Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ANGELA THERESA VELASQUEZ- Case No.: 3:26-cv-04176-RBM-KSC CHINGA, 11 ORDER GRANTING PETITION Petitioner, 12 FOR WRIT OF HABEAS CORPUS v. 13 [Doc. 1] MARKWAYNE MULLIN, Secretary of 14 the Department of Homeland Security, et 15 al., 16 Respondents. 17 18 Pending before the Court are Petitioner Angela Theresa Velasquez-Chinga’s 19 (“Petitioner”) Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241 20 (Doc. 1) and Motion for Temporary Restraining Order (“TRO Motion”) (Doc. 2). For the 21 reasons set forth below, the Petition is GRANTED. 22 I. BACKGROUND 23 Petitioner, a native of Ecuador, first came to the United States with her month-old 24 son in 2016. (Doc. 1 at 2.) After her arrival, she was immediately released to apply for 25 asylum. (Id.) “In 2022, all of [Petitioner’s] asylum claims and appeals were denied and 26 her order of removal became final.” (Id.) Petitioner “remained released and checked in 27 with ICE every six months.” (Id.) 28 In November 2025, Petitioner was taken into custody by U.S. Immigration and 1 Customs Enforcement (“ICE”) while attending a regular appointment. (Id.) Petitioner 2 subsequently filed a habeas petition in District, which this Court granted on February 5, 3 2026. See Velasquez-Chinga v. Noem, 26-cv-105-RBM-KSC, 2026 WL 311507, at *3 4 (S.D. Cal. Feb. 5, 2026). For the past six months since her release, Petitioner “has worn a 5 GPS ankle monitor, attended her appointments, and followed all conditions of 6 supervision.” (Id. at 2–3.) 7 “At the beginning of July, an immigration officer called [Petitioner] and told her she 8 needed to come in for an appointment.” (Id. at 3.) “The officer told her that, if he wanted 9 to, he could detain her and make $1,000 because she wasn’t supposed to be released.” (Id.) 10 Petitioner claims that the officer’s statements made her “very nervous and [she] asked an 11 immigration attorney to go with her to the check-in appointment.” (Id.) 12 On July 9, 2026, Petitioner was re-detained while attending her check-in 13 appointment. (Id.) Petitioner was not provided with “any written or oral notice of why she 14 was being arrested,” “chance to explain why her release should not be revoked,” or any 15 explanation of “what changed, if anything, to make her removal more likely.” (Id.) The 16 attorney who accompanied Petitioner “asked to see paperwork authorizing her detention, 17 but they were unable to provide any.” (Id.) Petitioner was subsequently transferred to the 18 Otay Mesa Detention Center where she has been detained ever since. (Id.) Since then, 19 Petitioner has not been given “any paperwork or a chance to explain why her supervision 20 should not have been revoked” or any “information about her removal—when or even if it 21 might happen.” (Id.) 22 II. LEGAL STANDARD 23 A writ of habeas corpus is “available to every individual detained within the United 24 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 25 “The essence of habeas corpus is an attack by a person in custody upon the legality of that 26 custody, and . . . the traditional function of the writ is to secure release from illegal 27 custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 28 be granted by the Supreme Court, any justice thereof, the district courts and any circuit 1 judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 2 burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 3 treaties of the United States.” Id. § 2241(c)(3). 4 III. DISCUSSION 5 Petitioner claims her continued immigration detention violated the Fifth 6 Amendment’s Due Process Clause, 8 U.S.C. § 1231, and the Supreme Court’s ruling in 7 Zadvydas v. Davis, 533 U.S. 678 (2001). (Doc. 1 at 4–9.) Respondents argue that the 8 Court should deny the Petition because “Respondents complied with the regulatory 9 requirements and ICE can schedule Petitioner’s removal to Ecuador to occur on short 10 notice.” (Doc. 9 at 1.) 11 For the reasons discussed below, the Court finds that ICE violated Petitioner’s due 12 process rights in revoking Petitioner’s release without complying with the applicable 13 statutory and regulatory provisions that afford fundamental procedural safeguards to 14 noncitizens. 