Montalvo v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HILARIO SANCHEZ MONTALVO,
Petitioner,
v.
KRISTI NOEM, Secretary of the
Department of Homeland Security,
PAMELA JO BONDI, Attorney General,
TODD M. LYONS, Acting Director,
Immigration and Custom Enforcement,
JESUS ROCHA, Acting Field Office
Director, San Diego Field Office,
CHRISTOPHER LAROSE, Warden at
Otay Mesa Detention Center,
Respondents.
Case No.: 26cv0199-GPC(SBC)
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
AND DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER AS MOOT
Before the Court is Petitioner’s petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 and motion for temporary restraining order seeking to be released from
ICE detention. (Dkt. No. 2.) Respondents filed a response to the petition and the motion
for temporary restraining order on January 20, 2026. (Dkt. No. 5.) Petitioner filed a
traverse on January 21, 2026. (Dkt. No. 7.) Based on the reasoning below, the Court
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GRANTS the petition for writ of habeas corpus and DENIES the motion for temporary
restraining order as MOOT.
Background
Petitioner Hilario Sanchez Montalvo (“Petitioner”) was born in Mexico and
unlawfully came to the United States on June 1, 2004. (Dkt. No. 1-2, Pet., Ex. A,
Montalvo Decl. ¶ 1; Dkt. No. 5, Barroga Decl. ¶¶ 3, 4.) Around December 8, 2020,
Petitioner was convicted of driving while under the influence of alcohol in violation
California Penal Code section 23152(b) and was sentenced to 1 day in jail.1 (Dkt. No. 5,
Barroga Decl. ¶ 5.) He was also arrested for violating a court order which resulted in a
conviction for “intent to annoy/harass: rep calls” under California Penal Code section
653m(b) on June 24, 2021. (Id.) He was sentenced to probation and ordered to attend
domestic violence classes. (Id.)
On December 9, 2020, Petitioner was apprehended by Enforcement and Removal
Operations (“ERO”) following issuance of a Form I-200, Warrant for Arrest of Alien and
placed into removal proceedings under Immigration and Nationality Act (INA) § 240, 8
U.S.C. § 1229a, via the filing of a Notice to Appear (“NTA”). (Id. ¶¶ 6, 7.) The NTA
charged Petitioner with inadmissibility under INA §§ 212(a)(6)(A)(i) for being present
without having been admitted or paroled. (Id. ¶ 7.) On March 31, 2021, Petitioner was
released from custody upon posting an immigration bond and enrolled in the Alternative
to Detention (“ATD”) program. (Id. ¶ 8.) On January 26, 2023, an Immigration Judge
ordered Petitioner removed to Mexico but granted withholding of removal to Mexico
under INA § 241(b)(3) because his brothers and ten other members of his family were
killed. (Id. ¶ 9; Dkt. No. 1-2, Pet., Ex. A, Montalvo Decl. ¶ 2.) Both Petitioner and DHS
waived appeal, and the decision became final on January 26, 2023. (Dkt. No. 5, Barroga
Decl. ¶ 9.)
1 The Form I-213 report states Petitioner was convicted on April 22, 2021 for driving under the
influence. (Dkt. No. 5, Ex. 3 at 20.)
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On February 7, 2023, ERO terminated Petitioner’s participation in ATD but his
immigration bond remained active, and he was ordered to report annually to ERO. (Id. ¶
10.) When Petitioner failed to report to ERO as instructed on September 9, 2025, on
September 18, 2025 ERO mailed Petitioner correspondence ordering him to report on
October 20, 2025 for removal. (Id. ¶ 11.) On October 20, 2025, Petitioner reported to
ERO and was detained to effectuate removal. (Id. ¶ 12.) He was provided with a Notice
of Revocation of Release and his immigration bond was canceled. (Id.) Petitioner asserts
that when he reported in on October 20, 2025, ICE took him into custody and said they
were going to deport him. (Dkt. No. 1-2, Pet., Ex. A, Montalvo Decl. ¶ 6.) According to
Petitioner, ICE did not tell him why they were revoking their decision to release him nor
did they provide him an informal interview or a chance to contest his detention. (Id.)
Respondents state that ICE is working expeditiously as possible to identify a third
country to which Petitioner may be removed. (Dkt. No. 5, Barroga Decl. ¶ 13.) On
October 28, 2025, and November 7, 2025, the San Diego ERO requested assistance from
ERO’s Removal and International Operations (RIO) to identify a third country where
Petitioner may be removed. (Id.) At this time, ICE is still in the process of identifying
third countries that may be willing to accept Petitioner for removal. (Id. ¶ 14.)
