Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SERGIO CRUZ PORTILLO Case No.: 26-CV-4371 JLS (DEB) VALDIVIEZO, 12 ORDER GRANTING IN PART Petitioner, 13 PETITIONER’S AMENDED v. PETITION FOR WRIT OF 14 HABEAS CORPUS MARKWAYNE MULLIN, et al., 15 Respondents. (ECF No. 7) 16 17 Presently before the Court is Petitioner Sergio Cruz Portillo Valdiviezo’s Amended 18 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (“Pet.,” ECF No. 7). Also 19 before the Court are Respondents’ Return (“Ret.,” ECF No. 11) and Petitioner’s Traverse 20 (“Traverse,” ECF No. 12). For the following reasons, the Court GRANTS IN PART the 21 Amended Petition. 22 BACKGROUND 23 Petitioner, a citizen of Honduras, entered the United States without inspection in 24 2021. Pet. at 3. On June 24, 2026, Petitioner was arrested—without a warrant—while on 25 his way to work. Id. However, Petitioner was served with an arrest warrant on June 28, 26 2026. Ret. at 2, Ex. 1. Petitioner was then placed into removal proceedings but was granted 27 voluntary departure on July 15, 2026. Id. Because Petitioner was unrepresented, he did 28 1 not understand what voluntary departure meant. Id. As a result, Petitioner filed an appeal 2 with the Board of Immigration Appeals (“BIA”), which remains pending. Id. 3 Petitioner then filed the present Petition. In it, he argues that his warrantless arrest 4 was unlawful and requests release, or in the alternative, a bond hearing. See generally id. 5 LEGAL STANDARD 6 A federal prisoner challenging the execution of his or her sentence, rather than the 7 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 8 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 9 body able to review challenges to final orders of deportation, exclusion, or removal is the 10 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 11 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 12 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 13 independently from the removal process—for example, a claim of indefinite detention— 14 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 15 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings v. Rodriguez, 16 138 S. Ct. 830 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. Cal. 17 2018) (citations omitted). 18 DISCUSSION 19 Both parties agree that Petitioner's detention is governed by 8 U.S.C. § 1226(a). See 20 generally Pet.; Ret. However, the Parties disagree as to whether a bond hearing or release 21 is warranted in this case. See id. Petitioner argues that release is required because his arrest 22 violated 8 U.S.C § 1357 and 8 C.F.R. § 287.3. Pet. at 8. Although a warrant was served 23 on Petitioner four days after his arrest, Petitioner contends that a bond hearing “would not 24 remedy the lack of authority for the arrest that produced the detention.” Id. at 11. 25 Respondents do not oppose a bond hearing but seemingly oppose release. Ret. at 2. 26 The Court finds that a bond hearing is the appropriate remedy in this case. Section 27 1226(a) states that, “[o]n a warrant issued by the Attorney General, an alien may be arrested 28 and detained pending a decision on whether the alien is to be removed from the United 1 States.” “[W]hen arrests are made without a warrant, a custody determination must 2 ordinarily be made within 48 hours, accompanied by a notice to appear, and in the case of 3 continued custody a warrant will be issued post hoc.” Lopez-Perez v. Johnson, No. 1:26- 4 CV-03083 JLT SAB (HC), 2026 WL 1506818, at *2 (E.D. Cal. May 29, 5 2026) (quoting Garcia De Melo v. Stamper, No. 1:26-CV-00152-JAW, 2026 WL 925672, 6 at *5 (D. Me. Apr. 6, 2026)). 7 Many courts in this district have held that the government’s forty-eight-hour clock 8 begins after a court orders a custody determination. See, e.g., Rodriguez Pinzon v. Blanche, 9 No. 3:26-CV-04374-RBM-AHG, 2026 WL 2547063, at *1–2 (S.D. Cal. Aug. 27, 2026); 10 Gonzalez-Ramos v. Mullin, No. 26-CV-3159-JLS-GC, 2026 WL 1865899, at *2 (S.D. Cal. 11 June 29, 2026). These courts have reasoned that the government arrests these individuals 12 on the premise that they are subject to mandatory detention under 8 U.S.C § 1225(b)(2). 13 Id. Thus, to retroactively apply the court’s § 1226(a) determination “would place 14 Respondents in the untenable position in future cases presenting similar circumstances, in 15 which Respondents must decide whether to deliberately violate controlling agency 16 precedent in anticipation of a possible objection a detainee may or may not raise in a future 17 habeas petition not yet before this Court, and then further guess how this Court might rule.” 18 Id. (quoting Garcia De Melo, 2026 WL 925672, at *5). 1 Based on this analysis, these 19 courts have held that a bond hearing, not release, is the proper remedy in these situations. 20 Id. 21 The Court finds this reasoning persuasive and adopts it here. The fact that the 22 government has already issued a warrant in this case does not change this analysis. See 23 24 25 1 In Rodriguez Vasquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026), the Ninth Circuit held that noncitizens who are apprehended in the interior of the United States are subject to § 1226 rather than § 1225(b)(2), 26 overturning binding precedent from the BIA. But Rodriguez Vasquez was not decided until July 30, 2026, while Petitioner here was arrested on June 24, 2026. Pet. at 3. Thus, at the time of Petitioner’s arrest, 27 Respondents were still bound by the same “agency precedent” discussed in Garcia De Melo, 2026 WL 28 925672, at *5. It remains to be seen how Rodriguez Vasquez will change the analysis for individuals 1 || Garcia-Juarez v. Blanche, No. 26-CV-3007-LL-DEB (S.D. Cal. June 30, 2026). Nor does 2 || Petitioner’s reliance on 8 U.S.C § 1357 and 8 C.F.R. § 287.3. Id. at 3 (“Not only does 8 3 U.S.C. § 1357(a)(2) authorize warrantless arrests but 8 C.F.R. § 287.3(d) also provides the 4 || government 48 hours to issue a warrant if 1t determines that the noncitizen will remain in 5 || custody.”). 6 CONCLUSION 7 Based on the foregoing, the Court GRANTS IN PART Petitioner’s Petition for Writ 8 || of Habeas Corpus (ECF No. 7). The Court ORDERS the Government to provide Petitioner 9 || with an individualized bond hearing under 8 U.S.C. § 1226(a) within fourteen (14) days, 10 || unless Petitioner, the non-citizen, requests a continuance. Bond SHALL NOT be denied 11 the basis that 8 U.S.C. § 1225(b)(2) requires mandatory detention. The non-citizen 12 || bears the burden of demonstrating, by a preponderance of the evidence, that they are not a 13 || danger to the community or a flight risk. See Rodriguez Diaz v. Garland, 53 F 4th 1189, 14 (9th Cir. 2022). The Court DENIES IN PART the Petition to the extent that 15 || Petitioner requests to be released from custody. The Parties SHALL file a Joint Status 16 || Report by September 23, 2026, informing the Court of the outcome of the hearing. As this 17 concludes this matter, the Clerk of Court SHALL CLOSE the file. 18 IT IS SO ORDERED. 19 Dated: September 3, 2026 . .

21 United States District Judge 22 23 24 25 26 27 28