(HC) Victores v. Chestnut et al

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LAZARO TOMAS VICTORES
(A#078-486-055),
Petitioner,
v.
CHRISTOPHER CHESTNUT,
Respondent.
No. 1:26-cv-06768-DAD-SCR
FINDINGS & RECOMMENDATIONS
Petitioner is a federal immigration detainee representing himself 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 native and citizen of Cuba who was lawfully admitted into the United States
on or about April 5, 2001. ECF No. 5 at 10. He subsequently adjusted his immigration status to
become a lawful permanent resident on April 29, 2005. ECF No. 5 at 10. Since that time, he has
been convicted of several criminal offenses including Cocaine Possession, two counts of
misdemeanor Possession of Drug Paraphernalia, Drug Trafficking-Fentanyl, and misdemeanor
Driving Under the Influence of a Controlled Substance. ECF No. 5 at 15-59. While serving his
sentence for drug trafficking, Immigration and Customs Enforcement (ICE) officials served him
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with a Notice to Appear in immigration court administratively charging him with being
removable under INA § 237(a)(2)(B)(i)1 based on his controlled substance conviction from 2025.
ECF No. 5 at 13. On April 1, 2026, Petitioner was released from criminal custody and transferred
to ICE custody. ECF No. 5 at 11.
Petitioner is currently detained at the California City Detention Facility located in this
judicial district. He filed the instant § 2241 petition on August 24, 2026 challenging his detention
without being provided a bond hearing as a violation of the Fifth Amendment due process clause
amongst other claims for relief. ECF No. 1. By way of relief, petitioner requests immediate
release.
Respondent opposes the habeas petition, asserting that Petitioner is mandatorily detained
pursuant to 8 U.S.C. § 1226(c)(1)(B) based on his conviction for trafficking in fentanyl, which
constitutes a “controlled substance offense.” ECF No. 5; see 8 U.S.C. § 1227(a)(2)(B)(i).
Respondent further argues that the Court should dismiss the petition for failure to exhaust
administrative remedies through a hearing pursuant to Matter of Joseph, 22 I. & N. Dec. 799
(BIA 1999). ECF No. 5 at 2-3.
Since filing the pending habeas petition, an immigration judge issued an order of removal
for Petitioner. ECF No. 5 at 70-71. According to Respondent, Petitioner filed an appeal with the
Board of Immigration Appeals (BIA), but it was rejected. ECF No. 5 at 2. On September 1,
2026, Petitioner’s immigration counsel subsequently filed a motion to reopen in immigration
court. ECF No. 5 at 73-79.
II. 	Statutory Immigration Standards
Petitioner was lawfully admitted into the U.S. Therefore, the basis for his removability
alleged in the NTA is based on his drug trafficking conviction after he became a LPR. According
to Respondent, this conviction also makes Petitioner subject to mandatory detention pursuant to 8
U.S.C. § 1226(c). While 8 U.S.C § 1226(a) allows the Attorney General to either detain or
release noncitizens while their removal proceedings are pending, § 1226(c) imposes mandatory
1 This is codified at 8 U.S.C. § 1227(a)(2)(B)(i).
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detention on certain noncitizens. That provision states that the Attorney General “shall take into
custody any [noncitizen] who… is deportable by reason of having committed any offense covered
in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title[.]” 8 U.S.C. § 1226(c)(1)(B).
Under § 1227(a)(2)(B), a controlled substance conviction is defined as “a violation of (or a
conspiracy or attempt to violate) any law or regulation … relating to a controlled substance (as
defined in section 802 of Title 21), other than a single offense involving possession for one’s own
use of 30 grams or less or marijuana.” Fentanyl is classified as a Schedule II controlled substance
pursuant to the Controlled Substances Act. See 21 U.S.C. § 812. Having reviewed the state court
records pertaining to Petitioner’s conviction for Drug Trafficking-Fentanyl, Petitioner is properly
detained pursuant to § 1226(c).2 See Torna Rodirguez v. Warden, No. 1:26-CV-04632-DC-CKD,
2026 WL 2071181, at *1 (E.D. Cal. July 17, 2026), report and recommendation adopted by, No.
1:26-CV-04632-DC-CKD (HC), 2026 WL 2321963 (E.D. Cal. Aug. 11, 2026) (finding the
petitioner’s conviction was an offense covered under 8 U.S.C. § 1227(a)(2)(B)(i) that triggered
mandatory detention under § 1226(c)(1)(B)); Rodriguez v. Chestnut, No. 1:26-CV-04548-DJC-
CKD, 2026 WL 2110873, at *2 (E.D. Cal. July 22, 2026), report and recommendation adopted
by, No. 1:26-CV-04548-DJC-CKD, 2026 WL 2172202 (E.D. Cal. July 28, 2026) (same).
