Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN JOSE TAPIA GARCIA, Case No. 26-cv-04349-BAS-SBC 12 Petitioner, ORDER GRANTING IN PART 13 AMENDED PETITION FOR WRIT v. OF HABEAS CORPUS 14 JEREMY CASEY, et al., 15 (ECF No. 8) Respondents. 16 17 18 Petitioner Juan Jose Tapia Garcia has filed an Amended Petition for a Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2241, claiming he was unlawfully arrested by the United 20 States Border Patrol without a statutorily required warrant. (ECF No. 8.) He requests 21 immediate release or, alternatively, a bond hearing. (Id.) The Government argues Petitioner 22 is subject to a final removal order, is subject to mandatory detention pursuant to 8 U.S.C. 23 § 1231(a), and thus his request is not ripe for review. (ECF No. 13.) The Government does 24 not address the substantive arguments raised in the Amended Petition. (Id.) It does, 25 however, attach an administrative warrant that was served on Petitioner the day of his 26 arrest. (ECF No. 13, Ex. 2.) Petitioner filed a Traverse, disputing the finality of the removal 27 order and asserting the Government has forfeited its right to oppose immediate release by 28 1 failing to respond to the arguments in his Amended Petition. (ECF No. 14.) For the reasons 2 stated below, the Court GRANTS IN PART the Amended Petition. 3 I. LEGAL STANDARD 4 A writ of habeas corpus is “available to every individual detained within the United 5 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). “The traditional function of the writ 6 is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 7 A court may grant a writ of habeas corpus to a petitioner who demonstrates he or she is in 8 custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3). It applies 9 to noncitizens detained within the United States. Zadvydas v. Davis, 533 U.S. 678, 687 10 (2001). Since Petitioner is in custody and is seeking release, he has standing to pursue his 11 Amended Petition. 12 II. BACKGROUND 13 Petitioner is a citizen of Mexico and entered the United States without inspection 14 between 2020 and 2023. (ECF No. 8, Ex. A; ECF No. 13, Ex. 1.) On April 5, 2026, at 15 approximately 4:35 a.m., a Border Patrol agent detained and arrested Petitioner at a 16 checkpoint near Westmorland, California. (ECF No. 13, Ex. 1.) That same day, an 17 administrative arrest warrant was issued in Petitioner’s name. (ECF No. 13, Ex. 2.) The 18 following day, the Government issued a Notice to Appear (“NTA”) and began removal 19 proceedings against Petitioner. (ECF No. 13, Ex. 3.) On June 11, 2026, an Immigration 20 Judge (“IJ”) granted the Department of Homeland Security’s Motion to Pretermit 21 Petitioner’s relief from withholding and ordered Petitioner removed to Mexico. (ECF No. 22 13, Ex. 4.) Petitioner filed an appeal to the Board of Immigration Appeals (“BIA”) on July 23 31, 2026. (ECF No. 14 at 2.) 24 III. ANALYSIS 25 As a preliminary matter, the Court is unpersuaded by the Government’s argument 26 that Petitioner is mandatorily detained under 8 U.S.C. § 1231(a) because he is subject to a 27 final order of removal. The finality of a removal order is governed by 8 C.F.R. § 1241.1. 28 In pertinent part, 8 C.F.R. § 1241.1(a) states, “[a]n order of removal made by the 1 immigration judge at the conclusion of proceedings under section 240 of the Act shall 2 become final . . . [u]pon dismissal of an appeal by the Board of Immigration Appeals[.]” 3 On July 31, 2026, Petitioner filed an appeal, alongside a motion to accept an 4 untimely filing, with the BIA. While the Government concedes an appeal was filed, it 5 argues Petitioner is subject to a final order of removal because the filing was not timely. 6 (Ret. ¶ 3, ECF No. 13.) “The BIA has authority to determine whether an appeal is timely, 7 whether it should be dismissed as untimely, and whether any exception or equitable tolling 8 principle applies.” Orellana Cruz v. Oddo, No. 3:26-CV-00284, 2026 WL 1650733, at *4 9 (W.D. Pa. June 8, 2026) (citing Matter of Morales-Morales, 28 I. & N. Dec. 714, 716 (BIA 10 2023)). Here, it is undisputed Petitioner’s appeal was not filed within the requisite timeline. 11 However, in accordance with BIA regulations, Petitioner filed his appeal together with a 12 motion to accept an untimely filing, which remains pending. Considering the BIA’s 13 decision in Morales-Morales, the Court finds it appropriate to consider Petitioner’s 14 removal proceedings to be pending unless and until the BIA rules on whether to dismiss 15 his appeal as untimely. See 28 I. & N. Dec. at 716. 