Flores v. Rosa et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Darwin Bladimir Tobar Flores,
Petitioner,
v.
Luis Rosa, Jr., et al.,
Respondents.
No. CV-26-02403-PHX-SHR
ORDER
Pending before the Court is Petitioner Darwin Bladimir Tobar Flores’s Amended
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 5). Magistrate Judge
Alison S. Bachus issued a Report and Recommendation (“R&R”) recommending the Court
grant the Petition in part, order Petitioner’s release, and require Respondents afford
Petitioner notice and a pre-deprivation hearing before any future re-detention. (Doc. 24 at
14–15.) No party filed objections to the R&R.
Having reviewed the record, the Court concludes additional information is
necessary before determining whether Petitioner’s present detention is lawful. The parties’
arguments implicate distinct questions concerning statutory arrest authority, the legal
significance of Petitioner’s unrevoked deferred action, and the constitutional adequacy of
the procedures afforded to him. The Court will defer ruling on the R&R and direct the
parties to supplement the record as described below.
I. STANDARD OF REVIEW
A district judge may accept, reject, or modify, in whole or in part, a magistrate
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judge’s findings and recommendations. 28 U.S.C. § 636(b)(1). The Court must conduct
de novo review of those portions of an R&R to which a party timely makes specific
objections. Id.; Fed. R. Civ. P. 72(b)(3). But where, as here, no objections are filed, de
novo review is not required. Thomas v. Arn, 474 U.S. 140, 149–50 (1985); United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The absence of objections
does not preclude the Court from reviewing the R&R and reaching a different legal
conclusion.
II. BACKGROUND
Petitioner entered the United States in April 2016. (Doc. 14-1 at 1.) He was
subsequently arrested and released from Immigration and Customs Enforcement (ICE)
custody in May 2016. (Doc. 24 at 2.) On January 17, 2026, ICE re-detained Petitioner
pursuant to an I-200 warrant and initiated removal proceedings. (Doc. 24 at 2–3; Doc. 16-
2 at 2; Doc. 16-3 at 2–3.) On February 24, 2026, Petitioner filed a habeas action in this
District, Case No. CV-26-01283-PHX-SHR (ASB). In that matter, the Court granted
Petitioner’s amended habeas petition and ordered Respondents to provide an immigration
bond-redetermination hearing within seven days or release Petitioner under the conditions
existing before his January 2026 detention. (Doc. 24 at 3.) An Immigration Judge (IJ)
held an initial custody-redetermination hearing on March 5, 2026. At Petitioner’s request,
the IJ continued the matter to permit Petitioner to submit supporting documentation. (Id.)
The IJ then held a further hearing on March 27, 2026, and denied Petitioner’s request for
release after finding Petitioner had not met his burden to establish release would not pose
a danger to persons or property. (Id.)
On April 8, 2026, Petitioner initiated the present habeas proceeding, in which he
principally argues his January 2026 re-detention was unlawful because Respondents did
not provide a pre-deprivation hearing or sufficient notice before taking him into custody.
(Doc. 5; Doc. 24 at 3–5.) Respondents opposed Petitioner’s requested relief (Doc. 16),
and, in his reply, Petitioner, for the first time, provided documents reflecting he had been
granted Special Immigrant Juvenile Status (SIJS), which conferred deferred action and
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employment authorization from May 4, 2024, through May 4, 2028 (Doc. 19 at 4–5).
Because the record was unclear as to whether Petitioner actually had SIJS-based deferred
action and what effect it had, the magistrate judge ordered Respondents to file
supplemental briefing. (Doc. 21.) In their supplemental brief, Respondents confirmed
United States Citizenship and Immigration Services (USCIS) had approved Petitioner’s I-
360 Special Immigrant Juvenile petition and there is no evidence USCIS had terminated
Petitioner’s deferred-action status. (Doc. 23 at 1–2; Doc. 23-1.) Respondents nevertheless
argued deferred action did not prohibit detention under § 1226(a) and asserted Petitioner
could seek another bond hearing only upon a material change in circumstances or appeal
to the Board of Immigration Appeals (BIA). (Doc. 23.) During the pendency of this habeas
proceeding, an IJ found Petitioner inadmissible, denied his applications for asylum,
withholding of removal, and Convention Against Torture protection, and ordered him
removed to El Salvador. (Doc. 16-6 at 2.) Petitioner appealed the IJ’s removal order and
that appeal remains pending. (Doc. 24 at 4.)
