Utuy v. Noem et al

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26-cv-1007-AGS-BLM
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Osber Gabriel IZAAC UTUY,
Petitioner,
v.
Kristi NOEM, et al.,
Respondents.
Case No.: 26-cv-1007-AGS-BLM
ORDER REQUIRING RETURN
Petitioner Osber Izaac Utuy seeks a writ of habeas corpus under 28 U.S.C. § 2241
to free him from immigration detention. At this stage, he need only make out a claim that
is sufficiently cognizable to warrant an answer or return. See Rules Governing Section
2254 Cases in the United States District Courts, Rule 4 (authorizing summary dismissal “if
it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief”); id., Rule 1(b) (permitting application of Rules Governing Section 2254
Cases to any “habeas corpus petition”). In this context, the relevant federal rules permit
“summary dismissal of claims that are clearly not cognizable.” Neiss v. Bludworth,
114 F.4th 1038, 1045 (9th Cir. 2024) (cleaned up). But “as long as a petition has any
potential merit, it is not so frivolous or incredible as to justify summary dismissal[.]” Id.
In 2024, “before the age of 18 and without parental supervision,” Izaac Utuy
“entered the United States.” (ECF 4, at 2.) He later applied for protection under the
“Trafficking Victims Protection Reauthorization Act” and for “Special Immigrant Juvenile
Status.” (Id.) Then, on “January 29, 2026,” he “was arrested” by Immigration and Customs
Enforcement as “he was driving through” a checkpoint while “visiting friends.” (Id.) He
now challenges the government’s decision to subject him to “mandatory detention” under
“8 U.S.C. § 1225(b)(2)(A)” as an “arriving alien[].” (Id. at 3.) He asserts his case is instead
governed by “§ 1226,” which authorizes release on bond or conditional parole. (Id. at 1.)
This challenge merits a response. The two Courts of Appeals to address this question
disagreed about how to interpret the issue. Compare Castañon-Nava v. United States Dep’t
Case 3:26-cv-01007-AGS-BLM Document 7 Filed 02/19/26 PageID.<pageID> Page
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26-cv-1007-AGS-BLM
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of Homeland Sec., 161 F.4th 1048, 1060, 1062 (7th Cir. 2025) (concluding “on this
preliminary [motion-to-stay] record” that plaintiffs who are “unlawfully already in the
United States” are not “subject to mandatory detention under § 1225(b)(2)(A)”), with
Buenrostro-Mendez v. Bondi, No. 25-20496, __ F.4th ___, 2026 WL 323330, at *1
(5th Cir. Feb. 6, 2026) (holding that, under § 1225(b)(2)(A), petitioners who entered the
United States “illegally many years ago” must “be detained” without a bond hearing). But
most petitioners have nonetheless obtained habeas relief in functionally identical cases.
See, e.g., Barco Mercado v. Francis, ___ F. Supp. 3d. ___, No. 25-cv-6582 (LAK),
2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 2025) (noting that, in “350” of the “362”
opinions to address this issue, the petitioners “prevailed, either on a preliminary or final
basis,” and these cases were “decided by over 160 different judges sitting in about fifty
different courts”). And a district court recently “vacate[d]” the Board of Immigration
Appeals decision that respondents have regularly relied on to mandatorily detain those in
Singh’s position, holding that the BIA decision was “contrary to law” under the
Administrative Procedure Act. Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM,
__ F. Supp. 3d __, 2026 WL 468284, at *12 (C.D. Cal. Feb. 18, 2026).
In addition, respondents have routinely conceded these claims when brought by
those—like petitioner—who seem to be members of the Bond Eligible Class certified in
that same case. See Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM, 2025 WL
3713987, at *32 (C.D. Cal. Dec. 18, 2025). So, by Monday, February 23, 2026, the
government is ordered to file a brief stating whether it: (1) agrees petitioner is detained
under 8 U.S.C. § 1226 and (2) intends to concede petitioner’s right to a bond hearing under
that authority. If respondents do not concede, they must answer the petition by February 26,
2026.
Dated: February 19, 2026
___________________________
Hon. Andrew G. Schopler
United States District Judge
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