(HC) Abin-Diaz v. Warden, Central Valley Annex

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
YOSBEL ABIN-DIAZ (A# 097-778-271),
Petitioner,
v.
WARDEN, CENTRAL VALLEY
ANNEX,
Respondent.
No. 1:26-cv-07300 DAD SCR
FINDINGS & RECOMMENDATIONS
Petitioner is a federal immigration detainee who filed this habeas corpus action pursuant
to 28 U.S.C. § 2241. This matter was referred to the undersigned by operation of Local Rule 302
and 28 U.S.C. § 636(b)(1).
I. 	Factual and Procedural History
Petitioner is a citizen and national of Cuba who was paroled into the United States near
Miami, Florida, on August 8, 2004. ECF No. 10-1 at 4. An immigration judge (“IJ”) ordered
Petitioner removed on April 9, 2014, pursuant to 8 U.S.C. §§ 1182(a)(7)(A)(i)(I) (noncitizen not
in possession of valid entry document) and 1182(a)(2)(A)(i)(I) (convicted of crime involving
moral turpitude).1 ECF 10-4; ECF No. 5-5 at 26 (Notice to Appear). Immigration officials
1 The record does not identify the specific crime involving moral turpitude. But Petitioner’s FBI
rap sheet reflects the following convictions predating his removal order: (1) aggravated assault
with deadly weapon (Aug. 27, 2008); (2) burglary of unoccupied structure (Aug. 27, 2010); (3)
burglary with assault or battery and kidnapping (Aug. 1, 2013). ECF No. 10-7.
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 1 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
released Petitioner on an Order of Supervision (“OSUP”) on June 27, 2016. ECF No. 10-6.
On February 23, 2026, local law enforcement arrested Petitioner on an out-of-county
warrant for driving with a suspended license. ECF No. 10-7 at 20 (FBI rap sheet). Immigration
and Customs Enforcement (“ICE”) issued an immigration detainer and revoked Petitioner’s
OSUP on February 25, 2026, pursuant to 8 C.F.R. § 241.4(l) for violating a condition of release
(“Convicted of a crime involving moral turpitude, and being an aggravated felon”). ECF No. 11-
1 at 5. On or around March 30, 2026, ICE took Petitioner into custody from a county jail and
served him with the Notice of Revocation of Release. Id. at 2-3. Petitioner is currently detained
in the Central Valley Annex within this judicial district. ECF No. 1 at 1.
Petitioner filed his § 2241 petition on September 10, 2026. ECF No. 1. The petition
raises three grounds for relief: (1) Revocation of release without the procedures required by 8
C.F.R. § 241.4(l); (2) Re-detention and continued confinement without meaningful notice and
opportunity in violation of the Due Process Clause of the Fifth Amendment; and (3) Indefinite
post-removal detention in violation of 8 U.S.C. § 1231(a)(6) and Zadvydas v. Davis, 533 U.S.
678 (2001). Id. at 9-12. Petitioner seeks immediate release and an injunction prohibiting his re-
detention without compliance with applicable statutory and constitutional procedures. Id. at 13.
Respondent counters that Petitioner is lawfully detained pursuant to 8 U.S.C. § 1231(a)(6)
and has not met his burden of establishing that there is no significant likelihood of removal in the
reasonably foreseeable future. ECF No. 10 at 1. Respondent adds that Petitioner’s criminal
history, which includes convictions for “burglary with assault or battery, kidnapping, aggravated
assault with a firearm, improper exhibition of a weapon in violation of probation, and criminal
mischief,” provides “good cause” for detention beyond six months. Id. at 2-3.
II. 	Immigration Detention Framework After Final Order of Removal
The detention of noncitizens who have been ordered removed from the United States is
governed by 8 U.S.C. § 1231(a). “In particular, § 1231(a)(6) provides that after a 90-day
‘removal period,’ a noncitizen ‘may be detained’ or may be released under terms of supervision.”
