Unreported / Non-Citable
Background
Miguel Angel Tercero Briones is a Honduran citizen who first entered the United States in 1991. After his asylum application was denied in 1992 and the Board of Immigration Appeals denied his appeal in 1999, he was placed on an immigration Order of Supervision — a release condition that allows the government to monitor a noncitizen with a final removal order rather than detain him. Around 2001 he received Temporary Protected Status (“TPS”), the special humanitarian status Congress created for nationals of designated countries in crisis.
For the next 26 years (May 1999 to October 2025), he reported for his check-ins as directed, complied with all conditions of release, was steadily employed with valid work authorization, and had no criminal record. His U.S. citizen daughter filed an I-130 family-based immigrant petition that has been approved, making him eligible (he says) for adjustment of status. He filed a motion to reopen his removal proceedings with the BIA in September 2025; that motion remained pending.
In October 2025, ICE detained him at his annual check-in. The agency told him only that his TPS had expired. He filed a federal habeas petition under 28 U.S.C. § 2241 challenging the lawfulness of the detention.
The Court’s Holding
The court granted the petition and ordered Tercero Briones’s immediate release, subject to his pre-existing Order of Supervision. The decision adopted the reasoning of several earlier Southern District of California cases involving similar facts.
First, the court rejected the government’s threshold argument that 8 U.S.C. § 1252(g) and § 1252(b)(9) strip the district court of jurisdiction. Those statutes bar review of the Attorney General’s decisions to commence removal proceedings, adjudicate cases, or execute removal orders. They do not bar challenges to the legality of detention itself. The court relied on its own prior rulings in Rasakhamdee v. Noem, Ghafouri v. Noem, and Alatorre Rodriguez v. LaRose for that proposition.
On the merits, the court ruled that ICE’s detention of Tercero Briones violated agency regulations and the Fifth Amendment’s Due Process Clause. ICE regulations require, when revoking release on an Order of Supervision, that the agency provide adequate notice of the reasons for revocation and conduct a required interview. ICE provided neither here — by the agency’s own concession in a sworn declaration. The court applied its prior holdings in Rasakhamdee, Ghafouri, and Touch v. Noem that this kind of regulatory failure violates due process.
The court also rejected the government’s argument that any failure to comply with the regulations was harmless. As in the prior cases, the court explained that the procedural protections the regulations provide — notice of the reasons for revocation and a prompt interview — are themselves constitutional safeguards. Depriving the noncitizen of those protections is itself the prejudice. The court therefore concluded that detention was unlawful and ordered release on the prior conditions.
Key Takeaways
- ICE cannot lawfully re-detain a noncitizen who has been on a long-standing Order of Supervision without first providing the notice and interview required by its regulations.
- 8 U.S.C. § 1252(g) and § 1252(b)(9) do not bar district-court habeas jurisdiction over challenges to the legality of detention. They apply only to challenges to the agency’s removal-proceedings or removal-execution decisions.
- Procedural failures like missing notice and skipped interviews are themselves the prejudice. Petitioners do not need to prove that they would have prevailed at the missing interview; the deprivation of the procedure itself violates due process.
- Decades of compliance with an Order of Supervision, combined with stable employment, no criminal record, and pending eligibility for adjustment of status, can strengthen the equities supporting habeas relief — but the legal theory is regulatory and constitutional, not equitable.
Why It Matters
This is one of a series of recent Southern District of California decisions addressing the surge in detentions of long-time TPS and Order-of-Supervision holders during routine check-ins. Cases like Rasakhamdee, Ghafouri, Touch, and now Tercero Briones establish a clear local rule: ICE must follow its own regulations when revoking release, and procedural shortcuts will lead to ordered release on habeas.
For California immigration counsel, the case is a useful template. The legal theory is straightforward — regulatory violation plus due-process consequence — and the relief is full release, not just a bond hearing. For TPS holders and noncitizens on Orders of Supervision who have been detained without warning, the case shows that long-standing compliance and stable family ties matter, but the path to release runs through ICE’s own procedural obligations.