PEREIRA v. DIAZ (2026)

ORDER DENYING PETITION FOR THE WRIT OF HABEAS CORPUS

This cause comes before the Court on the petitioner's petition for the writ of habeas corpus [ECF No. 1]. Having carefully considered the record and the arguments submitted, the Court denies the petition for the reasons stated below.

Background

In March 2017, the petitioner, a Brazilian national, entered the United States on a B-2 visitor visa. ECF No. 6-1 ¶ 6-7. The respondents assert that he was authorized to remain in the country until September 2017. ECF No. 6-1 ¶ 8. The petitioner claims, however, that he was granted lawful non-immigrant status until July 2021. ECF No. 7-1 ¶ 4. Nevertheless, it is not disputed that the petitioner has remained in the country continuously since March 2017. See generally ECF No. 1.

When the petitioner initially entered the United States, he was under indictment in Brazil for passive corruption in violation of Article 317 of Law 2848/1940 of the Brazilian Penal Code. ECF No. 6-1 ¶ 10. In May 2024, the petitioner was convicted in a Brazilian court and was sentenced to two years and eight months imprisonment. ECF No. 6-1 ¶ 11; ECF No. 7-1 ¶ 12. Because he was in the United States at the time the conviction and sentence was imposed, the petitioner has not yet served this sentence.¹ ECF No. 6-1 ¶ 12-13. Since the imposition of the conviction and sentence, Interpol has issued a “Red Notice” for the petitioner indicating that he is a fugitive wanted in Brazil to serve a sentence. ECF No. 6-1 ¶ 14.

This is not the only criminal history the petitioner has. While in the United States, he was arrested for grand theft and for not having a valid driver's license. ECF No. 1 ¶ 38; ECF No. 6-11 at 3.

In May 2025, the United States Immigration and Customs Enforcement (“ICE”) arrested the petitioner. ECF No. 6-1 ¶ 15. The United States Department of Homeland Security (“DHS”) then issued the petitioner a notice to appear, charging the petitioner with removability. ECF No. 6-1 ¶ 16. DHS detained him and asserted that he is removable because he has remained in the United States for a longer time-period than permitted. ECF No. 6-2 at 2; ECF No. 6-6 at 1.

The petitioner then requested a custody redetermination hearing to be released on bond. ECF No. 6-1 ¶ 17. An immigration judge held this hearing and denied the petitioner's custody redetermination request on the grounds that the petitioner is a flight risk since he fled Brazil while under indictment for passive corruption and that the petitioner has shown a disregard for the law through his arrests while in the United States. ECF No. 6-1 ¶ 18; ECF No. 6-11 at 2-3. The immigration judge specifically noted that the petitioner left Brazil while knowing that he was under indictment. ECF No. 6-8 at 1; ECF No. 6-11 at 2-3.

The petitioner then moved for reconsideration, which was denied. ECF No. 6-1 ¶ 19-20. The petitioner then appealed the denial of his request for release on bond to the Board of Immigration Appeals. ECF No. 6-1 ¶ 21. This appeal remains pending. ECF No. 6-1 ¶ 22.

The immigration judge then sustained the charge for removal and continued the case to allow the petitioner to file all applications for relief from removal, which the petitioner has done. ECF No. 6-1 ¶ 24. DHS then filed motions to pretermit all of the petitioner's applications for relief on the grounds that he is statutorily ineligible for the said relief. ECF No. 6-1 ¶ 25. The immigration judge has not yet ruled on these motions. ECF No. 6-1 ¶ 26.

The petitioner then filed this petition for the writ of habeas corpus. ECF No. 1. In it, he asserts that his continued detention is a violation of the Fifth Amendment's Due Process Clause as well as a violation of 8 U.S.C. § 1226(a) and its corresponding regulations. ECF No. 1. This Court then issued an order for the parties to brief whether 8 U.S.C. § 1252(b)(9), 8 U.S.C. § 1252(g), and/or any other applicable statutory provision deprives this Court of subject matter jurisdiction over the petition. ECF No. 3. To date, the petitioner remains detained in DHS's custody at the Broward Transitional Center. ECF No. 6-1 ¶ 27.

Analysis

This Court lacks jurisdiction over this petition under 8 U.S.C. § 1252(b)(9). Additionally, even if there were no jurisdictional bars to this petition, this Court would still deny the petition on the merits because his continued detention does not offend the Fifth Amendment's Due Process Clause and is not in violation of 8 U.S.C. § 1226(a).

