interest; and (3) the government’s interest involved including any fiscal or administrative 14 burden that additional procedures would include. Mathews, 424 U.S. at 335. 15 B. Due Process Analysis 16 Turning to the first step, the facts of this case present several barriers to finding of a 17 protected liberty interest. Although Petitioner has a liberty interest in “‘freedom from prolonged 18 detention’ [that] is ‘unquestionably substantial,’” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1207 19 (9th Cir. 2022) (quoting Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir. 2011)), he has been 20 detained for less than two months. In Demore, the Supreme Court held the petitioner’s six-month 21 detention under § 1226(c) was “constitutionally permissible” despite being “somewhat longer 22 than average.” 538 U.S. at 530-531. Further, although the Ninth Circuit has not addressed when 23 mandatory detention under § 1226(c) becomes prolonged, it has similarly referred to detentions 24 longer than six months as prolonged “in the context of detentions for which no individualized 25 bond hearings had taken place at all because the statutes on their faces did not allow for them.” 26 Rodriguez Diaz, 53 F.4th at 1207 (citations omitted); see also Zadvydas, 533 U.S. at 701 27 (recognizing a “6–month period” of presumptively reasonable post-removal-period detention). 28 Therefore, given that the duration of Petitioner’s detention is still within the range contemplated 1 in Demore, it does not yet implicate his protected interest against prolonged detention. 2 Moreover, this is not a case where petitioner accrued a liberty interest after being 3 previously released by DHS or an IJ. Rather, he was released from state prison on parole and 4 immediately arrested by ICE. As a fellow judge of this judicial district has explained, noncitizens 5 do not acquire protected liberty interests in their release under such circumstances: 6 “[T]he liberty interests of [an individual] who is re-arrested differ from the liberty interests of a detained person.” Guillermo M.R. v. Kaiser, No. 25-cv-05436-RFL, 7 2025 WL 1810076, at *1 (N.D. Cal. June 30, 2025). In the former situation, where ICE detains an individual upon their release from a correctional facility, 8 without any substantial intervening period of release, that individual has no opportunity “to form the [ ] enduring attachments of normal life.” Morrissey v. 9 Brewer, 408 U.S. 471, 482 (1972). In contrast, a person who has been released from physical restraint gains a “liberty [interest that] is valuable and must be seen 10 as within the protection of the” Due Process Clause. Id. 11 Carballo v. Andrews, No. 1:25-cv-0978 KES EPG (HC), 2025 WL 2381464, at *4 (E.D. Cal. 12 Aug. 15, 2025). Thus, Petitioner cannot claim a protected liberty interest based on continued 13 freedom from any previous release from custody. 14 Petitioner still retains a general liberty interest in freedom from detention. “‘[F]reedom 15 from imprisonment . . . lies at the heart of the liberty [the Due Process Clause] protects.’” 16 Zadvydas, 533 U.S. at 690. But applying the Mathews factors to that private interest, the 17 relatively short duration of petitioner’s § 1226(c) detention significantly diminishes its strength. 18 “[T]he longer mandatory detention continues under 8 U.S.C. § 1226(c) beyond the ‘brief’ period 19 authorized in Demore, the harder it becomes to justify without conducting an individualized bond 20 hearing.” Sarr v. Scott, 765 F. Supp. 3d 1091, 1098 (W.D. Wash. 2025); cf. Black, 103 F.4th at 21 151 (finding first Mathews factor “weighs heavily in favor” of petitioners where they were 22 detained for “far longer” than the petitioner in Demore). 23 Next, the risk of erroneous deprivation is currently low where the duration of Petitioner’s 24 detention does not exceed that of the petitioner in Demore. However, the risk of erroneous 25 deprivation will increase over time as his detention becomes prolonged due to the “almost 26 nonexistent procedural protections in place for section 1226(c) detainees.” Black, 103 F.4th at 27 152. The only procedural protection in place is an opportunity to challenge his inclusion in a 28 mandatory detention category pursuant to Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999), 1 which is not a “mechanism for a detainee’s release, nor for individualized review of the need for 2 detention.”3 Id. 3 Finally, precedent dictates that “[t]he government has an obvious interest in ‘protecting 4 the public from dangerous criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 5 538 U.S. at 515). Indeed, in Demore, the Supreme Court expressly upheld the brief detention of 6 criminal noncitizens without an individualized determination of dangerousness. See 510 U.S. at 7 528. While this factor currently favors the government, it too will tilt toward Petitioner as his 8 detention without an individualized determination of danger or flight risk becomes prolonged. 9 See Black, 103 F.4th at 153–54 (“The additional procedural safeguards we would allow here 10 under Mathews do nothing to undercut those interests. At any ordered bond hearing, the IJ would 11 assess on an individualized basis whether the noncitizen presents a flight risk or a danger to the 12 community, as IJs routinely do for other noncitizen detainees.”); Jimenez v. Wolf, No. 19-cv- 13 7996 NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020) (“Providing a bond hearing would 14 not undercut the government’s asserted interest in effecting removal. After all, the purpose of a 15 bond hearing is to inquire whether the alien represents a flight risk or danger to the community.”) 16 (citing In re Guerra, 24 I.&N. Dec. 37 (B.I.A. 2006)). 17 On balance, the Mathews factors weigh against ordering a bond hearing at the current, 18 less-than-two-month juncture of Petitioner’s immigration detention. Accordingly, the 19 undersigned recommends that the petition be denied. However, these findings and 20 recommendations do not preclude Petitioner from seeking a bond hearing through a subsequent § 21 2241 petition at a later point in time should his detention become prolonged. 22

23 3 For this reason, the undersigned rejects Respondent’s argument that Petitioner was required to pursue a Joseph hearing to exhaust his administrative remedies. ECF No. 9 at 5-6. The remedy 24 in a Joseph hearing is a finding that the noncitizen is not “subject to” 8 U.S.C. § 1226(c). See Joseph, 22 I. & N. Dec. 799, 804. But here, the petition assumes Petitioner is subject to a 25 mandatory detention category, ECF No. 1 at 5, ¶ 21, and challenges his prolonged, mandatory 26 detention, id. at 16-17. In sum, a Joseph hearing would not provide Petitioner with the relief he seeks through his petition. See Arnold v. Crawford, 554 F. Supp. 2d 987, 989 (D. Ariz. 2008) 27 (“the Court finds that exhaustion via a Joseph hearing is not required because Petitioner is not challenging whether he is subject to mandatory detention.”), order vacated on reconsideration on 28 other grounds, No. CV 07-170 PHX JAT(LOA), 2008 WL 4999211 (D. Ariz. Nov. 21, 2008). 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 7); and 4 2. Petitioner’s second motion to proceed in forma pauperis (ECF No. 11) 1s DENIED 5 || as moot. 6 Additionally, IT IS HEREBY RECOMMENDED that Petitioner Jubenal Alba-Perez’s 7 || (A# 214-360-919) application for a writ of habeas corpus (ECF No. 1) be DENIED without 8 | prejudice. 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 8, 2026 20

22 SEAN C. RIORDAN 73 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28