15 A. Agency Regulations 16 Petitioner claims her re-detention violates 8 C.F.R. § 241.13(i)(3) and the Fifth 17 Amendment’s Due Process Clause because ICE revoked her release under an Order of 18 Supervision without providing adequate notice, an informal interview, or reasons for the 19 revocation of her release. (Doc. 1 at 5–6.) Respondents contend that they “complied with 20 the regulatory requirements when revoking” her Order of Supervision because Petitioner 21 was provided with a Notice of Revocation of Release and an informal interview on July 9, 22 2026—the day she was re-detained—where she had the “opportunity to respond to the 23 reasons for the revocation of her release.” (Doc. 9 at 1–2, 5.) 24 It is well-established that government agencies are required to follow their own 25 regulations. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); 26 United States v. Ramos, 623 F.3d 672, 683 (9th Cir. 2010) (“It is a well-known maxim that 27 agencies must comply with their own regulations.”) (quoting Ramon–Sepulveda v. INS, 28 743 F.2d 1307, 1310 (9th Cir. 1984)). This Court has joined the majority of district courts 1 and “determined that where ICE fails to follow its own regulations in revoking release, the 2 detention is unlawful and the petitioner’s release must be ordered.” Azzo v. Noem, Case 3 No.: 3:25-cv-03122-RBM-BJW, 2025 WL 3535208, at *2 (S.D. Cal. Dec. 10, 2025) 4 (quoting Rokhfirooz v. Larose, 804 F. Supp. 3d 1095, 1099 (S.D. Cal. 2025)) (collecting 5 cases). 6 The detention, and release of noncitizens who have been ordered removed is 7 governed by 8 U.S.C. § 1231. This statute directs the Attorney General of the United States 8 to effect the removal of a noncitizen from this country “within a period of 90 days,” also 9 known as the “removal period.” 8 U.S.C. § 1231(a)(1)(A). It also authorizes the detention 10 of a noncitizen during the removal period. § 1231(a)(2). Noncitizens who are 11 inadmissible, such as due to a prior reentry after removal, “may be detained beyond the 12 [90-day] removal period,” but § 1231 does not mandate their detention. 8. U.S.C. 13 § 1231(a)(6). Instead, the statute is limited to “a period reasonably necessary to bring about 14 [the noncitizen’s] removal from the United States” and “does not permit indefinite 15 detention.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Where a noncitizen does not 16 leave or is not removed within the 90-day removal period, the individual, “pending 17 removal, shall be subject to supervision.” 8. U.S.C. § 1231(a)(3).1 18 The regulations governing the release and revocation of release of noncitizens 19 subject to a final order of removal are 8 C.F.R. §§ 241.4 and 241.13. Both regulations 20 provide that, upon revocation of release, the noncitizen “will be notified of the reasons for 21 revocation of his or her release,” and will be given “an initial informal interview promptly 22 after his or her return to Service custody to afford the alien an opportunity to respond to 23 the reasons for revocation stated in the notification.” 8 C.F.R. §§ 241.13(i)(3), 241.4(l)(1). 24 25 26 1 As such, Respondents’ argument that Petitioner is subject to “mandatory” detention (Doc. 27 4 at 2), directly contradicts the Order of Supervision issued by DHS issued which permitted Petitioner’s release subject to her compliance with certain conditions. (See Doc. 1-2, Ex. 28 1 These regulations “ were intended ‘to provide due process protections to [noncitizens] 2 following the removal period as they are considered for continued detention, release, and 3 then possible revocation of release.’” Ghafouri v. Noem, No. 3:25-CV-02675-RBM-BLM, 4 2025 WL 3085726, at *4 (S.D. Cal. Nov. 4, 2025) (quoting Santamaria Orellana v. Baker, 5 Civil Action No. 25-1788-TDC, 2025 WL 2444087, at *6 (D. Md. Aug. 25, 2025)). 6 In this case, as an attachment to their Response, Respondents filed the Notice of 7 Revocation which it claims was provided to Petitioner on the day she was re-detained. (See 8 Doc. 9-3, Ex. 1 at 2–4.) Petitioner maintains that she did not receive any such Notice but 9 even she had, “it was insufficient to comply with ICE’s own regulations.” (Doc. 10 at 2.) 10 The Court agrees. 11 The Notice of Revocation states that Petitioner’s Order of Supervision was “revoked 12 pursuant to 8 C.F.R. § 241.4(l) because her “conduct, or other circumstance indicates 13 release is no longer appropriate.” (Doc. 9-3, Ex. 1 at 2.) The Notice of Revocation 14 specifies that Petitioner’s release was no longer appropriate because: “Board of 15 Immigration Appeals case was denied. Ninth Circuit Court of Appeals issued a mandate. 