8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
11 MARLON CASTILLO ESPADA, Case No. 5:25-cv-02983-JWH-KES
12 Petitioner,
13 v. FINAL REPORT AND RECOMMENDATION OF U.S. 14 JOHN DOE, Warden, et al., MAGISTRATE JUDGE
15 Respondents.
18 This Final Report and Recommendation (“R&R”) is submitted to the
19 Honorable John W. Holcomb, United States District Judge, pursuant to the
20 provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States 21 District Court for the Central District of California. 22 I. INTRODUCTION 23 Marlon Castillo Espada (“Petitioner”) filed this habeas action under 28 24 U.S.C. § 2241 in November 2025. Petitioner was ordered removed from the 25 United States to 2013, but he was released on an order of supervision (“OSUP”) 26 when the government could not remove him. In October 2025, his OSUP was 27 revoked, he was re-detained by U.S. Immigration and Customs Enforcement 28 1 (“ICE”). He remains in ICE custody. 2 This R&R recommends granting his Petition and releasing Petitioner, 3 subject to the conditions of his prior OSUP. Although the Court previously denied 4 Petitioner’s request for a temporary restraining order (“TRO”), the record has 5 materially changed at this stage of the litigation. Respondents failed to file any 6 response to the underlying Petition after being ordered to do so, and they failed to 7 appear at a hearing before the Magistrate Judge on January 9, 2026. As discussed 8 further below, because Petitioner was previously released under an OSUP, his 9 detention is governed not by Zadvydas v. Davis, 533 U.S. 678 (2001) but rather by 10 Department of Homeland Security (“DHS”) regulation 8 C.F.R. § 241.13. That 11 regulation places the burden on Respondents to show that changed circumstances 12 have rendered Petitioner’s removal significantly likely in the reasonably 13 foreseeable future. Respondents have failed to meet that burden. To the contrary, 14 the conviction that made Petitioner removable has been overturned. At the status 15 conference on January 9, 2026, Petitioner’s counsel represented that he expects 16 Petitioner’s legal resident status to be reinstated eventually. 17 This Final R&R is issued to address the objections Respondents filed to the 18 initial R&R (Dkt. 20). These objections do not change the undersigned’s 19 recommendation, as explained further below. 20 II. PROCEDURAL HISTORY 21 On November 6, 2025, Petitioner filed a counseled petition for writ of 22 habeas corpus under § 2241. (“Petition” at Dkt. 1.) The Petition argues 23 that Petitioner’s removal is not reasonably foreseeable, which means his detention 24 violates his due process rights under Zadvydas v. Davis, 533 U.S. 678 (2001) and 25 also violates 8 U.S.C. § 1231(a). 26 On November 10, 2025, the Court issued a scheduling order requiring, inter 27 alia, Petitioner to apply for a TRO within three days. (Dkt. 4 at 2 ¶ 4.) Petitioner 28 timely applied for a TRO on November 13, 2025. (Dkt. 6.) Respondents opposed 1 the TRO (Dkt. 8) with a supporting declaration from Deportation Officer Enrique 2 Chavez dated November 17, 2025 (Dkt. 8-1). Petitioner did not file a reply. 3 On November 19, 2025, the Court1 held a hearing on the TRO application. 4 (Dkt. 10.) The Court continued the hearing to December 19, 2025 and directed 5 Respondents to file a status report on or before December 12, 2025 “that advises 6 the Court regarding their efforts to obtain travel documents and to effectuate 7 Petitioner’s removal.” (Id.) The Court also allowed either party to file a 8 supplemental brief by December 17, 2025 at the latest. (Id.) 9 On December 12, 2025, Respondents filed a status report which stated, “At 10 this time, Respondents have no updates or additional information to report.” (Dkt. 11 12 at 2.) On December 17, 2025, Petitioner filed a supplemental brief (Dkt. 13), 12 which attached a declaration from counsel representing Petitioner in his removal 13 case, Kiran Nair (Dkt. 13-1). On December 19, 2025, the Court denied the TRO 14 without prejudice for reasons stated orally on the record. (Dkt. 14.) 15 On December 23, 2025, the Court issued a scheduling order requiring 16 Respondents to respond to the Petition within 14 days, i.e., by January 6, 2026. 17 (Dkt. 15 at 4 ¶ 2.) Respondents failed to timely respond. 