Petitioner challenges the legality of his immigration detention and seeks to be
released from detention arguing that (1) that his revocation of release violated 8 C.F.R. §
241.13(i)(3) for failing to provide notice and reasons for his detention and for failing to
conduct an informal interview; (2) that his detention is unlawful because the government
cannot show that there is a “significant likelihood of removal in the reasonably
foreseeable future” as contemplated by Zadvydas v. Davis, 533 U.S. 678 (2001) and 8
U.S.C. § 1231. (Dkt. No. 1, Pet. at 5-11.2)
/ / /
2 Page numbers are based on the CM/ECF pagination.
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Discussion
A. Legal Standard
Under 28 U.S.C. § 2241, a writ of habeas corpus may be granted to any petitioner
who demonstrates that she is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3); see Rasul v. Bush, 542 U.S. 466,
473 (2004). The writ of habeas corpus is “available to every individual detained within
the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004).
As explained by the Supreme Court, “the essence of habeas corpus is an attack by
a person in custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475,
484 (1973); Pinson v. Carvajal, 69 F.4th 1059, 1067 (9th Cir. 2023) (habeas actions
limited to challenges of the legality or duration of confinement). A prisoner bears the
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws
or treaties of the United States.” See Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
B. Analysis
Petitioner argues that ICE unlawfully revoked his release (1) in violation of 8
C.F.R. § 241.13(i)(2),3 and (2) in violation of Zadvydas and 8 U.S.C. § 1231. (Dkt. No. 1
at 5-7; 7-11.) Respondents, by not disputing Petitioner’s argument, concede they failed
to follow their own regulations; instead, they argue that even if they failed to follow
regulations, Petitioner has not shown he was prejudiced or that his constitutional rights
were violated. (Dkt No. 5 at 5-6.) As to Zadvydas, they argue that it is premature to
conclude “there is no significant likelihood of removal in the reasonably foreseeable
future before permitting ICE an opportunity to complete the diligent efforts it has taken to
effect Petitioner’s removal.” (Id. at 5.)
3 Petitioner also raises a violation of 8 C.F.R. § 241.4(l) which are similar to the provisions of 8 C.F.R. §
241.13(i) concerning revocation of release.
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It is recognized that government agencies are required to follow their own
regulations. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954);
United States v. Ramos, 623 F.3d 672, 683 (9th Cir. 2010) (“It is a well-known maxim
that agencies must comply with their own regulations.”) (quoting Ramon–Sepulveda v.
INS, 743 F.2d 1307, 1310 (9th Cir. 1984)).
“[T]here are . . . two types of regulations: (1) those that protect fundamental due
process rights, and (2) those that do not.” United States v. Raya-Vaca, 771 F.3d 1195,
1205 (9th Cir. 2014), abrogated on other grounds by Dep't of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103 (2020). While a violation of the second type of regulation
implicates due process only when the failure to comply with the regulation causes
prejudice, a violation of the first type of regulation implicates due process concerns
without a prejudice inquiry. Id. (where “the regulation violation . . . constituted a denial
of [the defendant's] right to notice and an opportunity to respond, no showing of
prejudice [was] necessary to establish a due process violation”). “There can be little
argument that ICE's requirement that noncitizens be afforded an informal interview . . .
derives from the fundamental constitutional guarantee of due process.” Ceesay v.
Kurzdofer, 781 F. Supp. 3d 137, 165 n.26 (W.D.N.Y. 2025) (citing Mathews v. Eldridge,
424 U.S. 319, 332 (1976) (“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” (citation and
internal quotation marks omitted)). Therefore, as the Court finds below, Respondents’
violation of their regulations requiring notice and an opportunity to be heard “implicates
due process concerns even without a prejudice inquiry.” See Raya-Vaca, 771 F.3d at
1205.
District courts have also held that where an immigration “regulation is
promulgated to protect a fundamental right derived from the Constitution or a federal
statute,” like the opportunity to be heard, “and [ICE] fails to adhere to it, the challenged
[action] is invalid . . . .” Rombot v. Souza, 296 F. Supp. 3d 383, 388 (D. Mass. 2017)
(quoting Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993) (quotation marks omitted));
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see also Rokhfirooz v. LaRose, — F. Supp. 3d —, 2025 WL 2646165, at *4 (S.D. Cal.
