Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ELDIZAR AGUILAR-MARTIN, Case No.: 3:26-cv-03130-RBM-DDL 10 Petitioner, ORDER GRANTING IN PART 11 v. PETITION FOR WRIT OF HABEAS CORPUS 12 TODD BLANCHE, U.S. Attorney General, et al., 13 [Docs. 2, 3, 9] Respondents. 14 15 16 Before the Court is Petitioner Eldizar Aguilar-Martin’s (“Petitioner”) Second 17 Amended Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241. 18 (Doc. 9.) For the reasons below, the Court GRANTS in part the Petition (Doc. 9) and 19 DENIES as moot the Motion to Appoint Counsel (Doc. 2) and TRO Motion (Doc. 3). 20 I. BACKGROUND 21 Petitioner, a citizen of Guatemala, entered the United States without inspection over 22 15 years ago. (Doc. 9 at 3; Doc. 10-1 at 2.) During his time here, Petitioner developed a 23 lengthy rap sheet, including sustaining a conviction in 2018 for violating California Penal 24 Code section 273.5(a), inflicting corporal injury on a spouse or cohabitant. (See Doc. 10- 25 3 at 2–9.) “On April 22, 2026, Petitioner was encountered as part of a targeted operation 26 by [immigration agents],” arrested, and issued a Notice to Appear. (Doc. 10 at 2–3.) 27 Petitioner “has never been shown a warrant, and it appears he was arrested without one.” 28 (Doc. 9 at 10.) Petitioner’s removal proceedings remain pending. (Doc. 10 at 3.) 1 On May 19, 2026, Petitioner, then proceeding pro se, filed his original petition. 2 (Doc. 1.) The Court referred the petition to Federal Defenders of San Diego, Inc. 3 (“FDSDI”) for evaluation of whether appointment of counsel was appropriate. (Doc. 4.) 4 On May 26, 2026, Petitioner, now represented by FDSDI, filed an amended petition. 5 (Doc. 7.) Shortly thereafter, Petitioner filed the operative Petition. (Doc. 9.) The Court 6 set a briefing schedule on the Petition. (Doc. 8.) Respondents filed their Return to Habeas 7 Petition on June 2, 2026. (Doc. 10.) Petitioner filed his Traverse on June 9, 2026. 8 (Doc. 11.) The Court then ordered the Parties to file supplemental briefs regarding the 9 statutory authority for Petitioner’s detention. (Doc. 12.) The Parties timely filed their 10 supplemental briefs, and the Petition was fully briefed on July 8, 2026. (Docs. 13, 14.) 11 II. LEGAL STANDARD 12 A writ of habeas corpus is “available to every individual detained within the United 13 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 14 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 15 custody, and . . . the traditional function of the writ is to secure release from illegal 16 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 17 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 18 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 19 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 20 treaties of the United States.” Id. § 2241(c)(3). 21 III. DISCUSSION 22 Petitioner argues that: (1) his warrantless arrest violated 8 U.S.C. § 1226(a); and 23 (2) he is not subject to mandatory detention under § 1226(c) because his conviction was 24 not for an aggravated felony or crime involving moral turpitude (“CIMT”). (Doc. 9 at 9– 25 11; Doc. 11 at 2–4; Doc. 14 at 2–3.) Respondents initially argued that Petitioner was 26 subject to mandatory detention under § 1226(c) because California Penal Code section 27 273.5 is categorically a CIMT, but in their supplemental brief concede that they “are unable 28 to obtain Petitioner’s conviction documents or documents showing a spousal relationship 1 with the victim.” (Doc. 13. at 2.) Respondents argue, alternatively, that Petitioner is still 2 subject to mandatory detention because § 273.5 is categorically a crime of violence and 3 therefore an aggravated felony. (Id. at 2–3; Doc. 10 at 4–6.)1 The Court finds that 4 Petitioner is detained under § 1226(a) and is entitled to a bond hearing, but not to 5 immediate release. 