Johnson v. Arteaga-Martinez, 596 U.S. 573, 575 (2022). After this 90-day removal period has
elapsed, ongoing detention is only authorized for “four categories of people: (1) those who are
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 2 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
‘inadmissible’ on certain specified grounds; (2) those who are ‘removable’ on certain specified
grounds; (3) those [ICE] determines ‘to be a risk to the community’; and (4) those [ICE]
determines to be ‘unlikely to comply with the order of removal.’” Arteaga-Martinez, 596 U.S. at
578–79 (quoting 8 U.SC. § 1231(a)(6)).
The Supreme Court examined the constitutional limits of detention under 8 U.S.C. §
1231(a)(6) in Zadvydas, describing as “obvious” the “serious constitutional problem arising out
of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of
human liberty without any” procedural “protection[s.]” 533 U.S. at 692. To avoid serious
constitutional problems, Zadvydas read an implicit due process limitation into the immigration
statute governing the detention of noncitizens subject to a final order of removal. The Supreme
Court reasoned that “the Due Process Clause applies to all ‘persons’ within the United States,
including [noncitizens], whether their presence here is lawful, unlawful, temporary, or
permanent.” Zadvydas, 533 U.S. at 693. As a result, “once [a noncitizen’s] removal is no longer
reasonably foreseeable, continued detention is no longer authorized by statute.” Id. at 699. To
establish a uniform standard for determining when ongoing detention crosses constitutionally
acceptable limits, the Court recognized a presumptively reasonable six-month period of detention.
Id. at 701. If a noncitizen “provides a good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing.” Id.
“Numerous courts have held, however, that the burden-shifting scheme of Zadvydas is
only applicable to those noncitizens who had been detained and never released following a final
order of removal.” Ruiz-Acosta v. Cent. Valley Annex, No. 1:26-CV-04371-DAD-JDP (HC),
2026 WL 1846727, at *2 (E.D. Cal. June 26, 2026) (quoting Martinez v. Bondi, No. 1:25-cv-
01633-EFB (HC), 2025 WL 3650477, at *3 (E.D. Cal. Dec. 16, 2025)). Where, as here,
Petitioner was issued a final order of removal, detained, and subsequently released and then re-
detained, “it is [ICE’s] burden to show a significant likelihood that the [noncitizen] may be
removed.” Escalante v. Noem, No. 9:25-CV-00182-MJT, 2025 WL 2206113, at *3 (E.D. Tex.
Aug. 2, 2025); see also Roble v. Bondi, 803 F.Supp.3d 766, 772-73 (D. Minn. Aug. 25, 2025)
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 3 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
(“[T]he regulations at issue in this case place the burden on ICE to first establish changed
circumstances that make removal significantly likely in the reasonably foreseeable future.”);
Abuelhawa v. Noem, 811 F.Supp.3d 847, 860 (S.D. Tex. Oct. 16, 2025) (“[U]pon revocation of
release, the Government bears the burden to show a significant likelihood that the [noncitizen]
may be removed in the reasonably foreseeable future.”); Nguyen v. Hyde, 788 F.Supp.3d 144,
149-150 (D. Mass. June 20, 2025); Vu v. Noem, No. 1:25-cv-01366-KES SKO (HC), 2025 WL
3114341, at *5 (E.D. Cal. Nov. 6, 2025).
III. 	Analysis
A. Petitioner is Entitled to Relief Pursuant to Zadvydas
Petitioner has an order of removal to Cuba dated April 9, 2014, ECF No. 10-4, that
immediately became administratively final due to his waiver of appeal. See 8 C.F.R. § 1003.39
(“[T]he decision of the [IJ] becomes final upon waiver of appeal or upon expiration of the time to
appeal if no appeal is taken whichever occurs first[.]”); 8 C.F.R. § 1241.1(b) (order of removal
becomes final “[u]pon waiver of appeal by the respondent”). The IJ’s removal order shifted his
detention to § 1231(a) and triggered the start of the 90-day removal period, which has long since
lapsed. Accordingly, Petitioner’s detention is now governed by 8 U.S.C. § 1231(a)(6).
