Penagos-Alvarez v. LaRose et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JIMMY JOSE PENAGOS-ALVAREZ,
Petitioner,
v.
CHRISTOPHER LAROSE, Senior
Warden, Otay Mesa Detention Center, et
al.,
Respondents.
Case No.: 3:26-cv-00865-RBM-MSB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
[Doc. 1]
On February 11, 2026, Petitioner Jimmy Jose Penagos-Alvarez (“Petitioner”) filed
a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2241. (Doc. 1.)
Petitioner claims he is being detained in violation of the Immigration and Nationality Act
and the Fifth Amendment’s Due Process Clause. (Id. ¶¶ 41–48.) For the reasons set forth
below, the Petition is GRANTED.
I. 	BACKGROUND
Petitioner, a national of Venezuela, entered the United States without inspection on
or about November 7, 2021. 	(Doc. 1 ¶ 1.) 	“On November 10, 2021, DHS released
Petitioner from custody on an Order of Release on Recognizance (Form I-220A), without
conducting a credible fear interview.” 	(Id.; see Doc. 1-2 at 2.) 	“On February 16, 2022,
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DHS issued a Notice to Appear placing Petitioner in removal proceedings under INA §
240.” (Doc. 1 ¶ 2; see Doc. 1-3 at 2.) On January 28, 2026, Petitioner was arrested and
detained by United States Immigration and Customs Enforcement (“ICE”) officers. (Doc.
1 ¶ 28.) “Petitioner remains detained at the Otay Mesa Detention Center without having
received an individualized custody hearing.” (Id. ¶ 39.)
On February 11, 2026, Petitioner commenced this action by filing the instant
Petition. (Doc. 1.) The Court issued an Order to Show Cause and set a briefing schedule
on February 13, 2026. (Doc. 2.) On February 20, 2026, Respondents filed a Response to
the Petition. (Doc. 3.) Petitioner filed a Traverse (“Reply”) that same day. (Doc. 4.)
II. 	LEGAL STANDARD
A writ of habeas corpus is “available to every individual detained within the United
States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2).
“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). “Writs of habeas corpus may
be granted by the Supreme Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” Id. § 2241(c)(3).
III. 	DISCUSSION
“It is [Respondents’] position that Petitioner is subject to mandatory detention under
§ 1225(b), because Petitioner was present in the United States without being admitted or
paroled.” (Doc. 3 at 2.) In support of its position, Respondents attempt to incorporate by
reference arguments regarding the government’s authority for mandatory detention under
§ 1225(b) made in similar cases. (See id. at 2–3 & n.2.) 1 Respondents, however, do not
1 “Generally, courts do not allow incorporation by reference of arguments or ‘substantive
materials’ not contained within the relevant motions’ briefs.” 	Flores v. Bennett, 635 F.
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substantively address Petitioner’s due process claims. 2
This Court has granted several habeas petitions filed by similarly situated petitioners
who were re-detained several years after having been released pursuant to an Order of
Release on Own Recognizance. 	In those cases, the Court: (1) rejected Respondents’
argument that similarly situated petitioners are jurisdictionally barred from bringing his
claims under 8 U.S.C. § 1252(g) and § 1252(b)(9); and (2) held that such petitioners are
“subject to the discretionary detention procedures under 8 U.S.C. § 1226 and that [their]
detention without a bond hearing violates the Due Process Clause.” Faizyan v. Casey, Case
No.: 3:25-cv-02884-RBM-JLB, 2025 WL 3208844, at *2 (S.D. Cal. Nov. 17, 2025); A.S.
v. LaRose, Case No. 25-cv-02876-RBM-VET, ECF No. 9 (S.D. Cal. Nov. 19, 2025); see
also Xie v. LaRose, Case No.: 3:25-cv-03649-RBM-MSB, 2026 WL 92066, at *2 (S.D.
Cal. Jan. 13, 2026) (rejecting respondents’ argument that petitioner is a Bautista class
member and releasing petitioner on due process violation where he was first released on
an Order of Release on Own Recognizance pursuant to INA § 236). In Faizyan and A.S.,
the Court applied the due process inquiry in Mathews v. Eldridge, 424 U.S. 319 (1976) and
found that Respondents’ summary revocation of the petitioner’s “conditional parole
without an opportunity to be heard deprived [him] of his due process rights.” 	Faizyan,
2025 WL 3208844, at *7 (S.D. Cal. Nov. 17, 2025); A.S., Case No. 25-cv-02876-RBM-
VET, ECF No. 9 at 11.
Supp. 3d 1020, 1029 (E.D. Cal. 2022), aff’d, No. 22-16762, 2023 WL 4946605 (9th Cir.
Aug. 3, 2023) (collecting cases); see Williams v. Cnty. of Alameda, 26 F. Supp. 3d 925,
947 (N.D. Cal. 2014) (declining to consider arguments plaintiff “improperly [sought] to
incorporate by reference”).