16 Subject is a Final Order of Removal pending removal to Ecuador.” (Id.) But as Petitioner 17 correctly notes, “[a]ll of those circumstances existed on the date she received her [O]rder 18 of [S]upervision.” (Doc. 10 at 2.) In fact, Petitioner’s removal order became final in 19 January 2022. (See Doc. 9 at 2.) 20 In their Response, Respondents assert that “ICE already has in its possession a travel 21 document for Petitioner’s removal and has the ability and means to effectuate Petitioner’s 22 removal on a flight to Ecuador on short notice.” (Doc. 9 at 5.) ICE could have indicated 23 in the Notice of Revocation that Petitioner’s release was revoked to “enforce the removal 24 order entered against [her] as ICE has the ability and means to effectuate [her] removal,” 25 or that it was revoked based on another permissible reason set forth in 8 C.F.R. 26 § 241.1(l)(2). (See Doc. 9-3, Ex. 1 at 2.) ICE, however, did not do so. Rather, Petitioner 27 alarmingly claims that an immigration officer suggested “he could her detain” in exchange 28 for monetary compensation. (Doc. 1 at 3, 6; see Doc. 1-2, Declaration of Angela Theresa 1 Velasquez-Chinga [“Velasquez-Chinga Decl.”] ¶ 5.) The Court therefore finds that 2 Petitioner was not provided with adequate notice of the reasons for revocation of her 3 release. See McSweeney v. Warden of Otay Mesa Det. Facility, Case No. 3:25-cv 02488- 4 RBM-DEB, 2025 WL 2998376, at *6 (S.D. Cal. Oct. 24, 2025) (granting habeas petition 5 where petitioner “could not have meaningfully responded to the proffered reasons for 6 revocation when he had not yet even been informed of those reasons”); see also Tan- 7 Gutierrez v. Noem, Case No.: 3:26-cv-00152-RBM-BJW, 2026 WL 194747, at *3 (S.D. 8 Cal. Jan. 26, 2026) (“ICE’s conclusory explanation for revoking Petitioner’s release ‘did 9 not offer [her] adequate notice of the basis for the revocation decision such that [she] could 10 meaningfully respond at the post-detention informal interview.”’) (quoting Diaz v. 11 Wofford, Case No. 1:25-CV-1079 JLT EPG, 2025 WL 2581575, at *8 (E.D. Cal. Sept. 5, 12 2025). 13 Additionally, there is no evidence that ICE determined Petitioner’s removal was 14 significantly likely in the reasonably foreseeable future based on any “changed 15 circumstances.” See 8 C.F.R. § 241.13(i)(2). As previously noted, Petitioner’s removal 16 order does not constitute a “changed circumstance[ ]” because the removal order became 17 final over four years before Petitioner’s re-detention. (See Doc. 9 at 2.) Respondents 18 indicate that “[s]ince Petitioner’s re-detention on July 9, 2026, ICE has worked diligently 19 to effectuate her removal to Ecuador.” (Doc. 9-1, Declaration of Daniel Negrin [“Negrin 20 Decl.”] ¶ 21.) But the record contains no evidence that such a determination was made by 21 the appropriate official at any point prior to her re-detention. “[T]his post-hoc 22 rationalization cannot form the basis of ‘changed circumstances’ for the purpose of re- 23 detention.” Arostegui-Campo v. Noem, Case No.: 25-CV-3064 JLS (MMP), 2025 WL 24 3280886, at *4 (S.D. Cal. Nov. 25, 2025) (collecting cases). The Court therefore finds the 25 Government failed to comply with its own regulations. By failing to afford Petitioner the 26 procedural safeguards the regulations were designed to protect, ICE deprived Petitioner of 27 her due process rights and prejudiced her interests. See Diaz, 2025 WL 2581575, at *7 28 (“DHS’s failure to follow its own procedural regulations may constitute a due process 1 || violation.”); W.S.L. v. Bostock, Civ. No. 6:25-cv-01204-AA, 2025 WL 2430267, at *11 (D. 2 || Or. Aug. 21, 2025) (“ICE’s failure to provide Petitioner with a timely Notice of Revocation 3 || or conduct an informal interview until nearly a month after taking [him] into custody is a 4 grave violation of Petitioner’s due process rights in that they deprived [him] both of 5 ||meaningful notice and an opportunity to be heard.”).? 6 IV. CONCLUSION 7 Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly: 8 1. The Government is ORDERED to immediately release the noncitizen from 9 custody, subject to her preexisting Order of Supervision. 10 2. The Government SHALL NOT re-detain the noncitizen under 8 U.S.C. 11 § 1231(a)(6) unless and until the Government follows all applicable statutory and 12 regulatory procedures. 13 3. The TRO Motion (Doc. 2) is DENIED AS MOOT. 14 IT IS SO ORDERED. 15 ||}DATE: August 31, 2026 16 Ft Barris Mortars 7 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 2 In light of the disposition herein, the Court declines to address the remaining grounds in the Petition for seeking release.