1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS DANIEL ORTIZ LEANDRO No. 1:26-cv-1478 DC CSK (A-245-684-787), 12 Petitioner, 13 ORDER AND FINDINGS & v. RECOMMENDATIONS 14 WARDEN, GOLDEN STATE ANNEX 15 DETENTION FACILITY, 16 Respondent. 17 18 Petitioner Luis Daniel Ortiz Leandro (A-245-684-787), a native and citizen of Venezuela 19 proceeding without counsel, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241.1 20 Petitioner alleges that his ongoing prolonged detention without a bond hearing violates his due 21 process rights under the Fifth Amendment. (ECF No. 1 at 16.) For the following reasons, this 22 Court recommends that the petition be dismissed without prejudice. 23 I. FACTUAL BACKGROUND 24 Petitioner is a native/citizen of Venezuela. (ECF No. 1 at 5.) Petitioner entered the 25 United States on January 1, 2024. (Id.) Petitioner was detained, applied for asylum, and was 26 released after a few days. (Id.) Petitioner was issued a Notice to Appear in Immigration and 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, 28 and Local Rule 302(c)(17). 1 Nationality Act (“INA”) section 240 (8 U.S.C. § 1229a) removal proceedings, which are standard 2 removal proceedings.2 (ECF No. 8-1 at 1.) In addition, the Notice to Appear does not allege 3 petitioner is an “arriving alien,” though the Notice does include a place to designate this 4 information. (Id.) 5 Petitioner reported every month to his parole agent. (ECF No. 1 at 5.) In May 2025, 6 petitioner committed aggravated battery in Tampa, Florida, and served 190 days in county jail. 7 (Id. at 6.) Upon petitioner’s release from jail, he was taken to an U.S. Immigration and Customs 8 Enforcement (“ICE”) facility where he was detained on December 11, 2025, and served with an 9 arrest warrant pursuant to sections 236 and 287 of the INA. (ECF No. 8-3 at 1.) 10 On April 1, 2026, petitioner’s applications for asylum, withholding of removal, and 11 deferral of removal under the Convention Against Torture were withdrawn with prejudice, and an 12 immigration judge ordered petitioner to be removed to Venezuela. (ECF No. 9 at 3-6.) Petitioner 13 waived appeal. (Id. at 6.) 14 II. PROCEDURAL HISTORY 15 On February 20, 2026, petitioner filed his petition for writ of habeas corpus, and a motion 16 for appointment of counsel. (ECF Nos. 1, 3.) On March 5, 2026, this Court ordered respondent 17 to file a response to the petition within seven days, and petitioner to file an opposition or reply 18 within ten days thereafter. (ECF No. 6.) On March 12, 2026, respondent filed a response and 19 answer to the petition. (ECF No. 8.) Petitioner did not file a traverse/reply. (See Docket.) On 20 April 1, 2026, respondent filed a supplement to the answer. (ECF No. 9.) 21 III. LEGAL STANDARD 22 The Constitution guarantees the availability of the writ of habeas corpus “to every 23 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) 24 (citing U.S. Const., Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in 25 custody upon the legality of that custody, and . . . the traditional function of the writ is to secure 26
27 2 Removal proceedings pursuant to 8 U.S.C. § 1229a (INA § 240) are standard removal proceedings, which are different from expedited removal proceedings pursuant to 8 U.S.C. 28 § 1225(b)(1) (INA § 235(b)(1)). 1 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas 2 corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the 3 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has 4 served as a means of reviewing the legality of Executive detention, and it is in that context that its 5 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s 6 habeas jurisdiction includes challenges to immigration detention. See Zadvydas v. Davis, 533 7 U.S. 678, 687 (2001). 8 IV. DISCUSSION 9 Initially, respondent argued that petitioner’s detention is mandatory under section 1226(c). 