18 On January 7, 2026, the Court issued an order noting Respondents’ failure to 19 respond to the Petition and setting a telephonic status conference for January 9, 20 2026. (Dkt. 16.) The Court noted that if Respondents filed a response to the 21 Petition prior to the status conference, it might take the status conference off 22 calendar. (Id.) Respondents did not file anything in response to this order. The 23 1 Under General Order 05-07, this case is referred to the undersigned 24 Magistrate Judge to consider preliminary matters and prepare a report and 25 recommendation regarding the disposition of the case. (Dkt. 3.) However, applications or motions seeking injunctive relief may not be referred to a 26 magistrate judge. See 28 U.S.C. § 636(b)(1)(A); General Order 05-07, 27 https://www.cacd.uscourts.gov/sites/default/files/general-orders/GO-05-07.pdf. Accordingly, the District Judge ruled on the TRO application. 28 1 Court held the status conference on January 9, 2026, and Respondents failed to 2 appear. 3 III. EVIDENCE IN THE RECORD2 4 Petitioner is a Bolivian national who entered the U.S. as a lawful permanent 5 resident on or around June 25, 1989. (Pet. at 1 ¶ 1; Chavez Decl. ¶ 4 / Dkt. 8-1 at 6 1.) On September 4, 2009, he was convicted of assault with a semi-automatic 7 firearm under California Penal Code § 245(b) and sentenced to one year in state 8 prison. (Pet. at 1 ¶ 2; Chavez Decl. ¶ 5 / Dkt. 8-1 at 1-2.) 9 On February 28, 2011, ICE took the Petitioner into custody and issued a 10 Notice to Appear charging removability under Section 237(a)(2)(A)(iii) of the 11 Immigration and Nationality Act. (Chavez Decl. ¶ 6 / Dkt. 8-1 at 2.) That section 12 provides that a noncitizen “who is convicted of an aggravated felony at any time 13 after admission is deportable.” 18 U.S.C. § 1227(a)(2)(A)(iii). 14 On May 9, 2011, an immigration judge (“IJ”) in Los Angeles, CA ordered 15 Petitioner removed to Bolivia. (Chavez Decl. ¶ 7 / Dkt. 8-1 at 2.) On October 28, 16 2011, the Board of Immigration Appeals (“BIA”) dismissed Petitioner’s appeal but 17 remanded the case to the IJ to allow Petitioner to apply for removal protection 18
19 2 The Petition is verified by Petitioner’s counsel rather than Petitioner himself. (Pet. at 8.) Some courts in this district have allowed this practice where 20 the petitioner is in custody. See, e.g., Luu v. Bowen, No. 25-cv-03145-MEMF-SP, 21 2025 WL 3552298, at *4, 2025 U.S. Dist. LEXIS 257061, at *11 (C.D. Cal. Dec. 11, 2025) (“Luu’s counsel verifying the Petition, Estalyn Marquis, has spoken with 22 Luu, … where she got the information for the Petition and thus has personal 23 knowledge. And the assertions in the Petition can be taken as true because Luu’s counsel swore that based on what she has learned from the information, the 24 Petition is true. Therefore, there is ‘competent sworn testimony’ to satisfy the 25 verification requirements under Local Rule 83-16.2.”). Regardless, the material factual allegations are corroborated by Officer Chavez’s declaration, which 26 Respondents filed in support of their opposition to the TRO application. (Dkt. 8- 27 1.) The declaration from Petitioner’s immigration counsel, Kiran Nair, is properly made based on personal knowledge. 28 1 relief. (Chavez Decl. ¶ 9 / Dkt. 8-1 at 2.) On January 3, 2013, the IJ granted 2 Petitioner deferral of removal under Article III of the Convention Against Torture 3 (“CAT”). (Chavez Decl. ¶ 10 / Dkt. 8-1 at 2.) On January 9, 2013, Petitioner was 4 released from ICE custody on an OSUP. (Chavez Decl. ¶ 11 / Dkt. 8-1 at 2.) 5 The Petition alleges that Petitioner has been living in the U.S. since then and 6 regularly checking in with ICE. (Pet. at 2 ¶ 4.) He has four U.S. citizen children. 7 (Id. at 4 ¶ 19.) 8 In May 2014 and October 2022, Petitioner was convicted of driving under 9 the influence (“DUI”) and sentenced to serve 60 and 45 days in jail, respectively. 10 (Chavez Decl. ¶¶ 12-13 / Dkt. 8-1 at 2-3.) 11 On October 23, 2025, Petitioner was re-detained by ICE. (Pet. at 2-3 ¶¶ 6, 12 18; Chavez Decl. ¶ 14 / Dkt. 8-1 at 3).) According to Officer Chavez, “On the 13 same day, [he] was served a Notice of Revocation of Release.” (Chavez Decl. ¶ 14 14 / Dkt. 8-1 at 3.) Officer Chavez’s declaration does not attach a copy of this notice 15 or summarize its contents, so there is no evidence as to why Petitioner’s OSUP was 16 revoked. Petitioner remains detained at the Adelanto Detention Center in 17 Adelanto, California. (Pet. at 2 ¶ 8; Chavez Decl. ¶ 14 / Dkt. 8-1 at 3.) 