Paz-Vasquez v. Blanche et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Enrique Paz-Vasquez,
Petitioner
-vs-
Todd Blanche, et al.,
Respondents.
CV-26-2821-PHX-SHD (JFM)
Report & Recommendation
on Petition for Writ of Habeas Corpus
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the
undersigned makes the following proposed findings of fact, report, and recommendation
pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of
Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Immigration History - The pertinent factual background and procedural history is
largely undisputed. Petitioner is a native and citizen of Mexico who last entered the United
States without inspection sometime after his 2010 removal resulting from a 2006
uninspected entry.1 Petitioner has since resided in the United States with his wife and five
U.S. citizen children. On October 21, 2025 he was arrested for shoplifting, and was
released the next day into the custody of Immigrations and Customs Enforcement (ICE)
1 Respondents describe Petitioner’s arrest in October 2025 as being “shortly after entry.”
(Response at 1.) However, Respondents cite only the Petition to support this contention,
and the Petition does not suggest the interval was short. The undersigned assumes
arguendo in Petitioner’s favor, that the interval was substantial enough that Petitioner must
be deemed to have been residing in the interior of the United States.
Case 2:26-cv-02821-SHD Document 11 Filed 06/09/26 Page 1 of 7

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officials.
Removal Proceedings and Detention - Petitioner was placed in removal
proceedings and on December 2, 2025 he filed an application for Cancellation of Removal
and Adjustment of Status. His application was denied and he was ordered removed but
granted voluntary departure. On January 26, 2026 Petitioner filed an appeal with the
Board of Immigration Appeals (BIA), which appeal remains pending.
Petitioner sought release on bond, which was denied on March 6, 2026 on the basis
that he was mandatorily detained due to his criminal history, and alternatively because he
was a flight risk.
Petition - On April 22, 2026 Petitioner commenced this habeas proceeding by filing
his Petition (Doc. 1) which alleges his continued detention is a denial of substantive due
process due to its “punitive nature and length.” Petitioner argues that the Laken Riley Act
(LRA), adopting 8 U.S.C. § 1226(c)(1)(E), as applied to him is unconstitutional because
it mandates his detention based solely on having been charged with a crime. Petitioner
argues his detention is also a denial of procedural due process because the mandatory
detention under the LRA is imposed without any showing of the need for detention by the
Government. Petitioner seeks release or a new bond hearing with the Government bearing
the burden of justifying his continued detention.
Answer – On May 21, 2026, Respondents filed their Response (Doc. 9) arguing:
(1) Petitioner failed to exhaust his administrative remedies by appealing the IJ’s detention
decision to the BIA; (2) Petitioner’s detention is mandatory under the statute; (3)
Petitioner’s claim is moot because he had a detention hearing which included an
individualized determination that he is a flight risk; and (5) the flight risk determination is
made unreviewable under 8 U.S.C. § 1226(e).
Reply – On June 1, 2026, Petitioner replied (Doc. 10) arguing: (1) exhaustion
would be futile given the mandatory nature of his detention under the LRA; (2) his claim
is not moot because the immigration judge applied mandatory detention; (3) § 1226(e)
does not strip jurisdiction over constitutional claims; (4) his detention is unconstitutional
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because it has become prolonged and punitive; (5) the record shows he is not a flight risk;
(6) unproven criminal charges do not justify detention; (7) any finding of flight risk was
insufficient because there was no explicit finding on the burden of proof on flight risk.
III. APPLICABLE LAW
A. MOOTNESS
“Article III of the Constitution limits federal ‘Judicial Power,’ that is, federal-court
jurisdiction, to ‘Cases’ and ‘Controversies.’” U.S. Parole Commission v. Geraghty, 445
U.S. 388, 395 (1980). This limitation restricts the jurisdiction of the federal courts to cases
where there is a possible judicial resolution. Id. A moot action is not subject to a judicial
resolution.
A moot action or claim is one in which the parties lack a legally cognizable interest
in the outcome. The test for mootness is whether the court can give a party any effective
relief in the event that it decides the matter on the merits in their favor. “That is, whether
the court can ‘undo’ the effects of the alleged wrongdoing.” Reimers v. Oregon, 863 F.2d
630, 632 (9th Cir. 1989).
In particular, a claim or case loses its quality as a live controversy and becomes
moot when petitioner has already received the relief he has requested. Munoz v. Rowland,
104 F.3d 1096, 1097–98 (9th Cir. 1997). Specifically, an immigration detainee who seeks
a bond hearing and has already been granted one no longer has a justiciable claim to a
bond hearing. Flores-Torres v. Mukasey, 548 F.3d 708, 710 & n. 3 (9th Cir. 2008).
B. EXHAUSTION
Ordinarily, an immigration habeas petitioner is required to exhaust available
administrative remedies before pursuing a claim on habeas, as a matter of judicial
prudence. Castro-Cortez v. I.N.S., 239 F.3d 1037 (9th Cir. 2001), abrogated on other
grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 36 and n. 5 (2006).
An exception to the exhaustion requirement has been carved out for constitutional
challenges, because the BIA has no jurisdiction to adjudicate constitutional challenges to
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the immigration statutes. Thus petitioners may raise such claims for the first time in the
courts. Rashtabadi v. I.N.S., 23 F.3d 1562, 1567 (9th Cir. 1994). However, if the claim
is merely an allegation of procedural error which is correctable by the BIA, couched in
constitutional terms (e.g. a denial of due process), then exhaustion would be required. See
Rashtabadi, 23 F.3d at 1567.
