Benitez Oliva v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
RAFAEL BENITEZ OLIVA,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
Case No.: 3:26-cv-493-CAB-BJW
ORDER GRANTING WRIT OF
HABEAS CORPUS
[Doc. Nos. 1, 4]
Before the Court is Petitioner Rafael Benitez Oliva’s petition for a writ of habeas
corpus, [Doc. No. 1 (“Petition”)], and motion for a temporary restraining order, [Doc. No.
4 (“TRO”)]. The parties filed briefings addressing the issues in this case. [Doc. Nos. 7,
9.] The Court finds this case appropriate for determination on the papers. 	See S.D. Cal.
CivLR 7.1(d)(1). 	For the reasons below, the Court GRANTS the writ of habeas corpus
and orders Respondents to immediately RELEASE Petitioner from custody under the
same conditions as his previous order of release on recognizance.
I. 	BACKGROUND
Petitioner, a Cuban citizen, was paroled into the United States in 1986. [Doc. No. 7
at 2.] In 1990, he adjusted his status to that of lawful permanent resident. [Id.] Pursuant
to a 2002 felony conviction, an immigration judge ordered Petitioner removed to Cuba in
October 2006. 	[Id.] 	In 2008, Petitioner was placed on an order of supervision because
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Immigration and Customs Enforcement (“ICE”) could not obtain a travel document to
Cuba. [Doc. No. 7-1 at 3–4.] Petitioner alleges that he has never violated the conditions
of his order of supervision and has been reporting faithfully to ICE—claims which
Respondents do not contest. [Petition at 3.] During a check-in appointment with ICE on
December 11, 2025, Petitioner was re-detained without notice. 	[Id.] 	Petitioner has
remained in ICE custody since then. [Id. at 4.]
II. 	LEGAL STANDARD
A writ of habeas corpus challenges the legality of a petitioner’s custody and seeks
to secure release from that illegal custody. Under 28 U.S.C. § 2241, a district court may
grant a writ of habeas corpus when the petitioner “is in custody in violation of the
Constitution or laws or treaties of the United States.” The petitioner bears the burden of
demonstrating that she is in illegal custody. See Martinez v. Noem, No. 25-CV-2740-BJC-
BJW, 2025 WL 3171738, at *2 (S.D. Cal. Nov. 13, 2025).
III. 	DISCUSSION
Petitioner argues that, inter alia, his re-detention violates ICE’s own regulation of 8
C.F.R. § 241.13(i), which concerns revocation of release. [Petition at 8.] The regulation
provides that an alien released under an order of supervision may be returned to custody if
they violate any of the conditions of release or if, on account of changed circumstances,
ICE determines that there is a significant likelihood that they may be removed in the
reasonably foreseeable future. 	See 8 C.F.R. § 241.13(i). 	The regulation continues and
states that upon revocation, the alien shall be notified of reasons for the revocation of
release. Id. Petitioner argues that ICE did not revoke his release on a legitimate basis, i.e.
changed circumstances or a conditions violation, as regulatorily required. [Petition at 9.]
The Court agrees.
“Government agencies are required to follow their own regulations. 	Courts have
determined that where ICE fails to follow its own regulations in revoking release, the
detention is unlawful and the petitioner’s release must be ordered.” Rokhfirooz v. Larose,
804 F.Supp.3d 1095, 1099 (S.D. Cal 2025) (internal citations omitted). 	Petitioner was
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placed on an order of supervision in 2008 then re-detained in 2025, thus 8 C.F.R.
§ 241.13(i) applies. Respondents state that Petitioner was provided with written notice of
revocation of release on the day he was re-detained. 	[Doc. No. 7 at 2.] 	That notice,
however, did not state that Petitioner violated a condition of his release nor that
circumstances had changed such that ICE had determined that Petitioner’s removal was
significantly likely in the reasonably foreseeable future. 	[See Doc. No. 7-2 at 2.] 	The
notice’s stated reason for the revocation was merely that it was 	“appropriate to enforce
[Petitioner’s] removal[.]” [Id.]
Nor do Respondents provide anything in their response to the Petition that shows
Petitioner violated any of his conditions or that ICE determined that there is a significant
likelihood of removal in the reasonably foreseeable future. 	Respondents only note that
“ICE may identify alternative third countries that may be willing to accept Petitioner for
removal.” [Doc. No. 7 at 3 (emphasis added).] This is wholly insufficient to meet ICE’s
own regulation. 	Indeed, courts have found agency efforts that were more concrete than
what Respondents offer to be insufficient. See Sun v. Noem, Case No. 3:25-cv-2433-CAB-
MMP, 2025 WL 2800037, at *2 (S.D. Cal. Sept. 30, 2025) (finding respondents’ contention
that they were going to send a travel document to the removal country’s embassy did not
satisfy 8 C.F.R. § 241.13(i)(2)); see also Hoac v. Becerra, No. 2:25-CV-01740-DC-JDP,
2025 WL 1993771, at *4 (E.D. Cal. July 16, 2025) (“The 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.”); Nguyen v. Hyde, No. 25-CV-11470-MJJ, 2025
WL 1725791, at *4 (D. Mass. June 20, 2025) (finding insufficient the government’s
assertions that they are processing a travel document because they “have not identified
what concrete steps ICE has taken to process” the document nor whether the request was
submitted to the removal country); Roble v. Bondi, 803 F. Supp. 3d 766, 773 (D. Minn.
2025) (finding insufficient the government’s assertion that ICE “requested third country
removal assistance from [Enforcement and Removal Operations] HQ” (alteration in
original)).
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Accordingly, as Petitioner has demonstrated that the Government has failed to
follow 8 C.F.R. § 241.13(i), the Court finds Petitioner’s detention to be unlawful.1 See
Rokhfirooz, 804 F.Supp.3d at 1099 (S.D. Cal 2025). 	The Court need not and does not
analyze Petitioner’s remaining theories. See Ozkay v. Equity Wave Lending, Inc., Case No.
20-CV-8263-JST, 2020 WL 12764953, at *2 (N.D. Cal. Nov. 25, 2020).
I. 	CONCLUSION
The Court 	GRANTS 	the writ of habeas corpus and orders Respondents to
immediately RELEASE Petitioner from custody under the same conditions as his previous
order of supervision. 	Respondents are further ENJOINED from re-detaining Petitioner
without notice and a pre-detention hearing before a neutral decisionmaker. The motion for
TRO is DENIED as moot.
It is SO ORDERED.
Dated: February 18, 2026
1 Respondents argue that even if they did not comply with regulations, Petitioner has not established
prejudice or a constitutional violation. [Doc. No. 7 at 5–6.] The Court rejects this argument and finds
Petitioner was prejudiced given that he was unlawfully detained. See, e.g. Hernandez v. Sessions, 872
F.3d 976, 995, 1000 (9th Cir. 2017) (holding that “[u]nlawful detention” by immigration officials
constituted “irreparable harm”).
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