10 Petitioner does not dispute that at the time he filed his petition, his detention was subject to 11 section 1226(c), and admits he sustained a conviction for aggravated battery. Section 1226 carves 12 out a statutory category of non-citizens who, despite being arrested while already in the country, 13 may not be released because of their criminal or terrorist activities. 8 U.S.C. § 1226(c). In 14 January 2025, the Laken Riley Act was enacted, adding 8 U.S.C. § 1226(c)(1)(E), which 15 mandates detention for additional categories of criminal aliens. Respondent contends petitioner 16 was arrested for aggravated battery causing great bodily injury, subjecting petitioner to mandatory 17 detention under section 1226(c)(1)(E), while his removal proceedings are pending. (ECF No. 8 at 18 3.) Petitioner does not dispute this. 19 However, section 1226 applies “pending a decision on whether the alien is to be removed 20 from the United States.” 8 U.S.C. § 1226(a). Since the habeas petition was filed, petitioner was 21 ordered removed to Venezuela on April 1, 2026, and petitioner waived his appeal. Petitioner’s 22 removal order is now final. 8 C.F.R. § 1241.1(b). Thus, section 1226(c) is no longer applicable 23 to petitioner’s detention. Instead, as argued by respondent in the supplemental filing, section 24 1231 applies to noncitizens ordered removed. 8 U.S.C. § 1231(a). Noncitizens who have been 25 ordered removed “shall” be detained by the Attorney General. 8 U.S.C. § 1231(a)(2)(A). 26 In the supplement to the answer, respondent argues that “any claims petitioner has to 27 unlawful detention under § 1226 are now moot.” (ECF No. 9 at 1 (citing Baires v. Lynch, 2016 28 WL 4502558, at *2 (N.D. Cal. Aug. 29, 2016)).) To the extent petitioner relies on § 1226 to 1 argue he should be provided a bond hearing, respondent is correct. “A petition challenging 2 detention under section 1226 is rendered moot when detention authority shifts to section 1231.” 3 Baires, 2016 WL 4502558, at *2. 4 Here, however, petitioner claims his “ongoing prolonged detention” violates due process. 5 (ECF No.
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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 LUIS DANIEL ORTIZ LEANDRO No. 1:26-cv-1478 DC CSK (A-245-684-787), 12 Petitioner, 13 ORDER AND FINDINGS & v. RECOMMENDATIONS 14 WARDEN, GOLDEN STATE ANNEX 15 DETENTION FACILITY, 16 Respondent. 17 18 Petitioner Luis Daniel Ortiz Leandro (A-245-684-787), a native and citizen of Venezuela 19 proceeding without counsel, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241.1 20 Petitioner alleges that his ongoing prolonged detention without a bond hearing violates his due 21 process rights under the Fifth Amendment. (ECF No. 1 at 16.) For the following reasons, this 22 Court recommends that the petition be dismissed without prejudice. 23 I. FACTUAL BACKGROUND 24 Petitioner is a native/citizen of Venezuela. (ECF No. 1 at 5.) Petitioner entered the 25 United States on January 1, 2024. (Id.) Petitioner was detained, applied for asylum, and was 26 released after a few days. (Id.) Petitioner was issued a Notice to Appear in Immigration and 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, 28 and Local Rule 302(c)(17). 1 Nationality Act (“INA”) section 240 (8 U.S.C. § 1229a) removal proceedings, which are standard 2 removal proceedings.2 (ECF No. 8-1 at 1.) In addition, the Notice to Appear does not allege 3 petitioner is an “arriving alien,” though the Notice does include a place to designate this 4 information. (Id.) 5 Petitioner reported every month to his parole agent. (ECF No. 1 at 5.) In May 2025, 6 petitioner committed aggravated battery in Tampa, Florida, and served 190 days in county jail. 7 (Id. at 6.) Upon petitioner’s release from jail, he was taken to an U.S. Immigration and Customs 8 Enforcement (“ICE”) facility where he was detained on December 11, 2025, and served with an 9 arrest warrant pursuant to sections 236 and 287 of the INA. (ECF No. 8-3 at 1.) 10 On April 1, 2026, petitioner’s applications for asylum, withholding of removal, and 11 deferral of removal under the Convention Against Torture were withdrawn with prejudice, and an 12 immigration judge ordered petitioner to be removed to Venezuela. (ECF No. 9 at 3-6.) Petitioner 13 waived appeal. (Id. at 6.) 