OSMAR JOSE ARRAIZ MONTILLA v. TODD BLANCHE MARKWAYNE MULLIN DAVID VENTURELLA DAVID EASTERWOOD QUINN RIESS (2026)

ORDER ON A PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Osmar Jose Arraiz Montilla has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging his immigration detention. [ECF No. 3]. He alleges that his re-detention without a bond hearing four years after his release into the United States violates the Due Process Clause. Id. Federal Respondents resist. [ECF No. 10]. For the reasons stated below, the petition is GRANTED in part and DENIED in part.

I. BACKGROUND

Petitioner is a native of Venezuela. [ECF No. 3 ¶ 1]. He entered the United States without inspection on March 22, 2022, and was taken into Department of Homeland Security custody (“DHS”). Id. ¶ 2. Four days later—after DHS concluded that he was not a threat to national security or public safety—Petitioner was released on his own recognizance and placed in removal proceedings. Id. ¶¶ 3–4; [ECF No. 1-3 at 4]. He provided DHS with a home address in Florida. [ECF Nos. 1-2 at 1; 10-1 ¶ 15]. He was served a Notice to Appear, charged as present without admission or parole under 8 U.S.C. § 1182(a)(6)(A)(i), and ordered to appear before an immigration judge on March 5, 2024. [ECF No. 3 ¶ 4]; see also [ECF No. 1-2].

Petitioner's release came with several conditions. He was required to participate in the Alternatives to Detention program and report to a parole or probation officer within five business days. [ECF No. 10-3 at 1, 3]. He was required to report for hearings and interviews as directed by Immigration and Customs Enforcement (“ICE”). Id. at 1. He was prohibited from changing his place of residence without written permission. Id. He was subject to electronic monitoring. Id. And he was warned that any violation of these conditions could result in his return to custody. Id. Petitioner was granted work authorization in October 2023. [ECF No. 10-1 ¶ 18]. There are no allegations that he violated the terms of his release over the next four years.

On May 1, 2026, Petitioner was re-detained after he voluntarily appeared at the ICE office in Cedar Rapids, Iowa, without prior notice. Id. ¶ 21. During this encounter, ICE alleged that Petitioner violated the conditions of his release by moving from Florida to Iowa without permission, and that his lack of Iowa ties and his Florida address and Florida driver's license made him a flight risk. Id.; [ECF Nos. 3 ¶ 6; 10-6 at 4]. He was held in custody without a bond hearing at the Linn County Jail. [ECF No. 3 ¶ 13]. While there, Petitioner applied for asylum and filed a petition for writ of habeas corpus in the Northern District of Iowa. Id. ¶¶ 10, 12; see also Arraiz Montilla v. Mullin, et al., No. 1:26-cv-00137-CJW-KEM (N.D. Iowa 2026).

The habeas petition survived initial review on June 18. [ECF No. 7 at 2]. The court gave Federal Respondents two weeks to respond. Id. Summons were issued and a certificate of service was filed the same day. Arraiz Montilla, No. 1:26-cv-00137-CJW-KEM, ECF Nos. 4, 5. Nonetheless, six days later, Federal Respondents transferred Petitioner to the Muscatine County Jail—located in the Southern District of Iowa. [ECF Nos. 3 ¶ 13; 7-1 ¶ 7]. Petitioner then voluntarily dismissed his habeas petition and refiled in the Southern District, citing jurisdictional concerns. [ECF No. 3 ¶ 14]. The Court ordered Federal Respondents to show cause, noting its concern with the transfer during ongoing habeas proceedings, and enjoined movement of Petitioner outside the Southern District. [ECF No. 6 at 4–5].

Petitioner alleges two similar due process violations. [ECF No. 3 at 22]. First, he claims that the denial of a bond hearing violated his due process rights. Id. And second, he contends that his release into the country created a liberty interest that Federal Respondents could not extinguish without a pre-deprivation bond hearing. Id. at 22–23.

Federal Respondents resist. [ECF No. 10]. They rely on Romero v. Brown to argue that detention without bond is constitutionally permissible in immigration proceedings. --- F. Supp. 3d ---, 2026 WL 1021455 (S.D. Iowa Apr. 15, 2026). They also reject Petitioner's argument that his conditional parole into the country changes the calculus. [ECF No. 10 at 3–4]. Both parties agree that an evidentiary hearing is unnecessary to resolve the matter. Id. at 1; [ECF No. 11 at 1].

II. LEGAL STANDARDS

Federal courts may hear habeas petitions from those held “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). That authority extends to those challenging immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). Petitioner bears the burden of proving that his detention violates the law. See Romero, 2026 WL 1021455, at *2.

The Fifth Amendment protects “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. Those protections apply in removal proceedings. Trump v. J.G.G., 604 U.S. 670, 673 (2025) (per curiam). When the Government releases a noncitizen into the country, and permits that person to live freely in the years that follow, that individual receives a liberty interest that cannot be extinguished without process. Garcia Tevalan v. Williams, Case No. 4:26-cv-00233-SMR-HCA, ECF No. 15 at 4–5 (S.D. Iowa July 6, 2026). This is true even though the liberty interest is the Government's own creation. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). With these principles in mind, the Court turns to Petitioner's claim.

III. ANALYSIS

The Court first addresses Petitioner's transfer from the Northern District to the Southern District. Federal Respondents claim ignorance as their explanation. [ECF Nos. 7, 10]. Despite the filing of the habeas petition on June 15; the initial review order, summons, and certificate of service filed on June 18; they contend that ICE did not know Petitioner had filed a habeas claim when he was transferred to the Southern District on June 24. Id. For his part, Petitioner's counsel represents that he was timely informed of the transfer and that he has no concerns with the honesty of Federal Respondents' counsel. [ECF No. 9].