8 U.S.C. § 1252(b)(9)

Section 1252(b)(9) states:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28, United States Code, or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order of such questions of law or fact.

(Emphasis added).

Under Eleventh Circuit precedent, “a claim ․ ‘aris[es] from’ a removal proceeding when the parties are ‘challenging ․ removal proceedings.’ ” Canal A Media Holding, LLC v. U.S. Citizenship & Immigr. Servs., 964 F.3d 1250, 1257 (11th Cir. 2020) (second alteration in original) (quoting Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 140 S. Ct. 1891, 1907 (11th Cir. 2020)). Thus, § 1252(b)(9) does not bar “claims that have a tangential relationship with pending removal proceedings.” Id. However, if a claim arises from removal proceedings, “§ 1252(b)(9) permits judicial review in only two circumstances: in connection with review of a final removal order and via a specific grant of jurisdiction in § 1252.” Jennings v. Rodriguez, 583 U.S. 281, 317 (2018) (Thomas, J., concurring).²

Here, § 1252(b)(9) bars the petition because the claims in the petition arise from the removal proceedings against the petitioner.

Both counts in the petition assert that the immigration judge's decision to deny the petitioner bond—which keeps the petitioner detained during the pendency of his removal proceedings—is unlawful. ECF No. 1 ¶ 53-63.

But detaining an alien during removal proceedings is an action that arises from the removal proceedings. See, e.g., Carlson v. Landon, 342 U.S. 524, 538 (1952) (“Detention is necessarily a part of [the] deportation procedure.”); see also Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir. 2013) (“Securing an alien while awaiting a removal determination constitutes an action taken to commence proceedings.”); Alvarez v. U.S. Immigr. & Customs Enf't, 818 F.3d 1194, 1203 (11th Cir. 2016) (explaining that the “decision to take [aliens] into custody and to detain [them] during [their] removal proceedings” “arise from [the] decision to commence proceedings”). Likewise, “[t]he decision either to grant or deny bond to an alien ․ arises from the decision to commence removal proceedings[.]” Mokanu v. Warden Mia. Fed. Det. Ctr., 821 F. Supp. 3d 1336, 1342 (S.D. Fla. 2026) (citing Alrbight v. Oliver, 510 U.S. 266, 278 (1994) (Scalia, J., concurring)).

Thus, both of the counts in the petition arise from the removal proceedings. Accordingly, § 1252(b)(9) bars the petition as this habeas petition is not a review of a final order and § 1252 does not otherwise grant this Court jurisdiction to hear the petition.³

Merits

The petitioner argues that the immigration judge's denial of his motion for custody redetermination on the grounds that he is a flight risk violates the Fifth Amendment because, in the petitioner's view, the immigration judge relied “on unverified and unreliable evidence” in the form of a blog post and “disregarded substantial contrary evidence,” thereby “violat[ing] Petitioner's right to a fair bond hearing.” ECF No. 1 ¶ 39, 56.

Under Eleventh Circuit precedent, “[d]ue process requires that aliens be given notice and an opportunity to be heard in their removal proceedings.” Lapaix v. United States AG, 605 F.3d 1138, 1143 (11th Cir. 2010). But “[t]o establish a due process violation, the petitioner must show that [he] was deprived of liberty without due process of law and that the purported errors caused [him] substantial prejudice.” Id. This requires an alien to show “that, in the absence of the alleged violations, the outcome of the proceeding would have been different.” Id.

Here, however, the petitioner cannot make this showing.

As plainly stated in the immigration judge's opinion denying the petitioner's motion for redetermination, the immigration judge concluded that the petitioner is a flight risk because of the petitioner's own testimony that he had been indicted in May 2011—six years before he obtained the B-2 visa—and that the petitioner subsequently overstayed the B-2 visa. ECF No. 6-11 at 2-3. Thus, there cannot be a Fifth Amendment violation on the basis of the immigration judge relying on a blog post because the immigration judge did not rely on a blog post. And even if the immigration judge had relied on the blog post, no due process violation exists because “[t]he determination of the Immigration Judge as to custody status or bond may be based upon any information that is available to the Immigration Judge or that is presented to him or her by the alien or the Service.” 8 C.F.R. § 1003.19(d) (emphasis added).

