Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3

4 JOSUE IMER DIAZ ESCALANTE, Case No.: 3:26-cv-04259 LEK-AHG 5 Petitioner, 6 ORDER GRANTING PETITION v. FOR WRIT OF HABEAS CORPUS 7 PURSUANT TO 28 U.S.C. § 2241 8 CHRISTOPHER J. LAROSE, Senior Warden of Otay Mesa Detention Center; 9 DAVID J. VENTURELLA, Director of 10 Immigration and Customs Enforcement; GREGORY J. ARCHAMBEAULT, Field 11 Office Director of Enforcement and 12 Removal Operations, San Diego Field Office, Immigration and Customs 13 Enforcement; TODD BLANCHE, U.S. 14 Attorney General; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; 15 MARKWAYNE MULLIN, Secretary, 16 U.S. Department of Homeland Security, Respondents. 17 19 Before this Court is Petitioner Josue Imer Diaz Escalante’s (“Petitioner”) 20 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”), filed on 21 July 24, 2026. [Dkt. no. 1.] The respondents, identified in the Petition as Christopher J. 22 LaRose, Senior Warden of Otay Mesa Detention Center; David J. Venturella, Director of 23 Immigration and Customs Enforcement (“ICE”); Gregory J. Archambeault, Field Office 24 Director of Enforcement and Removal Operations, San Diego Field Office, ICE; Todd 25 Blanche, U.S. Attorney General; Executive Office for Immigration Review; and 26 Markwayne Mullin, Secretary of the United States Department of Homeland Security 27 1 (“DHS” and collectively “Respondents”), filed a response to the Petition (“Response”) on 2 August 3, 2026. [Dkt. no. 4.] Petitioner filed a traverse in support of the Petition 3 (“Traverse”) on August 4, 2026. [Dkt. no. 5.] 4 BACKGROUND 5 Petitioner is a native of Guatemala. See Petition, Exh. 6 at PageID.35 6 (English translation of Sworn Declaration (“Diaz Escalante Decl.”)) at ¶ 1.1 Petitioner 7 entered the United States without inspection in 2014. See id. at ¶ 2;2 Petition at ¶ 2. He is 8 married, has three children and is the primary provider for his family. See Petition, Exh. 6 9 at PageID.35 (Diaz Escalante Decl.) at ¶¶ 4-6. Petitioner asserts that he has no criminal 10 history in the United States. [Id. at ¶ 10.] 11 On July 8, 2026, Petitioner was driving home from work with a coworker 12 when he noticed a vehicle following them for approximately two minutes. The vehicle 13 then flashed its lights at Petitioner and his passenger, which caused Petitioner to park his 14 vehicle. Petitioner asserts that two individuals, wearing what appeared to be ICE 15 uniforms, approached his vehicle. See id. at ¶¶ 8-9. One of the individuals asked for 16 Petitioner’s license, which he provided, while another individual asked Petitioner’s 17 18 19 1 PageID.37-38 of Exhibit 6 is the Spanish declaration, and PageID.36 is the 20 signature page to the Diaz Escalante Declaration, as well as the Declaration of 21 Translation and Interpretation.

22 2 Petitioner asserts that he entered the United States in 2014, [Petition, Exh. 6 at 23 PageID.35 (Diaz Escalante Decl.) at ¶ 2,] but also asserts that he has lived in Florida since 2012, [id. at ¶ 3]. Government records indicate that Petitioner entered the United 24 States on an unknown date. See, e.g., Response, Exh. 1 (DHS Warrant for Arrest of 25 Alien, Form I-200, dated 7/9/26 (“Form I-200”)); id., Exh. 2 (DHS Notice to Appear, Form I-862, dated 7/27/26 (“Form I-862”)) at 1. The year that Petitioner entered the 26 United States, however, does not have any bearing on the merits of the Petition. For 27 purposes of this Court’s analysis, this Court assumes that Petitioner entered the United States without inspection in 2014. 28 1 coworker if “he had crossed the desert,” to which his coworker responded in the 2 affirmative. [Id. at ¶ 9.] Petitioner and his coworker were handcuffed and detained. [Id.] 3 After the traffic stop, Petitioner asserts that he was first taken to the West 4 Palm Beach Detention Center, and then to the Krome Detention Center in Miami, 5 Florida. Petitioner claims that he was mistreated while in detention by sometimes being 6 refused water and food. See id. at ¶ 11. Petitioner was eventually transferred to the Otay 7 Mesa Detention Center in San Diego, California, where he remained through the filing of 8 the Petition. See id.; Petition at ¶ 16. 9 Count I of the Petition argues that Petitioner’s detention violates the 10 Immigration and Nationality Act (“INA”) because his detention is governed by Title 8 11 United States Code Section 1226(a), and therefore he is not subject to mandatory 12 detention under Title 8 United States Code Section 1225(b)(2). See Petition at pgs. 8-12. 