District of New Jersey • 1:26-cv-08985

#1

Jul 20, 2026

PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number ANJDC-17683021.), filed by GEMMA CABURNAY ESTEBAN. (Attachments: # 1 Civil Cover Sheet)(ROSSEBO, ALEXANDER) (Entered: 07/20/2026)

#2

Jul 20, 2026

TEXT ORDER. Respondents are hereby enjoined from transferring Petitioner from New Jersey pending further Order of the Court. So Ordered by Chief Judge Renee Marie Bumb on 7/20/2026. (ps) (Entered: 07/20/2026)

Jul 20, 2026

Case Assigned/Reassigned

Jul 20, 2026

Emergent Immigration Habeas Non-transfer Order

Jul 20, 2026

Case Assigned to Chief Judge Renee Marie Bumb. (ps)

#3

Jul 21, 2026

TEXT ORDER Petitioner alleges she is unlawfully detained under 8 U.S.C. 1225 without a bond hearing. Dkt. No. 1, Petition for Writ of Habeas Corpus under 28 U.S.C. 2241 ("Petition"). If Respondents contest Petitioner's material factual allegations and/or assert Petitioner has a criminal history and/or contend that Petitioner's detention is distinguishable from the cases in this district previously addressing Section 1225, they shall file an expedited answer within three (3) days of the date of entry of this Order, and Petitioner may file a reply within three (3) days of the date of filing of Respondents' expedited answer. If Respondents do not file an expedited answer, pursuant to the Court's recent decisions in Rivera Zumba v. Bondi, No. 25-14626 (KSH), 2025 WL 2753496 (D.N.J. Sept. 26, 2025) (interpreting Section 1225(b)(2)), Rivas Rodriguez v. Rokosky, No. 25-17419 (CPO), 2025 WL 3485628 (D.N.J. Dec. 3, 2025) (interpreting Section 1225(b)(1)), and other recent decisions in this District interpreting Section 1225, the Court holds that Petitioner's mandatory detention violates the statute and due process. Therefore, in lieu of an expedited answer, Respondents shall release Petitioner within three (3) days of this Order and file a status report of compliance with this Order within three (3) days of Petitioner's release. So Ordered by Chief Judge Renee Marie Bumb on 07/21/2026. (Costigan, Roberta) (Entered: 07/21/2026)

#4

Jul 21, 2026

Response to Habeas Petition

Jul 21, 2026

Order

#5

Jul 24, 2026

Reply to Response (NOT Motion)

#6

Jul 30, 2026

TEXT ORDER Petitioner contends that she is unlawfully detained under 8 U.S.C. s. 1226(a) because ICE failed to comply with 8 C.F.R. s. 1236.1(c)(8). Dkt. No. 1 ("Petition") Specifically, Petitioner argues that ICE neither considered whether she should be released nor afforded her an opportunity to demonstrate to an authorized officer that her release would not pose a danger to persons or property and that she was likely to appear for future proceedings. Petition at 3-6. Respondents argue that Petitioner's detention is authorized by Section 1226(a), that ICE served Petitioner with a Notice of Custody Determination advising her of her right to seek bond redetermination before an Immigration Judge, and that Petitioner must exhaust the administrative review process. Dkt. No. 4 ("Answer"). Petitioner responds that a later bond hearing cannot remedy ICE's alleged failure to comply with Section 1236.1(c)(8). Dkt. No. ("Reply"). The parties do not dispute that Petitioner is subject to discretionary detention under 8 U.S.C. s. 1226(a) because she overstayed the time allowed by the visitor's visa on which she entered the United States in April 2015, with a derivative asylum application pending.The question before the Court is whether Section 1236.1(c)(8), applicable to the Department of Homeland Security, and the identical provision, 8 C.F.R. s. 236.1(c)(8), applicable to the Department of Justice, require ICE, before or shortly after detaining a noncitizen under Section 1226(a), to afford the noncitizen an opportunity to demonstrate that release would not pose a danger to persons or property and that the noncitizen is likely to appear for future proceedings. 8 C.F.R. s. 1236.1(c)(8) provides:"Any officer authorized to issue a warrant of arrest may, in the officer's discretion, release an alien... provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding."The Court concludes that it does not. The regulation identifies the substantive criteria governing an officer's discretionary authority to release a noncitizen--whether release would pose a danger to persons or property and whether the noncitizen is likely to appear for future proceedings--but it does not prescribe the procedures by which the officer must make that determination. It does not require an individualized pre-detention assessment, does not specify that a release determination must occur, or require that the officer provide the noncitizen an interview, hearing, or other opportunity to present evidence before detention. That interpretation is consistent with the structure of the statute and the regulations. The statute, Section 1226(a), authorizes arrest and detention while permitting discretionary release. The regulation, Section 1236.1(c)(8) implements that discretionary release authority by identifying the substantive showing necessary before an officer may release a noncitizen. If the officer declines to release the noncitizen, another regulation, 8 C.F.R. 1236.1(d)(1) separately provides the procedural mechanism by which the noncitizen may seek bond redetermination before an Immigration Judge, with further review before the Board of Immigration Appeals. Reading Section 1236.1(c)(8) to require a pre-detention evidentiary procedure would add requirements the regulation does not contain and blur the distinction between the officer's initial discretionary release determination and the established formal administrative review process. Therefore, Petitioner has not established a violation of due process conferred by Section 1236.1(c)(8). The petition for a writ of habeas corpus is therefore denied. So Ordered by Chief Judge Renee Marie Bumb on 07/30/2026. (Costigan, Roberta) (Entered: 07/30/2026)

Jul 30, 2026

Order