Unreported / Non-Citable
Background
The petitioner, Marcelino Cerro Huerta, is a citizen of Mexico who entered the United States without inspection in or around April 2001. He has lived continuously in the country for more than twenty years, has been married to his wife for twenty-four years, and has three United States citizen children, including a 10-year-old. He has had only minor encounters with law enforcement (a charge of driving without a license and failure to obey a traffic device) and no immigration enforcement contact prior to his recent arrest.
Immigration and Customs Enforcement (ICE) recently apprehended him in the interior of the United States and placed him in standard removal proceedings under 8 U.S.C. section 1229a. ICE detained him at the Mesa Verde Processing Center in Bakersfield, California and treated him as subject to mandatory detention under 8 U.S.C. section 1225(b)(2) — the statute that governs detention of noncitizens ‘seeking admission’ to the United States.
He filed a counseled federal habeas corpus petition under 28 U.S.C. section 2241 raising two claims: that his detention under section 1225(b)(2) instead of section 1226(a) (the general detention statute that affords a bond hearing) violates the Immigration and Nationality Act, and that his continued detention without a bond hearing violates the Fifth Amendment Due Process Clause. The government moved to dismiss for failure to exhaust administrative remedies and, on the merits, argued that section 1225(b)(2) governs.
The Court’s Holding
The magistrate judge recommended denying the government’s motion to dismiss and granting the petition in part. On exhaustion, the court found that requiring the petitioner to first pursue administrative review through the Board of Immigration Appeals would be futile and would cause irreparable injury, given the BIA’s own recent precedent treating noncitizens like the petitioner as ineligible for bond.
On the merits of the statutory claim, the court joined a growing line of Eastern District decisions holding that section 1225(b)(2) — by its plain terms applicable to noncitizens ‘seeking admission’ — does not reach noncitizens who, like the petitioner, were apprehended in the interior of the United States after years (here, over twenty) of continuous residence. The court reasoned that the ‘seeking admission’ framework was designed for those at or near the border, not for long-settled noncitizens. Because the petitioner is not ‘seeking admission,’ he is properly subject to section 1226(a), which requires an individualized custody determination and a bond hearing.
The court therefore recommended that the district court grant the petition in part — not by ordering immediate release, but by directing the government either to release the petitioner or to provide him a bond hearing under section 1226(a) within seven calendar days. Because the statutory claim resolved the case, the court did not reach the Fifth Amendment due process claim.
Key Takeaways
- The mandatory detention statute, 8 U.S.C. § 1225(b)(2), applies only to noncitizens ‘seeking admission’ — not to long-resident noncitizens apprehended in the interior of the United States.
- A 20-plus-year resident with U.S. citizen children, no immigration enforcement history, and only minor traffic offenses is entitled to an individualized bond hearing under § 1226(a), even after being placed in standard removal proceedings.
- Administrative exhaustion through the Board of Immigration Appeals can be excused as futile where the BIA’s own precedent forecloses the petitioner’s argument.
- The Eastern District is consistently rejecting the federal government’s reliance on § 1225(b)(2) for long-resident noncitizens — the proper remedy is generally a bond hearing within seven days, not necessarily immediate release.
- Counseled § 2241 habeas petitions remain a viable, fast-moving tool to challenge improperly invoked mandatory detention.
Why It Matters
This decision adds to the growing line of Eastern District habeas grants holding that the mandatory-detention statute § 1225(b)(2) cannot be stretched to cover noncitizens who entered without inspection but then lived in the United States for years or decades. For California’s substantial population of long-settled, undocumented residents — many with deep family ties and U.S. citizen children — the case is an important data point that federal habeas courts will provide a remedy when ICE invokes mandatory detention against them.
For practitioners, the opinion reinforces the now-standard playbook in this district: file the § 2241 petition, argue futility to overcome any exhaustion objection, and rely on the statutory § 1226(a) argument as the cleanest path to relief. The Fifth Amendment argument remains available as a backstop.