govinfo:USCOURTS-casd-3_26-cv-02796-1

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
YANDY ERNESTO MACHIN-ROSAL, 
Petitioner, 
v. 
MARKWAYNE MULLIN, et al., 
Respondents. 

 
ORDER GRANTING IN PART 
AND DENYING IN PART 
PETITION FOR WRIT OF 
HABEAS CORPUS 
 
[Docs. 3, 9] 
 
Pending before the Court are Petitioner Yandy Ernesto Machin-Rosal’s 
(“Petitioner”) First Amended Petition for Writ of Habeas Corpus (“ Amended Petition”) 
(Doc. 9) pursuant to 28 U.S.C. § 2241 and Motion for Temporary Restraining Order (“TRO 
Motion”) (Doc. 3 ). The Amended Petition and TRO Motion seek the same relief: 
Petitioner’s release from detention and an order enjoining Respondents from removing 
Petitioner to a third country unless they provide him with written notice and a meaningful 
opportunity to raise fear-based claims. (Doc. 9 at 16–17; Doc. 3 at 3.) For the reasons set 
forth below, the Petition is GRANTED in part and DENIED in part. 
I. BACKGROUND 
A. Factual Background 
Petitioner is a citizen of Cuba who came to the United States in 2009 and became a 
lawful permanent resident. ( Doc. 9-1 [Decl. of Yandy Ernesto Machin-Rosal (“Machin-
Rosal Decl.”)] ¶¶ 1 –2; Doc. 11- 1 at 4.) Between June 14, 2019 and February 5, 2025, 
Petitioner was arrested for the following: “False Statement to Obstruct Police; ” 
“Use/Possess Drug Paraphernalia;” “Possess/Receive Stolen Vehicle;” “Battery Domestic 
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Violence;” “Trespass (dismissed);” “False Statement to Obstruct Police Officer;” “Battery 
with a Deadly Weapon and Conspiracy to Commit Battery with a Deadly Weapon. ” 
(Doc. 11-1 at 4.) 
 On November 3, 2025, Petitioner was ordered removed to Cuba. (Doc. 11- 1 at 7–
10.) On November 17, 2025, Petitioner was physically removed to Mexico. (Doc. 11-1 at 
12.) Petitioner attests that he “was sent to the border with Mexico and forced to walk across 
the border.” (Machin-Rosal Decl. ¶ 5.) Petitioner was kidnapped while in Mexico and 
later reentered the United States. (Id. ¶¶ 5–6.) On January 16, 2026, Border Patrol agents 
encountered Petitioner near Boulevard, California and determined that he had illegally re-
entered the United States. (Doc. 11 -1 at 3– 4.) Petitioner was “referred for prosecution 
under 8 U.S.C. § 1326(a).” ( Id. at 4.) On April 10, 2026, “the government moved to 
dismiss the case against [Petitioner] . . . in the interests of justice,” and District Judge Huie 
granted the motion to dismiss. (Doc. 9 at 3.) After the dismissal, Petitioner was brought 
back to immigration detention at Otay Mesa Detention Center. (Id.) 
On April 14, 2026, the Department of Homeland Security issued Petitioner a Notice 
of Intent / Decision to Reinstate Prior Order under Immigration and Nationality Act 
§ 241(a)(5). (Doc. 11-1 at 12.) On May 15, 2026, Immigration and Customs Enforcement 
(“ICE”) “reinstated the prior removal order as a final order of removal” and placed 
Petitioner into custody pursuant to 8 U.S.C. § 1231(a). (Doc. 11 at 2; Doc. 11-1 at 14–15.) 
“ICE is seeking to remove Petitioner to Mexico.” (Doc. 11 at 4.) 
B. Procedural Background 
Petitioner, initially proceeding pro se , filed his original Petition (Doc. 1), the TRO 
Motion (Doc. 3), and a Motion to Appoint Counsel (Doc. 2) on April 30, 2026. The Court 
appointed Federal Defenders of San Diego, Inc. as counsel and set a briefing schedule. 
(Doc. 4.) On May 20, 2026, after the Court granted a Joint Motion to Extend the Briefing 
Schedule (see Docs. 7, 8), Petitioner filed his Amended Petition (Doc. 9). On May 27, 
2026, Respondents filed their Return to Amended Petition. (Doc. 11.) On June 3, 2026, 
Petitioner filed his Traverse. (Doc. 12.) 
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II. LEGAL STANDARD 
A writ of habeas corpus is “available to every individual detained within the United 
States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art. I, § 9, cl. 2). 
“The essence of habeas corpus is an attack by a person in custody upon the legality of that 
custody, and . . . the traditional function of the writ is to secure release from illegal 
custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Writs of habeas corpus may 
be granted by the Supreme Court, any justice thereof, the di strict courts and any circuit 
judge within their respective jurisdictions.” 28 U.S.C. § 2241(a). The petitioner bears the 
burden of demonstrating that “[h]e is in custody in violation of the Constitution or laws or 
