MESA v. DEPARTMENT OF HOMELAND SECURITY (2026)

ORDER DENYING PETITION

THIS CAUSE comes before the Court on Petitioner, Nicolay Mesa's, Petition for a Writ of Habeas Corpus. [ECF No. 1]. Petitioner argues their continued detention is unlawful and that the government revoked Petitioner's Order of Supervision without not ice or an opportunity to respond. Id. After careful consideration and being otherwise fully advised, the Court DENIES the Petition.

BACKGROUND

Petitioner is a native and Citizen of Cuba who lawfully entered the United States on January 10, 1996, at a designated port of entry. [ECF No. 6]. On May 27, 1998, Petitioner adjusted his status to that of a Lawful Permanent Resident (LPR). Id.

On April 20, 2000, Petitioner was arrested for Grand Theft in the third degree. On August 4, 2000, the court found adjudication withholding and sentenced him to one year on probation. Id.

On September 3, 2003, Petitioner was arrested for domestic violence battery. Id. On November 24, 2003, the court entered an order withholding adjudication and sentenced him to community service. Id.

In February 2007, Petitioner applied for admission into the United States as a returning LPR and was taken into ICE custody. Id. On February 28, 2007, an immigration judge granted Petitioner a 212(h) waiver, a waiver of prior criminal conduct in adjustment of status and was released from ICE custody. Id.

On March 9, 2009, Petitioner was arrested for resisting an officer without violence, convicted, and sentenced to six months’ probation. Id.

A few years later, on January 26, 2011, Petitioner was arrested for the purchase, possession, manufacture, distribution or sale of marijuana. On that charge, Petitioner was convicted of conspiracy to manufacture 100 or more marijuana plants. Petitioner was transferred to ICE custody and determined to be amenable to removal. Id. In ICE custody, Petitioner was charged with inadmissibility, ordered removed from the United States to Cuba, and had his LPR status revoked due to his felony convictions. However, on December 11, 2012, Petitioner was released on an Order of Supervision (OSUP). Id.

On June 20, 2026, ICE encountered Petitioner at the Orlando International Airport, issued a warrant for his arrest, and took him into custody. Id. On August 11 and August 20, 2026, Petitioner was issued a notice of third country removal and informed of ICE's intent to remove Petitioner to Mexico. Id. On September 10, 2026, ICE issued petitioner notice of the OSUP revocation and conducted an informal interview dated that same day. Id.

Petitioner now seeks a writ of habeas corpus, challenging the legality of the detention. Id.

ANALYSIS

Petitioner's argument is that the government's alleged failure to follow their internal procedures constitutes a violation of Due Process. [ECF No. 1]. Petitioner argues that alleged failure justifies his immediate release.

ICE may revoke an alien's OSUP if “[i]t is appropriate to enforce a removal order[.]” 8 C.F.R. § 241.4(l)(2)(iii). “Upon revocation,” ICE must notify an alien “of the reasons for revocation” and afford him “an initial informal interview promptly after his ․ return to ․ custody to afford the alien an opportunity to respond to the reasons for revocation stated in the notification.” 8 C.F.R. § 241.4(l)(1).

While Respondents argue that the Court is without jurisdiction to review the Petition, that argument misconstrues what is at issue in this case. Section 1252(g) provides that “no court shall have jurisdiction not hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). The Eleventh Circuit distinguishes between situations where an alien's claims are founded directly on a decision to commence proceedings, adjudicate cases, or execute removal orders, from those where an alien challenges the “underlying legal bases” of those decisions or actions. Madu v. U.S. Atty. Gen., 470 F.3d 1362, 1368 (11th Cir. 2006) (citations omitted). Where the statutory framework grants the agency discretion, the Eleventh Circuit has held that courts have jurisdiction to review whether an agency adhered to its own regulations and procedures. Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir. 2000) (“[A]gencies must respect their own procedural rules and regulations ․ [and] the courts retain the authority to check ․ for procedural compliance.”).

Courts have consistently found judicial review appropriate in immigration cases where violations of procedural regulations are at issue. See Grigorian v. Bondi, 824 F. Supp. 3d 1243, 1256 (S.D. Fla. 2025) (“The failure to provide Petitioner with an informal interview promptly after his detention or to otherwise provide a meaningful opportunity to contest the reasons for revocation violates both ICE's own regulations[.]”); Pedro v. U.S. Immigration and Customs Enforcement, et al., 3:26-CV-798-JEP, 2026 WL 2559176, at *1 (M.D. Fla. Aug. 31, 2026) (“The failure to provide Petitioner with notice of revocation ‘[u]pon revocation’ and an informal interview “promptly” after his re-detention violates ICE's own regulations.”) (citations omitted). As noted below, in both of those cases the courts granted the habeas petition.