18 On November 14, 2025, Petitioner “successfully obtained post-conviction 19 relief of his 2009 conviction of Cal. Pen. Code § 245(b),” i.e., the conviction that 20 was the basis for his removal order, under California Penal Code § 1473.7(a)(1). 21 (Nair Decl. ¶ 4 / Dkt. 13-1 at 1); see generally Cal. Pen. Code § 1437.7(a)(1) ( “A 22 person who is no longer in criminal custody may file a motion to vacate a 23 conviction or sentence” arguing that the “conviction or sentence is legally invalid 24 due to prejudicial error damaging the moving party’s ability to meaningfully 25 understand, defend against, or knowingly accept the actual or potential adverse 26 immigration consequences of a conviction or sentence.”). 27 Petitioner has moved the BIA to reopen his immigration case and reinstate 28 his permanent resident status based on the vacation of this conviction. (Nair Decl. 1 ¶ 7 / Dkt. 13-1 at 2.) “[T]he BIA does not have a timeline for when the motion will 2 be ruled on.” (Nair Decl. ¶ 8 / Dkt. 13-1 at 3.)3 3 As of November 17, 2025, ICE had “initiated the process of requesting 4 travel documents” from unspecified third countries. (Chavez Decl. ¶ 15 / Dkt. 8-1 5 at 3.) “ICE does not anticipate any obstacles to removal once travel documents are 6 issued.” (Chavez Decl. ¶¶ 15-16 / Dkt. 8-1 at 3.) There is no evidence of what 7 countries ICE or DHS have applied to or how long the process typically takes. 8 IV. DISCUSSION 9 A. DHS Regulation 8 C.F.R. § 241.13(i), Not Zadvydas, Governs 10 Petitioner’s Claims. 11 In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that 8 12 U.S.C. § 1231(a)(6) does not authorize the government to detain an alien awaiting 13 removal “indefinitely” beyond the statutory 90-day removal period. 533 U.S. at 14 689. The Supreme Court construed the statute to contain an implicit “reasonable 15 time” limitation. Id. at 682. The Court held that “the statute, read in light of the 16 Constitution’s demands, limits an alien’s post-removal-period detention to a period 17 reasonably necessary to bring about that alien’s removal from the United States.” 18 Id. at 682, 689. The Court determined that six months was a presumptively 19 reasonable period of detention. Id. at 701. “After this 6-month period, once the 20 alien provides good reason to believe that there is no significant likelihood of 21 removal in the reasonably foreseeable future, the Government must respond with 22 evidence sufficient to rebut that showing.” Id. If the government fails to rebut the 23 alien’s showing, then the alien is entitled to relief. See e.g., Chun Yat Ma v. 24 Asher, No. 11-cv-1797, 2012 WL 1432229, 2012 U.S. Dist. LEXIS 58082 (W.D. 25
26 3 At the hearing on January 9, 2026, at which Respondents failed to appear, 27 Petitioner’s counsel stated that, in his experience, it may take the BIA anywhere from 6 months to 3 years to adjudicate this type of motion. 28 1 Wash. Apr. 25, 2012) (granting habeas relief and ordering petitioner released from 2 custody after eleven-month delay in removing petitioner to China). The Supreme 3 Court noted, “For detention to remain reasonable, as the period or prior post- 4 removal confinement grows, what counts as the ‘reasonably foreseeable future’ 5 conversely would have to shrink.” Zadvydas, 533 U.S. at 701. 6 Both parties in this case appear to assume that Zadvydas is the governing 7 standard for Petitioner’s claim. However, “This case is not about ICE’s authority 8 to detain in the first place upon an issuance of a final order of removal as in 9 Zadvydas. This case is about ICE’s authority to re-detain [the petitioner] after he 10 was issued a final order of removal, detained, and subsequently released on an 11 OSUP. The DHS regulation, 8 C.F.R. § 241.13(i), applies to non-citizens in [this] 12 situation.” Nguyen v. Hyde, 788 F. Supp. 3d 144, 149 (D. Mass. 2025); see also 13 Luu v. Bowen, No. 25-cv-3145-MEMF-SP, 2025 WL 3552298, at *6, 2025 U.S. 14 Dist. LEXIS 257061, at *16 (C.D. Cal. Dec. 11, 2025) (holding that where a 15 petitioner has been re-detained, “Section 241.13 actually codifies how Zadvydas 16 should apply”). 17 Here, Respondents assert that Petitioner has a final order of removal, was 18 detained, and then was released on an OSUP. (Chavez Decl. ¶¶ 9-11 / Dkt. 8-1 at 19 2.) Accordingly, Respondents were required to comply with 8 C.F.R. § 241.13(i) 20 when they revoked Petitioner’s OSUP and re-detained him in October 2025. 