Even discounting Petitioner’s period of post-removal detention prior to his release on
OSUP in June 2016, his current ICE detention has exceeded six months and is no longer
presumptively reasonable. Zadvydas, 533 U.S. at 701. Nevertheless, Respondent maintains that
Petitioner has failed to meet his burden of showing there is no significant likelihood of removal in
the reasonably foreseeable future. ECF No. 10 at 3. But because ICE released Petitioner on
OSUP in June 2016 and revoked that release in February 2026, the undersigned finds that the
burden shifting framework of Zadvydas does not apply to this case. See Vu, 2025 WL 3114341,
at *5. Instead, it is Respondent who bears the burden of demonstrating that there is a significant
likelihood that the Petitioner may be removed to Cuba. See 8 C.F.R. § 241.13(i)(2).
None of Respondent’s justifications for Petitioner’s current detention approaches this
burden. Respondent states that ICE is “actively taking steps to execute the final removal order,”
ECF No. 10 at 1, but does not specify those steps. Respondent did not file a declaration by a
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 4 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
deportation officer or any other evidence detailing ICE’s efforts to remove Petitioner. Nor does
Respondent represent that Cuba has agreed to repatriate Petitioner.
Respondent did file Petitioner’s “Notice of Removal” dated April 23, 2026, but that
document reflects that ICE intends to remove him to Mexico, not Cuba. ECF No. 10-5 at 1.
Respondent does not acknowledge ICE’s apparent intent to try to remove Petitioner to a third
country in any of the three briefs submitted in this case.2 See ECF Nos. 5, 10, 11. In any event,
Petitioner has no order of removal to Mexico. The mere existence of a Notice of Removal to
Mexico, absent other information regarding Mexico’s willingness to accept Petitioner is
insufficient to satisfy Respondent’s burden. See Rivero-Tapanes v. Rokosky, No. CV-26-01542-
PHX-RM (CDB), 2026 WL 1469826, at *3 (D. Ariz. May 26, 2026) (finding Notice of Removal
to Mexico did not show a significant likelihood of removal where “there is no evidence in the
record that Mexico has, in fact, agreed to accept Petitioner”).3 Accordingly, Respondent has not
shown a significant likelihood of Petitioner’s removal in the reasonably foreseeable future.
Respondent’s claim that Petitioner’s criminal history provides “good cause” for detaining
him beyond six months, ECF No. 10 at 2, is unavailing. The Supreme Court in Zadvydas
repudiated “preventative” immigration detention, i.e., detention for the purposes of “protecting
the community[,]” where removal is not reasonably foreseeable. Zadvydas, 533 U.S. at 690-91;
see also Tuan Thai v. Ashcroft, 366 F.3d 790, 797 (9th Cir. 2004) (noting Zadvydas rejected
2 Respondent states only, without explaining how the Notice of Removal would impact any
potential removal to Mexico, “Petitioner’s detention is reasonable given the significant likelihood
of removal in the foreseeable future. See attached Notice of Removal.” ECF No. 10 at 2.
3 To the extent Respondent suggests Petitioner’s refusal to cooperate with his removal to Mexico
warrants indefinite detention, the undersigned joins the numerous other judges in this district who
have rejected this argument. See Obando Vargas v. Blanche, et al., No. 1:26-CV-05343-DAD-
AC (HC), 2026 WL 2056618, at *2 (E.D. Cal. July 16, 2026) (“Respondents’ argument appears
to be that, because petitioner is not agreeing to voluntarily depart to a country he is not from and
is under no legal obligation to go to, he may be detained indefinitely. This argument is
frivolous[.]”); Garcia v. Warden, Cent. Valley Annex, No. 1:26-CV-04659-DJC-JDP, 2026 WL
2254380, at *3 (E.D. Cal. Aug. 4, 2026) (“[T]he Government cannot use indefinite detention to
manufacture noncitizens’ consent to removal to Mexico under the standing agreement. To adopt
the Government’s position on the use of detention to strong-arm third-country removals would
not only undermine the consent required in those removals but also sanction the use of detention
to coerce otherwise unavailable deportations.”).