treaties of the United States.” Id. § 2241(c)(3). 
III. DISCUSSION 
Petitioner argues that: (1) his detention violate s Zadvydas v. Davis , 533 U.S. 678 
(2001), because there is no significant likelihood of his removal in the reasonably 
foreseeable future; and (2) due process and the Convention Against Torture (“CAT”) 
prohibit ICE from removing him to a third country “without adequate notice and an 
opportunity to be heard.” (Doc. 9 at 6–16.) Respondents argue that: (1) Petitioner’s 
detention still falls within the 90-day mandatory removal period of 8 U.S.C. § 1231(a); and 
(2) the third country claims are moot because “ICE is seeking to remove Petition to Mexico 
not an alternative third country.” (Doc. 11 at 1–4.) 
For the reasons below, t he Court finds that: (1) Petitioner is still mandatorily 
detained under § 1231 and (2) Respondents must provide Petitioner with adequate notice 
and an opportunity to be heard before removing him to a third country. 
A. Removal Period 
Section 1231(a) “governs the detention, release, and removal of individuals ordered 
removed.” Johnson v. Arteaga-Martinez, 596 U.S. 573, 578 (2022). After the entry of a 
final removal order, a noncitizen is subject to mandatory detention for 90 days, known as 
the “removal period.” U.S.C. § 1231(a)(1). The removal period begins on the latest of 
the following: (1) “[t]he date the order of removal becomes administratively final;” (2) “[i]f 
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the removal order is judicially reviewed and if a court orders a stay of the removal of the 
[noncitizen], the date of the court’s final order;” or (3) “[i]f the [noncitizen] is detained or 
confined . . . , the date the [noncitizen] is released from detention or confinement.” 
§ 1231(a)(1)(B). In the context of reinstated removal orders, the “90- day removal period 
beg[ins] to run on . . . the date that [a noncitizen’s] removal order was reinstated after his 
reentry into the United States.” Alva v. Kaiser , Case No. 25- cv-06676-RFL, 2025 WL 
2419262, at *3 (N.D. Cal. Aug. 21, 2025) (citing § 1231(a)(5)); see also Aguilar Guerrero 
v. Warden, Case No. 1:26-cv -2499-TLN-JDP, 2026 WL 1329734, at *2 (E.D. Cal. May 
13, 2026) (“Here, the removal period began . . . when petitioner’s prior removal order was 
reinstated.”); Castillo v. Chestnut, Case No. 1:25 -cv-01296-SAB-HC, 2026 WL 121652, 
at *13 (E.D. Cal. Jan. 16, 2026) (“Here, the removal period began to run on . . . , the date 
that Petitioner’s removal order was reinstated after his reentry into the United States.”). 
Here, Petitioner’s removal order was reinstated, and his 90- day removal period 
began, on May 15, 2026. (Doc. 11 at 2 –4.) He is therefore still in the 90- day period of 
statutorily mandated detention, and will be until August 13, 2026. Accordingly, to the 
extent the Amended Petition seeks immediate release, it is DENIED without prejudice. 
B. Third Country Removal 
Petitioner also claims that “ICE’s policies threaten his removal to a third country 
without adequate notice and an opportunity to be heard,” in violation of the Fifth 
Amendment and CAT. (Doc. 9 at 12–13.) Respondents argue that this claim is moot 
because they do not seek to remove Petitioner to a third country, but to Mexico. (Doc. 
11 at 4.) Because Petitioner is a citizen of Cuba and was ordered removed to Cuba ( see 
Doc. 11-1 at 7 –10), and Respondents seek to remove him to Mexico, Petitioner’s third-
country claim is not moot. The Court ORDERS that Petitioner be provided notice and a 
meaningful opportunity to be heard before any attempted third-country removal. 
In support of his argument here, Petitioner discusses the July 9, 2025 memo from 
former ICE Director Todd Lyons (“ICE Memo”) titled “Third Country Removals 
Following the Supreme Court’s Order in Department of Homeland Security v. D.V.D., No. 
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24A1153 (U.S. June 23, 2025).” (Doc. 1 at 40.) The ICE Memo reads: 
If the United States has received diplomatic assurances from the country of 
removal that [noncitizens] removed from the United States will not be 
persecuted or tortured, and if the Department of State believes those 
assurances to be credible, the [noncitizen] may be removed without the need 
for further procedures. ICE will seek written confirmation from the 
Department of State that such diplomatic assurances were received and 
determined to be credible. . . . In all other cases, ICE must comply with the 
following procedures: 
 
