Tamarit-Ferrer v. Rivas et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Brayan Tamarit-Ferrer,
Petitioner,
v.
David R Rivas, et al.,
Respondents.
No. CV-25-04886-PHX-DWL (MTM)
ORDER
In this action under § 2241, Petitioner challenges his immigration detention. (Doc.
1.) The Court ordered Respondents to show cause why the petition should not be granted.
(Doc. 5.) The petition is now fully briefed. (Docs. 7-8.) For the reasons that follow, the
Court will grant the petition and order that Petitioner be released or receive a bond
redetermination hearing within seven days.
I. Background
On June 9, 2020, Petitioner, who is a citizen of Cuba, “initially came into
immigration custody . . . while crossing the U.S.-Mexico border to seek asylum.” (Doc. 1
¶¶ 1, 17. See also Doc. 7-1 at 3 ¶ 6.) Petitioner was initially placed in expedited removal
proceedings and given a credible fear interview. (Doc. 1 ¶¶ 1, 17; Doc. 7-1 at 3 ¶¶ 7-8.)
On June 24, 2020, Petitioner received a positive credible fear determination. (Doc.
1 ¶¶ 1, 18; Doc. 7-1 at 3 ¶ 8.) As a result, “the Department of Homeland Security vacated
expedited removal and issued a Notice to Appear commencing removal proceedings under
INA § 240.” (Doc. 1 ¶ 19.)
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On August 17, 2020, an immigration judge (“IJ”) ordered Petitioner released on
bond “pursuant to 8 C.F.R. § 236.1(c).” (Id. ¶¶ 3, 20. See also Doc. 7-1 at 3 ¶ 11.) The
IJ’s “written custody order reflects that Petitioner was in removal proceedings and that his
custody was governed by the discretionary detention framework of INA § 236.” (Doc. 1
¶ 20.)
“On September 18, 2025, Petitioner reported for a check-in with ICE ERO in
Miramar, Florida. After determining that he is an alien who is unlawfully present in the
United States, ERO took Petitioner into custody pending resolution of his removal
proceedings.” (Doc. 7-1 at 4 ¶ 13.) “Petitioner is currently detained by ICE without having
received a new, individualized custody determination establishing that he poses a danger
to the community or a flight risk sufficient to justify detention under INA § 236(a).” (Doc.
1 ¶ 26.)
Based on these allegations, Petitioner alleges that (1) Respondents lack statutory
authority to detain him under INA § 235 and may detain him, if at all, only under INA
§ 236(a); (2) Respondents violated his due process rights by detaining him without an
individualized determination of flight risk or dangerousness; and (3) his summary detention
is arbitrary, punitive, and excessive. (Id. ¶¶ 27-51.)
II. Analysis
After reviewing the petition, the Court issued an order to show cause (“OSC”)
directing Respondents to explain why Petitioner’s detention was not governed by recent
decisions from this district, the Seventh Circuit, and the Central District of California
concluding that an individual present in the country without admission is detained pursuant
to § 1226(a) and thus entitled to a bond hearing. (Doc. 5.) In their response, Respondents
contend that Petitioner is properly designated as an arriving alien subject to mandatory
detention under 8 U.S.C. § 1225(b). (Doc. 7.) Respondents further contend that
Petitioner’s release on bond by an IJ in 2020 should not have occurred and that the IJ
violated the Board of Immigration Appeals’ decision in Matter of M-S- by issuing the bond.
(Doc. 7 at 4 [“[T]he immigration judge had no authority to release Petitioner on bond if he
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were detained under Section 1225(b)(1) [so] the proper conclusion is that the immigration
judge erred when he ordered Petitioner’s release. In fact, a binding opinion of the Attorney
General should have required the immigration judge to deny bond. Matter of M-S-, 27 I&N
Dec. 509 (A.G. 2019).”].)
These arguments are unavailing. As an initial matter, there is no binding authority
as to whether Matter of M-S- accurately interprets the relevant statutory provisions and
many courts—including the Ninth Circuit in its since-vacated decision in Padilla v.
Immigration & Customs Enf’t, 953 F.3d 1134 (9th Cir. 2020)—have concluded that it does
not. Nevertheless, even assuming the IJ shouldn’t have released Petitioner on bond in
2020, the inescapable fact remains that the IJ did release Petitioner on bond. And this is
significant for two reasons. First, there is a line of authority generally suggesting that once
an alien is released on bond, the alien is a right to a pre-deprivation hearing before the bond
may be revoked. See, e.g., J.C.E.P. v. Wofford, 2025 WL 3268273, *6 (E.D. Cal. 2025)
(“[T]he BIA has required that where a previous bond determination has been made by an
immigration judge, no change should be made by the DHS absent a change of
circumstance. The requirements of due process, of course, supersede statutory and
regulatory authority, and numerous courts have held that the Due Process clause entitles a
noncitizen to notice and an opportunity to be heard before his parole or bond is summarily
revoked under section 1226(b).”) (cleaned up). Second, the release on bond in 2020
occurred after DHS clarified that it was no longer pursuing expedited removal against
Petitioner and after the IJ clarified that “Petitioner was in removal proceedings and that his
custody was governed by the discretionary detention framework of INA § 236.” (Doc. 1
¶ 20.) Accordingly, when Petitioner was redetained in 2025, he remained subject to that
detention framework. And as many courts (including this Court) have recently concluded,
there is a right to a bond hearing under the framework. See, e.g., Echevarria v. Bondi, 2025
WL 2821282 (D. Ariz. 2025).