21 B. Respondents Have Not Shown Changed Circumstances 22 Demonstrating A Significant Likelihood that Petitioner May Be 23 Removed in the Reasonably Foreseeable Future Under 8 C.F.R. 24 § 241.13(i)(2). 25 Section 241.13(i) allows DHS to revoke a noncitizen’s OSUP and re-detain 26 them if they violate any of the conditions of release, 8 C.F.R. § 241.13(i)(1), or “if, 27 on account of changed circumstances, [DHS] determines that there is a significant 28 likelihood that the alien may be removed in the reasonably foreseeable future,” 8 1 C.F.R. § 241.13(i)(2); see also Hoang v. Santa Cruz, No. 25-cv-2766-JGB-JC, 2 2025 WL 3141857, at *3, 2025 U.S. Dist. LEXIS 212737, at *9 (C.D. Cal. Oct. 28, 3 2025) (“[I]f a noncitizen is subject to 8 C.F.R. § 241.13, ICE may only detain them 4 under more limited circumstances than 8 C.F.R. § 241.4(l)….”). 5 The regulation requires that the noncitizen be (a) “notified of the reasons for 6 revocation of his or her release,” and (b) given “an initial informal interview 7 promptly after his or her return to Service custody to afford the alien an 8 opportunity to respond to the reasons for revocation stated in the notification.” 8 9 C.F.R. § 241.13(i)(3); see also Nouri v. Herrera, No. 25-cv-1905-JFW-DTB, 2025 10 U.S. Dist. LEXIS 171809, at *13 (C.D. Cal. Sep. 3, 2025) (“ICE’s regulations 11 require that when an alien is notified of a revocation of release, the ‘reasons’ for 12 that revocation must be stated in the notification.”). 13 In the present case, the Petition alleged that Petitioner “was detained … for 14 imminent removal to a third country.” (Pet. at 2 ¶ 6.) Respondents’ opposition to 15 the TRO application—the only written briefing Respondents have filed in this 16 case, apart from a brief status report—did not dispute this contention. The TRO 17 opposition noted, “ICE is actively attempting to enforce Petitioner’s removal and 18 has initiated the process of requesting travel documents from [undisclosed] third 19 countries.” (Dkt. 8 at 2.)4 20 4 The opposition also noted that, in 2014 and 2022, Petitioner was convicted 21 of DUI and sentenced to brief periods in state custody. (Dkt. 8 at 2; Chavez Decl. 22 ¶¶ 12-13 / Dkt. 8-1 at 2-3.) However, neither Respondents’ opposition nor Chavez’s declaration asserted that Petitioner’s OSUP was revoked because these 23 convictions violated the terms of the OSUP. As noted above, they did not provide 24 a copy of the OSUP or the notice of revocation. The Court assumes that Respondents did not revoke Petitioner’s OSUP on this ground, since he remained 25 out of custody between 2022 and 2025. If Respondents sought to revoke the 26 OSUP on this ground, they would need to give Petitioner written notice that this was the reason and an opportunity to respond. Compare Pogosyan v. Bondi, No. 27 5:25-cv-03121-SRM-AS, 2025 WL 3898485, at *5, 2025 U.S. Dist. LEXIS 28 269696, at *14-15 (C.D. Cal. Dec. 3, 2025) (partially denying TRO application, 1 Section 241.13(i)(2) provides, “The Service may revoke an alien’s release 2 … and return the alien to custody if, on account of changed circumstances, the 3 Service determines that there is a significant likelihood that the alien may be 4 removed in the reasonably foreseeable future.” 8 C.F.R. § 241.13(i)(2). Thus, the 5 regulation “requir[es] (1) an individualized determination (2) by ICE that, 6 (3) based on changed circumstances, (4) removal has become significantly likely in 7 the reasonably foreseeable future.” Nguyen, 788 F. Supp. 3d at 150 (quoting Kong 8 v. United States, 62 F.4th 608, 619-20 (1st Cir. 2023)). 9 “[T]he burden-shifting framework from Zadvydas does not apply” where the 10 petitioner has already been “issued a final order of removal, detained, and 11 subsequently released on an” OSUP. Yan-Ling X. v. Lyons, No. 25-cv-01412- 12 KES-CDB-HC, 2025 WL 3123793, at *3, 2025 U.S. Dist. LEXIS 220277, at *8 13 (E.D. Cal. Nov. 7, 2025). Under section 241.13(i)(2), “when ICE revokes release 14 to effectual removal, ‘it is [ICE’s] burden to show a significant likelihood that the 15 alien may be removed,” because “imposing the burden of proof on the alien each 16 time he is re-detained would lead to an unjust result and serious due process 17 implications.’” 2025 WL 3123793, at *4, 2025 U.S. Dist. LEXIS 220277, at *8 18 (emphasis added; quoting Escalante v. Noem, No. 25-cv-182, 2025 WL 2206113, 19 at *3, 2025 U.S. Dist. LEXIS 148899, at *7 (E.D. Tex. Aug. 2, 2025)); see also 20 Nazarian v. Noem, No. 25-cv-02694-KK-ADS, 2025 WL 3236209, at *5, 2025 21 U.S. Dist. LEXIS 229051, at *10-11 (C.D. Cal. Nov. 3, 2025) (“Contrary to 22 Respondents’ assertions, Petitioner is not challenging his detention during an initial 23 removal period. See, e.g., Zadvydas, 533 U.S. at 701…. Rather, because Petitioner 24
