AMILCAR FERNANDO CICILIANO v. ROBERT GUADIAN (2026)

ORDER

Amilcar Fernando Ciciliano (“Petitioner”) has filed a four-count Second Amended Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C. § 2241, in which he asserts that he has been illegally detained by the U.S. Department of Homeland Security's (“DHS”) Immigration and Customs Enforcement (“ICE”). ECF 1. Specifically, Petitioner avers that his continued detention and accidental removal to Mexico by Federal Respondents violates 8 U.S.C. § 1231(a)(6) as interpreted by Zadvydas v. Davis, 533 U.S. 678 (2001) (Count I); the regulations governing revocation of orders of supervised release (Count III); this Court's orders (Count IV); and his attendant due process rights (Counts I II, III, IV)

Federal Respondents have opposed the Second Amended Petition. ECF 38. For the following reasons, the Court will GRANT the Petition and order that Petitioner be immediately released from immigration detention.¹

I. BACKGROUND

The Court begins by recounting the unfortunate facts of this case.

Petitioner is a native and citizen of E1 Salvador. ECF 28 ¶ 18. He entered the United States in 2003 and has lived here since that time. Id. In 2016, an immigration judge ordered Petitioner removed to E1 Salvador but granted him withholding of removal pursuant to the Convention Against Torture. Id. ¶ 19. In the years since, Petitioner has apparently been free on an order of supervision in the United States and as recently as August 29, 2024, was issued an Employment Authorization Document that necessarily required the determination that his removal was impossible or impracticable. See generally ECF 1; id. ¶ 20 (citing 8 U.S.C. § 1231(a)(7)).

On February 23, 2026, Petitioner was arrested by ICE without warning or explanation. Id. ¶ 21. The next day, on February 24, 2026, Federal Respondents issued Petitioner a Notice of Revocation of Release. Id. ¶ 22. The notice stated that Petitioner's order of supervision issued on March 29, 2016 was “revoked pursuant to 8 C.F.R. § 241.4(1) [because] ․ Your case is under review for removal to an alternate country.” ECF 28-2. The notice was signed by Erik Weiss, who was identified as “(a) Field Office Director,” although Petitioner notes that Robert Guadian was the ICE Washington Field Office Director at the time. Id.; ECF 28 ¶ 22.

Petitioner then filed his first Petition for Writ of Habeas Corpus in this Court on February 25, 2026, which was followed by an Amended Petition for Writ of Habeas Corpus the next day. ECF 1, 2. On February 27, 2026, the Court entered an order directing Federal Respondents to show cause why the Amended Petition should not be granted and enjoining them from “remov[ing] or transfer[ing] [Petitioner] from this district for any reason without this Court's permission during the pendency of this habeas action.” ECF 3. Thereafter, on March 3, 2026, the parties jointly moved for, and the Court granted, a fourteen day stay of the habeas proceedings to permit USCIS to conduct a reasonable fear interview as to removal to Mexico.² ECF 7, 8. A USCIS asylum officer performed a reasonable fear interview on March 12, 2026, which resulted in a negative fear determination. ECF 9. Petitioner avers that he was not provided any written record of this determination or any immigration judge review of the denial. ECF 28 ¶ 25.

After this point, things went significantly sideways for Petitioner. On March 16, 2026, Federal Respondents removed Petitioner from the United States to Mexico without seeking or obtaining the Court's permission, as required by the Court's Order of February 27, 2026. Id. ¶ 26; ECF 10. The Court need not recite the intricacies of what happened next, as much of this information is memorialized in the parties' numerous status reports filed with the Court, nor does it address any disputes as to the helpfulness of Federal Respondents in facilitating Petitioner's return to the United States. But it goes without saying that Petitioner should not have been removed from the Eastern District of Virginia—in clear violation of a Court order—and that the admitted failure of the Federal Respondents ³ worked an enormous hardship upon Petitioner and his family. Notably, Plaintiff asserts that ICE removed him from the United States by depositing him at the southern border crossing, and from there, Mexican immigration authorities transported him by bus from “Reynosa, Tamaulipas [adjacent to McAllen, Texas], then to Mexico City, and finally to a Mexican immigration detention facility in Palenque, Chiapas,” which is located in the far south of Mexico adjacent to its border with Guatemala (which is itself very close to E1 Salvador). ECF 28 ¶ 27. Additionally, Petitioner avers that while in Mexico, “Mexican immigration authorities also stated that they intended to deport [Petitioner] onwards to E1 Salvador,”⁴ despite the fact that American authorities are prohibited by law from doing so directly. Id.

Petitioner filed the currently operative Second Amended Petition on May 13, 2026. ECF 28. Eventually, on May 29, 2026, Petitioner returned to the United States via a commercial flight to Dulles International Airport. ECF 36. Petitioner was then redetained by ICE Enforcement and Removal Operations agents. Id. Thereafter, briefing on the Second Amended Petition was completed, and it is now ripe for disposition.