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 5 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
government’s argument that § 1231(a)(6) authorized a noncitizen’s “potentially indefinite
detention, even if such detention were premised on ‘protecting the community from dangerous
[noncitizens]’”). Petitioner’s current detention is purely preventive. For instance, the February
25, 2026, Notice of Revocation of Release identifies Petitioner’s alleged OSUP violation as being
“[c]onvicted of a crime of moral turpitude.” ECF No. 11-1 at 2. But Petitioner’s FBI rap sheet
does not reflect any convictions since his release on OSUP in June 2016. See ECF No. 10-7.
ICE appears to have re-detained him based on the same conviction that was the impetus for the
IJ’s April 2014 removal order, and without any change in circumstances regarding the reasonable
foreseeability of his removal to Cuba.
In Zadvydas, the Supreme Court expressly limited this type of preventive detention to
“specially dangerous individuals and subject to strong procedural protections,” and required the
presence of “some other special circumstance, such as mental illness, that helps to create the
danger.” 533 U.S. at 690-91. Petitioner’s conviction history, while no doubt encompassing
serious offenses, reflects an “ordinary violent criminal” who falls outside of the Zadvydas
exception. Tuan Thai, 366 F.3d at 797; see also Yakoub v. Marin, No. 5:26-CV-01399-JAK
(RAOX), 2026 WL 922015, at *6 (C.D. Cal. Mar. 31, 2026) (holding, in factually similar case,
that “under Zadvydas, Petitioner’s criminal history and the corresponding potential danger he
presents to the community cannot justify his prolonged detention”).
For all these reasons, the undersigned finds that Respondent has not established the
significant likelihood of Petitioner’s removal to Cuba or otherwise justified his continued post-
removal detention. Accordingly, the undersigned recommends that the petition be granted on his
Zadvydas claim (Count Three).
B. Petitioner’s Re-Detention Violated Revocation Procedures
The undersigned finds that Petitioner is alternatively entitled to relief on his claim that the
revocation of his OSUP violated ICE regulations, see 8 C.F.R. §§ 241.4(l) and 241.13(i) (Count
One).4 Courts have found these regulations to be enforceable in habeas actions. See Nguyen v.
4 The Notice of Revocation of Release cites 8 C.F.R. § 241.4(l) as the revocation authority. The
undersigned finds the more applicable regulation is 8 C.F.R. § 241.13(i). “Where a noncitizen
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 6 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
Hyde, 788 F. Supp. 3d 144, 152 (D. Mass. 2025) (“As here, where an immigration regulation is
promulgated to protect a fundamental right derived from the Constitution or a federal statute . . .
and [ICE] fails to adhere to it, the challenged [action] is invalid.”) (quotations and citation
omitted); Nguyen v. Charles, No. 1:25-CV-01592-TLN-CSK, 2025 WL 3492117, at *2 (E.D.
Cal. Dec. 4, 2025) (noting that 8 C.F.R. §§ 241.4(l) and 241.13(i) “protect important due process
rights owed to non-citizens”).
This case concerns an alleged violation of an OSUP condition, which is governed by 8
U.S.C. § 241.13(i)(1): “Any [noncitizen] who has been released under an [OSUP] . . . who
violates any of the conditions of release may be returned to custody[.]” See also 8 C.F.R. §
241.4(l) (similarly permitting revocation for violation of conditions of release). As explained
above, the February 2026 Notice of Revocation of Release does not cite a specific OSUP
condition that Petitioner violated. It instead states that he was “convicted of a crime involving
moral turpitude,” which appears to be a reference to one of Petitioner’s convictions that predated
his release on OSUP entirely. Respondent points to Petitioner’s 2018 arrest as “changed
circumstances” warranting revocation, ECF No. 10 at 3, but there is no evidence in the record that
this stale arrest was the impetus for ICE’s revocation of release.