Here, Petitioner does not contest the discretionary decision to detain him but challenges whether ICE complied with the procedural requirements required to revoke an OSUP stated in 8 C.F.R. 241.13(i)(3).¹ While Petitioner raises this claim as failure to follow the process set forth § 241.13(i)(3), ICE's own Notice of Revocation of Release states that Petitioner's release was revoked pursuant to 8 U.S.C. § 241.4(l). [ECF No. 6-2, ¶25]. At the same time, Respondent explains that the Notice of Revocation of Release was issued pursuant to § 241.13. [ECF No. 6, at 7]. The Court finds that § 241.13(i)(3) applies because the OSUP was revoked due to a changed circumstance, the government's forthcoming removal of Petitioner to Mexico.² In any event, the legal question the Court is tasked with answering turns on whether the Respondents complied with the notice and interview requirements in accordance with either the applicable § 241.13(i)(3) or § 241.4(l) regulation, both of which require notice of revocation and an informal interview promptly after his return to custody to afford the alien an opportunity to respond to the reasons for revocation. The differing circumstances from which either regulation is applied will not change the outcome of our analysis.

Petitioner is correct in their contention that they must be afforded notice and an initial interview promptly after being detained. The information provided by Respondents explains that Petitioner was detained on July 20, 2026, given two notices of third country removal on August 11, 2026 and August 20, 2026, but did not receive the Notice of Revocation of Release and informal interview until September 10, 2026. [ECF No. 6, at 3-4].

But even if the Respondents did not fully comply with the regulations set forth in § 241.13, that by itself does not compel reversal, much less release of someone in custody. See Sharma v. Drug Enf't Agency, 511 F. App'x 898, 902 (11th Cir. 2013) (noting that an agency's violation of its own regulations will not necessarily be a due process violation if the claimant's rights were not prejudiced or if there is an adequate post-deprivation remedy available to cure the violation).

The Court acknowledges other courts have reached a different result, albeit on different facts. Pedro v. U.S. Immigration and Customs Enforcement, et al., 3:26-CV-798-JEP, 2026 WL 2559176, at *1 (M.D. Fla. Aug. 31, 2026) (Pratt, J.) (“ICE did not [comply with the notice and interview requirements]. As such, the Court concludes that Petitioner's re-detention violated 8 C.F.R. § 241.4(l) and that he is entitled to release.”); Grigorian v. Bondi, 824 F. Supp. 3d 1243, 1256 (S.D. Fla. 2025) (Ruiz, J.) (“The failure to provide Petitioner with an informal interview promptly after his detention ․ compels Petitioner's release.”).

But here, Petitioner ultimately received their informal interview, albeit 52 days after they were formally detained. Still, even if a Due Process violation occurred in the delay between detention and the informal interview, Petitioner's rights were not prejudiced during that procedural gap. As a reminder, the revocation of release was issued to effectuate the removal of Petitioner. Lying at the core of Petitioner's pending removal, is the 2012 inadmissibility charge and loss of LPR status on the basis of Petitioner's prior felony convictions. Any changes to timeliness would not have a material effect on prior determinations nor would it change the criminal charges and convictions that are the heart of Petitioner's removability. For these reasons, any Due Process defect that allegedly existed was remedied by the interview given on September 10, 2026 and any arguments against the revocation of release beyond the procedural lapses are beyond the Court's jurisdiction. So a writ of habeas corpus would be an inappropriate remedy. See Huynh v. Noem, No. 1:26-CV-006-H, 2026 WL 1188785, at *4 (N.D. Tex. Mar. 16, 2026) (“Because [petitioner] has received more than a full notice and an opportunity to be heard, even if the respondents failed to conform to the regulations set forth in Section 241.13 ․ [t]here is no basis, on these grounds, for ordering [petitioner]’s immediate release.”).

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Petitioner's Writ of Habeas Corpus [ECF No. 1] is DENIED. The Clerk shall terminate any pending motions as moot and close this case.

DONE and ORDERED in Fort Lauderdale, Florida on September 15, 2026.

FOOTNOTES

1.   “Upon revocation, the alien will be notified of the reasons for revocation of his or her release. The Service will conduct an initial informal interview promptly after his or her return to Service custody to afford the alien an opportunity to respond to the reasons for revocation stated in the notification. The alien may submit any evidence or information that he or she believes shows there is no significant likelihood he or she be removed in the reasonably foreseeable future, or that he or she has not violated the order of supervision. The revocation custody review will include an evaluation of any contested facts relevant to the revocation and a determination whether the facts as determined warrant revocation and further denial of release.” 8 C.F.R. 241.13(i)(3).

2.   “Section 241.4 shall continue to govern the detention of aliens under a final order of removal, including aliens who have requested a review of the likelihood of their removal under this section, unless the Service makes a determination under this section that there is no significant likelihood of removal in the reasonably foreseeable future. The Service may release an alien under an order of supervision under § 241.4 if it determines that the alien would not pose a danger to the public or a risk of flight, without regard to the likelihood of the alien's removal in the reasonably foreseeable future.” 8 U.S.C. § 241.13(b)(1).

JEFFREY T. KUNTZ, UNITED STATES DISTRICT JUDGE