Eduardo-Lema-Sanchez v. Divver et al

1 26-cv-1016-AGS-DDL
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Oscar EDUARDO-LEMA-SANCHEZ,
Petitioner,
v.
Patrick DIVVER, et al.,
Respondents.
Case No.: 26-cv-1016-AGS-DDL
ORDER REQUIRING RETURN
Petitioner Oscar Eduardo-Lema-Sanchez 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.
In “November 2023,” petitioner, a “citizen of Ecuador,” “entered the United States.”
(ECF 1, at 4.) He was apprehended, expressed a “fear of return to Ecuador,” and “was
released from immigration custody.” (Id.) Though the petition is thin on critical details, “at
some point thereafter” “DHS initiated removal proceedings,” and during those proceedings
“re-detained” petitioner. (Id.) His case is still pending, and he is still in custody. (Id.) He
asserts that his detention under “8 U.S.C. §1225” is unlawful, because his case is governed
by “8 U.S.C. § 1226”—which authorizes release on bond or conditional parole. (Id. at 5,
10.)
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2 26-cv-1016-AGS-DDL
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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”). And a district court recently “vacate[d]” the Board of Immigration
Appeals decision that respondents have regularly relied on to mandatorily detain those in
Singh’s position, holding that the BIA decision was “contrary to law” under the
Administrative Procedure Act. 	Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM,
__ F. Supp. 3d __, 2026 WL 468284, at *12 (C.D. Cal. Feb. 18, 2026).
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
that same case. See Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM, 2025 WL
3713987, at *32 (C.D. Cal. Dec. 18, 2025). So, by Monday, February 23, 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 26,
2026.
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3 26-cv-1016-AGS-DDL
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Dated: February 19, 2026
___________________________
Hon. Andrew G. Schopler
United States District Judge
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