Haro Becerra v. Noem et al

1 26-cv-0878-AGS-BJW
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Javier HARO BECERRA,
Petitioner,
v.
Kristi NOEM, et al.,
Respondents.
Case No.: 26-cv-0878-AGS-BJW
ORDER REQUIRING RETURN
Petitioner Javier Haro Becerra seeks a writ of habeas corpus under 28 U.S.C. § 2241
to free him from immigration detention. At this stage, he need only make out a claim that
is sufficiently cognizable to warrant an answer or return. See Rules Governing Section
2254 Cases in the United States District Courts, Rule 4 (authorizing summary dismissal “if
it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief”); id., Rule 1(b) (permitting application of Rules Governing Section 2254
Cases to any “habeas corpus petition”). In this context, the relevant federal rules permit
“summary dismissal of claims that are clearly not cognizable.” Neiss v. Bludworth,
114 F.4th 1038, 1045 (9th Cir. 2024) (cleaned up). But “as long as a petition has any
potential merit, it is not so frivolous or incredible as to justify summary dismissal[.]” Id.
On “December 9, 2024”, Haro Becerra as “placed in removal proceedings” but “was
released from immigration custody on Release of Recognizance.” (ECF 1, at 6.) Sometime
later, petitioner was “subsequently rearrested by immigration authorities and is currently
detained at the Imperial Regional detention center.” (Id.) He challenges the government’s
application of the mandatory custody provisions of “8 U.S.C. § 1225(b)(2)(A).” (Id. at 5.)
He asserts that his case is instead governed by “8 U.S.C. § 1226(a)”—which authorizes
release on bond or conditional parole—because he is not an applicant for admission. (Id.
at 2, 6–7.) This statutory misclassification, he argues, renders his detention “contrary to
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law.” (Id. at 6.)
This challenge merits a response. The two Courts of Appeals to address this question
disagreed about how to interpret the issue. Compare Castañon-Nava v. United States Dep’t
of Homeland Sec., 161 F.4th 1048, 1060, 1062 (7th Cir. 2025) (concluding “on this
preliminary [motion-to-stay] record” that plaintiffs who are “unlawfully already in the
United States” are not “subject to mandatory detention under § 1225(b)(2)(A)”), with
Buenrostro-Mendez v. Bondi, No. 25-20496, __ F.4th ___, 2026 WL 323330, at *1
(5th Cir. Feb. 6, 2026) (holding that, under § 1225(b)(2)(A), petitioners who entered the
United States “illegally many years ago” must “be detained” without a bond hearing). But
most petitioners have nonetheless obtained habeas relief in functionally identical cases.
See, e.g., Barco Mercado v. Francis, ___ F. Supp. 3d. ___, No. 25-cv-6582 (LAK),
2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 2025) (noting that, in “350” of the “362”
opinions to address this issue, the petitioners “prevailed, either on a preliminary or final
basis,” and these cases were “decided by over 160 different judges sitting in about fifty
different courts”).
In addition, respondents have routinely conceded these claims when brought by
those—like petitioner—who seem to be members of the Bond Eligible Class certified in
Bautista 	v. 	Santacruz, 	No. 5:25-cv-01873-SSS-BFM, 	__ 	F. Supp. 3d 	__, 	2025 WL
3713987 (C.D. Cal. Dec. 18, 2025). So, by Monday, February 16, 2026, the government
is ordered to file a brief stating whether it: (1) agrees petitioner is detained under 8 U.S.C.
§ 1226 and (2) intends to concede petitioner’s right to a bond hearing under that authority.
If respondents do not concede, they must answer the petition by February 23, 2026.
Dated: February 12, 2026
___________________________
Hon. Andrew G. Schopler
United States District Judge
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