Duran-Alvarado v. Lyons et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Carlos Duran-Alvarado,
Petitioner,
vs.
Todd M Lyons, et al.,
Respondents.
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No. CV-26-02757-PHX-CKJ (MTM)
ORDER
Pending before the Court is whether Respondents have sufficiently complied with the
orders of the Court in this case.
Background
A review of the record indicates the original Petition alleged Petitioner was arrested
in violation of the Fourth Amendment and due process principles. Petition (Doc. 1). The
Petition also appears to assert Petitioner was subject to the 8 U.S.C. § 1225(b)(2)(A)
mandatory detention policy. Id. The response to the Petition stated, "Respondents do not
oppose Petitioner's request for release at this time." Response (Doc. 7, p.1). The Court
granted the Petition as to Petitioner's request for release from custody and ordered
Respondents "must immediately release Petitioner from custody under the same conditions
that existed before his detention." May 4, 2026, Order (Doc. 8, p. 1). The Court further
ordered Respondents to file a Notice of Compliance within two (2) business days of
Petitioner's release. Id.
Case 2:26-cv-02757-CKJ--MTM Document 14 Filed 10/14/26 Page 1 of 7

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A Notice of Compliance was not timely filed. On October 8, 2026, this Court
ordered, inter alia, Respondents to file the Notice of Compliance (Doc. 8).
Petitioner filed a notice of non-compliance, asserting:
Respondents' temporary release is not compliant with the Order of immediate release
dated May 5, 2026. Specifically, a Petition for Review has been filed, and a stay of
removal is in place. (attachment 1 – pacer case history, entry 1, and 11). Petitioner
order of removal is not a final order because it has been appealed and is presently
waiting to be decided. There has been no material change or good cause shown why
the Respondents determined to violate this Court's order.
Petitioner's Response (Doc. 13, p. 2). Respondents filed a notice, asserting Petitioner was
"released from custody on May 5, 2026, in compliance with the Court's order . . . and he
was re-detained on August 19, 2026, because immigration officials determined that his
removal order had become final. See I-213, attached as Exhibit B, at 2, 5." Notice of
Compliance ("NOC") (Doc. 12, p.1).
Petitioner's Record of Deportable/Inadmissible Alien ("DIA") indicates an
Immigration Judge ordered Petitioner removed to El Salvador after denying all applications
for relief on July 22, 2025. NOC, Ex. B, DIA (Doc. 12-1, ECF p. 10 of 12). Petitioner was
taken into custody on July 29, 2025. Id. On July 30, 2025, Petitioner filed an appeal with
the Board of Immigration Appeals ("BIA"). Id. at ECF p. 11 of 12. One day after this
Court ordered Petitioner's release, the BIA dismissed Petitioner's appeal and the removal
order became administratively final. Id. Petitioner was released on May 5, 2026, pursuant
to this Court's Order.
A Petition for Review of the BIA's decision was filed with the Ninth Circuit Court
of Appeals on June 1, 2026. Petition for Review, 9th Cir. No. 26-3493 (Doc. 1). The DIA
states:
On June 1, 2026, the subject filed a Petition for Review with the United States Court
of Appeals for the Ninth Circuit, Case Number 26-3493. Records also reflect a
request for stay of deportation associated with the Petition for Review. However, as
of the time of this enforcement action, no stay of removal was attached to the
Petition for Review, and no stay of removal was in effect. OPLA provided DBS
concurrence that the subject is removable because the pending Ninth Circuit Petition
for Review does not bar removal absent a stay of removal.
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NOC, Ex. B, DIA (Doc. 12-1, ECF p. 11 of 12). The DIA includes an additional summary:
On June 1, 2026, the subject filed a Petition for Review with the United States Court
of Appeals for the Ninth Circuit, Case Number 26-3493. Records further reflect a
request for stay of deportation associated with the Petition for Review. However, no
stay of removal is currently in effect. OPLA provided DBS concurrence that the
subject is removable because the pending Petition for Review does not prevent
execution of the removal order unless a stay of removal has been granted.
The subject has no current applications pending or approved with USCIS based on
available records. There is no stay of removal, pending motion, or other legal
impediment currently identified that prevents ICE ERO from executing the final
order of removal. The July 22, 2025, Immigration Judge order, as affirmed by the
Board of Immigration Appeals on May 5, 2026, remains the operative valid and
enforceable final order of removal.