6 A. Detention under Section 1226(c) 7 Section 1226(c) “makes detention during removal proceedings mandatory when the 8 [noncitizen] is ‘inadmissible’ or ‘deportable’ for specified reasons—usually because the 9 [noncitizen] has been convicted of a qualifying criminal offense.” Durand v. Allen, Case 10 No.: 3:23-cv-00279-RBM-BGS, 2024 WL 711607, at *2 (S.D. Cal. Feb. 21, 2024) 11 (citations omitted). As relevant here, a “qualifying criminal offense” is (1) a CIMT under 12 8 U.S.C. § 1182(a)(2), or (2) an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). 13 1. CIMT 14 As the Court noted in its Order requiring supplemental briefing, Ninth Circuit 15 precedent “‘make[s] clear that although § 273.5(a) is not categorically a CIMT, it is a 16 divisible statute for which a conviction under one portion of the statute (corporal injury 17 against a spouse) will qualify as a CIMT, while [a] conviction under other subsections (for 18 example, corporal injury against a cohabitant) will not.’” (Doc. 12 at 1–2 (quoting 19 Cervantes v. Holder, 772 F.3d 583, 588 (9th Cir. 2014) (emphasis added)).) Therefore, 20 under the modified categorical approach, the Court “consider[s] whether the ‘judicially 21 22 23 1 Respondents also argue that Petitioner’s claims are barred because courts lack jurisdiction “to hear any cause or claim by or on behalf of any [noncitizen] arising from 24 the decision . . . by the Attorney General to commence proceedings, adjudicate cases, or 25 execute removal orders.” (Doc. 10 at 3 (citing 28 U.S.C. § 1252(g)).) The Court has consistently rejected this argument, see Constantinovici v. Bondi, 806 F. Supp. 3d 1155, 26 1161–62 (S.D. Cal. 2025), and does so again here for the same reasons. Petitioner seeks 27 to enforce his “constitutional rights to due process in the context of the removal proceedings—not the legitimacy of the removal proceedings or any removal order.” 28 1 noticeable facts in the record indicate that [the noncitizen] was convicted of the elements 2 of the generically defined crime.’” Cervantes, 772 F.3d at 588 (quoting Huerta-Guevara 3 v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003)). “If the record does not conclusively 4 establish that the noncitizen was convicted of the elements of the generic offense, then she 5 was not convicted of the offense for purposes of the immigration statutes.” Marinelarena 6 v. Barr, 930 F.3d 1039, 1048 (9th Cir. 2019), vacated on other grounds by 141 S. Ct. 1512 7 (2021) (citing Moncrieffe v. Holder, 569 U.S. 184, 194–95 (2013)). In other words, 8 Petitioner’s record of conviction must “conclusively establish” that Petitioner was 9 convicted of spousal abuse under § 273.5, as opposed to abuse of a cohabitant, for his 10 conviction to qualify as a CIMT. Id.; Vasquez Cruz v. Barr, Case No. 19-CV-05251-LHK, 11 2019 WL 6327576, at *5–6 (N.D. Cal. Nov. 26, 2019) (citations omitted). 12 Respondents provided no judicially noticeable record of conviction establishing that 13 Petitioner was convicted of spousal abuse. The Court identified this deficiency in its 14 previous Order (see Doc. 12 at 2), but Respondents still “are unable to obtain Petitioner’s 15 conviction documents or documents showing a spousal relationship with the victim.” 16 (Doc. 13 at 2.) Therefore, the Court finds that Respondents have not met their burden to 17 show that Petitioner’s conviction qualifies as a CIMT. 18 2. Aggravated Felony 19 In their supplemental brief, Respondents also argue that Petitioner is subject to 20 mandatory detention because § 273.5 is categorically an aggravated felony. (Doc. 13 at 2– 21 3.) Petitioner argues that § 273.5 is no longer categorically an aggravated felony after the 22 Ninth Circuit’s decision in United States v. Gomez, 165 F.4th 1199, 1205 (9th Cir. 2026) 23 (en banc). (Doc. 14 at 3.) With the benefit of the Ninth Circuit’s recent decision in United 24 States v. Lopez, — F.4th —, 2026 WL 2165840 (9th Cir. July 28, 2026), the Court finds 25 that Petitioner is correct. 