13 Count II argues that Respondents’ detention of Petitioner violates his rights to due 14 process under the Fifth Amendment because he was arrested without a valid warrant or 15 lawful process. See id. at pgs. 12-14.3 Among other things, Petitioner asks this Court to 16 order his immediate release. See id. at pg. 16. 17 Respondents acknowledge that “[o]n July 30, 2026, the Ninth Circuit [Court 18 of Appeals] held and clarified that unadmitted aliens present in the interior of the United 19 States are subject to 8 U.S.C. § 1226 and not subject to 8 U.S.C. § 1225.” Response at 1; 20 see also Rodriguez Vazquez v. Bostock, No. 25-6842, 2026 WL 2196424, at *3 (9th Cir. 21 July 30, 2026) (holding that noncitizens “present without admission who are apprehended 22 in the interior of the United States are subject to the detention regime of § 1226, not 23 24 25 3 Count II of the Petition is captioned “Violation of the Immigration and Nationality Act,” [Petition at pg. 12,] despite Count I advancing Petitioner’s INA claim, 26 see id. at pgs. 8-12, and Count II advancing Petitioner’s Fifth Amendment claim, see id. 27 at pgs. 12-14. Although less than artful, the Petition nevertheless advances separate and cognizable claims for habeas relief. 28 1 § 1225(b)(2)(A)”). Respondents therefore also “acknowledge[] that Petitioner is subject 2 to detention under 8 U.S.C. § 1226,” and “do not oppose an order from this Court 3 directing a bond hearing be held pursuant to 8 U.S.C. § 1226(a).” [Response at 1-2.] 4 Respondents, however, oppose Petitioner’s request for immediate release. See id. at 2. 5 STANDARD 6 A federal prisoner challenging the execution of his or her sentence, rather 7 than the legality of the sentence itself, may file a petition for writ of habeas corpus in the 8 district of his or her confinement pursuant to Title 28 United States Code Section 2241. 9 See 28 U.S.C. § 2241(a); Zavala v. Ives, 785 F.3d 367, 370 n.3 (9th Cir. 2015). The sole 10 judicial body able to review challenges to final orders of deportation, exclusion, or 11 removal is the court of appeals. See 8 U.S.C. § 1252(a)(1), (5); see also Alvarez-Barajas 12 v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act of 2005, Pub. L. 13 No. 109-13, 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or 14 collateral issues arising independently from the removal process - for example, a claim of 15 indefinite detention - federal habeas corpus jurisdiction remains in the district court. See 16 Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1047-48 (N.D. Cal. 2018) (citations omitted); 17 see also Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006).4 18 DISCUSSION 19 There is no dispute that the discretionary detention procedures of 20 Section 1226(a) govern Petitioner’s detention. See Response at 1. Accordingly, this Court 21 turns to Petitioner’s argument that he is entitled to immediate release. Petitioner argues 22 that Respondents failed to comply with the warrant requirement of Section 1226(a) or its 23 implementing regulations in detaining Petitioner, and that the remedy for this violation is 24 25 26 4 Nadarajah was abrogated on other grounds by Jennings v. Rodriguez, 583 U.S. 27 281 (2018), as recognized by Esquivel-Ipina v. LaRose, 812 F. Supp. 3d 1073, 1077 (S.D. Cal. 2025). 28 1 immediate release. See Petition at ¶ 53; Traverse at 3. Respondents argue that “Petitioner 2 was issued an administrative warrant on July 9, 2026.” See Response at 2 (citing id., 3 Exh. 1 (Form I-200)). They submit that “8 U.S.C. § 1357(a)(2) authorizes warrantless 4 arrests and 8 C.F.R. § 287.3(d) provides the government 48 hours to issue a warrant if it 5 determines that the noncitizen will remain [in] custody.” Id. at 2 n.3 (citation omitted). 6 Petitioner responds that, to the extent Respondents argue that Petitioner’s detention was 7 authorized as a warrantless arrest, the detention was nevertheless unlawful because 8 “Respondents do not provide any evidence or argument that Petitioner was likely to 9 escape or that exigent circumstances prevented officers from obtaining an administrative 10 warrant before the arrest.” See Traverse at 2. 11 The Due Process Clause of the Fifth Amendment provides that no person 12 shall “be deprived of life, liberty, or property, without due process of law.” U.S. Const. 13 amend. V. “Freedom from imprisonment - from government custody, detention, or other 14 forms of physical restraint - lies at the heart of the liberty that Clause protects.” Zadvydas 15 v. Davis, 533 U.S. 678, 690 (2001) (citation omitted). This protection applies to 16 noncitizens as it does to United States citizens. See Wong Wing v. United States, 163 17 U.S. 228, 238 (1896) (“[E]ven aliens shall not . . . be deprived of life, liberty or property 18 without due process of law.”). 