Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JAVIER SANTOS LUCAS JUAN, Case No.: 3:26-cv-3568-JES-AHG 11 Petitioner, ORDER: 12 v. (1) GRANTING PETITION FOR 13 CHRISTOPHER J. LaROSE, Senior WRIT OF HABEAS CORPUS Warden Otay Mesa Detention Center; 14 PURSUANT TO 28 U.S.C. § 2241; TODD BLANCHE, Acting United States 15 Attorney General; MARKWAYNE (2) DENYING AS MOOT MULLIN, Secretary of the Department of 16 PETITIONER’S MOTION TO Homeland Security; PATRICK DIVVER, EXPEDITE; and PETITIONER’S 17 ICE San Diego Field Office Director, in MOTION FOR STATUS REPORT their official capacities, 18 Respondents. 19 [ECF Nos. 1, 9, 12] 20 21 22 23 Before the Court is Petitioner Javier Santos Lucas Juan's (“Petitioner”) Petition for 24 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. ECF No. 1 (“Pet.”). Respondents 25 filed a Return, ECF No. 4 ("Ret."), Respondents' Supplemental Briefing, ECF No. 8 26 (“Supp.”), and Petitioner filed a Traverse, ECF No. 5 ("Trav."), and a Motion for a Prompt 27 Ruling, ECF No. 9. The Court has taken the matter under submission. For the reasons set 28 forth below, the Court GRANTS the Petition. 1 I. BACKGROUND 2 Petitioner is a forty-three-year-old citizen of Guatemala who has resided in the 3 United States since 2019. Pet. ¶ 26. Petitioner is married with four children. Id. His wife 4 and three youngest children reside in Guatemala, while his oldest son has lived in the 5 United States with him. Id. Since his entry, Petitioner has been continuously employed and 6 has no criminal history. Id. 7 Petitioner first entered the United States in May 2019 at the El Paso, Texas border 8 with his then-eleven-year-old son. Id. ¶ 27. At that time, Petitioner had a prior expedited 9 removal order, pursuant to 8 U.S.C. § 1225(b)(1). Supp. at 2–3; ECF No. 8-1 at 5. Due to 10 lack of bed space and because Petitioner was the only family member able to care for his 11 minor son, the U.S. Department of Homeland Security (“DHS”) did not reinstate the prior 12 removal order Supp. at 3. Instead, it granted Petitioner temporary parole, under 8 U.S.C. § 13 1182(d)(5), and placed him on an Order of Supervision (“OSUP”), pending the outcome 14 of his son's removal proceedings. Id. 15 For the following seven years, Petitioner complied with his Immigration and 16 Customs Enforcement (“ICE”) check-in obligations, attending every scheduled 17 appointment every three to four months—except for a period during the COVID-19 18 pandemic. Pet. ¶ 27. On March 12, 2024, Petitioner missed a scheduled OSUP meeting. 19 ECF No. 8-1 at 4. Petitioner also failed to attend a non-detained family appointment on 20 September 16, 2025. Id. Notably, the Government did not revoke Petitioner's parole or 21 supervised release at that time or at any point before June 11, 2026. 22 On June 11, 2026, federal officers, conducting agency-approved record checks of 23 license plates, identified Petitioner as a person lacking legal immigration status and arrested 24 him in Poway, California. ECF No. 8-1 at 3. The Government initially intended to reinstate 25 Petitioner's 2007 removal order, under 8 U.S.C. § 1231(a)(5), but instead initiated removal 26 proceedings under 8 U.S.C. § 1229a. Id. at 9-10. 27 Petitioner has been detained at the Otay Mesa Detention Center since June 11, 2026. 28 Pet. ¶¶ 26, 29. The Court’s review of the record failed to make clear what legal status, if 1 any, Petitioner held following his release from custody in May 2019 and his current arrest. 2 ECF No. at 7. As the nature of Petitioner's 2019 release bears directly on the appropriate 3 remedy, the Court Ordered supplemental briefing from Respondents. Id. On June 25, 2026, 4 Respondents provided Petitioner's immigration history and asserting that a bond hearing, 5 not immediate release, is the appropriate remedy. ECF No. 8 at 3–4. 6 II. LEGAL STANDARD 7 A writ of habeas corpus is “available to every individual detained within the United 8 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art I, § 9, cl. 2). 9 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 10 custody, and ... the traditional function of the writ is to secure release from illegal custody.” 