The magistrate judge issued an R&R concluding Petitioner’s decade-long release,
active SIJS, deferred action, and work authorization created a protected liberty interest in
remaining free from detention. The magistrate judge applied the factors set forth in
Mathews v. Eldridge, 424 U.S. 319 (1976), and found the factors favored Petitioner and
his re-detention without prior notice and an opportunity to be heard violated due process.
The R&R recommends the Court order Petitioner’s release and require Respondents afford
Petitioner notice and a pre-deprivation hearing before any future re-detention. (Doc. 24 at
15.)
III. DISCUSSION
The circumstances present in this case require the Court to consider whether—in
light of Petitioner’s SIJS and deferred action—ICE possessed authority to revoke
Petitioner’s prior release, whether that authority was lawfully exercised, and what process
is required in connection with renewed custody.
. . . .
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A. Statutory Authority and Revocation of Prior Release
The Court must first determine the legal basis of Petitioner’s 2016 release from
immigration custody. Petitioner characterizes his release as having occurred pursuant to
an order of supervision (OSUP), whereas Respondents maintain he was released on his
own recognizance. (Doc. 24 at 2.) An OSUP ordinarily concerns a noncitizen who has
already been ordered removed but whose removal cannot be effectuated during the removal
period. See Singh v. Unknown Party, No. CV-26-01685-PHX-DWL (JFM), 2026 WL
1839137, at *1 (D. Ariz. June 26, 2026). The R&R noted Petitioner had no final order of
removal in 2016 and submitted no documentation establishing release pursuant to an
OSUP. It therefore “proceed[ed] on the assumption that Petitioner was released on his own
recognizance” under § 1226(a). (Doc. 24 at 2 n.3.)
The Court declines to adopt that assumption on the present record. Because the
legal basis of the 2016 release bears directly on the authority and procedures applicable to
renewed custody, that issue must be clarified before the Court determines whether
Respondents complied with the governing statutory and regulatory framework.
Respondents shall therefore produce the available records concerning Petitioner’s 2016
arrest, custody determination, and release, including any arrest warrant, release order, and
conditions of release. If those records cannot be produced, Respondents shall show cause
why they are unavailable and identify the evidence supporting their position concerning
the legal basis of Petitioner’s release. Respondents shall also identify the statutory and
regulatory authority on which they rely to justify his January 2026 re-detention.
If the supplemented record establishes Petitioner was released under § 1226(a), the
Court must then determine whether Respondents lawfully exercised the authority
applicable to revocation of that release in light of Petitioner’s SIJS and deferred action.
Section 1226(a) authorizes arrest and detention pending a decision whether a noncitizen is
to be removed and permits release on bond or conditional parole. Section 1226(b)
provides: “The Attorney General at any time may revoke a bond or parole authorized under
subsection (a), rearrest the alien under the original warrant, and detain the alien.” The
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implementing regulation likewise provides an earlier release may be revoked in the
discretion of specified officials, “in which event” the noncitizen may be returned to
physical custody. 8 C.F.R. § 236.1(c)(9). Those provisions establish discretionary
authority to revoke release; they do not, standing alone, establish an authorized official
exercised that discretion in Petitioner’s case.
While revocation does not necessarily require a particular form or a separate
hearing, if Respondents rely on § 1226(b) and 8 C.F.R. § 236.1(c)(9), they must identify
the asserted revocation decision, the authorized official who made it, when it occurred, and
the basis for that decision. If Respondents contend a different framework governed
Petitioner’s release or renewed custody, they must identify that framework and explain
how its requirements were satisfied.
The supplemented record must also clarify the warrant history. If § 1226(b) applies,
its reference to re-arrest “under the original warrant” requires consideration. The Court
will not assume either that issuance of a new I-200 warrant necessarily invalidates re-
detention or that a new warrant automatically satisfies the requirements governing
revocation of an existing release. See Jorge E. I. v. Blanche, No. 26-3383 (JRT/SGE),
2026 WL 2295313 (D. Minn. Aug. 10, 2026) (granting habeas relief on statutory and
regulatory grounds, without reaching constitutional claims, where a petitioner previously
released on an immigration judge’s bond was re-arrested under a new I-200 warrant and
the record did not establish his prior release had been revoked). Respondents shall identify
the warrant or other asserted authority supporting the January 2026 arrest and explain its
relationship to Petitioner’s prior custody and release.