III. 	Exhaustion of Administrative Remedies
Respondent’s argument that the habeas petition should be dismissed because Petitioner
never requested a Joseph hearing to challenge his § 1226(c) detention is not persuasive because
Petitioner is not challenging the statutory authority for his detention. Rather, he is challenging the
prolonged nature of his civil detention absent a bond hearing. In these circumstances, pursuit of a
Joseph hearing would be futile, if not frivolous. Petitioner need not avail himself of a futile
administrative remedy simply to prove the futility of a bond request that the parties already
acknowledge he is not entitled to make under the applicable statutory detention authority.
2 The Court grants Respondent’s request to take judicial notice of these state court records. See
Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate
determination by sources whose accuracy cannot reasonably be questioned); Harris v. County of
Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (a court may take judicial notice of undisputed
matters of public record including documents on file in federal or state courts).
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Therefore, Respondent’s motion to dismiss the petition should be denied.
IV. 	Due Process Analysis
The undersigned liberally construes the petition as raising an as-applied, procedural due
process challenge to Petitioner’s § 1226(c) detention without bond. See Laws v. Lamarque, 351
F.3d 919, 924 (9th Cir. 2003) (courts must “construe pro se habeas filings liberally”). The
Supreme Court upheld the facial constitutionality of mandatory detention under § 1226(c) in
Demore v. Kim, 538 U.S. 510, 531 (2003). The Supreme Court did so with the understanding
that § 1226(c) detention is relatively “brief” and “limited,” and “lasts roughly a month and a half
in the vast majority of cases” and “about five months in the minority of cases in
which the alien chooses to appeal.” Id. at 513, 529 n.12, 530. Justice Kennedy joined the opinion
in full, but wrote a concurring opinion recognizing the viability of as-applied challenges under the
majority’s framework: “[S]ince the Due Process Clause prohibits arbitrary deprivations of
liberty, a lawful permanent resident [noncitizen] . . . could be entitled to an individualized
determination as to his risk of flight and dangerousness if the continued detention became
unreasonable or unjustified.” Demore, 538 U.S. at 532 (Kennedy, J., concurring). Later, in
Nielsen v. Preap, 586 U.S. 392 (2019), the Supreme Court recognized the right to bring such as-
applied challenges: “Our decision today on the meaning of that statutory provision [8 U.S.C. §
1226(c)] does not foreclose as-applied challenges—that is, constitutional challenges to
applications of the statute as we have now read it.” Preap, 586 U.S. at 420.
The Ninth Circuit Court of Appeal has expressly declined to address “[w]hether due
process requires a bond hearing” in cases of prolonged § 1226(c) detention. Martinez v. Clark, 36
F.4th 1219, 1223 (9th Cir. 2022), cert. granted, judgment vacated, 144 S. Ct. 1339 (2024).
However, the Ninth Circuit has expressed “grave doubts that any statute that allows for arbitrary
prolonged detention without any process is constitutional.” Rodriguez v. Marin, 909 F.3d 252,
256 (9th Cir. 2018). Other federal appellate courts have also concluded that Demore does not
foreclose as-applied challenges to prolonged detention under § 1226(c). “The Constitution does
not permit the Executive to detain a noncitizen for an unreasonably prolonged period under
section 1226(c) without a bond hearing; at some point, additional procedural protections—like a
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bond hearing—become necessary.” Black v. Decker, 103 F.4th 133, 145 (2d Cir. 2024), cert.
granted sub nom. Genalo v. Black, 146 S. Ct. 2733 (U.S. June 15, 2026), dismissed by agreement
of all parties, 2026 WL 2752021 (U.S. Sept. 16, 2026). The undersigned finds this authority
persuasive and agrees that Demore does not bar an as-applied challenge to prolonged detention
without a hearing to determine whether such detention is justified.
