VARGAS ISTAMO v. PEREZ (2026)

MEMORANDUM OPINION AND ORDER

Before the Court are Petitioner's Objections to the Electronic Monitoring Requirement in Her Conditions of Release, (Dkt. No. 29). Vargas Istamo challenges the necessity and lawfulness of the electronic monitoring requirement in her Order of Supervision (OSUP), which was issued by the Department of Homeland Security (DHS) U.S. Immigration and Customs Enforcement (ICE) upon her release from immigration detention. For the reasons discussed below, the objections will be OVERRULED.

Vargas Istamo filed a petition for a writ of habeas corpus challenging her immigration detention on October 20, 2025. (Dkt. No. 1). The Court granted her petition in part and ordered her release on December 19, 2025. (Dkt. No. 25). When she was released, Vargas Istamo was placed on an OSUP, which included a requirement for electronic monitoring. (Dkt. No. 28-1 at 1).¹ Vargas Istamo's OSUP originally contained additional conditions that were clearly inapplicable to her. (Dkt. No. 29 at 1–2). These erroneous conditions were later removed, however, the condition of electronic monitoring remains in place. (Dkt. No. 33 at 1; Dkt. No. 33-1 at 1, 3).

Vargas Istamo objects to Respondents' use of electronic monitoring because Respondents have offered “no evidence of flight, danger, noncompliance, or any individual basis to justify electronically monitoring Ms. Vargas Istamo.” (Dkt. No. 29 at 3). Further, Vargas Istamo asserts that the Fifth Circuit requires an individualized assessment before imposing electronic monitoring as a condition of supervision. United States v. Miller, 530 F. App'x 335, 337 (5th Cir. 2013) (per curiam). Ultimately, Vargas Istamo “requests that this Court strike the electronic monitoring condition from her OSUP and direct that Ms. Vargas Istamo may remove the ankle monitoring device that was placed upon her when she was released from detention.” (Dkt. No. 29 at 3). Alternatively, she requests that “the government should be ordered to submit specific, record-supported findings for the electronic monitoring program that it seeks to maintain.” (Id. at 4).

Respondents argue that the Miller case is distinguishable and that Vargas Istamo's objections should be denied. First, Respondents distinguish the Miller case from the instant case because Miller evaluated the imposition of special conditions of supervised release in the criminal context. Second, Respondents assert that restrictive conditions imposed here are permissible because they are rationally related to a legitimate government interest.

As a threshold issue, the Court evaluates its jurisdiction to hear Vargas Istamo's objection to her conditions of release. Respondents do not challenge the Court's jurisdiction to hear this objection, but it is always incumbent on the Court to consider its jurisdiction. Filer v. Donley, 690 F.3d 643, 646 (5th Cir. 2012). A district court may grant a writ of habeas corpus if a petitioner is in federal custody in violation of the Constitution or federal law. 28 U.S.C. § 2241. The Court originally had jurisdiction to hear Vargas Istamo's prolonged detention claim and order her release. (See Dkt. No. 25 at 5–6). Even though Vargas Istamo has been released, she remains in immigration custody for Section 2241 purposes because her liberty is restrained. See Merlan v. Holder, 667 F.3d 538, 539 (5th Cir. 2011) (per curiam) (citation modified) (“Although an applicant need not be in actual physical custody to pursue a habeas action, there must be some type of restraint on the liberty of a person.”). Because Vargas Istamo remains in custody for the purposes of Section 2241, as she is subject to an order of supervision, the Court retains its jurisdiction to consider her objections to the lawfulness of her custody.

Turning to the substantive analysis, the Court agrees with Respondents that Miller is distinguishable. In Miller, the Fifth Circuit affirmed the district court's conditions of supervised release, which were ordered pursuant to 18 U.S.C. § 3583(d). This statutory authority allowing a Court to set conditions of supervised release is set out in a federal criminal sentencing statute. § 3583 (“Inclusion of a term of supervised release after imprisonment.”). Because Miller fundamentally addresses, and relies on authority for, a distinguishable legal framework, the Court finds that it does not control Respondents' imposition of release conditions in this case.

Instead, the Court applies the statute and regulations relevant to Vargas Istamo's immigration detention and conditions of release. 8 U.S.C. § 1231. This statute provides that: “If the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General.” § 1231(a)(3). This statute further directs that corresponding regulations shall include provisions that require, among other conditions, noncitizens “to obey reasonable written restrictions on the alien's conduct or activities that the Attorney General prescribes for the alien.” § 1231(a)(3)(D). These provisions are expansive: “we nowhere deny the right of Congress to remove aliens, to subject them to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions.” Zadvydas v. Davis, 533 U.S. 678, 695, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing 8 U.S.C. § 1231(a)(3)).