19 Title 8 United States Code Section 1357(a)(2) provides that an immigration 20 officer may 21 arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in 22 pursuance of law regulating the admission, exclusion, expulsion, or 23 removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in 24 violation of any such law or regulation and is likely to escape before a 25 warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of 26 27 28 1 the Service[ ] having authority to examine aliens as to their right to enter or remain in the United States. 2 3 Section 1357(a)(2)’s “‘reason to believe’ requirement is the equivalent of ‘the 4 constitutional requirement of probable cause.’” See M-J-M-A- v. Hermosillo, 822 F. 5 Supp. 3d 1147, 1172 (D. Or. 2026) (quoting Tejeda-Mata v. Immigr. Naturalization 6 Serv., 626 F.2d 721, 725 (9th Cir. 1980)). 7 Under 8 C.F.R. § 287.3(c)-(d), following a warrantless arrest an officer must promptly advise the individual of the reasons for arrest 8 and of the right to representation. Within 48 hours, the government 9 must determine whether the person will remain in custody or be released on bond, and whether a Notice to Appear and warrant of 10 arrest will issue. Id. § 287.3(d). Only in the event of an “emergency or 11 other extraordinary circumstance” may that determination be delayed, and then only “within an additional reasonable period of time.” Id. 12 13 Few courts have interpreted what constitutes an “additional reasonable period of time” under Section 287.3. In Turkmen v. 14 Ashcroft, noncitizen detainees arrested in the wake of the 15 September 11, 2001 attacks alleged that delayed service of Notices to Appear violated their due process rights. No. 02-CV-2307 (JG), 2006 16 WL 1662663, at *1, *45 (E.D.N.Y. June 14, 2006), aff’d in part, 17 vacated in part, and remanded, 589 F.3d 542 (2d Cir. 2009). After their respective arrests, two plaintiffs were not served with Notices to 18 Appear for sixteen days, one for seven days, and another for five days. 19 Id. at *45. The district court rejected their claim, holding that the September 11 attacks qualified as an “extraordinary circumstance” 20 and that delays of several days were reasonable in that context. Id. at 21 *45. The court cautioned, however, that “[t]here is no doubt that at some point after arrest, an alien’s due process rights would be violated 22 23 24 25 5 “The Immigration and Naturalization Service, or ‘INS,’ was dissolved in 2002 by the Homeland Security Act, Pub. L. No. 107-296 § 101(a) (2002). Under the Act, most of 26 the INS’s functions were transferred to various components of the newly constituted 27 Department of Homeland Security (‘DHS’).” Al Mutarreb v. Holder, 561 F.3d 1023, 1024 n.1 (9th Cir. 2009). 28 1 if he were detained without being served a Notice to Appear.” Id. at *46 (emphasis omitted). 2 3 Marin v. Noem, Case No. 2:25-cv-09343-CV (SSCx), 2025 WL 3158094, at *3 (C.D. 4 Cal. Oct. 4, 2025) (alteration in Marin). In the instant action, there is no dispute that: 5 1) Petitioner was detained without a warrant on July 8, 2026, see Petition at ¶ 5; 2) the 6 administrative warrant dated July 9, 2026 was issued within forty-eight hours of 7 Petitioner’s detention, see Response, Exh. 1 (Form I-200); and 3) the notice to appear 8 dated July 27, 2026 was issued within eighteen days of the administrative warrant being 9 issued, see id., Exh. 2 (Form I-862). 10 Assuming, without deciding, that there was probable cause to believe 11 Petitioner was unlawfully present in the United States, see Response, Exh. 1 (Form I- 12 200), the record is devoid of evidence that Petitioner was “likely to escape” before 13 Respondents could obtain a warrant. See 8 U.S.C. § 1357(a)(2). This Court notes that 14 Respondents present no argument that Petitioner presented any risk of flight when he was 15 initially detained. On the contrary, the record contains ample evidence to support the 16 inference that Petitioner was not likely to escape before a warrant could be obtained. 17 Petitioner is the father of three children, including one who was born in 2024, and he is 18 the parent responsible for providing for his family. [Petition, Exh. 6 at PageID.35 (Diaz 19 Escalante Decl.) at ¶¶ 5-6.] Respondents’ belief that Petitioner was present in the United 20 States unlawfully does not in and of itself result in an assumption that Petitioner was 21 likely to escape before Respondents could obtain a warrant. See A.B.D. v. Wamsley, Civ. 22 No. 6:25-cv-02014-AA, 2026 WL 178306, at *12 (D. Or. Jan. 22, 2026) (“Nor can it be 23 the case that, simply by being potentially removable, an alien must be deemed to be 24 likely to evade detention by ICE. Such a reading would render the limitations on 25 warrantless arrest created by . . . § 1357(a)(2) meaningless.” (quotation marks and 26 citation omitted)). 