Jesus Baltierra Rocha v. Patrick Divver, et al.
- Proceeding
- original
- Outcome
- other — A court may grant a writ of habeas corpus to
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court considered a petition for a writ of habeas corpus filed by an immigration detainee seeking release or a bond hearing, arguing he was subject to discretionary detention rather than mandatory detention. The court denied the petition, finding the petitioner subject to mandatory detention under 8 U.S.C. § 1231 and failing to demonstrate a lack of significant likelihood of removal in the reasonably foreseeable future.
| What the court decided | The model |
|---|---|
Denial of Petition for Writ of Habeas Corpus“For the reasons stated below, the Court DENIES the Petition.” | agree with court The court correctly applied the statutory framework distinguishing between mandatory detention under 8 U.S.C. § 1231 for those with final orders of removal and discretionary detention under 8 U.S.C. § 1225(b). The court also correctly applied the two-prong test from Zadvydas v. Davis for prolonged detention claims, finding the petitioner failed the first prong because he had been removed previously and could be removed immediately if his pending motion to reopen is denied. The reasoning is consistent with Ninth Circuit precedent (Diouf v. Napolitano) regarding the status of aliens with pending collateral challenges. |
The order itself: sound — The order is sound. It correctly identifies the applicable statutory provisions for mandatory versus discretionary detention. It properly applies the Ninth Circuit precedent from Diouf v. Napolitano to determine that the petitioner is subject to mandatory detention despite his pending motion to reopen. It correctly applies the Zadvydas framework for prolonged detention, noting that the petitioner failed to meet the initial burden of showing no significant likelihood of removal in the reasonably foreseeable future, particularly given his prior removal history.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESUS BALTIERRA ROCHA, Case No. 26-cv-04205-BAS-MSB 12 Petitioner, ORDER DENYING PETITION FOR 13 v. WRIT OF HABEAS CORPUS (ECF No. 1) 14 PATRICK DIVVER, et al., 15 Respondents. 16 17 18 19 Petitioner Jesus Baltierra Rocha filed a Petition for Writ of Habeas Corpus pursuant 20 to 28 U.S.C. § 2241, claiming he has been detained without bond when he should be subject 21 to discretionary detention under 8 U.S.C. § 1225(b). (ECF No. 1.) In addition, Petitioner 22 claims he has been subject to prolonged detention. (Id.) The Government provides evidence 23 that Petitioner is subject to a final order of removal and thus is subject to mandatory 24 detention under § 1231. (ECF No. 4.) Petitioner does not reply. For the reasons stated 25 below, the Court DENIES the Petition. 26 I. LEGAL STANDARD 27 A writ of habeas corpus is “available to every individual detained within the United 28 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). “The traditional function of the 1 writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 2 (1973). A court may grant a writ of habeas corpus to a petitioner who demonstrates he or 3 she is in custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3). It 4 applies to non-citizens detained within the United States. Zadvydas v. Davis, 533 U.S. 678, 5 687 (2001). Since Petitioner is in custody and since he is seeking release from custody, he 6 has standing to pursue this Petition. 7 II. STATEMENT OF FACTS 8 Petitioner was originally arrested for illegal entry on July 9, 2008. (ECF No. 4, Ex. 9 1.) An Immigration Judge ordered him removed to Mexico, which was accomplished on 10 July 21, 2008. (Id., Exs. 2, 3.) Immigration and Customs Enforcement (“ICE”) re-arrested 11 Petitioner on January 20, 2026, after he again illegally entered the United States. (ECF No. 12 1.) On April 9, 2026, Petitioner moved to reopen his removal proceedings and to apply for 13 asylum and withholding of removal. (Id.) An Immigration Judge denied these requests. 14 (ECF No. 4, Exs. 4, 5.) Petitioner has appealed the Immigration Judge’s ruling. However, 15 he is still subject to a final order of removal unless or until the motion to reopen is 16 successful. 17 III. ANALYSIS 18 To the extent Petitioner argues he should have a bond hearing under 8 U.S.C. 19 § 1225(b), he is incorrect. Because he is subject to a final order of removal, he is subject to 20 mandatory detention under 8 U.S.C. § 1231(a). See Diouf v. Napolitano, 634 F.3d 1081, 21 1085 (9th Cir. 2011) (“Section 1231(a)(6) encompasses aliens such as Diouf, whose 22 collateral challenge to his removal order (a motion to reopen) is pending in the court of 23 appeals, as well as to aliens who have exhausted all direct and collateral review of their 24 removal orders but who, for one reason or another, have not yet been removed from the 25 United States.”), abrogated on other grounds as recognized in Rodriguez Diaz v. Garland, 26 53 F.4th 1189 (9th Cir. 2022). 27 The Supreme Court has ruled that an individual subject to a final order of removal 28 can raise a claim of unreasonably prolonged detention. Zadvydas v. Davis, 533 U.S. 678 1 (2001); see also Clark v. Martinez, 543 U.S. 371, 386 (2005). After six months of detention 2 || without removal, “once [a non-citizen] provides good reason to believe that there is no 3 || significant likelihood of removal in the reasonably foreseeable future, the Government 4 || must respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701. 5 Petitioner in this case fails to meet the first prong. He fails to provide a reason to 6 || believe that there is no significant likelihood of removal in the reasonably foreseeable 7 || future. In fact, he has been removed to Mexico in the past. He could be removed again 8 ||immediately but for his attempt to reopen his previous removal proceedings. If the Board 9 || of Immigration Appeals affirms the Immigration Judge’s refusal to reopen the proceedings, 10 || Petitioner could be removed immediately. Thus, he is not facing a potentially indefinite 11 || detention like that faced by the two petitioners in Zadvydas. 12 CONCLUSION 13 Because Petitioner is subject to mandatory detention under § 1231, and because he 14 || fails to show that there is no significant likelihood of his removal in the reasonably 15 || foreseeable future, the Petition seeking release or a bond hearing is DENIED. The Clerk 16 || of Court shall close the case. 17 IT IS SO ORDERED. 18 19 || DATED: August 7, 2026 ji ly A (Dipharb 20 Hén. Cynthia Bashant, Chief Judge 5 United States District Court 22 23 24 25 26 27 28 □□□