Finally, the statutory and constitutional inquiries are related but distinct. A
constitutionally adequate custody hearing does not necessarily establish compliance with
the statutory prerequisites for renewed custody. Conversely, a defect in the re-arrest does
not necessarily determine the legality of all subsequent detention. The Court therefore
reserves its determination of statutory compliance pending supplementation of the record
and separately addresses below the constitutional questions raised by Petitioner’s re-
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detention.
B. SIJS and Active Deferred Action
USCIS approved Petitioner’s SIJS petition and granted him a defined period of
deferred action that, according to Respondents, remains unrevoked. The Court must
determine what effect those benefits have on the authority and procedures governing
Petitioner’s renewed custody. As explained above, however, the statutory basis of
Petitioner’s prior release and January 2026 re-detention remains unresolved. The Court
therefore will not presume § 1226 governs that inquiry.
SIJS “is a form of parole that confers eligibility for adjustment to [lawful permanent
resident] status to noncitizen minors who have been abused, abandoned, or neglected.”
Murillo-Chavez v. Bondi, 128 F.4th 1076, 1085 (9th Cir. 2025). Additionally, the deferred
action status “confers removal protections to certain young noncitizens.” Del Valle
Castillo v. Wamsley, No. 2:25-cv-02054-TMC, 2025 WL 3524932, at *6 (W.D. Wash.
Nov. 26, 2025) (citing 8 U.S.C. §§ 1101(a)(27)(J), 1227(c)). Under 8 U.S.C. § 1255(h)(1),
an approved SIJS beneficiary is deemed paroled “for purposes of subsection (a),” which
governs adjustment of status. That provision does not, by its terms, establish a categorical
exemption from detention under § 1226. The Court must nevertheless consider Petitioner’s
SIJS and unrevoked grant of deferred action in assessing the legal basis and individualized
justification for renewed custody. See Garcia Lanza v. Noem, 822 F. Supp. 3d 326, 334–
36 (E.D.N.Y. 2026) (considering an SIJS beneficiary’s active deferred action in assessing
the lawfulness of his arrest and detention and the process required in circumstances
involving a warrantless mistaken-identity arrest and subsequent revocation of deferred
action and employment authorization).
The parties’ submissions do not adequately address that issue. Respondents assert
deferred action does not alter their authority under § 1226(b), but they have not sufficiently
explained how that authority, if applicable, operates in conjunction with Petitioner’s still-
effective deferred-action grant. Instead, Respondents merely state deferred action
“prevents removal itself” but “does not appear to have the same limitations on detention
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during removal proceedings.” (Doc. 23 at 2.) The Court seeks clarification as to the legal
basis for detaining Petitioner pending removal proceedings while his unrevoked deferred
action precludes removal. Further, the present record does not establish whether ICE
officials knew of or considered Petitioner’s SIJS when taking him into custody, or whether
it was presented to and considered by the IJ during the subsequent custody proceedings.
Petitioner, in turn, has not established his SIJS or deferred action categorically precludes
renewed detention. The Court reserves those questions pending clarification of the
governing statutory framework and supplementation of the record.
Respondents shall address the effect of Petitioner’s SIJS and unrevoked deferred
action under the statutory framework they identify as governing his re-detention. Their
submission shall explain: whether those benefits affect Respondents’ authority to revoke
Petitioner’s prior release or return him to custody and, if so, how; whether they bear on the
factual or legal justification for renewed detention or the procedures required before or
after re-detention; whether ICE officials knew of Petitioner’s SIJS and deferred action at
the time of the January 2026 arrest and whether those benefits were considered in any
decision to revoke his release or detain him; whether those benefits were presented to and
considered by the IJ during the March 2026 custody proceedings, and what significance
the resulting custody determination has for the legality of continued detention.
Respondents shall identify the supporting records or provide a declaration addressing any
matters not established by the existing record. Petitioner may respond and identify the
statutory, regulatory, or constitutional grounds on which he contends his SIJS and active
deferred action limit Respondents’ authority or require additional procedural protections.
C. Procedural Due Process
Petitioner principally argues his January 2026 re-detention, following
approximately a decade of release, violated due process because Respondents did not
provide adequate notice or an opportunity to be heard before taking him into custody.
(Doc. 5.) His intervening grant of SIJS and deferred action presents an additional question
concerning the procedures required under the Due Process Clause. The Court must
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evaluate that claim separately from whether Respondents complied with the statutory and
regulatory requirements governing renewed custody.