2 	Respondents “request[ ] an opportunity to submit [a more formal response] within a
reasonable timeframe” (Doc. 3 at 2 n.1), but notably failed to properly request an extension
of time. See also Sosa Inzuna v. Warden of Adelanto Det. Facility, — F. Supp. 3d —, 2026
WL 233211, at *3 n.2 (C.D. Cal. 2026) (noting “the current volume of habeas petitions . .
. being filed can be attributed to Respondents’ deliberate choice to continue defying the
final judgment entered in Bautista”).
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The Court adopts its reasoning in Faizyan and A.S. and applies it here. 	For those
same reasons, 8 U.S.C. §§ 1252(g) and (b)(9) do not bar Petitioner’s challenge to the
constitutionality and legality of his current detention. See Faizyan, 2025 WL 3208844, at
*2–4; A.S., Case No. 25-cv-02876-RBM-VET, ECF No. 9 at 4–6.
The Court also finds that Petitioner is subject to the discretionary detention
framework of § 1226 because he was first released under an Order of Release on Own
Recognizance, issued on a Form I-220A, and already residing in the United States for
several years before his most recent arrest. See Faizyan, 2025 WL 3208844, at *4–6; A.S.,
Case No. 25-cv-02876-RBM-VET, ECF No. 9 at 7–10; see also Ortega-Cervantes v.
Gonzales, 501 F.3d 1111, 1115–16 (9th Cir. 2007) (finding a noncitizen released on an
“Order of Release on Recognizance” pursuant to INA § 236 “was conditionally paroled
under the authority of § 1226(a)”).
Finally, as Petitioner’s detention is governed by § 1226, his re-detention without
notice or a bond hearing violates the Due Process Clause. 	The record before the Court
contains no evidence that Petitioner has a criminal history, poses a danger to the
community, or presents a flight risk. 	Indeed, “[a]s ICE was not authorized to release
[Petitioner] if [he] was a danger to the community or a flight risk, the Court must infer
from [the] release that ICE determined [he] was neither.” Pinchi v. Noem, 792 F. Supp. 3d
1025, 1032 (N.D. Cal. 2025). 	Petitioner therefore had a protected liberty interest in
remaining free from detention. 	See id. at 1032 (“[T]he government’s decision to release
an individual from custody creates ‘an implicit promise,’ upon which that individual may
rely, that their liberty ‘will be revoked only if they fail to live up to the . . . conditions of
release.’”) (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). Respondents do not
articulate any change in circumstances or individualized justification for Petitioner’s re-
detention. 	See 8 C.F.R. § 1236.1(c)(8). 	Accordingly, ICE’s revocation of Petitioner’s
release on recognizance without a pre-deprivation or bond hearing violated his due process
rights and rendered his detention unlawful. See also C.A.R.V. v. Wofford, Case No. 1:25-
CV-01395 JLT SKO, 2025 WL 3059549, at *9 (E.D. Cal. Nov. 3, 2025) (finding due
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process violation where the petitioner was originally released on an order of release on
recognizance); 	Leiva Flores v. Albarran, Case No. 25- cv-09302-AMO, 2025 WL
3228306, at *5 (N.D. Cal. Nov. 19, 2025) (finding the same and requiring hearing before
detention). The Petition is therefore GRANTED. 3
IV. 	CONCLUSION
Based on the foregoing reasons, the Petition (Doc. 1) is GRANTED. Accordingly:
1. Respondents are ORDERED to immediately release Petitioner from custody,
subject 	to 	the 	conditions 	of 	his 	preexisting 	Order 	of 	Release 	on 	Own
Recognizance.
2. The Court ORDERS, prior to any re-detention of Petitioner, that Petitioner shall
receive a hearing before an immigration judge pursuant to 8 U.S.C. § 1226(a) to
determine whether detention is warranted. Respondents shall bear the burden of
establishing, by clear and convincing evidence, that Petitioner poses a danger to
the community or a risk of flight. 4
IT IS SO ORDERED.
DATE: February 26, 2026
____________________________________
HON. RUTH BERMUDEZ MONTENEGRO
UNITED STATES DISTRICT JUDGE
3 In light of the disposition herein, the Court declines to address the Petition’s remaining
grounds for relief.
4 This relief has been granted in similar matters. See E.A. T.-B v. Wamsley, 795 F. Supp.
3d 1316,1324 (W.D. Wash. 2025); Duong v. Kaiser, — F. Supp. 3d —, 2025 WL 2689266,
at *7–10 (N.D. Cal. Sept. 19, 2025); Lepe v. Andrews, — F. Supp. 3d —, 2025 WL
2716910, at *10 (E.D. Cal. Sept. 23, 2025).
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