Sept. 15, 2025); Truong v. Noem, No. 25-cv-2597-JES-MMP, 2025 WL 2988357, at *6
(S.D. Cal. Oct. 22, 2025) (collecting cases) (courts “have found that when ICE fails to
follow its own regulations in revoking release, the detention is unlawful, and the
petitioner's release must be ordered.”).
8 U.S.C. § 1231(a) governs the detention of individuals with a final order of
removal and provides that a noncitizen must be removed within 90 days. 8 U.S.C. §
1231(a)(1)(A). Once the removal period passes and the “alien does not leave or is not
removed . . . the alien, pending removal, shall be subject to supervision under regulations
prescribed by the Attorney General.” Id. § 1231(a)(3). Section 1231(a)(6) “authorizes
further detention if the Government fails to remove the alien during those 90 days.”
Zadvydas, 533 U.S. at 682. Detention however, is limited to “a period reasonably
necessary to bring about the alien’s removal from the United States” and “does not
permit indefinite detention.” Id. at 689. The Supreme Court has held that a six-month
period of post-removal detention constitutes a “presumptively reasonable period of
detention.” Id. at 701. Release is not mandated after the expiration of the six-month
period unless “there is no significant likelihood of removal in the reasonably foreseeable
future.” Id.
Once ICE releases a non-citizen on supervised release, “ICE's ability to re-detain
that noncitizen is constrained by its own regulations.” Dipraseuth v. Noem, Case No.:
25-CV-3471 JLS (BJW), 2025 WL 3677674, at *2 (S.D. Cal. Dec. 18, 2025) (quoting
Nouri v. Herrera, SA CV 25-1905-JFW(DBT), 2025 U.S. Dist. LEXIS 171809, at *11
(C.D. Cal. Sept. 3, 2025) (internal citation omitted)). 8 C.F.R. § 241.13 governs the
release and revocation of release for noncitizens subject to a final removal order who are
indefinitely detained.4 As to revocation of release, 8 C.F.R. § 241.13(i)(2) provides that a
4 8 C.F.R. § 241.13 codified how Zadvydas should apply. See Continued Detention of Aliens Subject to
Final Orders of Removal, 66 Fed. Reg. 56967 (Nov. 14, 2001).
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noncitizen’s supervised release may be revoked and may be returned to custody “if, on
account of changed circumstances, the Service determines that there is a significant
likelihood that the alien may be removed in the reasonably foreseeable future.” 8 C.F.R.
§ 241.13(i)(2); Sun v. Noem, No. 3:25-cv-02433-CAB-MMP, 2025 WL 2800037, at *2
(S.D. Cal. Sept. 30, 2025) (“ICE's own regulations thus place the burden on ICE to show
changed circumstances that make removal significantly likely in the reasonably
foreseeable future.”). The procedures mandated by the regulations provide:
(3) Revocation procedures. Upon revocation, [1] the alien will be notified of
the reasons for revocation of his or her release. [2] The Service will conduct
an initial informal interview promptly after his or her return to Service
custody to afford the alien an opportunity to respond to the reasons for
revocation stated in the notification. [3] The alien may submit any evidence
or information that he or she believes shows there is no significant
likelihood he or she be removed in the reasonably foreseeable future, or that
he or she has not violated the order of supervision. [4] The revocation
custody review will include an evaluation of any contested facts relevant to
the revocation and a determination whether the facts as determined warrant
revocation and further denial of release.
8 C.F.R. § 241.13(i)(3).
Here, Petitioner was ordered removed on January 26, 2023 but had been released
on bond and enrolled in the ATD program since March 31, 2021, and presumably
remained released because removal was not reasonably foreseeable at that time. Even
though his participation in the ATD was terminated on February 7, 2023, he remained
released on an immigration bond.
According to Petitioner and not disputed by Respondents, the presumptive six-
month period expired in July 2023 after the order of removal became final on January 26,
2023. Therefore, the applicable provision for the revocation of Petitioner’s release is 8
C.F.R. § 241.13(i). The government declares that Petitioner was provided with a Notice
of Revocation of Release, (Dkt. No. 5, Barroga Decl. ¶ 12), but has failed to attached a
copy of it or explain the contents of the Notice. Petitioner asserts that when he was
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detained, ICE did not tell him the reason for the revocation of his release. (Dkt. No. 1-2,
Montalvo Decl. ¶ 6.) Therefore, Respondents have failed to comply with § 241.13(i)(3)
by failing to notify Petitioner the reasons for the revocation of his release.