This is part of the larger principle that “exhaustion of administrative remedies is
not required where exhaustion would have been futile.” Leorna v. U.S. Dep't of State, 105
F.3d 548, 552 (9th Cir. 1997). This can apply “where the agency's position on the question
at issue “appears already set,” and it is “very likely” what the result of recourse to
administrative remedies would be.” El Rescate Legal Servs., Inc. v. Exec. Off. of Immigr.
Rev., 959 F.2d 742, 747 (9th Cir. 1991).
IV. APPLICATION OF LAW TO FACTS
At the outset, the Court must determine whether it reads the Petition as effectively
challenging the flight risk determination, or as solely challenging the imposition of
mandatory detention.
To the extent Petitioner challenges only the mandatory detention requirement, the
case is moot because Petitioner received an individualized detention determination, which
justified his continued detention based on flight risk.
To the extent the Court reads the Petition as also challenging the flight risk
determination, then Petitioner has failed to exhaust his administrative remedies on that
claim by appealing that IJ’s flight risk decision to the BIA.
Petitioner’s Petition asserts that his detention is founded solely upon mandatory
detention under § 1226(e) (the LRA). (Petition at 1, ¶¶ 21, 25, 29.) Indeed, nowhere in
the Petition does Petitioner acknowledge that a flight risk determination was made.
Petitioner’s substantive due process arguments proceed on the basis that his mandatory
detention has not been individually justified and thus is unconstitutionally punitive. His
procedural due process is founded upon the same contention, i.e., that he was not afforded
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an individualized determination on the justifications for his detention.
To be sure, in his Reply, Petitioner attempts to pivot to avoid the mootness
argument by asserting, for the first time, that the flight risk determination (as opposed to
the mandatory detention determination) was procedurally defective. (Reply at 2-3.)
Ordinarily, the Court might rely on the principle that claims raised for the first time
in a Reply are not properly raised. “The district court need not consider arguments raised
for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
This is usually based in part on the lack of opportunity for the Respondent to be heard on
the new claims. But here, Respondents have raised the flight risk determination issues in
their Response. See Koerner v. Grigas, 328 F.3d 1039, 1049 (9th Cir. 2003) (exceptions
where raised in responding brief or no prejudice).
Accordingly, the Court treats the challenge to the flight risk determination as
properly before the Court. But having read that as a basis for Petitioner’s claims then the
Court must conclude that Petitioner has not properly exhausted his administrative
remedies. Petitioner provides no reason to conclude that a challenge to the flight risk
determination (including the applicable burden of proof, and who bore the burden2) could
not properly be raised to the BIA.
Moreover, Petitioner fails to show that raising the matter to the BIA would have
been futile. It is true that the BIA might again also rely on mandatory detention under §
1226(e). But Petitioner proffers nothing to suggest that would preclude meaningful review
by the BIA on the flight risk determination. Further, Petitioner proffers nothing to suggest
that the BIA would refuse to consider the challenge, based solely on § 1226(e). If that
were the case, then the operative agency decision would be the BIA’s removing the flight
risk determination from the equation.
Under these circumstances, the prudential purposes of administrative exhaustion
2 Cf. Rodriguez Diaz v. Garland, 53 F.4th 1189, 1212 (9th Cir. 2022) (suggesting in case
addressing detention under 8 U.S.C. § 1226(a), that burden of proof on “future
dangerousness or flight risk” might properly be placed on the alien in immigration
proceedings).
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are served by providing the BIA the first bite at the apple of deciding the propriety of the
IJ’s flight risk determination. That the IJ bothered to go the second step in making a flight
risk determination suggests that, at least at present, the Government is taking a belt-and-
suspenders approach to detention questions. Requiring exhaustion of administrative
remedies on the suspenders (the individualized determination) may avoid needless judicial
intervention in such determinations, and avoid deciding constitutional questions that could
otherwise be avoided.
To the extent that exhaustion of Petitioner’s constitutional challenge to § 1226(e)
is unnecessary, that claim is moot because Petitioner received an individualized release
determination.3
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED Petitioner's Petition for Writ of Habeas
Corpus (Doc. 1) be DISMISSED WITHOUT PREJUDICE for failure to exhaust
administrative remedies on his challenge to the sufficiency of his individualized release
determination, and as moot on his challenge to the lack of such a determination.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court's judgment.
3 Ordinarily, the undersigned might as a matter of expediency, proceed to the merits of
Petitioner’s claims as an alternative basis for disposing of the Petition. But here, the
central issue appears to be the sufficiency of the IJ’s flight risk determination. Because
that determination was not acknowledged in the Petition, and was first raised in the
Response, no real record has been developed to allow this Court to evaluate the burden of
proof applied. Indeed, the Court has only the IJ’s single line determination, and
Petitioner’s one page of reply that appears based solely on that determination with no
other supporting factual allegations. (Reply at 8-9.) The undersigned is not convinced that
the IJ’s decision was required to explicitly lay out the burdens of proof applied, leaving it
necessary to develop a record on what burdens were applied. See supra, n. 2 (discussing
Rodriguez Diaz and burdens of proof). Thus, if the Court is inclined to reject the
recommendations herein, the undersigned would suggest the matter be again referred to
develop the arguments and record on the IJ’s determination, and to prepare a second
Report & Recommendation.
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However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See also Rule 8(b), Rules
Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days
within which to file a response to the objections. Failure to timely file objections to any
findings or recommendations of the Magistrate Judge will be considered a waiver of a
party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th
Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that
“[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation
issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated: June 9, 2026
26-2821r RR 26 06 04 on HC.docx
James F. Metcalf
United States Magistrate Judge
Case 2:26-cv-02821-SHD Document 11 Filed 06/09/26 Page 7 of 7