Even if Petitioner’s 2018 arrest could provide the basis for Petitioner’s re-detention, there
is no indication that Respondent followed the necessary “revocation procedures,” namely the
requirement that DHS “conduct an initial informal interview promptly” after de-detention to
“afford the [noncitizen] an opportunity to respond to the reasons for revocation stated in the
notification.” Id. § 241.13(i)(3); 8 C.F.R. § 241.4(l) (same). Both the initial interview form
attached to Petitioner’s Notice of Revocation of Release and the separate “Notice of Informal
Interview” field on the Notice of Revocation of Release are blank. ECF No. 11-1 at 1, 3. Courts
have found that the government’s failure to provide the initial informal interview renders re-
detention unlawful. See, e.g., Phan v. Beccerra, No. 2:25-CV-01757-DC-JDP, 2025 WL 1993735
subject to a final order of removal is out of custody, revocation of their release is governed by 8
C.F.R. § 241.13(i).” Bagat v. Andrews, No. 1:26-CV-00346-DJC-AC, 2026 WL 252240, at *1
(E.D. Cal. Jan. 30, 2026)). Nevertheless, the undersigned will consider them both given the
similarities between their respective “violation of conditions of release” provisions.
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 7 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
(E.D. Cal. July 16, 2025) (finding that the petitioner was likely to succeed on merits of due
process claim “[b]ecause there is no indication that an informal interview was provided,” and
collecting cases). Respondent acknowledges that there is “no significant distinction” between the
instant case and the cases Magistrate Judge Guy Castillo cited in her Order to Show Cause on this
point. ECF No. 10 at 3; see Nguyen v. Warden of Golden State McFarland Det. Facility, No.
2:25-CV-03297-SKO (HC), 2026 WL 72110, at *3 (E.D. Cal. Jan. 9, 2026) (holding that
provision of initial informal interview two months after re-detention violated the petitioner’s due
process rights).
Based on these violations of the regulatory revocation procedures, the undersigned finds
that the revocation of Petitioner’s OSUP failed to comport with due process. Accordingly,
Petitioner is also entitled to relief on Count One of his petition.
CONCLUSION
Accordingly, IT IS HEREBY RECOMMENDED that:
1. 	Petitioner’s application for writ of habeas corpus be GRANTED on Counts One
and Three.5
2. 	Respondent be ordered to immediately release Petitioner Yosbel Abin-Diaz (A#
097-778-271) under conditions of supervision dictated by applicable statutes and regulations.
3. 	The Clerk of the Court be directed to serve the Central Valley Annex with a copy
of any final order granting release.
4. 	Respondent be enjoined from re-detaining Petitioner unless and until they comply
with all procedures set forth in 8 C.F.R. § 241.13(i) and any other applicable statutes and
regulations.
5. 	Judgment be entered in Petitioner’s favor and this case be closed.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven days after
being served with these findings and recommendations, any party may file written objections with
5 In the interests of judicial economy, the petition’s remaining claim is not addressed herein.
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 8 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
the court and serve a copy on all parties. The undersigned finds that a shortened objection period
is warranted in this case given the nature of the relief at issue as well as the fact that the parties
have had sufficient time to submit all of their arguments in written briefs. See United States v.
Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (stating that 28 U.S.C. § 636(b)(1) sets
the maximum objection period and not the minimum); see also Local Rule 304(b). The parties
are advised that failure to file objections within the specified time may waive the right to appeal
the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: October 9, 2026
Case 1:26-cv-07300-DAD-SCR Document 14 Filed 10/13/26 Page 9 of 9