In Singh, the court applied the framework set forth in Mathews and concluded due
process did not require a pre-deprivation hearing before re-detention of a noncitizen
previously released under § 1226(a). 2026 WL 1839137, at *2–6. That reasoning informs
the analysis if the supplemented record establishes § 1226 governed Petitioner’s release
and renewed custody. It does not, however, resolve whether that framework applies here,
whether Respondents lawfully exercised the applicable revocation authority, or what
significance Petitioner’s unrevoked SIJS and deferred action has for the process due in his
circumstances.
The present record does not adequately establish whether the March custody
proceedings addressed Petitioner’s SIJS and deferred action or the asserted basis for
terminating his prior release. If the supplemented record establishes a statutory or
procedural defect in Petitioner’s re-detention, the parties shall also address whether the
subsequent custody determination independently supports continued detention and what
remedy follows from the established violation. The Court reserves its conclusions pending
those submissions.
IV. CONCLUSION
IT IS ORDERED the Court DEFERS ruling on the R&R (Doc. 24) and the
Amended Petition (Doc. 5).
IT IS FURTHER ORDERED Respondents shall file the memorandum and
supplements to the record described above on or before Thursday, October 29, 2026.
IT IS FURTHER ORDERED Petitioner may file a response within ten (10) days
after service of Respondents’ submission.
IT IS FURTHER ORDERED Petitioner may file a renewed Motion to Appoint
Counsel within ten (10) days of the date this Order is filed. Any renewed motion shall
include a completed CJA 23 Form (Financial Affidavit). The Clerk of Court shall send
Petitioner a copy of that form. The completed affidavit shall be filed under seal.
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IT IS FURTHER ORDERED, absent a court-ordered extension, if Respondents
fail to comply with the requirements set forth in this Order by Thursday, October 29,
2026, Petitioner shall be immediately released and Respondents must provide notice of
compliance by Monday, November 2, 2026.
Dated this 9th day of October, 2026.
Case 2:26-cv-02403-SHR Document 27 Filed 10/09/26 Page 9 of 10

FINANCIAL AFFIDAVIT
IN SUPPORT OF REQUEST FOR ATTORNEY, EXPERT, OR OTHER SERVICES WITHOUT PAYMENT OF FEE
ANSWERS TO QUESTIONS REGARDING ABILITY TO PAY
INCOME
&
ASSETS
EMPLOYMENT
Do you have a job? � Yes � No
IF YES, how much do you earn per month? _______________________
Will you still have a job after this arrest? � Yes � No � Unknown
PROPERTY
Do you own any of the following, and if so, what is it worth?
APPROXIMATE VALUE DESCRIPTION &AMOUNT OWED
Home $_____________________ _________________________________
Car/Truck/Vehicle$_____________________ _________________________________
Boat $_____________________ _________________________________
Stocks/bonds $_____________________ _________________________________
Other property $_____________________ _________________________________
CASH
&
BANK
ACCOUNTS
Do you have any cash, or money in savings or checking accounts? � Yes � No
IF YES, give the total approximate amount after monthly expenses $_____________
CJA-23
(Rev 3/21)
IN THE UNITED STATES : DISTRICT COURT : COURT OF APPEALS : OTHER (Specify Below)
IN THE CASE OF LOCATION
NUMBER
DOCKET NUMBERS
Magistrate Judge
District Court
Court of Appeals
V.
FOR
AT
PERSON REPRESENTED (Show your full name)
CHARGE/OFFENSE (Describe if applicable & check box→) : Felony
: Misdemeanor
1 : Defendant - Adult
2 : Defendant - Juvenile
3 : Appellant
4 : Probation Violator
5 : Supervised Release Violator
6 : Habeas Petitioner
7 : 2255 Petitioner
8 : Material Witness
9 : Other (Specify) __________________________________
OBLIGATIONS,
EXPENSES, &
DEBTS
How many people do you financially support? ______
BILLS & DEBTS MONTHLY EXPENSE TOTAL DEBT
Housing $_________________ $_________________
Groceries $_________________ $_________________
Medical expenses $_________________ $_________________
Utilities $_________________ $_________________
Credit cards $_________________ $_________________
Car/Truck/Vehicle $_________________ $_________________
Childcare $_________________ $_________________
Child support $_________________ $_________________
Insurance $_________________ $_________________
Loans $_________________ $_________________
Fines $_________________ $_________________
Other $_________________ $_________________
I certify under penalty of perjury that the foregoing is true and correct.
_________________________________________________________ ________________
SIGNATURE OF DEFENDANT Date
(OR PERSON SEEKING REPRESENTATION)
Case 2:26-cv-02403-SHR Document 27 Filed 10/09/26 Page 10 of 10