The corresponding federal regulations set out specific procedures for establishing conditions of supervision. These regulations generally defer to DHS's Headquarters Post-order Detention Unit (HQPDU) to set conditions of release:

An alien's release pursuant to an HQPDU determination that the alien's removal is not significantly likely in the reasonably foreseeable future shall be upon appropriate conditions specified in this paragraph and in the order of supervision, in order to protect the public safety and to promote the ability of [DHS] to effect the alien's removal as ordered, or removal to a third country, should circumstances change in the future. The order of supervision shall include all of the conditions provided in section 241(a)(3) of the Act, and § 241.5, and shall also include the conditions that the alien obey all laws ․ The order of supervision may also include any other conditions that the HQPDU considers necessary to ensure public safety and guarantee the alien's compliance with the order of removal, including, but not limited to, attendance at any rehabilitative/sponsorship program or submission for medical or psychiatric examination, as ordered.

8 C.F.R. § 241.13(h)(1) (emphasis added).

Here, the Court has already determined that Vargas Istamo was entitled to release as her removal was not significantly likely to occur in the reasonably foreseeable future. (Dkt. No. 25 at 10 (citing Zadvydas, 533 U.S. at 701, 121 S.Ct. 2491)). However, beyond that, the statute authorizes the agency to prescribe “reasonable written conditions,” which the agency exercises through the HQPDU when subjecting noncitizens to conditions of release “that the HQPDU considers necessary to ensure public safety and guarantee the alien's compliance with the order of removal.” 8 U.S.C. § 1231(a)(3)(D); 8 C.F.R. § 241.13(h)(1).

The statute and regulations do not require the agency to provide individualized reasons to the noncitizen for the imposition of certain conditions of release. The statute authorizes the agency to prescribe reasonable conditions, and the HQPDU is authorized by regulation to evaluate those conditions to determine what conditions are necessary to ensure public safety and guarantee compliance with removal orders.

Aside from the statute and regulations, Vargas Istamo argues that she is entitled to an individualized determination under the electronic monitoring program. She cites Respondents' exhibit, which is a website providing information about the Alternatives to Detention (ATD) program that she is subject to, to argue that she is entitled to an individualized assessment. (Dkt. No. 33-2 at 3 (“Each alien enrolled in ATD-ISAP [(Intensive Supervision Appearance Program)] receives an individualized determination as to their level of supervision. [Enforcement and Removal Operations] may transition an alien's supervision level by considering certain factors. Factors considered in both initial placement and changes to supervision level, as relevant, include criminal history, compliance history, community or family ties, caregiver concerns, and other humanitarian or medical concerns.”)). While the agency describes its program and evaluative criteria on this website, the information on the website does not necessarily commit the agency to providing notice of reasons for the individualized determination.

Finally, persuasive authority submitted by both parties supports the finding that electronic monitoring of noncitizens with final orders of removal is reasonably related to a legitimate government interest. Vargas Istamo asserts that she does not challenge ATD generally, as in the cases Respondents cite, but instead challenges the choice to enroll her in the ATD program. (Dkt. No. 36 at 2). She argues that had the government properly applied its criteria to her, then she would not have been placed on an electronic monitoring device because she lacks criminal history, has family ties to the United States, and received protection from removal under the Convention Against Torture. (Id. at 3).

However, courts have found that the general application of electronic monitoring does not violate due process without evaluating the agency's decision to impose that condition. For example, in Gozo v. Mayorkas, the court held that “ICE's use of ISAP, which includes GPS ankle monitoring, is a reasonable restraint.” No. 1:23-CV-159, 2024 WL 2027510, at *4 (S.D. Tex. Mar. 4, 2024) (recommending that the district court deny objections to conditions, though the petition was moot before the district court could adopt the recommendation). While the facts of Gozo's criminal history are distinguishable, the court analyzed the application of the monitoring condition broadly: “ISAP's requirements that participants wear ankle bracelets does not violate aliens' due process rights because it is rationally related to the government's interest in monitoring aliens under a final removal order and protecting the community.” Id. This holding aligns with other cases finding the same. Ahmed v. Tate, No. 4:19-CV-4889, 2020 WL 3402856, *4 (S.D. Tex. June 19, 2020) (collecting cases and finding that though Ahmed did not have criminal propensities, imposition of the condition was not unlawful).

Because the Court finds that the statute and regulations do not require evidence of an individualized assessment, the Court will not require the agency to provide it. Nor will the Court strike a condition set by the agency within its power to set conditions for release for noncitizens after an order of removal has been entered against them. Furthermore, the Court finds no basis in the persuasive authority to support a review of the agency's decision to impose this condition when Vargas Istamo is subject to a final order of removal. While the Court appreciates the hardships associated with wearing an electronic monitoring device, (see Dkt. No. 36 at 4 n.1), the Court declines to hold Respondents to a burden to provide a supporting basis that is not required by law.

For the foregoing reasons, Vargas Istamo's objections, (Dkt. No. 29), are OVERRULED.

The following orders REMAIN IN EFFECT: Vargas Istamo's conditions of release must allow her to travel to New Jersey to reside with her family; Vargas Istamo cannot be re-detained without a bond hearing to determine whether there has been a material change in circumstances; she may only be subject to detention if there is a material change in circumstances; and Respondents must provide 10-day notice of any anticipated removal of Petitioner. (Dkt. Nos. 5, 25).

It is so ORDERED.

FOOTNOTES

1.   When citing to the page numbers of any document in the record, the Court will cite to the page numbering of the Court's internal CM/ECF docket system, and not to the page numbers in the underlying documents.

John A. Kazen, United States District Judge