Jemna: Denied in March, Ordered Released in September. What Changed?

An immigration judge denies bond. A federal judge turns down your habeas petition. It can feel like the last door just closed.

Nicolae Jemna drove a truck for a living. He had a work permit, and his asylum application was pending. In December 2025 he arrived at the gate at Camp Pendleton on a job. He left in ICE custody.

He went to federal court to get out. In March 2026 the judge said no. In September the same judge ordered him released. The way he entered the country had not changed. The argument had.

The two decisions are Jemna v. Warden of Otay Mesa Detention Center, No. 3:26-cv-00725-RBM-VET (S.D. Cal. Mar. 20, 2026), ECF 8, and Jemna v. Mullin, No. 3:26-cv-02396-RBM-VET (S.D. Cal. Sept. 29, 2026), ECF 13. Read together, they teach three things. A bond hearing, even one you lose, changes what a federal judge will review. A bond denial normally goes to the Board of Immigration Appeals, or BIA, first. And a loss “without prejudice” can leave a way back.

A visa, a work permit and a gate at Camp Pendleton

The March order calls Jemna a citizen of Romania. The September order calls him a citizen of Moldova and Romania. He entered the United States on a temporary visitor visa on June 4, 2024. The visa ran until December 3. On October 11, about two months before it ended, he applied for asylum. He received a Social Security number and employment authorization good through January 30, 2030. While he waited, he lived in Illinois and worked as a truck driver.

The two orders tell the arrest a little differently. The March order says ICE detained him on December 12, 2025, while he was delivering a package at the Marine Corps base, and later refers to December 9. The September order, drawing on his amended petition, says he came on December 9 to pick up a vehicle. Asked at the gate whether he was a permanent resident, he answered that “he wasn’t but that he had permission to work.” After two hours, it says, officials told him he was under arrest because “you’re in pending status.” It says a warrant came three days later. It also says ICE never told him why it was no longer letting him stay out of custody while he applied for asylum, and gave him no paperwork or reasons.

The government charged him with overstaying his visa and put him in removal proceedings. On December 19 an immigration judge held a bond hearing and denied release on a finding of “Danger & Flight Risk.” Neither order says what evidence led there. The September order, citing his amended petition, adds a detail worth noticing: The immigration judge found that Jemna “failed to show he was not a danger or a flight risk.” That wording puts the burden on him. On December 26 he appealed to the BIA. In March that appeal was still pending.

The first petition ran into the bond hearing he had already had

Jemna’s lawyer filed the first petition on February 5, 2026. It claimed violations of due process, of the limit the Supreme Court read into a detention statute in Zadvydas v. Davis, and of the Administrative Procedure Act. The government’s answer came down to two points. He had received a bond hearing, it said, and he had not exhausted his administrative remedies.

The judge first decided which statute held him. Jemna said section 1225(b). The government said section 1226(a). The judge sided with the government. Jemna had been charged as a visa overstayer and placed in removal proceedings, and he had not been ordered removed. A decision was still pending “on whether . . . [he] is to be removed from the United States.”

That ruling helped him and hurt him. A person held under section 1226(a) is entitled to a bond hearing before an immigration judge. Jemna had already had one. Much of the rest of the order follows from that fact.

Three months was not “indefinite”

Jemna argued that he faced detention “for an indefinite period of time” while his asylum claim, his BIA appeal and a possible Ninth Circuit appeal played out. The judge disagreed. He had been held about three months. He had made no showing, the court wrote, that he was “stuck in a ‘removable-but-unremovable limbo,’ as the petitioners in Zadvydas were.” And detention under section 1226(a) has what the Supreme Court has called a “definite termination point”: the end of removal proceedings. Not knowing the end date, the court held, did not make his detention indefinite in the constitutional sense. That ground failed, and the matching Administrative Procedure Act ground failed with it.

The bond denial belonged at the BIA first

Jemna also attacked the bond decision itself. He said he “was wrongfully refused release despite . . . demonstrating that he is neither a danger to the community nor a flight risk.” The judge gave two answers.