Other courts have concluded, under nearly identical facts, that an alien in
Petitioner’s situation is entitled to a bond hearing. Just a few days ago, in Ahmed v. Rhoney,
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2026 WL 262553 (W.D.N.Y. 2026), the court explained:
[R]esolution of Ahmed’s request for a bond hearing turns on whether he is
detained pursuant to 8 U.S.C. § 1226(a) (as he claims) or 8 U.S.C.
§ 1225(b)(1)(B)(ii) (as claimed by Respondents in the alternative). Section
1225(b)(1)(B)(ii) . . . applies to noncitizens stopped at or near the border who
make a claim for asylum. And no question, when Ahmed was first
encountered 10 years ago, he was detained pursuant to this provision.
But Ahmed was released on bond by an immigration judge and he has resided
in this country for a decade. The provision allowing for release on bond is 8
U.S.C. § 1226(a). Respondents do not argue that Ahmed was not released
on bond pursuant to § 1226(a). Instead, they argue that he should not have
been released on bond based on . . . Matter of M-S-, 27 I&N Dec. 509 (A.G.
2019) . . . .
Setting aside whether Matter of M-S- applies retroactively or whether it is a
correct interpretation of the statute, it does not support the conclusion that
the government can unilaterally re-detain an individual released on bond
years later with no individualized hearing or demonstrated change in
circumstances. And even if it did support such a result, Respondents offer
no justification for why they took no steps since the issuance of Matter of M-
S- in April 2019 (almost seven years ago) to revoke Ahmed’s bond. In other
words, if Matter of M-S- truly operated to nullify Ahmed’s release on bond,
then he is no different than a non-citizen who is encountered within the
interior of the United States after entering without inspection. And an
individual like that would be considered detained under these circumstances
pursuant to 8 U.S.C. § 1226(a). Under no reasonable construction of the facts
could Ahmed’s arrest in August 2025 be viewed as a continuation of his
initial border encounter.
Id. at *1-2 (cleaned up). See also Da Silva v. Bondi, 2026 WL 193635, *1 (W.D.N.Y.
2026) (“Alves da Silva was given what is known as a ‘credible fear interview’ under section
1225(b)(1) and was found to have a credible fear of persecution or torture if returned to his
native country, Brazil. At that point, the government released Alves da Silva on bond and
allowed him to live freely in the country for the next nine years—until November 4, 2025—
when he was taken back into custody. The government claims that he now is subject to
mandatory detention under section 1225(b)(1)(A) as if its decision to release him on bond
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in 2016 had never happened. This Court disagrees.”) (cleaned up); Loja v. FCI Berlin,
Warden, 2025 WL 3079160, *1-2 (D.N.H. 2025) (concluding, where “CBP initially issued
Loja an Expedited Removal order but . . . [then] vacated the Expedited Removal order,
. . . charged him with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i) . . . [and] released
Loja on bond,” that “by releasing Loja on bond under § 1226(a), . . . the government failed
to reserve its right to treat Loja in the same manner as that of any other applicant for
admission to the United States”) (cleaned up).
Admittedly, courts are not in full agreement on this issue. Paredes Padilla v.
Galovich, 2025 WL 3640960, *4 (W.D. Wisc. 2025) (“Paredes Padilla was apprehended
in 2018 near the border, placed into expedited removal proceedings and then transferred
into asylum proceedings. Under § 1225(b)(1)(B)(ii), he should have been detained at that
time without bond, but the government apparently didn’t comply with the requirement to
detain him. Nevertheless, his removal proceedings were never completed, so
§ 1225(b)(1)(B)(ii) still mandates his detention. Paredes Padilla’s detention is not unlawful
under the INA, so his petition for a writ of habeas corpus will be denied.”). Nevertheless,
the Court is persuaded by the reasoning of the courts granting relief in this scenario.
Accordingly,
IT IS ORDERED that:
1. The petition (Doc. 1) is granted as to Count One and otherwise denied as
moot.
2. Respondents must provide Petitioner a bond redetermination hearing within
seven days or release Petitioner from custody under the same conditions that existed before
detention.
3. Respondents must provide a notice of compliance within three days of
releasing Petitioner or providing a bond hearing.
…
….
…
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4. Any pending motions are denied as moot and the Clerk of Court shall enter
judgment in Petitioner’s favor and close this case.
Dated this 4th day of February, 2026.
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