26 An aggravated felony for 8 U.S.C. § 1227(a)(2)(A)(iii) purposes is a “crime of 27 violence (as defined in section 16 of Title 18, but not including a purely political offense) 28 for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). 1 Section 16 of Title 18 defines a “crime of violence” as: “(a) an offense that has as an 2 element the use, attempted use, or threatened use of physical force against the person or 3 property of another,” or “(b) any other offense that is a felony and that, by its nature, 4 involves a substantial risk that physical force against the person or property of another may 5 be used in the course of committing the offense.” 18 U.S.C. § 16. 6 As the Ninth Circuit recently concluded, “convictions under Cal. Penal Code § 273.5 7 do not categorically qualify as crimes of violence,” and “prior precedent holding that 8 § 273.5 is categorically a crime of violence . . . is clearly irreconcilable with the Supreme 9 Court’s opinion” in Borden v. United States, 593 U.S. 420 (2021) and the Ninth Circuit’s 10 en banc decision in Gomez. Lopez, 2026 WL 2165840, at *1. 11 “When a petitioner’s state statute of conviction does not define a categorical crime 12 of violence,” and where the statute is divisible, see supra Section III.A.1 (citing Cervantes, 13 772 F.3d at 588), the Court applies the “modified categorical approach.” Fernandez-Ruiz 14 v. Gonzalez, 466 F.3d 1121, 1132 (9th Cir. 2006). As with the modified categorical 15 approach taken regarding CIMTs, here the Court must also “consider whether any of a 16 limited, specified set of documents . . . (sometimes termed ‘documents of conviction’)— 17 show the petitioner’s conviction entailed an admission to, or proof of, the necessary 18 elements of a crime of violence.” Id. (quoting Hernandez-Martinez v. Ashcroft, 343 F.3d 19 1075, 1076 (9th Cir. 2003)). As Respondents admit, they were “unable to obtain 20 Petitioner’s conviction documents.” (Doc. 13 at 2.) Therefore, they have also failed to 21 meet their burden to show that Petitioner’s conviction qualifies as an aggravated felony. 22 Because Petitioner’s conviction is not a CIMT or an aggravated felony, the Court 23 finds that he is not detained pursuant to § 1226(c). Therefore, and because Petitioner’s 24 removal order is not final (see Doc. 10 at 3), the Court finds that Petitioner is detained 25 pursuant to the discretionary detention provisions of § 1226(a). 26 B. Lack of a Warrant 27 Petitioner argues that “he was not arrested subject to an administrative warrant, as 28 required by 8 U.S.C. § 1226(a), and that the remedy for this violation [is] immediate 1 release.” (Doc. 14 at 3–4; Doc. 9 at 8–10 (citations omitted).) Respondents do not 2 substantively respond to this argument, stating only that “if the Court grants Petitioner 3 relief, then the appropriate remedy should be a bond hearing held under § 1226(a).” 4 (Doc. 13 at 3.) The Court finds that Petitioner is “entitled to an initial custody 5 determination and, if denied release, a bond hearing before an Immigration Judge to review 6 that initial custody determination.” Garcia De Melo v. Stamper, No. 1:26-cv-00152-JAW, 7 2026 WL 925672, at *3 (D. Me. Apr. 6, 2026). 8 “Discretionary detention under § 1226(a) requires a warrant.” Id. at *5 (citing 9 Jennings v. Rodriguez, 583 U.S. 281, 302 (2018) (“But [section 1226(a)] authorizes 10 detention only ‘[o]n a warrant issued’ by the Attorney General.”)). And “when arrests are 11 made without a warrant, a custody determination must ordinarily be made within 48 hours, 12 accompanied by a notice to appear, and in the case of continued custody a warrant will be 13 issued post hoc.” Makuiza v. Wesling, 826 F. Supp. 3d 176, 180 (D. Me. 2026) (citing 8 14 C.F.R. § 287.3(d)). Although it is undisputed that these things did not happen in this case, 15 Petitioner is not entitled to immediate release. As another court reasoned: 16 . . . [T]he Court does not agree that this conclusion requires [the