The first concerned the evidence. To the extent Jemna was contesting the immigration judge’s findings, the court said it lacked jurisdiction to “reweigh [the] evidence” and could “only determine whether the [IJ] applied the correct legal standard.” A federal judge can ask whether the immigration judge used the right rule. A federal judge cannot decide that the man looked less dangerous than the immigration judge thought.

The second concerned timing. Jemna had appealed to the BIA and then come to federal court before the BIA ruled. “This short cut was improper,” the judge wrote, quoting the Ninth Circuit in Leonardo v. Crawford, 646 F.3d 1157 (9th Cir. 2011). After losing the bond hearing, Leonardo asked the federal court to review it in his pending habeas case before appealing to the BIA. The BIA ruled against him while his case was on appeal, and he still had to start over: The Ninth Circuit ordered his petition dismissed without prejudice and said he could file a new one. This exhaustion rule is one courts apply on their own, so a court may waive it when the agency remedy is inadequate, when an appeal would be futile, when irreparable injury will result or when the agency proceedings would be void. Jemna raised none of those grounds, and the court found nothing in the record that supplied one.

The court also explained why futility did not apply. Other judges in the district had excused the BIA step where the BIA’s own precedent, Matter of Yajure Hurtado, required it to treat detention as mandatory. That precedent concerned people who were never admitted, and in July the Ninth Circuit rejected the same reading of the statute in Rodriguez Vazquez v. Bostock, 183 F.4th 1160 (9th Cir. 2026). Jemna’s immigration judge had not relied on anything like that. The immigration judge had decided the merits and found danger and flight risk, and the BIA can review that kind of ruling. The court dismissed the substantive due process claim without prejudice to an amended petition filed after exhaustion. Other California judges have required the same step in cases like Rodriguez-Gonzalez, and our guide to a separate custody appeal record explains what that appeal requires. In June another judge of the same court excused the BIA step in Tiboko-Tifuh v. Noem, but that court was enforcing its own order, which had already set the burden and the standard, and it also found irreparable injury and doubted that BIA review would correct the error.

He had never been paroled

Jemna’s procedural claim depended on one word: parole. He argued that ICE had revoked his parole without notice, reasons or a chance to be heard, and he cited decisions requiring a hearing before a person released from immigration detention can be taken back into custody. This same judge had applied that rule in other cases. But those cases, the judge wrote, were “readily distinguishable because Petitioner was neither paroled nor conditionally released into the United States.” He had been admitted on a tourist visa. Nothing in the record showed that ICE had ever detained him and let him go.

The court then worked through the three factors from Mathews v. Eldridge: the private interest affected; the risk of an erroneous deprivation of that interest and the probable value of additional or substitute safeguards; and the government’s interest, including the function involved and the fiscal and administrative burdens of added procedures. Release from custody, the court explained, carries an implicit promise that freedom will last if the conditions are kept, an idea it drew from Morrissey v. Brewer, the Supreme Court’s 1972 parole case. A tourist admission carried no comparable conditions and reflected no earlier finding that this person was safe to release. The risk of error was lower too, because Jemna received a bond hearing about a week after he was detained. On the government’s side stood its interests in public safety and in preventing flight. A neutral decisionmaker adequately protects those interests, the court said, and Jemna gave no reason to question the immigration judge’s neutrality.

The court concluded that Jemna was entitled to a bond hearing at which the government had to prove flight risk or danger by clear and convincing evidence. He had received a bond hearing. So the procedural claim was denied without prejudice, along with the statutory and Administrative Procedure Act claims. Jemna stayed in custody.

The second petition made a new argument

Jemna filed again on April 15, this time without a lawyer. The court asked why it should not dismiss the new case as a duplicate. On June 12 he was ordered removed to Romania or, in the alternative, Moldova. On August 31 the court referred the petition to Federal Defenders of San Diego to evaluate whether he qualified for appointed counsel, and on September 8 he filed an amended petition through counsel.