25 finding, based on copy of notice of revocation submitted by respondents, that “ICE revoked Petitioner’s release under Section 241.13(i)(1) as the Notice states that her 26 release was revoked based of her felony convictions from 2014 and 2019, which 27 violated a condition of her release”). Given that the state court has now vacated the conviction that led to Petitioner’s removal order, this may be a moot point. 28 1 challenges his re-detention after already being released on an OSUP, ‘ICE’s own 2 regulations [ ] place the burden on ICE to show changed circumstances that make 3 removal significantly likely in the reasonably foreseeable future.’”) (quoting Sun v. 4 Noem, No. 25-cv-2433, 2025 WL 2800037, at *2, 2025 U.S. Dist. LEXIS 193795 5 (S.D. Cal. Sept. 30, 2025)); El Abed v. Noem, No. 25-cv-02361-FWS-JDE, 2025 6 WL 3691910, at *4, 2025 U.S. Dist. LEXIS 263943, at *11-12 (C.D. Cal. Oct. 28, 7 2025) (“Respondents have the burden to establish changed circumstances that 8 make removal significantly likely in the reasonably foreseeable future and have not 9 done so.”). 10 “The plain language of the regulation … does not allow a court in the first 11 instance to make the required individualized finding. To the extent ICE claims that 12 it made such a determination, the court should review that claim in light of the 13 regulations instructing ICE on how it should make such a determination.” Nguyen, 14 788 F. Supp. 3d at 150 (quoting Kong, 62 F.4th at 620); see also Manivong, 2025 15 WL 3211455, at *5, 2025 U.S. Dist. LEXIS 171812, at *13 (same); Hoac v. 16 Becerra, No. 25-cv-01740, 2025 WL 1993771, at *3, 2025 U.S. Dist. LEXIS 17 136002, at *6-7 (E.D. Cal. July 16, 2025) (same). Section 241.13(f) states that 18 DHS should consider the following facts: 19 [T]he history of the alien’s efforts to comply with the order of 20 removal, the history of the Service’s efforts to remove aliens to the 21 country in question or to third countries, including the ongoing nature 22 of the Service’s efforts to remove this alien and the alien’s assistance 23 with those efforts, the reasonably foreseeable results of those efforts, 24 and the views of the Department of State regarding the prospects for 25 removal of aliens to the country or countries in question. 26 8 C.F.R. § 241.13(f). 27 Respondents have not demonstrated changed circumstances sufficient to 28 meet the burden imposed by their own regulations. They have not produced a copy 1 of the notice of revocation served on Petitioner, which is supposed to explain what 2 changed circumstances prompted the revocation. Respondents admit that 3 Petitioner is not removable to Bolivia, his country of origin, because the 4 immigration courts granted him protection against removal under the Convention 5 Against Torture. Respondents have never identified any third country that is 6 willing to accept Petitioner. They also have not identified any “changed 7 circumstances” that would make it more likely that now—as opposed to in 2013— 8 Petitioner will be removed to any third country. 9 As of November 17, 2025, ICE had “initiated the process of requesting 10 travel documents from third countries,” and Respondents state that they do “not 11 anticipate any obstacles to removal once travel documents are issued.” (Chavez 12 Decl. ¶¶ 15-16 / Dkt. 8-1 at 3 (emphasis added).) Courts have found vague 13 allegations such as this insufficient to meet Respondents’ burden under section 14 241.13(i)(2). See, e.g., Azzo v. Noem, No. 3:25-cv-03122, 2025 WL 3535208, at 15 *4, 2025 U.S. Dist. LEXIS 256030, at *12 (S.D. Cal. Dec. 10, 2025) 16 (“Respondents have not even identified a third country to which they plan to 17 remove Petitioner, much less submitted a travel document or provided an estimate 18 for how long it would take this unidentified third country to respond.”); Sun, 2025 19 WL 2800037, at *2, 2025 U.S. Dist. LEXIS 193795, at *6-7 (“The only argument 20 Respondents now make for changed circumstances is that they are preparing to 21 apply for the necessary documents to remove Petitioner to Cambodia. 