Barcenas Toruno v. Immigration Customs Enforcement

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JOSE MANUEL BARCENAS TORUNO,
Petitioner,
v.
CHRISTOPHER J. LAROSE, Senior Warden,
Otay Mesa Detention Center, et al.,
Respondents.
Case No.: 26-cv-104-RSH-DEB
ORDER GRANTING PETITION
FOR WRIT OF HABEAS CORPUS
On January 7, 2026, petitioner Jose Manuel Barcenas Toruno filed pro se a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. On January 13, 2026,
the Court provisionally appointed Federal Defenders of San Diego, Inc. (“FDSDI”) to
represent Petitioner. ECF No. 3. FDSDI accepted the representation, and on January 26,
2026 filed on behalf of Petitioner an Amended Petition. ECF No. 6. The Parties thereafter
filed opposition and reply briefs on the merits. ECF Nos. 8, 9.
On February 13, 2026, the Court directed supplemental briefing. ECF No. 10. On
February 25, 2026, Respondents filed their supplemental brief. ECF No. 11. Based on the
briefing, the Court grants the Petition as set forth below.
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I. 	BACKGROUND
Petitioner, a citizen of Nicaragua, first entered the United States on or about July 17,
2000. ECF No. 8 at 1. The Court will not undertake to summarize the entirety of
Petitioner’s immigration history in the absence of the underlying documents, but it seems
clear that he has been ordered removed and has in fact been removed from the United States
several times. The Parties agree that on August 14, 2023, an immigration judge granted
Petitioner withholding of removal to Nicaragua. ECF No. 6 at 1; ECF No. 8 at 1. On
September 12, 2023, Petitioner was released from immigration custody on an order of
supervision, apparently based on an inability to effectuate his removal at that time. See
ECF No. 8 at 1; ECF No. 6 at 1. On October 15, 2025, U.S. Immigration and Customs
Enforcement (“ICE”) rearrested Petitioner to effectuate his order of removal. ECF No. 6 at
1; ECF No. 8 at 1.
The Amended Petition contends that (1) DHS failed to comply with its own
regulations in revoking Petitioner’s order of supervision, warranting Petitioner’s release
from immigration custody; (2) there is no significant likelihood of Petitioner’s removal in
the reasonably foreseeable future, such that his continued indefinite detention violates due
process; and (3) DHS should be prohibited from removing Petitioner to a country other
than Nicaragua, unless DHS provides Petitioner with adequate notice and an opportunity
to be heard.
II. 	LEGAL STANDARD
Title 28 of the U.S. Code, Section 2241, provides that “[w]rits 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). A detainee bears the
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3).
III. 	ANALYSIS
The detention and release of noncitizens who are subject to a final order of removal
is addressed by 8 U.S.C. § 1231. Under that statute, “when an alien is ordered removed,
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the Attorney General shall remove the alien from the United States within a period of 90
days.” 8 U.S.C. § 1231(a)(1)(A). “If the alien does not leave or is not removed within the
removal period, the alien, pending removal, shall be subject to supervision under
regulations prescribed by the Attorney General.” 8 U.S.C. § 1231(a)(3). The Parties agree
that the federal regulations governing the revocation of Petitioner’s order of supervision
are 8 C.F.R. §§ 241.4 and 241.13. See ECF No. 6 at 7-10; ECF No. 8 at 7. Both regulations
contain the identical procedural requirement that “[u]pon revocation, the alien will be
notified of the reasons for revocation of his or her release []. The alien will be afforded 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.” 8
C.F.R. § 241.4(l); 8 C.F.R. 241.13(i)(3). The Amended Petition challenges Respondents’
compliance with this regulation. ECF No. 6 at 9.
In the Court’s February 13, 2026 order directing supplemental briefing, the Court
stated as follows:
The briefing in this case presents a disputed issue of material fact:
Whether, as required by 8 C.F.R. § 241.4(l)(1) and/or § 241.13(i)(3),
Petitioner was “afforded an initial informal interview promptly after his
… return” to custody, to allow him “an opportunity to respond to the
reasons 	for 	revocation 	stated 	in 	the 	notification.” 	Petitioner 	has
submitted a declaration stating that he was not given an informal
interview; and indeed, that he asked for one but was refused. ECF No.