Next, it is not disputed that Petitioner was not provided with the mandated
informal interview promptly after being detained to allow him an opportunity to respond
to the reasons for revocation and to submit evidence showing there is no significant
likelihood that he will be removed in the reasonably foreseeable future. See 8 C.F.R.
241.13(i)(3). Accordingly, the Court concludes that Respondents violated their own
regulations, 8 C.F.R. § 241.13(i)(3) by failing to show that Petitioner received proper
notice of the revocation, and an opportunity to be heard.
Next, Petitioner argues that Respondents have not shown a change in
circumstances such that there is now a significant likelihood that Petitioner will be
removed in the reasonably foreseeable future. Respondents argue that such an argument
is premature while they are currently diligently procuring his removal to a third country.
Under 8 C.F.R. § 241.13(i)(2), noncitizen’s supervised release may be revoked and
may be returned to custody “if, on account of changed circumstances, the Service
determines that there is a significant likelihood that the alien may be removed in the
reasonably foreseeable future.” 5 8 C.F.R. § 241.13(i)(2).
Respondents merely state that they made two attempts, on October 28, 2025, and
November 7, 2025, asking assistance from ERO’s Removal and International Operations
to identify a third country where Petitioner may be removed and that ICE is still in the
process of identifying third countries that may be willing to accept Petitioner for removal.
These actions only show that Respondents are in the initial stages of seeking to remove
Petitioner to a third country. Respondents have failed to make a showing that Petitioner’s
5 “Zadvydas presumption of reasonable detention does not apply to re-detention; instead, the government
bears the burden that the petitioner “may be removed in the reasonably foreseeable future.” Kazemi v.
Casey, Case No.: 25cv1926 DMS (DEB), 2025 WL 3179746, at *2 (S.D. Cal. Oct. 7, 2025).
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removal is likely in the reasonably foreseeable future. For example, they have not
identified a third country willing to take him, nor provided any data or information as to
how long it normally takes ERO to identify a third country willing to accept a foreign
citizen. Then once a third country is identified, Respondents do not explain the process
and length of the process for a third country to accept a foreign citizen, and once
accepted, Respondents do not explain the process and length of time for actual removal.
As such, Respondents have not demonstrated that there is a significant likelihood that
Petitioner may be removed in the reasonably foreseeable future. See 8 C.F.R.
241.13(i)(2); see Baltodano v. Bondi, Case No. C25-1958-RSL, 2025 WL 3484769, at *5
(W.D. Wash. Dec. 4, 2025) (government failed to provide “good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future” because
they “have offered no evidence that travel documents for petitioner have even been
requested from any third country.”); Hoac v. Becerra, No. 2:25-cv-01740-DC-JD, 2025
WL 1993771, at *4 (E.D. Cal. July 16, 2025) (“fact that Respondents intend to complete
a travel document request for Petitioner does not make it significantly likely he will be
removed in the foreseeable future.”).
Thus, the Court GRANTS the petition for writ of habeas corpus and Petitioner
shall be released subject to his previous bond conditions. See Constantinovici v. Bondi, --
F. Supp. 3d --, 2025 WL 2898985, at *6 (S.D. Cal. Oct. 10, 2025) (citing Rokhfirooz v.
Larose, Case No.: 25-cv-2053-RSH-VET, 2025 WL 2646165, at *4 (S.D. Cal. Sept. 15,
2025) (granting a habeas petition and ordering the petitioner's release where the
Government failed to comply with § 241.13); Hoac v. Becerra, No. 2:25-cv-01740-DC-
JDP, 2025 WL 1993771, at *4 (E.D. Cal. July 16, 2025) (finding petitioner was likely to
succeed on his unlawful re-detention claim because “there is no indication that an
informal interview was provided”).
Conclusion
Based on the above, the Court GRANTS the petition for writ of habeas corpus and
DENIES the motion for temporary restraining order as MOOT. The Government shall
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immediately release Petitioner from custody on the October 20, 2025 revocation of
release and arrest. Petitioner shall comply with all conditions that were in effect before
his October 20, 2025 re-detainment. The parties must also file a joint status report to
confirm that Petitioner has been released on or before January 26, 2026. The Clerk of
Court shall close the case.
IT IS SO ORDERED.
Dated: January 22, 2026
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