- An ERO officer will serve on the alien the attached Notice of 
Removal. The notice includes the intended country of removal and 
will be read to the alien in a language he or she understands. 
 
- ERO will not affirmatively ask whether the alien is afraid of being 
removed to the country of removal. 
 
- ERO will generally wait at least 24 hours following service of the 
Notice of Removal before effectuating removal. In exigent 
circumstances, ERO may execute a removal order six (6) or more 
hours after service of the Notice of Removal as long as the alien is 
provided reasonable means and opportunity to speak with an 
attorney prior to removal. 
 
- Any determination to execute a removal order under exigent 
circumstances less than 24 hours following service of the Notice of 
Removal must be approved by the DHS General Counsel, or the 
Principal Legal Advisor where the DHS General Counsel is not 
available. 
 
- If the alien does not affirmatively state a fear of persecution or 
torture if removed to the country of removal listed on the Notice of 
Removal within 24 hours, ERO may proceed with removal to the 
country identified on the notice. ERO should check all systems for 
motions as close in time as possible to removal. 
 
- If the alien does affirmatively state a fear if removed to the country 
of removal listed on the Notice of Removal, ERO will refer the case 
to U.S. Citizenship and Immigration Services (USCIS) for a 
screening for eligibility for protection under section 241(b)(3) of the 
INA and the Convention Against Torture (CAT). USCIS will 
generally screen the [noncitizen] within 24 hours of referral. 
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Tan-Gutierrez v. Noem , Case No.: 3:26- cv-00152-RBM-BJW, 2026 WL 194747, at *5 
(S.D. Cal. Jan. 26, 2026). 
 As several courts have held, the policies in the ICE memo are “contrary to Ninth 
Circuit precedent.” Vu v. Noem, No. 1:25-cv-01366-KES-SKO (HC), 2025 WL 3114341, 
at *9 (E.D. Cal. Nov. 6, 2025) (collecting cases). A “noncitizen must be given sufficient 
notice of a country of deportation that, given his capacities and circumstances, he would 
have a reasonable opportunity to raise and pursue his claim for withholding of deportation.” 
Nguyen v. Scott, 796 F. Supp. 3d 703, 727 (W.D. Wash. 2025) (quoting Aden v. Nielsen, 
409 F. Supp. 3d 998, 1009 (W.D. Wash. 2019)). “Both the due process clause and the 
governing statute place the burden on the government . . . to provide a meaningful 
opportunity to be heard on asylum and withholding claims.” Nguyen , 796 F. Supp. 3d at 
727 (quoting Aden, 409 F. Supp. 3d at 1009). “Failing to notify individuals who are subject 
to deportation that they have the right to apply . . . for withholding of deportation to the 
country to which they will be deported violates both INS regulations and the constitutional 
right to due process.” Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir. 1999). 