14 II. PROCEDURAL HISTORY 15 On February 20, 2026, petitioner filed his petition for writ of habeas corpus, and a motion 16 for appointment of counsel. (ECF Nos. 1, 3.) On March 5, 2026, this Court ordered respondent 17 to file a response to the petition within seven days, and petitioner to file an opposition or reply 18 within ten days thereafter. (ECF No. 6.) On March 12, 2026, respondent filed a response and 19 answer to the petition. (ECF No. 8.) Petitioner did not file a traverse/reply. (See Docket.) On 20 April 1, 2026, respondent filed a supplement to the answer. (ECF No. 9.) 21 III. LEGAL STANDARD 22 The Constitution guarantees the availability of the writ of habeas corpus “to every 23 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) 24 (citing U.S. Const., Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in 25 custody upon the legality of that custody, and . . . the traditional function of the writ is to secure 26
27 2 Removal proceedings pursuant to 8 U.S.C. § 1229a (INA § 240) are standard removal proceedings, which are different from expedited removal proceedings pursuant to 8 U.S.C. 28 § 1225(b)(1) (INA § 235(b)(1)). 1 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas 2 corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the 3 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has 4 served as a means of reviewing the legality of Executive detention, and it is in that context that its 5 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s 6 habeas jurisdiction includes challenges to immigration detention. See Zadvydas v. Davis, 533 7 U.S. 678, 687 (2001). 8 IV. DISCUSSION 9 Initially, respondent argued that petitioner’s detention is mandatory under section 1226(c). 10 Petitioner does not dispute that at the time he filed his petition, his detention was subject to 11 section 1226(c), and admits he sustained a conviction for aggravated battery. Section 1226 carves 12 out a statutory category of non-citizens who, despite being arrested while already in the country, 13 may not be released because of their criminal or terrorist activities. 8 U.S.C. § 1226(c). In 14 January 2025, the Laken Riley Act was enacted, adding 8 U.S.C. § 1226(c)(1)(E), which 15 mandates detention for additional categories of criminal aliens. Respondent contends petitioner 16 was arrested for aggravated battery causing great bodily injury, subjecting petitioner to mandatory 17 detention under section 1226(c)(1)(E), while his removal proceedings are pending. (ECF No. 8 at 18 3.) Petitioner does not dispute this. 19 However, section 1226 applies “pending a decision on whether the alien is to be removed 20 from the United States.” 8 U.S.C. § 1226(a). Since the habeas petition was filed, petitioner was 21 ordered removed to Venezuela on April 1, 2026, and petitioner waived his appeal. Petitioner’s 22 removal order is now final. 8 C.F.R. § 1241.1(b). Thus, section 1226(c) is no longer applicable 23 to petitioner’s detention. Instead, as argued by respondent in the supplemental filing, section 24 1231 applies to noncitizens ordered removed. 8 U.S.C. § 1231(a). Noncitizens who have been 25 ordered removed “shall” be detained by the Attorney General. 8 U.S.C. § 1231(a)(2)(A). 26 In the supplement to the answer, respondent argues that “any claims petitioner has to 27 unlawful detention under § 1226 are now moot.” (ECF No. 9 at 1 (citing Baires v. Lynch, 2016 28 WL 4502558, at *2 (N.D. Cal. Aug. 29, 2016)).) To the extent petitioner relies on § 1226 to 1 argue he should be provided a bond hearing, respondent is correct. “A petition challenging 2 detention under section 1226 is rendered moot when detention authority shifts to section 1231.” 3 Baires, 2016 WL 4502558, at *2. 4 Here, however, petitioner claims his “ongoing prolonged detention” violates due process. 5 (ECF No. 1 at 16.) As explained above, because the immigration judge ordered petitioner 6 removed and the removal order is final, petitioner’s detention is now governed by section 1231. 