11 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A court may grant a writ of habeas corpus 12 to a petitioner who demonstrates to be in custody in violation of the Constitution or federal 13 law. 28 U.S.C. § 2241(c)(3). Traditionally, “the writ of habeas corpus has served as a means 14 of reviewing the legality of Executive detention, and it is in that context that its protections 15 have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, challenges 16 to immigration-related detention are within the purview of a district court's habeas 17 jurisdiction. Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also Demore v. Kim, 538 18 U.S. 510, 517 (2003). 19 Government agencies must follow their own regulations. United States ex rel. 20 Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Nat’l Ass'n of Home Builders v. Norton, 21 340 F.3d 835, 852 (9th Cir. 2003). When the Government fails to follow its own regulations 22 in revoking a noncitizen's release or parole, that detention is unlawful, and the petitioner's 23 release may be ordered. See Ceesay v. Kurzdorfer, 781 F. Supp. 3d 137, 169–70 (W.D.N.Y. 24 2025); Rombot v. Souza, 296 F. Supp. 3d 383, 387 (D. Mass. 2017). 25 // 26 // 27 // 28 // 1 III. DISCUSSION 2 A. Jurisdiction 3 Based on the facts of this Petition, the Court finds that Section 1252's jurisdiction 4 stripping provisions do not bar it from considering Petitioner's habeas Petition. See 5 Martinez Lopez v. Noem et al., No: 25-cv-2717-JES-AHG, 2025 WL 3030457, at *2–3 6 (S.D. Cal. Oct. 30, 2025). Further, the prudential administrative exhaustion requirement 7 for 28 U.S.C. § 2241 claims is excused. Thus, the Court finds that it has jurisdiction to hear 8 the Petition. 9 B. Respondents Failed to Properly Revoke Petitioner's Parole Prior to 10 Re-Detention 11 Respondents’ Supplemental Brief establishes that Petitioner was granted parole, 12 under 8 U.S.C. § 1182(d)(5), in May 2019 and was placed on an OSUP pending the 13 outcome of his son's removal proceedings. Supp. at 3; ECF No. 8-1 (Ex. 1). He was, 14 therefore, paroled into the United States—not merely released on bond—and the conditions 15 of that parole and the OSUP govern the terms of his presence in the United States. 16 Panosyan v. Mayorkas, 854 F. App'x 787, 788 (9th Cir. 2021). 17 Federal regulations impose procedural prerequisites before DHS may revoke a 18 noncitizen's parole. Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128, 154 (W.D.N.Y. 19 2025); see 8 C.F.R. § 212.5(e)(2). “Parole may be revoked” by the district director “in his 20 or her discretion,” but only upon a determination that the purposes of the parole have been 21 served, that the parole violates the terms under which it was granted, or upon issuance of a 22 charging document. 8 C.F.R. § 212.5(e)(2). The regulatory framework also requires that a 23 noncitizen whose parole is being revoked, be given notice and an opportunity to be heard 24 before or promptly after revocation. See id. 25 Here, the record contains no evidence that Petitioner's parole was ever formally 26 revoked prior to his June 11, 2026, re-detention. Supp. at 3; ECF No. 8-1 at 2-5. Even when 27 Petitioner missed a scheduled OSUP meeting in March 2024 and a non-detained family 28 appointment in September 2025, DHS took no action to revoke his parole or supervision. 1 Supp. at 3; ECF No. 8-1 at 2-5. Thereafter, Petitioner continued to comply with the 2 conditions of his OSUP for years after these incidents, without any formal parole 3 revocation action. Supp. at 3; ECF No. 8-1 at 2-5. 4 Respondents offer no evidence that any parole revocation determination was made 5 prior to Petitioner's June 11, 2026, arrest. Respondents’ records reflect that agents 6 conducted a license plate database check, identified Petitioner as lacking legal status, then 7 arrested him. ECF No. 8-1 at 2-5. Any references to a prior formal determination that his 8 parole had been revoked are conspicuously absent. See id. The Form I-200 Warrant for 9 Arrest of Alien for Petitioner was issued on June 11, 2026, the same date as the arrest, and 10 is grounded in a biometric database check rather than a prior parole revocation 11 determination. Id. The Court also notes Respondents’ initial intent to reinstate Petitioner's 12 2007 removal order, under 8 U.S.C. § 1231(a)(5). Supp. at 3. But this posture is 13 inconsistent with the premise that Petitioner's parole had been validly revoked, such that 14 the initiation of new immigration proceedings was appropriate. See 8 U.S.C. § 15 1182(d)(5)(A) (setting forth that parole does not constitute "admission" and is subject to 16 regulatory revocation procedures). 