II. DISCUSSION

The Second Amended Petition asserts that Petitioner must be released from immigration detention because his order of supervision was not properly revoked pursuant to the prevailing regulations, he must be afforded immigration judge review of his fear of removal to Mexico, and there is no significant likelihood of removal in the reasonably foreseeable future. ECF 28 ¶¶ 36, 40, 42.

Federal Respondents reject these arguments but “recognize that this Court has ruled against Federal Respondents on several of the points raised ․ [and] respectfully [raise] such arguments here to reserve them for appeal if authorized by the Solicitor General.” ECF 38 at 5. Federal Respondents thus ask the Court to incorporate the filings from Lu v. Noem, No. 1:25-cv-00390-MSN-IDD, 2026 WL 1244546 (E.D. Va. Mar. 2, 2026); Garcia-Rivera v. Noem, No. 1:26-cv-229-MSN-WBP, 2026 WL 1244545 (E.D. Va. Mar. 2, 2026); and Rojas Toj v. Mullin, No. 1:26-cv-1142-MSN-WBP, 2026 WL 1458900 (E.D. Va. May 21, 2026) into the record of this case. Having considered Federal Respondents request, and because it appears from the record that Petitioner himself relies on the foregoing cases and it is appropriate to do so, the Court incorporates the foregoing cases into this matter.⁵ As the parties recognize, notwithstanding the factual complexities of this case, the issues presented are straightforward and have been addressed by the Court previously. Thus, the Petition will be granted for three reasons.

First, it is plain that Petitioner's order of supervision was not properly revoked in accordance with 8 C.F.R. § 241.4. As this Court has previously recognized, 8 C.F.R. § 241.4(1)(2) permits ICE district directors to “revoke release of an alien, when, in the district director's opinion, revocation is in the public interest and circumstances do not reasonably permit referral of the case to the Executive Associate commissioner.” Miralda-Lopez v. Lyons, slip op. at *7; Dong Lu v. Noem, slip op. at *9; Rojas Toj, slip op. at *8. But where there is “no indication that [the district director] determined that revocation was in the public interest or that circumstances do not reasonably permit referral of the case to the Executive Associate Commissioner,” revocation does not comply with the regulations and thus amounts to a due process violation by way of the Accardi doctrine. Id.; see Miralda-Lopez, ECF 8 at *7 (citing Serpas v. Simon, ECF 15, No. 1:25-cv-2369-AJT-WBP (E.D. Va. Feb 3, 2026)) (“The requirement that a senior official make the determination to revoke release—that is, to restrict a person's liberty—is not merely a housekeeping requirement but instead part of a procedural framework, designed to ensure the fair processing of an action affecting an individual, a violation of which can be deemed to be prejudicial and thus to implicate due process.”).

Federal Respondents' revocation notice here does not make any of the requisite public interest or referral findings and provides no basis or reason for the Court to infer such findings were made. Serpas, slip op. at *10 (“although [Federal] Respondents could well have made such a determination, the Court cannot infer that to be the case—nor is it required to do so—where the regulations require such a determination”). Additionally, it is doubtful that the notice here was even signed by a “district director,” as Federal Respondents did not respond to Petitioner's contention that at the time the notice was issued, Robert Guadian, and not “Erik Weiss,” was the ICE ERO Washington Field Office Director. Furthermore, the notice is so nonspecific and barebones (i.e., “Your case is under review for removal to an alternate country”) as to not provide any “meaningful reason for revocation to which Petitioner can respond.” Miralda-Lopez, slip op. at *6. For these reasons, the revocation of Petitioner's order of supervision does not comport with agency regulations and thus violates due process independently and as a matter of the Accardi doctrine.⁶

Second, considerations of constitutional due process also compel the conclusion that Petitioner be afforded the opportunity to seek de novo immigration judge review of his negative fear determination before any removal to Mexico (the only third country destination that the government has identified). See, e.g., Garcia-Rivera, slip op. at *5-6, (citing Serpas, ECF 15 at 15). The importance of such review, vis-a-vis the Matthews v. Eldridge factors, is especially great where, as here, there have been specific and unrebutted facts that strongly suggest that Mexico previously attempted—and will attempt again—to deport Petitioner to E1 Salvador, notwithstanding that Federal Respondents cannot themselves remove Petitioner to E1 Salvador due to an immigration judge's grant of CAT withholding.