petitioner’s] immediate release. Instead, the Court concludes that the 48-hour clock for 17 Respondents to conduct an initial custody determination begins at the date and 18 time of this order. Unlike in Makuiza, in which the Government initially detained the noncitizen pursuant to § 1226(a) but “neglected to” “justify[ ] its 19 arrest decision[ ],” id. at *3-4, 11, in this case, Respondents do not concede 20 [petitioner] is subject to § 1226(a) but rather maintain, consistent with controlling agency precedent, he is subject to mandatory detention under 21 § 1225(b)(2), which does not require an initial custody determination or 22 warrant. Moreover, to retroactively apply the Court’s § 1226(a) determination in this matter would place Respondents in the untenable position in future 23 cases presenting similar circumstances, in which Respondents must decide 24 whether to deliberately violate controlling agency precedent in anticipation of a possible objection a detainee may or may not raise in a future habeas petition 25 not yet before this Court, and then further guess how this Court might rule. 26 Rather, in this case, given that Respondents have maintained since his arrest 27 that [petitioner] is that subject to mandatory detention under § 1225(b)(2), the 28 forty-eight-hour custody determination clock begins to run at the time of this 1 Court’s determination that [petitioner] is subject to § 1226(a). Accordingly, the Court will order Respondents to conduct an initial custody determination 2 of [petitioner] pursuant to § 1226(a), at which point they may either release 3 him or continue to detain him. If Respondents continue his detention, they must obtain an authorizing warrant and, [ ], later provide [petitioner] a bond 4 hearing before an Immigration Judge. 5 Garcia De Melo, 2026 WL 925672, at *5. 6 7 The Court finds the reasoning of Garcia De Melo persuasive and adopts it here. The 8 Court thus DENIES the Petition to the extent it seeks immediate release. The Court instead 9 finds that a bond hearing is the appropriate remedy. Accord Gonzalez-Ramos v. Mullin, 10 Case No.: 26-CV-3159 JLS (GC), 2026 WL 1865899, at *2 (S.D. Cal. June 29, 2026); 11 Lopez-Perez v. Johnson, No. 1:26-cv-03083 JLT SAB (HC), 2026 WL 1506818, at *2 12 (E.D. Cal. May 29, 2026). 13 IV. CONCLUSION 14 For the foregoing reasons, the Petition (Doc. 9) is GRANTED in part. The Petition 15 is DENIED to the extent it seeks immediate release. The Court ORDERS that within 48 16 hours of the issuance of this Order, Respondents shall conduct an initial custody 17 determination pursuant to 8 U.S.C. § 1226(a), at which point they may (1) release Petitioner 18 or (2) continue his detention if deemed appropriate. 19 If Petitioner is not released, and no arrest warrant has been issued, Respondents shall 20 immediately seek an arrest warrant. If the warrant is not granted, Respondents shall 21 release Petitioner. If the warrant is granted, the Government shall provide Petitioner with 22 an individualized bond hearing under § 1226(a) within 14 days of the initial custody 23 determination unless the noncitizen requests a continuance. At any such bond hearing, the 24 noncitizen shall bear the burden of demonstrating, by a preponderance of the evidence, 25 that he is not a danger to the community or a risk of flight. See Rodriguez Diaz v. Garland, 26 53 F.4th 1189, 1197 (9th Cir. 2022). 27 Respondents shall file a status report attesting to their compliance with the 28 requirements above, including the outcome of the custody determination and, if 1 || appropriate, the bond hearing, on or before August 24, 2026. 2 In light of the ruling herein, Petitioner’s Motion to Appoint Counsel (Doc. 2) and 3 Motion for Temporary Restraining Order (Doc. 3) are DENIED as moot. 4 IT IS SO ORDERED. 5 ||DATE: July 30, 2026 eet Baerrnucle, Mottarypes > 7 ON. RUTH BERM@DEZ! MONTENEGRO UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28