22 Respondents say they are ‘putting together a travel document [TD] request to send 23 to [the] Cambodian embassy,’ … and that ‘[o]nce ICE receives the TD, it will 24 begin efforts to secure a flight itinerary for Petitioner.’ … The Court finds these 25 kind[s] of vague assertions—akin to promising the check is in the mail— 26 insufficient to meet ICE’s own requirement to show ‘changed circumstances’ or ‘a 27 significant likelihood that the alien may be removed in the reasonably foreseeable 28 future.’”); Nguyen, 788 F. Supp. 3d at 152 (“Respondents argue that ICE is 1 currently processing a travel document for Mr. Nguyen to return to Vietnam and 2 that the United States has not received said travel document. Again, Respondents 3 have provided scant information to support its determination that Mr. Nguyen is 4 significantly likely to be removed in the foreseeable future. In particular, 5 Respondents have not identified what concrete steps ICE has taken to process Mr. 6 Nguyen’s particular travel document.”); Yan-Ling X. v. Lyons, No. 25-cv-01412, 7 2025 WL 3123793, at *4 (E.D. Cal. Nov. 7, 2025) (granting temporary injunctive 8 relief because DHS’s assertion that the petitioner’s “case [was] under current 9 review by the Government of China for the issuance of a travel document” was 10 insufficient to meet their burden under 8 C.F.R. § 241.13(i)(2)) 11 As of December 12, 2025, ICE had made no further progress in obtaining 12 travel documents. (Dkt. 12 (status report from Respondents’ counsel).) As of the 13 date of the initial R&R, nearly another month had passed, and Respondents failed 14 to provide any further updates, failed to respond to the Petition, and failed to 15 appear for a status conference before the Magistrate Judge. 16 Moreover, Petitioner has submitted evidence that the state court conviction 17 on which his removal order is based has now been vacated under state law, and 18 that he has moved the BIA to reopen his immigration case on this ground. If he is 19 successful, his legal status may be restored. See generally Bonilla v. Lynch, 840 20 F.3d 575, 589 (9th Cir. 2016) (“Generally, an alien’s lawful permanent resident 21 status ends upon entry of a final administrative order of deportation. … But if the 22 BIA grants a motion to reopen, or a reviewing court holds that the BIA should 23 have granted a motion to reopen, the final deportation order is vacated—that is, it 24 is as if it never occurred. … The previously terminated immigration proceedings 25 thus are reinstated, and the alien is restored to his prior status.”). 26 Given Respondents’ failure to explain what changed circumstances 27 prompted them to revoke Petitioner’s OSUP on October 23, 2025, their failure to 28 show any progress in removing him in the more than two months that have passed 1 since then, and Petitioner’s evidence that his removal order may be vacated, 2 Respondents have failed to demonstrate that his removal is significantly likely in 3 the reasonably foreseeable future under 8 C.F.R. § 241.13(i)(2). 4 C. Petitioner is Entitled to Release from Custody and Reinstatement 5 of His Prior OSUP. 6 “It is a well-known maxim that agencies must comply with their own 7 regulations.” United States v. Ramos, 623 F.3d 672, 683 (9th Cir. 2010). 8 “Numerous district courts, including courts in the Ninth Circuit, ‘have determined 9 that where ICE fails to follow its own regulations in revoking release, the detention 10 is unlawful and the petitioner’s release must be ordered.’” Constantinovici v. 11 Bondi, No. 25-cv-02405, 2025 WL 2898985, at *6, 2025 U.S. Dist. LEXIS 12 201394, at *15 (S.D. Cal. Oct. 10, 2025) (collecting cases).5 Because Respondents 13 improperly revoked Petitioner’s OSUP, that OSUP should be reinstated and he 14 should be released. 15 // 16 // 17 // 18