16 Next, the Government fails to meaningfully address Petitioner’s warrantless arrest 17 claim under 8 U.S.C. § 1357(a)(2). It does not identify any authority justifying Petitioner’s 18 arrest. (See Ret.) The Court first finds that Petitioner is detained pursuant to 8 U.S.C. 19 § 1226(a). In Rodriguez Vazquez, the Ninth Circuit held that noncitizens “present without 20 admission who are apprehended in the interior of the United States are subject to the 21 detention regime of § 1226, not § 1225(b)(2)(A).” Rodriguez Vazquez v. Bostock, 183 F.4th 22 1160, 1165 (9th Cir. 2026). Here, the Government and Petitioner both claim Petitioner was 23 detained in the interior of the United States at a checkpoint in California. (ECF No. 8, Ex. 24 A; ECF No. 13, Ex. 1.) Therefore, 8 U.S.C. § 1226(a)’s discretionary procedures govern 25 Petitioner’s detention. Section 1226(a)’s discretionary procedures permit release of 26 noncitizens on bond pending their removal proceedings. Thus, in light of Rodriguez 27 Vazquez, Petitioner is entitled to a bond hearing before an IJ pursuant to 8 U.S.C. § 1226(a). 28 1 Finally, to the extent Petitioner claims his warrantless arrest was not statutorily 2 authorized, his request for immediate release is unconvincing. The Government presents 3 evidence that Petitioner was provided with an administrative warrant the same day of his 4 arrest. (ECF No. 13, Ex. 2.) The regulation governing warrantless arrests is 8 C.F.R. § 5 287.3. Section 287.3(d) provides that if an arrest is made without a warrant, an immigration 6 officer must, within 48 hours of arrest, determine “whether the alien will be continued in 7 custody or released on bond or recognizance and whether a notice to appear and warrant 8 of arrest . . . will be issued.” 8 C.F.R. § 287.3(d); see Cancino Castellar v. McAleenan, 388 9 F. Supp. 3d 1218, 1224 (S.D. Cal. 2019). Here, the administrative warrant was issued 10 within hours of Petitioner’s arrest. (ECF No. 13, Ex. 2.) Petitioner contends, however, that 11 his initial warrantless arrest violated 8 U.S.C. § 1357(a)(2). 12 Section 1357(a)(2) imposes two requirements: “Under the INA, an officer may 13 conduct a warrantless immigration arrest only if the officer ‘has reason to believe’ that (1) 14 ‘the alien so arrested is in the United States in violation of any . . . law or regulation[ ],’ 15 and (2) ‘is likely to escape before a warrant can be obtained for his arrest.’” A.B.D. v. 16 Wamsley, No. 6:25-CV-02014-AA, 2026 WL 178306, at *11 (D. Or. Jan. 22, 2026) 17 (alterations in original) (quoting 8 U.S.C. § 1357(a)(2)) (citing 8 C.F.R. § 287.8(c)(2)(i)– 18 (ii)) (providing that “an arrest shall be made only when the designated immigration officer 19 has reason to believe that the person to be arrested has committed an offense against the 20 United States or is an alien illegally in the United States,” and “that the person is likely to 21 escape before a warrant can be obtained” (emphasis added)). The Ninth Circuit has equated 22 Section 1357(a)(2)’s “reason to believe” with the constitutional requirement of probable 23 cause. See Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir. 1980). 24 Here, Petitioner was stopped in a vehicle at a Border Patrol checkpoint at 25 approximately 4:35 a.m. (ECF No. 13-1.) Petitioner admitted that he did not have 26 immigration documents that would allow him to live, work, or be present in the United 27 States. (Id.) Petitioner had entered the country without inspection several years beforehand. 28 (ECF No. 8-1.) And on the present record, there is no indication that Petitioner had | previously encountered immigration authorities or otherwise appeared in the immigration 2 || system. (See id.; ECF No. 13-1.) Thus, at least an argument can be made that: (1) Petitioner 3 || was in the country illegally, and (2) he was likely to escape before a warrant could be 4 || obtained. 5 These facts distinguish this case from one in which immigration authorities arrest a 6 || noncitizen who is appearing at a scheduled check-in or in Immigration Court in compliance 7 an existing directive. In those circumstances, the noncitizen’s demonstrated 8 ||compliance may call into serious question whether the officer had reason to believe the 9 ||noncitizen was likely to escape before a warrant could be obtained. See 8 U.S.C. § 10 || 1357(a)(2). 11 The Court need not, however, conclusively resolve whether Petitioner’s arrest 12 || satisfied § 1357(a)(2). Although the Government has not meaningfully addressed the claim 13 |/or articulated a factual or legal basis establishing probable cause for the statute’s 14 ||requirements, resolution of that question is unnecessary to the relief warranted here: 15 because Petitioner is detained pursuant to § 1226(a), he is entitled to a bond hearing under 16 provision. See Rodriguez Vazquez, 183 F.4th at 1173. The Court therefore GRANTS 17 || IN PART the Amended Petition insofar as it seeks a bond hearing but DENIES the request 18 || for immediate release. 19 CONCLUSION 20 Accordingly, the Court issues the following writ: 21 The Court ORDERS a bond hearing before an Immigration Judge for 9 Petitioner Juan Jose Tapia Garcia within 14 days of the date of this Order. The bond hearing shall be governed by 8 U.S.C. § 1226(a), not § 1225(b)(2). If no 23 bond hearing is held within 14 days, Petitioner is ordered released forthwith. 24 The Clerk of Court shall close the case. 25 IT IS SO ORDERED. 26 27 || DATED: September 11, 2026 ii ly A (Dipharb 28 Hon. Cynthia Bashant, Chief Judge United States District Court _& _