Third, the foregoing also factors into whether Petitioner's post-final-order-of-removal detention is permissible as a matter of due process under 8 U.S.C. § 1231, as interpreted by Zadvydas v. Davis. Within the presumptively reasonable six month period, a petitioner may rebut the presumption that his detention is reasonable through “proof that ‘removal is not reasonably foreseeable.’ ” Rojas Toj, slip op. at *5 (citing, e.g., Zavvar v. Scott, 2025 WL 2592543, at *5 (D. Md. Sept. 8, 2025)). That proof is evident here. Federal Respondents were not able to achieve Petitioner's removal from 2016 to 2026 and issued employment documents as late as 2024 upon a determination that his removal was “impossible or impracticable,” which is a highly relevant admission suggestive of their general inability to remove Petitioner. Xiao v. Noem, ECF 10 at * 10, No. 1:25-cv-2382-MSN-IDD (E.D. Va. Jan. 30, 2026) (slip op.); Miralda-Lopez, slip op. at *5. Only in recent months have Federal Respondents identified Mexico (and no other country) as a third country for removal—but the Court cannot ignore that removal to Mexico cannot be properly effectuated until immigration judge review of fear is had, and it seems highly dubious that Mexico is a permissible destination given its substantiated and admitted attempts and intention to deport Petitioner to E1 Salvador. For these reasons, the Court finds that Petitioner's removal from the United States “within any finite period of time is exceedingly unlikely” Rojas Toj, slip op. at *6, 7. Accordingly, his detention violates due process and he must be released.

III. CONCLUSION

At the base of the Statute of Liberty, there is an inscription that reads

Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, the tempest-tost to me,

I lift my lamp beside the golden door!

The actions of Federal Respondents in this matter, due to inadvertence or incompetence or some other reason, are about as far afield from the lofty ideals upon which this country was founded—embodied by these words—as one can imagine. Petitioner and his counsel have met Federal Respondents' actions with an exceptional amount of grace. But the Court emphasizes without reservation that Federal Respondents' callous treatment of the Petitioner is unacceptable. The law does not permit Federal Respondents to send Petitioner to where he will face certain grievous harm. And it especially does not permit Federal Respondents to do so in violation of a clear order of the Court.

For all the reasons stated above, it is hereby

ORDERED that the Second Amended Petition (ECF 28) is GRANTED, and it is hereby

ORDERED that Petitioner be immediately released from custody, with all his personal property; and it is further

ORDERED that Petitioner's order of supervision be RESTORED immediately and may not be revoked unless done so in compliance with the requirements of 8 C.F.R. § 241.4 or 8 C.F.R. § 241.13, and it is further

ORDERED that Respondents and all of their officers, agents, servants, employees, attorneys, successors, assigns, and persons acting in concert or participation with them are ENJOINED from removing Petitioner from the United States unless (1) they possess a showing of sufficient changed circumstances with respect to the prospects for removal to a qualifying consenting country; and (2) Petitioner has first received de novo review by an immigration judge of the United States Citizenship and Immigration Services asylum officer's negative decision regarding whether Petitioner has a reasonable fear of persecution or torture if removed; and it is further

ORDERED that Petitioner's Emergency Motion (ECF 31) is DENIED as moot.

IT IS SO ORDERED.

The Clerk is directed to enter judgment in Petitioner's favor pursuant to Federal Rule of Civil Procedure 58, forward copies of this Order to counsel of record, and close this civil action.

Alexandria, Virginia

FOOTNOTES

1.   Petitioner has also filed an Emergency Motion for Temporary Restraining Order that is moot but largely parallels the Second Amended Petition. ECF 31. The Court will deny the Emergency Motion as moot.

2.   Prior to the joint motion, no filing in this Court indicated that Federal Respondents were considering removing Petitioner to Mexico specifically.

3.   Federal Respondents have acknowledged in their papers and at the May 8, 2026, status conference that Petitioner was “incorrectly” and “inadvertently” removed to Mexico as a result of a “record management error and as part of the effort to facilitate Petitioner's initial return to this District (from elsewhere in the United States) after the entry of this Court's Order to Show Cause.” ECF 38 at 4 & n.4.

4.   Federal Respondents offer no response to the foregoing factual contentions.

5.   Federal Respondents argue that Petitioner's claim for “violation of this Court's February 27, 2026 Order / Unlawful Removal in Violation of Due Process” is not cognizable in habeas but recognize that monetary sanctions may be available notwithstanding the fact that a request for sanctions is not a claim. ECF 38 at 15 & n.9. They also assert that Fourth Circuit precedent forecloses the award of attorneys' fees. Id. n.8. Petitioner does not address these points by Federal Respondents and notes that he does not wish to burden the Court with these issues at this juncture given the parties' discussions regarding reimbursement of costs. ECF 39 at 3 & n.2. Accordingly, the Court does not address the Fourth Claim or the issues of sanctions, monetary relief, fees, etc. in this Order. The parties may raise those issues separately if necessary.

6.   The Court notes that the Notice of Revocation of Release mentions 8 C.F.R. § 241.13 in a footnote. ECF 28-2. To the extent that Federal Respondents rely on Section 241.13, the Court finds that the Notice cannot satisfy the more stringent requirements for revocation imposed by that regulation. Garcia-Rivera, slip op. at 4 & n.3.

Michael S. Nachmanoff United States District Judge