17 Indeed, the Notice to Appear itself further exposes the inconsistency. See ECF No. 18 8-1 at 9. DHS charges that Petitioner “was not then admitted or paroled after inspection by 19 an Immigration Officer.” Id. Yet, DHS's own records confirm that he was paroled into the 20 United States on May 7, 2019. Id. at 2-5. The Notice to Appear’s assertion squarely 21 contradicts the Government's own records. This suggests that DHS re-arrested Petitioner 22 without accounting for his existing parole status—through which he acquired a liberty 23 interest that requires due process prior to its revocation. Y-Z-L-H v. Bostock, 792 F. Supp. 24 3d 1123, 1146 (D. Or. 2025); Mata Velasquez, 794 F. Supp. 3d at 154; Gergawi v. Larose. 25 No. 3:25-CV-3352-JES-MMP, 2025 WL 3719321, at *2-4 (S.D. Cal. Dec. 23, 2025). 26 In sum, the Court finds that Respondents lacked lawful authority to detain Petitioner 27 because they failed to comply with the regulatory requirements governing parole 28 // 1 revocation before re-arresting him. See 8 C.F.R. § 212.5(e)(2); the Court, accordingly, will 2 order his immediate release. Mata Velasquez, 794 F. Supp. 3d at 154. 3 C. Respondents Failed to Comply with Regulatory Requirements 4 Governing Revocation of Supervised Release 5 Even setting aside the parole revocation issue, the record reflects that Respondents 6 also failed to comply with the regulatory requirements governing revocation of an Order 7 of Supervision before re-detaining Petitioner. See 8 C.F.R. §§ 241.4(l)(1)-(2). Revocation 8 of supervised release is authorized when a noncitizen violates the condition of their OSUP 9 or after DHS conducts a prior determination, based on changed circumstances, that there 10 is a “significant likelihood that the alien may be removed in the reasonably foreseeable 11 future.” Id. § 241.4(l)(1); Id. § 241.4(l)(2); Tran v. Noem, No. 3:25-CV-02391-BTM-BLM, 12 2025 WL 3005347, at *2 (S.D. Cal. Oct. 27, 2025). 13 As previously established, the record does not reflect that any such determination 14 was made prior to Petitioner's arrest on June 11, 2026. See generally ECF No. 8-1 at 2-5. 15 The Government provides no evidence that it has ever assessed whether Petitioner's 16 removal had become significantly likely in the reasonably foreseeable future or 17 documented any changed-circumstances determination that predated his arrest. 18 The Court is not aware of the conditions of Petitioner’s supervised release as the 19 Government did not provide a copy of the OSUP. Therefore, it cannot be ascertained 20 whether Petitioner’s missed check ins constitute a violation of the OSUP. But assuming 21 Petitioner’s conduct violated the terms of his release--and the Government was authorized 22 to apprehend him—it still failed to perform its obligations under its own regulations. See 8 23 C.F.R. § 241.4(l)(1). 24 Upon revocation of supervised release, DHS must provide a noncitizen with a Notice 25 of Revocation of Release. Id. Federal regulations also require that promptly after being re- 26 detained, DHS must conduct an informal interview. Id. The record contains no such Notice 27 nor any assertions or evidence that Petitioner received an informal interview at which he 28 could contest his re-detention. See Id. Instead, he was arrested and re-detained—without 1 any of the procedural protections the regulations require. See Saengphet v. Noem, No. 25- 2 cv-2909-JES-BLM, 2025 WL 3240808, at *3–7 (S.D. Cal. Nov. 20, 2025) (finding due 3 process violated where Government failed to provide adequate revocation notice and 4 meaningful opportunity to contest re-detention). 