 The court in Esmail v. Noem analyzed how the policies in the ICE Memo “present 
due process issues.” Case No. 2:25-cv -08325-WLH-RAO, 2025 WL 3030589, at * 6–7 
(C.D. Cal. Sept. 26, 2025). First, when the third country “has provided diplomatic 
assurances that [noncitizens] removed from the United States will not be persecuted or 
tortured . . . the [noncitizen] may be removed without the need for further procedures.” Id. 
at *7 (emphasis in original). Because “the due process clause and the governing statute 
place the burden on the government . . . to provide a meaningful opportunity to be heard 
on asylum and withholding claims, this approach is insufficient.” Id. (cleaned up). Second, 
when the third country has not provided such assurances, ICE “will not affirmatively ask 
whether the [noncitizen] is afraid of being removed to that country.” Id. This “forces the 
noncitizen to assert a right he may not know that he has,” which “‘violates both INS 
regulations and the constitutional rights to due process.’” Id. (cleaned up) (quoting 
Andriasian, 180 F. 3d at 1041). This Court finds the reasoning and conclusion in Esmail 
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persuasive and adopts them here. Accord Nguyen, 796 F. Supp. 3d at 728 –29 (granting 
preliminary injunction because the petitioner was “likely to succeed on his claim that 
removal to a third country under ICE’s current policy, without meaningful notice and 
reopening of his removal proceedings for a hearing, would violate due process”); Nadari 
v. Bondi, 2:25-cv-07893-JLS-BFM (C.D. Cal. Sept. 3, 2025), ECF No. 9, at *5–6 (same). 
Accordingly, to the extent the Amended Petition seeks notice and an opportunity to 
be heard regarding attempted third-country removal, it is GRANTED. 
IV. CONCLUSION 
For the foregoing reasons, the Amended Petition (Doc. 9) is GRANTED in part 
and DENIED in part. 
1. To the extent Petitioner seeks immediate release, the Amended Petition is DENIED 
without prejudice. If Petitioner has not been removed by August 13, 2026, he may 
file a second amended Petition. 
2. Respondents and their officers, agents, employees, attorneys, and persons acting on 
their behalf or in concert with them are PROHIBITED from removing Petitioner to 
a third country without notice and a meaningful opportunity to be heard, following 
the process laid out in D.V.D. v. United States Dep’t of Homeland Sec., Civil Action 
No. 25-10676-BEM, 2025 WL 1453640 (D. Mass. May 21, 2025).
1 
3. The TRO Motion (Doc. 3) is DENIED AS MOOT. 
IT IS SO ORDERED. 
DATE: June 15, 2026 
 ____________________________________ 
 HON. RUTH BERMUDEZ MONTENEGRO 
 UNITED STATES DISTRICT JUDGE 
 
1 This relief has been granted in similar matters. See Louangmilith v. Noem, 808 F. Supp. 
3d 1139, 1145 (S.D. Cal. 2025); Y.T.D. v. Andrews, Case No. 1:25-CV-01100 JLT SKO, 
2025 WL 2675760, at *13 (E.D. Cal. Sept. 18, 2025); Kumar v. Wamsley, 817 F. Supp. 3d 
1059, 1074 (W.D. Wash. 2025). 
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