27 28 1 Accordingly, this Court concludes that Petitioner’s detention without a 2 warrant violated Section 1357(a)(2) and is grounds for immediate release. See Gomez v. 3 Wofford, Case No. 1:26-cv-05299 (VC), 2026 WL 2065708, at *2-3 (E.D. Cal. July 16, 4 2026) (ordering that the petitioner be immediately released after concluding that the 5 petitioner’s detention was governed by Section 1226 and that no exceptions for a 6 warrantless arrest under Section 1357(a)(2) applied). 7 Further, Respondents’ invocation of Section 287.3 is unavailing. Among 8 other things, that regulation provides that, subject to some exceptions that do not apply 9 here: 1) an officer other than the arresting officer must promptly interview the noncitizen; 10 2) the noncitizen must be advised of the reasons for his arrest and his right to be 11 represented at no cost to the government; and 3) a custody determination must be made 12 within forty-eight hours of the arrest unless there is an emergency or an extraordinary 13 circumstance. See 8 C.F.R. § 287.3(a), (c), (d). Respondents present no evidence that 14 they complied with the Section 287.3. Indeed, Respondents do not reference any 15 “‘emergency or other extraordinary circumstance’” to explain why the Form I-862 was 16 issued on July 27, 2026, instead of “‘within an additional reasonable period of time.’” 17 See Marin, 2025 WL 3158094, at *3 (quoting 8 C.F.R. § 287.3(d)); see also id. at *4 18 (concluding that the petitioner’s medical condition, i.e., a broken leg, did not justify the 19 respondents’ failure to comply with Section 287.3(d)). In any event, compliance with the 20 procedural requirements under Section 287.3 says nothing about whether the preceding 21 arrest itself complied with Section 1357(a)(2), and the regulation itself presumes a 22 noncitizen’s arrest is made consistent with the statute. See 8 C.F.R. § 287.3(a) (referring 23 24 25 26 27 28 1 to an “alien arrested without a warrant of arrest under the authority contained in 2 section 287(a)(2) of the [INA]”) (emphasis added).6 3 This Court concludes that Petitioner’s detention without a valid warrant or 4 lawful process violates his due process rights under the Fifth Amendment. Providing 5 Petitioner a bond hearing would not remedy the Fifth Amendment violation he has 6 already experienced. Only release from detention can accomplish that now. 7 CONCLUSION 8 For the foregoing reasons, Petitioner Josue Imer Diaz Escalante’s Petition 9 for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, filed July 24, 2026, is 10 GRANTED. 11 Respondents are ORDERED to present Petitioner with the following options 12 for his release: 1) immediate release in this District, no later than twenty-four hours 13 after the filing of this Order; or 2) release in or near West Palm Beach, Florida by 14 August 21, 2026. Respondents are also ORDERED to return to Petitioner all of his 15 belongings, including his identification documents, immediately upon his release. 16 Further, Respondents are ENJOINED AND RESTRAINED from: re- 17 detaining Petitioner unless Respondents demonstrate, by clear and convincing evidence at 18 a pre-deprivation hearing before a neutral decisionmaker, that Petitioner presents a flight 19 risk or danger to the community such that his physical custody is legally justified; placing 20 Petitioner in an Alternative to Detention program; and from placing an ankle monitor on 21 Petitioner upon his release. 22 23 24 25 26 6 Section 287(a)(2) of the INA was codified at Section 1357(a)(2). See Garcia 27 Gabriel v. Hermosillo, CASE NO. 2:25-cv-02594-DGE-GJL, 2026 WL 194233, at *6 n.8 (W.D. Wash. Jan. 26, 2026). 28 1 The parties are ORDERED to file a joint status report by August 28, 2026, 2 || confirming that Petitioner has been released and that his identification documents have 3 || been returned. 4 IT IS SO ORDERED. 5 6 DATED AT HONOLULU, HAWAII, August 14, 2026. 7 Se 8 oy) /s! Leslie E. Kobayashi 9 Leslie E. Kobayashi Fd Senor U.S. District Judge 10 Vee 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 75 || YOSUE IMER DIAZ ESCALANTE VS. CHRISTOPHER J. LAROSE, ET AL; 3:26-CV-04259 LEK-AHG; ORDER GRANTING PETITION FOR WRIT OF 26 || HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 27 28