19 5 Some district courts have held that a noncitizen released on an OSUP acquires a liberty interest in his continued release, which is protected by the Due 20 Process Clause and requires a pre-deprivation hearing before an immigration judge 21 before they can be re-detained. See, e.g., Momtazian v. Noem, No. 5:25-cv- 03432-AH-KES, 2025 U.S. Dist. LEXIS 266022, at *6-8 (C.D. Cal. Dec. 25, 2025) 22 (granting unopposed TRO); Viengkhone S. v. Albarran, No. 25-cv-01505, 2025 23 WL 3521302 at *7, 2025 U.S. Dist. LEXIS 253472, at *17-18 (E.D. Cal. Dec. 8, 2025) (“For nearly twenty years, [the government] allowed [the petitioner] to live 24 at liberty in the United States, even though under an order of supervision. Among 25 other things, petitioner raised his two U.S. citizen children and worked. … The Court finds that petitioner has a protected liberty interest in his release.”); 26 Guillermo M. R. v. Kaiser, 791 F. Supp. 3d 1021, 1029 (N.D. Cal. 2025) 27 (“[I]ndividuals conditionally released from detention have a protected interest in their ‘continued liberty.’”). 28 1 D. Respondents’ Objections to the Initial R&R. 2 1. Whether the Court properly re-framed the argument as 3 governed by 8 C.F.R. § 241.13(i) rather than Zadvydas. 4 On January 16, 2026, Respondents timely filed objections to the initial 5 R&R. (Dkt. 20.) They complain that by applying the standard set forth in 8 C.F.R. 6 § 241.13(i), instead of Zadvydas, the undersigned considered an argument that was 7 not raised in the Petition. (Dkt. 20 at 2.)6 While it is true that the Petition did not 8 cite this regulation, the regulation itself was promulgated to codify Zadvydas and 9 create procedures to ensure compliance with it. See generally Bonitto v. Bureau of 10 Immigr. & Customs Enf't, 547 F. Supp. 2d 747, 757 (S.D. Tex. 2008) (“In response 11 to Zadvydas, the regulations governing post-removal-order detention were 12 amended to comply with the Constitutional concerns illuminated in Zadvydas. The 13 amended regulations, 8 C.F.R. §§ 241.13 and 241.4, reflect the concerns of the 14 Zadvydas Court and provide necessary procedural safeguards to ensure the 15 detention of an alien beyond the removal period comports with due process 16 requirements.”). 17 The main difference between the two standards, as discussed supra, is that 18 the regulation places the burden on the government, rather than the noncitizen, to 19 demonstrate that circumstances have changed to make the noncitizen’s removal 20 more likely before the government revoke’s the noncitizen’s OSUP. The main 21 factual issues—what attempts the government has made to remove the noncitizen, 22 what obstacles to removal remain, and whether removal is foreseeable—are the 23 6 Respondents cite case law holding that preliminary injunctive relief may 24 not be granted based on an argument not raised by the movant. (Dkt. 20 at 2 25 (citing Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015); Khamseh v. Langill, No. 25-cv-09955-MCS-DTB, Dkt. 14 at 4 n.4 26 (C.D. Cal. Nov. 6, 2025)). This case law is inapplicable here because the Court is 27 considering the merits of the case rather than a request for preliminary injunctive relief. 28 1 same. 2 If the Court were to deny the Petition on the ground that Zadvydas is the 3 wrong standard, such a denial would not preclude Petitioner from either amending 4 the Petition or filing a new petition raising the regulatory argument. Either 5 procedure would simply create more delay in a case where the central claim is that 6 Petitioner is being wrongfully detained indefinitely. Respondents have already 7 delayed resolution of this case by failing to respond to the Petition and failing to 8 appear at a status conference. (Dkt. 15, 16, 17.) Moreover, Respondents have had 9 an opportunity to consider and brief the regulatory standard in their objections to 10 the initial R&R. Those objections do not change the recommendation that 11 Petitioner is entitled to relief, as discussed below. 12 2. Scope of Respondents’ authority to revoke OSUPs. 13 Respondents object that “the government has very broad authority to revoke 14 supervised release that it has granted,” citing case law discussing language from 8 15 C.F.R. § 241.4(l), which states that release can be revoked in “any other 16 circumstance.” (Dkt. 20 at 3.) However, “if a noncitizen is subject to 8 C.F.R. 17 § 241.13, ICE may only detain them under more limited circumstances than 8 18 C.F.R. § 241.4(l)….” Hoang, 2025 WL 3141857, at *3, 2025 U.S. Dist. LEXIS 19 212737, at *9 (emphasis added). Section 241.13(i) authorizes DHS to revoke a 20 noncitizen’s OSUP and re-detain them if the noncitizen violates any of the 21 conditions of release, 8 C.F.R. § 241.13(i)(1), or “if, on account of changed 22 circumstances, [DHS] determines that there is a significant likelihood that the alien 23 may be removed in the reasonably foreseeable future,” 8 C.F.R. § 241.13(i)(2). 