The Court similarly has no concerns regarding counsel's honesty or integrity. But ICE's ignorance explanation—raised six days after a summons was issued and certificate of service was filed—is concerning. Arraiz Montilla, No. 1:26-cv-00137-CJW-KEM, ECF Nos. 4, 5. That is especially so given counsel's representation that proceedings could be more expeditiously resolved in the Northern District because—as ordered by United States District Court Judge C.J. Williams—the United States Attorney's Office was preparing a response to the petition. [ECF No. 7 at 3]. Even giving Federal Respondents every benefit of the doubt—a generous assumption given recent events—these facts suggest that some individuals knew of the habeas petition and failed to communicate its existence to the appropriate parties. Such lapses are far too common in recent immigration cases. The Court expects them to cease.

On the merits, the Court recently resolved a materially similar matter in Garcia Tevalan, concluding that the Government's release of a noncitizen into the country, allowing him to remain at liberty for years, created an interest protected by the Due Process Clause that “will be revoked only if they fail to live up to the conditions of release.” Case No. 4:26-cv-00233-SMR-HCA, ECF No. 15 at 4 (cleaned up) (quoting Singh v. Mullin, No. C26-00053-LTS-KEM, 2026 WL 1078710, at *4 (N.D. Iowa Apr. 20, 2026)); see also Morrissey v. Brewer, 408 U.S. 471, 482 (1972). The Garcia Tevalan petitioner's release into the country distinguishes him from the Romero petitioner who was never released and thus could not have acquired that same liberty interest. Accordingly, Garcia Tevalan governs re-detention cases, while Romero governs first-time detainees. Applying that framework here, the Court concludes that Petitioner's release into the United States—and the subsequent four years during which he was permitted to build a life in the country—created a liberty interest protected by the Due Process Clause.

This case presents an additional question that Garcia Tevalan did not definitively resolve: the appropriate remedy when that liberty interest is extinguished without process. Petitioner requests immediate release. [ECF No. 3 at 23]. The Court declines that request. The constitutional defect is the absence of process, and a hearing supplies the process that is due. Federal Respondents did not merely re-detain Petitioner on a whim; they allege that he violated the conditions of his release. [ECF Nos. 10-1 ¶ 21; 10-6 at 4]. Whether those changed circumstances justify Petitioner's continued detention is precisely the question an individualized bond hearing exists to answer. See Garcia Tevalan, Case No. 4:26-cv-00233-SMR-HCA, ECF No. 15 at 7 (distinguishing cases granting immediate release because the Government did not identify changed circumstances).

The Court also notes that an ICE officer concluded Petitioner was a flight risk because he was present in Iowa while maintaining a Florida address and driver's license. [ECF No. 10-6 at 4]. Those considerations may support a flight risk argument at a bond hearing. But the irony in labeling an individual who voluntarily appeared at the ICE office in Cedar Rapids—without request from agents—a “flight risk” is not lost on the Court. [ECF No. 10-1 ¶ 21]. Nonetheless, it is not the Court's role to make that determination in the Immigration Judge's stead, only to ensure Petitioner receives the process the Constitution requires. See Dambreville v. Noem, Case No. 4:25-cv-00514-SMR-SBJ, 2026 WL 602174, at *5 (S.D. Iowa Jan. 12, 2026).

The Court thus concludes that a bond hearing is the appropriate remedy. Cf. Montano-Gordillo v. Jamison, CIVIL ACTION NO. 26-3030, 2026 WL 1949503, at *3 n.1 (E.D. Pa. July 6, 2026) (citing over 40 cases ordering a bond hearing instead of immediate release). The allocation of the burden at that hearing must reflect the posture of the case. When the Government seeks to detain someone it previously released, fairness demands that the Government shoulder the burden of justifying that detention. See Dambreville, 2026 WL 602174, at *5. The Court therefore orders that the Government must prove by clear and convincing evidence that Petitioner's continued detention is warranted based on flight risk or dangerousness. This allocation reflects settled practice in re-detention cases. See Garcia Tevalan, Case No. 4:26-cv-00233-SMR-HCA, ECF No. 15 at 8 (collecting cases). Although an Immigration Judge would ordinarily lack authority to hold a bond hearing in these circumstances, the entitlement here arises from the Constitution, and the Court's authority under Section 2241 supplies the requisite authority to conduct a hearing. A bond hearing is therefore both required and available.

IV. CONCLUSION

The Government may detain noncitizens during removal proceedings. But when it releases a noncitizen into the country and allows him to remain free for years, it may not re-detain him without process. The Court holds that Petitioner's re-detention, without any individualized hearing, violates the Due Process Clause.

For the reasons stated above, the petition for a writ of habeas corpus is GRANTED in part and DENIED in part. [ECF No. 3]. Within seven days of this Order, Respondents shall provide Petitioner with a bond hearing before the Executive Office for Immigration Review. At that hearing, the Government shall bear the burden of proving by clear and convincing evidence that Petitioner's continued detention is warranted based on flight risk or dangerousness. The Court declines to order Petitioner's immediate release.

IT IS SO ORDERED.

Dated this 9th day of July, 2026.

STEPHANIE M. ROSE, CHIEF JUDGE UNITED STATES DISTRICT COURT