Additionally, even if the petitioner could prove a due process violation, he cannot prove that any violation caused him substantial prejudice. This is because the petitioner cannot prove that he is entitled to release on bond under § 1226(a).

For an alien not otherwise subject to mandatory detention, § 1226(a) authorizes the Attorney General either to “release the alien on[ ] ․ bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General” or to “continue to detain the arrested alien[.]” 8 U.S.C. § 1226(a)(1)-(2)(A) (emphasis added). Whether to release an eligible alien is an inherently discretionary decision. See Buenrostro-Mendez v. Bondi, 166 F.4th 494, 499 (5th Cir. 2026) (explaining that “§ 1226(a)(2)(A) permits, but does not require, the Attorney General” to grant bond to detained aliens (emphasis added)).

Thus, under § 1226(a)’s plain language, the Attorney General has statutory authority to deny bond to all aliens not subject to mandatory detention. Indeed, this is consistent with and derived from the federal government's “absolute and unqualified” power “to expel or deport foreigners, who have not been naturalized or taken any steps toward becoming citizens of the country[.]” See Fong Yue Ting v. United States, 149 U.S. 698, 707 (1893); Carlson, 342 U.S. at 538 (“Detention is necessarily a part of this deportation procedure. Otherwise[,] aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings.”); see also Dep't of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139 (2020) (describing “the power to admit or exclude aliens [as] a sovereign prerogative” (quoting Landon v. Plasencia, 459 U.S. 21, 32 (1982))); The Chinese Exclusion Case, 130 U.S. 581, 609 (1889) (explaining that the decision of whether to allow aliens into the country “is held at the will of the government, revocable at any time, at its pleasure”).

In any event, the applicable federal regulations extend bond to any eligible alien who can “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.” 8 C.F.R. § 236.1(8) (emphasis added). But the petitioner cannot meet this standard here.

When deciding whether an alien has proven that he is not a danger and is likely to appear, there are nine non-exhaustive factors an immigration judge must consider, including “the alien's criminal record, including the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses” as well as “any attempts by the alien to flee prosecution or otherwise escape from authorities[.]” In re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). In making this determination, “[t]he Immigration Judge may choose to give greater weight to one factor over others, as long as the decision is reasonable.” Id. (emphasis added).

Accordingly, it was reasonable for the immigration judge here to conclude that the petitioner was not likely to appear for future proceedings, and such findings outweighed the familial and community ties the petitioner had to the United States. The immigration judge was presented with evidence that the petitioner fled Brazil, knowing he was indicted, which also prevented Brazilian authorities from imposing his conviction and sentence. Further, the petitioner showed disregard for the law while in the United States, as evidenced by his arrests for grand theft and not having a valid driver's license. Such evidence outweighs the factors to grant bond in this case. See id. at 41 (holding that “serious criminal activity, even if it had not resulted in a conviction,” can sufficiently outweigh the other factors such that the denial of bond is reasonable). Indeed, the petitioner here has great motivation not to appear in his immigration proceedings because if he does appear and is ultimately deported to Brazil, he will likely have to begin his sentence in Brazil.

As such, neither the Fifth Amendment nor § 1226(a) were violated by the immigration judge's decision to deny bond to the petitioner.

Conclusion

Therefore, it is ORDERED AND ADJUDGED:

1. The petition [ECF No. 1] is DENIED.

2. This CASE IS CLOSED.

3. All pending motions are DENIED AS MOOT, and all deadlines are TERMINATED.

DONE AND ORDERED in Chambers in West Palm Beach, Florida, this 7th day of August 2026.

FOOTNOTES

1.   The petitioner claims that the conviction and sentence are now under appeal in Brazil. ECF No. 1 ¶ 38.

2.   The discussion of § 1252(b)(9) in the main opinion of Jennings has no precedential effect because a majority of the Supreme Court did not join that portion of the opinion. See CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 81 (1987).

3.   This is true even though the petitioner raises a constitutional claim. See Camarena v. Dir., Immigr. & Customs Enf't, 988 F.3d 1268, 1274 (11th Cir. 2021) (“[A] party may not dress up a claim with legal or constitutional clothing to invoke [a court's] jurisdiction[.]” (quoting Patel v. United States AG, 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc))).

ED ARTAU, UNITED STATES DISTRICT JUDGE