Id. at ECF p. 12 of 12.
Although the DIA twice states a request for a stay is associated with the appellate
petition for review, the Petition for Review states:
[Petitioner] hereby petitions for review by this Court of the final order of removal
entered by the United States Department of Justice, Executive Office of Immigration
Review, Board of Immigration Appeals ("BIA") on May 5, 2026. This petition is
timely filed pursuant to 8 U.S.C. § 1252(b)(1) as it is filed within 30 days of the
issuance of BIAs decision.
Petitioner submits the BIA decision dated May 5, 2026. Tab A. To date, no court
has upheld the validity of the order. The Petitioner[ is] not detained.
Jurisdiction is asserted pursuant to 8 U.S.C. Sec. 1252.
Venue is asserted pursuant to 8 U.S.C Sec 1252(b)(2).
Petition for Review, 9th Cir. No. 26-3493 (Doc. 1). The Petition for Review does not
include a requested stay.
Petitioner was again detained on August 19, 2026. On August 26, 2026, Petitioner
filed an Emergency Motion to Stay Removal Pending Resolution of Petition for Review.
Motion to Stay, 9th Cir. No. 26-3493 (Doc. 11). The Ninth Circuit granted a stay the same
day. Order, 9th Cir. No. 26-3493 (Doc. 12); see also Ninth Circuit General Order 6.4(c)(1)
("Upon the filing of an initial motion or request for stay of removal or deportation, the order
of removal or deportation is temporarily stayed until further order of the Court.").
. . . . .
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1The Avilez court recognized "the Government's detention authority under Section
1231(a) does not begin until judicial review concludes with a court order and the stay is
lifted." 69 F.4th at 532.
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Compliance with Court Order - Release/Detention of Petitioner
While a removal order may be administratively final, the statute governing detention
after the entry of a "final order of removal" does not apply until the latest of:
"either (1) the date a noncitizen's "order of removal becomes administratively final,"
(2) the date of a court's final order, if the noncitizen's removal order is judicially
reviewed and this court stays the noncitizen's removal, or (3) the date the noncitizen
is released from criminal detention or confinement.
Avilez v. Garland, 69 F.4th 525, 531 (9th Cir. 2023), citations omitted.1
Nonetheless, the basis for Petitioner’s current detention is unclear. First, the Court
recognizes the Petition appears to assert Petitioner was subject to the 8 U.S.C. §
1225(b)(2)(A) mandatory detention policy. The Ninth Circuit has rejected this policy.
Rodriguez Vazquez v. Bostock, No. 25-6842, 2026 WL 2196424 (9th Cir. July 30, 2026)
(holding that immigrants who are present without admission and apprehended in the interior
are governed by § 1226 rather than § 1225(b)(2)(A)). In their response to the original
petition, Respondents did not address Petitioner's arguments but conceded Petitioner was
entitled to release. Response (Doc. 7).
Second, in their most recent notice, the government asserts Petitioner was re-detained
on August 19, 2026, because immigration officials determined that Petitioner's removal
order had become final. However, neither the notice nor the attached documents specify
through which statutory provision the government asserts the detention is appropriate.
Petitioner's DIA indicates his criminal history includes an arrest for battery against a police
officer. NOC, Ex. B, DIA (Doc. 12, ECF p. 11 of 12). Although Petitioner was arrested
for the offense (and others), he was released "after approximately two days in custody. The
dispositions are not provided and appear pending or unknown." Id.
The "Government's authority to detain a noncitizen under [8 U.S.C. § 1226(c)] . . .
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applies during the administrative and judicial phases of removal proceedings." Avilez, 69
F.4th at 535. "[N]oncitizens subject to mandatory detention under [8 U.S.C. § 1226(c)] are
not statutorily eligible for release on bond during the judicial phase of the proceedings,
except under the narrow circumstances defined by § 1226(c)(2)." Id. at 535-56; see also 8
U.S.C. § 1226(c)(2) ("For purposes of paragraph (1)(E), . . . 'assault of a law enforcement
officer' . . . ha[s] the meanings given such terms in the jurisdiction in which the acts
occurred."); Cal. Penal Code § 243(c)(2). Indeed, "[i]n no uncertain terms, the Supreme
Court stated that [8 USC 1226(c)] 'carves out a statutory category of aliens who may not be
released under [8 USC 1226(a)]." Id. at 534.