7 See Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008) (because detainee’s removal 8 period had begun, detention authority is under §§ 1231(a)(2) and (a)(6)). Petitioner contends that 9 detention that exceeds six months without a bond hearing is unconstitutional, relying primarily on 10 Zadvydas, 533 U.S. at 690, 701. (ECF No. 1 at 7-8.) Petitioner has been detained since 11 December 11, 2025, which is not over six months, and Zadvydas does not apply to petitioner’s 12 case. In Zadvydas, the court was considering whether the post-removal period statute authorized 13 the Attorney General to detain removable citizens indefinitely pursuant to § 1231(a)(6). 14 Zadvydas, 533 U.S. at 682-83. The Supreme Court explained that “[a]fter entry of a final 15 removal order and during the 90-day removal period . . . aliens must be held in custody.” Id. 16 Petitioner is now subject to mandatory detention for 90-days pursuant to § 1231(a)(2)(A). 17 Petitioner was ordered removed on April 1, 2026. Because he did not appeal, his 90-day 18 removal period began on April 1, 2026, and continues until June 30, 2026. Petitioner’s detention 19 during this 90-day removal period is mandatory under the INA. See 8 U.S.C. § 1231(a)(1)(a), 20 (a)(2)(a); Johnson v. Guzman Chavez, 594 U.S. 523, 528 (2021) (“During the removal period, 21 detention is mandatory,” citing § 1231(a)(2)). The Ninth Circuit has determined this statutorily 22 mandated 90-day period of detention “passes constitutional scrutiny.” Khotesouvan v. Morones, 23 386 F.3d 1298, 1299 (9th Cir. 2004); see also, e.g., Atkinson v. Dep’t of Homeland Sec., 2025 24 WL 1737017, at *4 (W.D. Wash. June 6, 2025), report and recommendation adopted, 2025 WL 25 1736596 (W.D. Wash. June 23, 2025) (“Petitioner is not entitled to federal habeas relief from his 26 mandatory detention during the removal period.”). In Khotesouvan, the Ninth Circuit stated that 27 the “Zadvydas Court emphasized that the due process analysis attaches in the post-removal 28 period,” and found that the district court properly dismissed the habeas petitions because they 1 were filed during the 90-day removal period. Khotesouvan, 386 F.3d at 1301. 2 In addition, petitioner was detained on December 11, 2025, and his detention has not yet 3 exceeded six months. See Zadvydas, 533 U.S. at 701 (holding it is presumptively reasonable to 4 detain a noncitizen for six months to effectuate an order of removal). 5 Because petitioner is currently subject to the 90-day mandatory detention period under 6 § 1231(a)(2)(A), his petition should be denied without prejudice. 7 V. MOTION FOR APPOINTMENT OF COUNSEL 8 Petitioner filed a motion for appointment of counsel with his habeas petition. (ECF No. 9 3.) On March 5, 2026, this Court deferred consideration of the motion. (ECF No. 6.) There 10 currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. 11 Sumner, 105 F.3d 453, 460 (9th Cir. 1996). Under 18 U.S.C. § 3006A, the court can appoint 12 counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. 13 Governing § 2254 Cases. In light of these findings and recommendations, petitioner’s motion for 14 appointment of counsel (ECF No. 3) is denied without prejudice. 15 VI. CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for appointment of 17 counsel (ECF No. 3) is denied without prejudice. 18 Further, IT IS RECOMMENDED that petitioner’s application for a writ of habeas corpus 19 (ECF No. 1) be denied without prejudice. 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 fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 objections shall be filed and served within fourteen days after service of the objections. The 26 parties are advised that failure to file objections within the specified time may waive the right to 27 /// 28 /// 1 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 2 3 || Dated: April 10, 2026 Cin □□□ CHI 500 KIM 5 UNITED STATES MAGISTRATE JUDGE 6 7 //Mean1478.157 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28