The Due Process Clause protects persons in the United States from being deprived of life,
liberty, or property without due process of law. U.S. Const. amend. V. The Supreme Court has
concluded that “the Due Process Clause applies to all ‘persons’ within the United States,
including [non-citizens], whether their presence here is lawful, unlawful, temporary, or
permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Courts examine procedural due
process claims in two steps: the first step is determining whether there exists a protected liberty
interest under the Due Process Clause. The second step examines the procedures necessary to
ensure any deprivation of that protected liberty interest accords with the Constitution. See
Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989); Morrissey v. Brewer,
408 U.S. 471, 481 (1972) (“Once it is determined that due process applies, the question remains
what process is due.”).
The undersigned has considered the various tests developed by district courts within the
Ninth Circuit, and finds that Mathews v. Eldridge, 424 U.S. 319 (1976), provides the appropriate
test for due process challenges to prolonged detention under § 1226(c). Under Mathews, the
court considers three factors: (1) the private interest affected; (2) the risk of an erroneous
deprivation of that interest; and (3) the government’s interest involved including any fiscal or
administrative burden that additional procedures would include. Mathews, 424 U.S. at 335.
V. 	Mathews Factors
A. Private Interest
An individual’s private interest in “freedom from prolonged detention” is “unquestionably
substantial.” Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir. 2011). Courts of Appeal have
generally declined to adopt a specific threshold for when detention under § 1226(c) becomes
prolonged. See German Santos v. Warden Pike Cty. Correctional Facility, 965 F.3d 203, 211 (3d
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Cir. 2020); Black, 103 F.4th at 150; Reid v. Donelan, 17 F.4th 1, 7–9 (1st Cir. 2021). While the
Ninth Circuit has not addressed this question, it has previously referred to detentions longer than
six months as prolonged “in the context of detentions for which no individualized bond hearings
had taken place at all because the statutes on their faces did not allow for them.” Rodriguez Diaz,
53 F.4th at 1207 (citations omitted). Indeed, other courts within this Circuit have found due
process violations where the length of mandatory detention without bond was similar to the
length of detention at issue here. See, e.g., Chen v. Aitken, 917 F. Supp. 2d 1013, 1018 (N.D.
Cal. 2013) (holding petitioner’s seven-month detention under § 1225(b) was “prolonged” because
it “has lasted well beyond the typical period described in Demore” and “neither release nor
removal are imminent”).
Moreover, courts hearing as-applied challenges to § 1226(c) detention have also
considered the likely duration of future detention. See Lopez, 631 F. Supp. 3d at 880-81 (finding
petitioner’s administrative appeals and likely appeal to the Ninth Circuit weighed toward granting
request for bond hearing). In this case, although an IJ ordered Petitioner removed, he filed a
motion to reopen these proceedings, which remains pending. Additionally, Petitioner contends in
his reply brief that he cannot be removed to Cuba because the government there is not repatriating
any citizens which will further lengthen his immigration detention. ECF No. 10 at 2. Therefore,
additional immigration proceedings will be necessary to determine whether the country listed in
Petitioner’s removal order, i.e., Cuba, is reasonably foreseeable or, if Respondent will pursue
third country removal. Based on its duration to date without bond and the likelihood of continued
mandatory detention during all these additional removal proceedings, the undersigned finds
petitioner’s detention is sufficiently “prolonged” and confers a substantial private interest.
B. Risk of Erroneous Deprivation
The second Mathews factor is “the risk of an erroneous deprivation of [Petitioner’s]
interest through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards.” Mathews, 424 U.S. at 335. This factor firmly favors Petitioner for
several reasons. “[T]he risk of an erroneous deprivation of liberty in the absence of a hearing
before a neutral decisionmaker is substantial.” Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th
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Cir. 2011) (abrogated on other grounds). “In the absence of any meaningful initial procedural
safeguards, it appears to us that almost any additional procedural safeguards at some point in the
detention would add value.” Black, 103 F.4th at 153 (emphasis in original); see also Jimenez v.