24 Notably, Respondents’ objections make no attempt to argue that Petitioner is 25 not subject to 8 C.F.R. § 213.13. 26 3. Whether DHS regulations establish substantive, enforceable 27 rights. 28 Respondents appear to argue that 8 C.F.R. § 213.13 does not create 1 substantive rights and/or that a violation of this regulation does not justify 2 releasing Petitioner, citing, inter alia, Sanchez v. Bondi, No. 25-cv-02530-AB, 3 2025 WL 3190816, 2025 U.S. Dist. LEXIS 196639 (C.D. Cal. Oct. 3, 2025) 4 (denying TRO). (Dkt. 20 at 3-4.) In Sanchez, with the benefit of more complete 5 briefing in connection with Sanchez’s subsequent request for a preliminary 6 injunction, Judge Birotte actually reversed himself, reasoning: 7 Petitioner has substantially supplemented his prior TRO 8 arguments providing new authority and emphasizing regulatory 9 requirements that were not previously cited. … In particular, 10 Petitioner relies on several district court decisions recognizing that 11 ICE’s regulatory obligations under 8 C.F.R. § 241.13(i) are 12 enforceable and binding. See, e.g., Jane Doe 1 v. Nielsen, 357 F. 13 Supp. 3d 972, 1000 (N.D. Cal. 2018); Delkash v. Noem, 2025 WL 14 2683988 (C.D. Cal. Aug. 28, 2025); Esmail v. Noem, 2025 WL 15 3030589 (C.D. Cal. Sept. 26, 2025); Constantinovici v. Bondi, ––– 16 F.Supp.3d ––––, 2025 WL 2898985 (S.D. Cal. Oct. 10, 2025); 17 Medina v. Noem, 794 F.Supp.3d 365 (D. Md. 2025). 18 The Court finds Esmail and Delkash particularly persuasive. … 19 Both cases were decided within the last four months out of this 20 district on materially similar facts and concluded that ICE must 21 adhere to the procedural safeguards imposed by the regulations. … 22 Petitioner also emphasizes that regulatory obligations, rather than the 23 Immigration and Nationality Act (“INA”) alone, govern the 24 procedures for revocation of supervised release and notice to 25 noncitizens. … 26 These new arguments were not presented as thoroughly in the 27 TRO Application, and Respondents have not meaningfully addressed 28 them. … Given the supplementation with new authority directly on 1 point, the Court is persuaded that the regulations constitute binding 2 legal requirements for ICE’s revocation process. … While the Court 3 previously held that statutory authority under the INA predominated, 4 the Court now finds that ICE’s compliance with the regulatory 5 framework is a proper and enforceable basis for review. 6 Morales Sanchez v. Bondi, No. 25-cv-02530-AB-DTB, 2025 WL 3651899, at *3, 7 2025 U.S. Dist. LEXIS 262536, at *7-8 (C.D. Cal. Dec. 5, 2025) (granting 8 preliminary injunction and ordering Sanchez’s immediate release from custody). 9 4. Whether Petitioner’s removal is foreseeable. 10 Respondents’ objections argue that the initial R&R “erred in finding that 11 Petitioner has shown that there is no significant likelihood of removal in the 12 reasonably foreseeable future[.]” (Dkt. 20 at 4.) However, their objections 13 provide no new facts to support this argument. They argue only that ICE is not 14 required “to pre-arrange a noncitizen’s removal travel before arresting them,” and 15 the fact that “Petitioner does not yet have a specific date of anticipated removal 16 does not make his detention definite.” (Id. at 4-5.) As discussed above, however, 17 Respondents have repeatedly failed to (a) identify what circumstances have 18 changed since Petitioner was released on an OSUP in 2013, or (b) explain what 19 efforts they have undertaken to remove Petitioner to a third country, given that he 20 cannot be removed to Bolivia, his country of origin. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1] V. RECOMMENDATION 2 IT IS THEREFORE RECOMMENDED that the District Court issue an 3 | Order: (1) approving and accepting this R&R; (2) granting the Petition; 4 | (3) directing that Petitioner be immediately released from custody subject to the 5 | order of supervision that governed his release prior to his October 2025 detention; 6 || and (4) enjoining and restraining Respondents from re-detaining Petitioner unless 7 | and until they follow the procedures set forth in 8 C.F.R. §§ 241.4(/) and 241.134). 8 9 | DATED: January 20, 2026 Vy omms Scott ? 10 KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE
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