5 The Court, accordingly, finds that Respondents separately violated 8 C.F.R. § 6 241.4(l)(1) by failing to: (1) make a pre-detention changed-circumstances determination, 7 (2) provide Petitioner with adequate notice of the reasons for revocation, and (3) afford 8 Petitioner any meaningful opportunity to contest his re-detention. This independent ground 9 provides an additional basis for granting Petition. See Saengphet, 2025 WL 3240808, at 10 *7–8; Rokhfirooz v. LaRose, 804 F.Supp.3d 1095, 1098 (S.D. Cal. 2025). 11 D. The Appropriate Remedy Is Immediate Release 12 Respondents contend that a § 1226(a) bond hearing, rather than immediate release, 13 is the appropriate remedy. Supp. at 3–4. The Court disagrees under these circumstances. 14 Where the Government lacks the lawful authority to detain a noncitizen in the first 15 place—as is the case here—an order directing a bond hearing cannot adequately remedy 16 the harm, because such a hearing "cannot serve as an adequate procedural safeguard" where 17 "it is after the fact and cannot prevent an erroneous deprivation of liberty." E.A. T.-B. v. 18 Wamsley, 795 F. Supp. 3d 1316, 1324 (W.D. Wash. 2025); see also Domingo v. Kaiser, 19 No. 25-cv-05893 (RFL), 2025 WL 1940179, at *3 (N.D. Cal. July 14, 2025) ("[E]ven if 20 Petitioner[] received a prompt post-detention bond hearing under 8 U.S.C. § 1226(a) and 21 was released at that point, he will have already suffered the harm that is the subject of his 22 motion; that is, his potentially erroneous detention."). 23 Immediate release is particularly warranted, here where the unlawfulness of the 24 detention arises not from a disputed statutory interpretation, but from the Government's 25 failure to follow its own regulations before re-arresting a person it had previously paroled 26 and placed on supervised release. The Government arrested Petitioner without a prior 27 parole revocation determination, without a notice of revocation, and without any 28 opportunity for Petitioner to contest his re-detention—all required by regulation. Such 1 regulatory noncompliance warrants immediate release. See J.A.C.P., 2025 WL 3013328, 2 at *8; Mayen v. Warden, California City Det. Ctr., No. 1:26-CV-02354-DAD-AC, 2026 3 WL 1158217, at *2 (E.D. Cal. Apr. 29, 2026) (ordering immediate release where no 4 evidence government issued proper warrant upon detention); Ahmed M. v. Bondi, No. 25- 5 CV-4711 (ECT/SGE), 2026 WL 25627, at *3 (D. Minn. Jan. 5, 2026) ("[R]elease is an 6 available and appropriate remedy for detention that lacks a lawful predicate."). 7 The Court also notes that DHS retains authority to re-detain Petitioner in the future, 8 but only in compliance with the applicable regulatory requirements. Any future re- 9 detention, however, must follow the procedural requirements of 8 C.F.R. § 212.5(e)(2) 10 and/or 8 C.F.R. § 241.4. 11 IV. CONCLUSION 12 The Government failed to follow its own regulations when it re-detained Petitioner 13 without: (1) formally revoking Petitioner's parole under 8 C.F.R. § 212.5(e)(2) prior to his 14 arrest; (2) making a pre-arrest determination based on an opinion that Petitioner violated 15 any condition of release;, as required by 8 C.F.R. § 241.4(l)(2); (3) providing Petitioner 16 with notice of revocation of his supervised release; and (4) affording Petitioner an 17 opportunity to contest his re-detention prior to arrest. Respondents' regulatory 18 noncompliance deprived Petitioner of his liberty without due process of law, in violation 19 of the Fifth Amendment. Accordingly, the Petition for Writ of Habeas Corpus is 20 GRANTED and Petitioner is ORDERED RELEASED. 21 Based on the foregoing: 22 (1) The Court GRANTS the Petition for Writ of Habeas Corpus 23 pursuant to 28 U.S.C. § 2241; 24 (2) Respondents are ORDERED to immediately RELEASE 25 Petitioner from custody, under the same conditions as previously 26 imposed; 27 (3) Petitioner recently filed two motions: a Motion to Expedite; and 28 1 a Motion for a Status Report. ECF Nos. 9, 12. As the Petition has 2 been granted on the merits, the Court DENIES AS MOOT both 3 motions; and 4 (4) The Clerk of Court is DIRECTED to CLOSE this case. 5 IT IS SO ORDERED. 6 || Dated: August 18, 2026 1 □□ Sir, 8 Honorable James E. Simmons Jr. 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28