6-1 	¶¶ 	2, 	4. 	Respondents 	have 	submitted 	a 	declaration 	from 	a
deportation officer stating “Petitioner was provided with a[n] …
informal interview” on the date of his arrest, with no further specificity
regarding the interview. ECF No. 8-2 ¶ 22.
It is not clear from the declaration whether that statement was within
the personal knowledge of the declarant, or instead is an inference; and
if the latter, the basis for such an inference. In the Court’s view, neither
the Notice of Revocation of Release (ECF No. 8-1 at 2) nor Petitioner’s
letter from approximately a month after his arrest (ECF No. 8-1 at 5–
6), which Respondents cite as evidence in this regard, establish that
such an interview was in fact provided.
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Both parties have taken the position that, regardless of whether
Petitioner received such an interview, the Court can rule in that party’s
favor on various other grounds. Nonetheless, the Court would find
further evidence on the question useful. Accordingly, the Court sets the
following briefing schedule:
… 	No 	later 	than 	February 	27, 	2026, 	Respondents 	may 	file 	a
supplemental 	brief[] 	providing 	additional 	evidence 	regarding 	the
informal interview, including setting forth the basis for the declarant
deportation officer’s statement. If Respondents decline to do so, the
Court will construe the statement at issue in the declaration to be an
unsupported conclusion or inference rather than a statement within the
declarant’s personal knowledge.
ECF No. 10 at 1-2. On February 25, 2026, Respondents timely filed a second declaration
from the same deportation officer. ECF No. 11-1. The second declaration states, just as the
first one did, that Petitioner was provided with an informal interview on October 15, 2025,
the date of his arrest. ECF No. 8-2 ¶ 22; ECF No. 11-1 ¶ 4. However, the second declaration
does not address any of the questions the Court previously posed. The second declaration
does not address whether the officer’s statement—that Petitioner received an informal
interview—was within the personal knowledge of the declarant, or instead was an
inference; and if the latter, the basis for such an inference. The new declaration provides
no further information about the purported interview. Nor is it accompanied by other
documents 	that 	would 	address 	those 	questions. 	The 	new 	declaration 	describes
communications between ICE and Petitioner’s counsel that took place the following
month; this factual material, however, does not bear upon whether, as required by
regulations, Petitioner was “afforded an initial informal interview promptly after his or her
return to Service custody.”
As indicated by the Court’s February 13, 2026 order, in the absence of additional
factual support, the Court construes the deportation officer’s statement—that Petitioner
received 	an informal 	interview—as an unsupported conclusion. The Court has no
alternative but to credit Petitioner’s own sworn statement, uncontradicted by evidence, that
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he did not receive such an interview. The Court further concludes based on the record
presented that ICE failed to provide “an initial informal interview promptly after
[Petitioner’s] return to Service custody.”
Government agencies are required to follow their own regulations. United States ex
rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Nat’l Ass’n of Home Builders v.
Norton, 340 F.3d 835, 852 (9th Cir. 2003). Courts have determined that where DHS fails
to follow its own regulations in revoking release, the detention is unlawful and the
petitioner’s release must be ordered. See, e.g., Orellana v. Baker, No. 25-1788-TDC, 2025
WL 2444087, at *8 (D. Md. Aug. 25, 2025); M.S.L. v. Bostock, No. 6:25-cv-1204-AA,
2025 WL 2430267, at *10 (D. Or. Aug. 21, 2025); Ceesay v. Kurzdorfer, 781 F. Supp. 3d
137, 165-66 (W.D.N.Y. 2025); Rombot v. Souza, 296 F. Supp. 3d 383, 388 (D. Mass.
2017). This Court reaches the same conclusion here.
IV. 	CONCLUSION
For the foregoing reasons, the Petition is GRANTED. Respondents are ordered to
release petitioner Jose Manuel Barcenas Toruno from custody within one (1) day of the
date of this Order. The Court declines to issue further injunctive relief, and this Order does
not restrain or enjoin Respondents from taking any and all lawful steps to effectuate
Petitioner’s removal, including releasing Petitioner on an order of supervision containing
appropriate terms.
IT IS SO ORDERED.
Dated: February 26, 2026
____________________
Hon. Robert S. Huie
United States District Judge
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