Wolf, No. 19-cv-7996 NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020) (finding “high” risk
of an erroneous deprivation where petitioner had not received any bond or custody
redetermination hearing during his one-year detention under § 1226(c)). Accordingly, the second
Mathews factor also weighs in favor of Petitioner.
C. Government Interest
Under this factor, the Court weighs the government’s interest, “including the function
involved and the fiscal and administrative burdens that the additional or substitute requirement
would entail.” Mathews, 424 U.S. at 335. Higher courts have repeatedly recognized that, “[t]he
government has an obvious interest in ‘protecting the public from dangerous criminal
[noncitizens].’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 538 U.S. at 515). Courts
have also recognized that the detention of noncitizens during removal proceedings can also serve
the legitimate government purpose of preventing flight. Prieto-Romero, 534 F.3d at 1065 (citing
Demore, 538 U.S. at 528). Thus, in some general way, the government has an interest in the
detention of non-citizens held under § 1226(c). However, “the additional procedural safeguards
we would allow here under Mathews do nothing to undercut those interests. At any ordered bond
hearing, the IJ would assess on an individualized basis whether the noncitizen presents a flight
risk or a danger to the community, as IJs routinely do for other noncitizen detainees.” Black, 103
F.4th at 153–54; see also Jimenez, 2020 WL 510347, at *3 (“Providing a bond hearing would not
undercut the government’s asserted interest in effecting removal. After all, the purpose of a bond
hearing is to inquire whether the alien represents a flight risk or danger to the community.”)
(citing In re Guerra, 24 I.&N. Dec. 37 (B.I.A. 2006)). In Petitioner’s case, the government’s
interest in further detaining him without a hearing to determine whether such detention is justified
is minimal.
Administrative burden is a legally cognizable interest under Mathews. But Respondent’s
interest is further diminished by the low fiscal and administrative burdens associated with a bond
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hearing. See D. L.C., 2026 WL 25511, at *5 (“Custody hearings in immigration court are routine
and impose a ‘minimal’ cost on the government.” (quoting Doe v. Becerra, 787 F. Supp. 3d 1083,
1094 (E.D. Cal. 2025)).
VI. 	Remedy
For reasons explained above in the Mathews analysis, the undersigned finds Petitioner’s
request for a bond hearing to be the appropriate relief in this case where the government has the
burden of demonstrating by clear and convincing evidence that Petitioner presents a risk of flight
or danger. See Singh v. Albarran, No. 1:26-cv-0940 DC DMC (HC), 2026 WL 392169, at *5
(E.D. Cal. Feb. 12, 2026) (collecting cases); Singh v. Chestnut, No. 1:26-cv-00127 DC SCR
(HC), 2026 WL 766567 (E.D. Cal. March 18, 2026) (adopting Findings and Recommendations
and granting a bond hearing); see also Black, 103 F.4th at 157 (“[O]nce detention under section
1226(c) has become so prolonged that due process warrants a bond hearing . . . the government
must justify continued detention at such a hearing . . . by clear and convincing evidence.”).
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Petitioner’s application for a writ of habeas corpus (ECF No. 1) be GRANTED on
claim one only.3
2. Respondent be ordered to provide Petitioner with a bond hearing before an
immigration judge at which the government shall bear the burden of justifying petitioner's
continued detention by clear and convincing evidence, within fourteen (14) days from any order
resolving the § 2241 petition.
3. Respondent be further required to provide seven (7) days advance written notice of the
bond hearing date to Petitioner as well as any immigration counsel of record for Petitioner.
4. Respondent be further directed to file a notice certifying compliance with the above
provision within seven (7) days from the date of the bond hearing.
5. If Petitioner is granted release on bond, respondent shall return all of Petitioner’s
documents and possessions at the time of release.
3 In the interests of judicial economy and based on the recommended relief, the undersigned finds
it unnecessary to address the remaining claims in the § 2241 petition.
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6. The final order in this case not address the circumstances in which Respondent may
detain Petitioner in the event Petitioner becomes subject to an executable final order of removal
and Petitioner receives notice of that final order of removal.
7. 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 three days after
being served with these findings and recommendations, any party may file written objections with
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
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