However, as stated by another court in this district:
Although there was a brief period of time in May 2025 during which it would have
been accurate to say that Petitioner "is arrested for" the crime of Battery With
Serious Bodily Injury, that description was no longer accurate by the time of
Petitioner's arrest by ICE in September 2025 or by the time Petitioner filed his habeas
petition in April 2026. At each of those points in time, Petitioner's arrest was a thing
of the past and his criminal proceedings in California had not progressed to the
successive stages contemplated by § 1225(c)(1)(E)(ii)—there was no present charge
or present conviction. It follows that Respondents cannot invoke § 1225(c)(1)(E)(ii)
as the basis for detaining Petitioner without a bond hearing. Although "Congress
intended to cast a wide net for mandatory detention when it passed the Laken Riley
Act," "Congress achieved its goal...by, among other things, making detention
mandatory for any noncitizen who 'is charged with' one of the enumerated offenses.
What Congress did not do is make detention mandatory for anyone who 'was charged
with' one of those offenses (past tense) but had the charges dismissed without a
conviction or some other admission of guilt. Had this been Congress's intent, it
surely knew how to find the right words." [Helbrum v. Williams Olson, 2025 WL
2840273 *7 (S.D. Iowa 2025)], (cleaned up).
Colli-Briceno v. Rivas, No. CV-26-02284-PHX-DWL (CDB), 2026 WL 2191447, at *3 (D.
Ariz. July 29, 2026). At the time of his re-detention, it could not be said Petitioner:
is charged with, is arrested for, is convicted of, admits having committed, or admits
committing acts which constitute the essential elements of any burglary, theft,
larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that
results in death or serious bodily injury to another person[.]
8 U.S.C. § 1226(c)(1)(E)(ii), emphasis added.
Further, in responding to the original Petition, Respondents did not assert Petitioner
was subject to detention based on this prior conduct of Petitioner. Rather, Respondents
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conceded Petitioner was entitled to release. The record before the Court does not establish
Petitioner had been detained pursuant to 8 U.S.C. § 1226(c)(1)(E)(ii).
Third, it does not appear the detention of Petitioner is appropriate under other
provisions of 8 U.S.C. § 1226(c). Indeed, the government has not argued any such detention
is appropriate and has not provided any documentation indicating such basis for the re-
detention.
Although the Court recognizes Respondents may revoke release under 8 U.S.C. §
1226(b) and 8 C.F.R. § 236.1(c)(9), those standards require a showing of a material change
in circumstances bearing on whether the noncitizen poses a danger to the community or a
risk of flight. Here, it appears the only possible changed circumstance in this case is that
the BIA dismissed Petitioner's appeal and, when Petitioner was re-detained, a stay of
removal was not in effect. Indeed, the DIA repeatedly stated a stay of removal was not in
effect. Although Respondents presented no argument regarding this fact, the Court infers
from this that immigration officials placed significant weight on the lack of a stay of
removal in determining re-detaining Petitioner was appropriate. Because the Ninth Circuit
is now reviewing that decision and has stayed Petitioner's removal, his removal is stayed just
as it was while his appeal was pending before the Board. See Matter of Sugay, 17 I&N Dec.
637, 640 (BIA 1981) (where a prior bond determination exists, "no change should be made
by a District Director absent a change of circumstance," and finding such a change only
where the removal order was accompanied by substantial new evidence of flight risk and
danger developed at the hearing); Panosyan v. Mayorkas, 854 F. App'x 787, 788 (9th Cir.
2021) (adopting Sugay's limit); Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D. Cal.
2019) (recognizing that DHS re-arrests only after a "material" change in circumstances);
Y.M.M. v. Wamsley, No. 2:25-cv-02075-TMC, 2025 WL 3101782, at *3 (W.D. Wash. Nov.
6, 2025) (change must be material as to danger or flight risk) (citing Matter of Guerra, 24
I&N Dec. 37 (BIA 2006)). However, there was an intervening, temporary change in
circumstances.
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Court declines to consider whether this change in circumstances was "material."
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The Court finds Respondents are not in current compliance with the Court's Order.2
Accordingly, IT IS ORDERED Respondents must provide Petitioner a bond
redetermination hearing within seven (7) days or release Petitioner from custody.
IT IS FURTHER ORDERED Respondents must provide a notice of compliance
within three (3) business days of releasing Petitioner or providing Petitioner a bond hearing.
DATED this 14th day of October, 2026.
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