Rogelia Hernandez Cruz v. Patrick Divver, et al.
- Proceeding
- district
- Area
- civil
- Panel
- Andrew G. Schopler (author)
Analysis
Petitioner Rogelia Hernandez Cruz filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging his immigration detention, arguing he is subject to 8 U.S.C. § 1226(a) rather than mandatory detention under 8 U.S.C. § 1225(b)(2). The court denied summary dismissal, finding the claim has potential merit, and ordered the government to file a brief by January 12, 2026, stating whether it concedes the petitioner's right to a bond hearing.
| What the court decided | The model |
|---|---|
Denial of summary dismissal of the habeas petition“This challenge has sufficient potential merit to warrant a response.” | agree with court The court correctly applied the standard for summary dismissal of habeas petitions, which requires that the petition be clearly not cognizable or frivolous. The court cited Neiss v. Bludworth and noted that if a petition has any potential merit, it should not be dismissed. The court supported its finding of potential merit by citing multiple recent district court cases (Barco Mercado, Mosqueda, Vazquez, Rodriguez) that found similar claims likely to succeed on the merits. Given the recitation of these authorities and the specific factual context (petitioner is a member of the Maldonado Bautista class), the decision follows from the law and the record recited. |
Order requiring government to file a brief regarding concession of the claim“So, by Monday, January 12, 2026, the government is ordered to file a brief stating whether it: (1) agrees he is part of that class and (2) intends to concede his right to a bond hearing under that authority.” | agree with court The court ordered the government to respond to the petition, specifically asking if it would concede the claim based on the petitioner's membership in the Maldonado Bautista class. This is a procedural order to manage the case and is consistent with the court's finding that the claim has potential merit. The order provides a deadline for the response and an alternative deadline if the government does not concede. |
The order itself: sound with gaps — The order correctly applies the standard for summary dismissal of habeas petitions by citing Neiss v. Bludworth and noting that the petition has potential merit. The court supports this finding by citing multiple recent district court cases that found similar claims likely to succeed on the merits. The order is procedurally sound and provides clear deadlines for the government's response. However, it does not cite any binding Supreme Court or Ninth Circuit authority on the substantive issue of whether 8 U.S.C. § 1226(a) or § 1225(b)(2) governs the petitioner's detention, relying instead on district court cases. This is a gap, but the result is defensible given the recited authorities.
Opinion
1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Rogelia HERNANDEZ CRUZ, Case No.: 26-cv-0081-AGS-DEB 4 Petitioner, ORDER REQUIRING RETURN 5 v. 6 Patrick DIVVER, et al., 7 Respondents. 8 9 Petitioner Rogelia Hernandez Cruz seeks a writ of habeas corpus under 28 U.S.C. 10 § 2241 challenging his immigration detention. At this stage, he need only make out a claim 11 that is sufficiently cognizable to warrant a response. See Rules Governing Section 2254 12 Cases in the United States District Courts, Rule 4 (authorizing summary dismissal “if it 13 plainly appears from the petition and any attached exhibits that the petitioner is not entitled 14 to relief”); id., Rule 1(b) (permitting application of Rules Governing Section 2254 Cases 15 to any “habeas corpus petition”). In this context, the relevant federal rules permit “summary 16 dismissal of claims that are clearly not cognizable.” Neiss v. Bludworth, 114 F.4th 1038, 17 1045 (9th Cir. 2024) (cleaned up). But “as long as a petition has any potential merit, it is 18 not so frivolous or incredible as to justify summary dismissal[.]” Id. 19 “[M]ore than 26 years ago,” Hernandez Cruz, “a citizen of Mexico,” entered the 20 United States “without inspection.” (ECF 1, at 3, 5.) Then, on “December 2, 2025,” 21 Immigrations and Customs Enforcement officers detained him after his “interview for 22 adjustment of status.” (Id. at 3.) Hernandez Cruz is challenging the government’s decision 23 to subject him to “mandatory detention” under 8 U.S.C. § 1225(b)(2), which applies to 24 applicants for admission. (Id. at 7.) He asserts that his case is instead governed by “8 U.S.C. 25 § 1226(a)”—which authorizes release on bond or conditional parole—because he is not an 26 applicant for admission. (Id. at 6.) This statutory misclassification, he argues, renders his 27 detention “unlawful.” (Id. at 2.) 28 This challenge has sufficient potential merit to warrant a response. Functionally 1 identical cases across the country have been found to have a “likelihood of success on the 2 ||merits” or have resulted in the writ being issued. See, e.g., Barco Mercado □□ Francis, 3 ||___ F. Supp. 3d. __, No. 25-cv-6582 (LAK), 2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 4 ||2025) (noting that, in “350” of the “362” opinions to address this issue, the petitioners 5 || ‘“prevailed, either on a preliminary or final basis,” and these cases were “decided by over 6 || 160 different judges sitting in about fifty different courts”); Mosqueda v. Noem, No. 5:25- 7 || cv-02304 CAS (BFM), 2025 WL 2591530, at *5 (C.D. Cal. Sept. 8, 2025) (“[P]etitioners 8 likely to succeed on the merits of their claims because section 1226(a), not section 9 || 1225(b)(2), likely governs their detention.”); Vazquez v. Feeley, No. 2:25-cv-01542-RFB- 10 || EJY, 2025 WL 2676082, at *11 (D. Nev. Sept. 17, 2025) (same); Rodriguez v. Bostock, 11 || No. 3:25-cv-05240-TMC, 2025 WL 2782499, at *1 (W.D. Wash. Sept. 30, 2025) (“[T]he 12 ||government’s position belies the statutory text of the INA, canons of statutory 13 || interpretation, legislative history, and longstanding agency practice.”). 14 Recently, respondents have routinely conceded these claims when brought by 15 || petitioners who are members of the Maldonado Bautista class, as plaintiff asserts. (See 16 || ECF 1, at 1.) So, by Monday, January 12, 2026, the government is ordered to file a brief 17 || stating whether it: (1) agrees he is part of that class and (2) intends to concede his right to 18 ||a bond hearing under that authority. If respondents do not concede, they must answer the 19 || petition by January 15, 2026. 20 Dated: January 8, 2026 0 Hon. rew G. Schopler United States District Judge 23 24 25 26 27 28