The amended petition argued, for the first time, that the government’s decision not to detain him while his affirmative asylum application was pending “created a liberty interest.” The March order had looked at whether a visa admission created the same liberty interest as parole. As the judge later put it, the court “did not address whether his pending asylum application provided a basis for any of his claims for relief.”

He also argued that his arrest without a warrant “was not statutorily authorized.” The court decided the case on due process and did not reach that ground.

Why the second petition was not barred

The government called the new petition an abuse of the writ. That doctrine “forbids the reconsideration of claims that were or could have been raised in a prior habeas petition.” The government said his arguments either were raised the first time or could have been, and that he had already received an individualized bond hearing. A repeat petition on identical grounds must be dismissed unless the petitioner shows cause and prejudice, or a fundamental miscarriage of justice. The government has to raise the objection with “clarity and particularity.” The burden then moves to the petitioner. The judge gave three reasons for hearing the case anyway.

First, the first petition had been denied without prejudice. Second, Jemna had cause. The first petition was more than seven months old, a different lawyer had built it on parole, and the law had moved. The court quoted another San Diego judge’s observation that the law on these petitions “was significantly less clear in December of 2025 than it is today.” Prejudice, “in the form of unconstitutional detention,” could result if the court refused to reach the new ground. Third, the court found that “a miscarriage of justice would occur” if it refused to hear the argument on procedural grounds. In prison habeas cases, that exception usually means actual innocence. Immigration detention has no direct equivalent, so the judge adopted another San Diego judge’s comparison: “[T]he detention of a man who had been given the right to be within this country shocks the conscience in a similar manner to the criminal conviction of an innocent man.”

The same exhaustion objection failed

The government went back to the BIA. Jemna had appealed the bond denial, it said in September, and “the BIA has not completed its review.” That was almost nine months after he filed the appeal.

This time exhaustion did not stop him, because the target had moved. In March he was attacking what the immigration judge decided. In September he was attacking what ICE did before any judge was involved. The court said it would not revisit the bond denial. The government pointed out that Jemna could seek a new bond hearing based on changed circumstances, and the court agreed that he could. But that remedy was “inadequate and futile” for this claim, because another bond hearing “would not address the propriety of Petitioner’s detention, which concerns the constitutionality of an agency action prior to the bond hearing.” It waived exhaustion for the due process claims.

The September court also cited Sola v. Holder, 720 F.3d 1134 (9th Cir. 2013), which recognizes an exhaustion exception for constitutional challenges to DHS procedures.

The choice not to detain him mattered

About two weeks earlier, the same judge had granted a similar petition in a case called Romero Teran. That decision turned on one point. “[A]lthough the government did not detain and then release [him], it made a decision not to detain [him] in the first place . . . .” The September order quoted Romero Teran quoting Kharitonova v. Albarran, No. 3:26-cv-01362-JSC (N.D. Cal. Feb. 25, 2026), for that reasoning. As one Central District of California order put the trend, courts have found “a substantial liberty interest in circumstances where noncitizens commenced immigration proceedings, and the government chose not to detain them.” In Romero Teran, the judge also answered the obvious objection: The choice not to detain was discretionary, but it still created a liberty interest as the government processed the application, granted work authorization, took biometrics and told the petitioner to appear. Jemna fit that pattern. He entered lawfully on a temporary visa, filed for asylum before the visa expired, received a work permit and a Social Security number and gave his biometric information. The judge adopted the Romero Teran reasoning instead of running the Mathews factors again. The government, the court noted, did “not substantively address” the due process arguments. It said only that he was lawfully held as a visa overstayer.

The court held that the government’s decision not to detain Jemna while his application was pending created a liberty interest, and that detaining him without notice or an opportunity to be heard violated due process. It ordered the government “to immediately release the noncitizen from custody, subject to the preexisting conditions of release.” Before any re-detention, he is entitled to notice and a hearing before an immigration judge. By the date of the order he had been held for more than nine months.

What changed between March and September

Not the judge, and not the way he entered the country. Three things moved. The theory moved from parole, which he never had, to the government’s choice to leave him free while his asylum case went forward. The target moved from a bond ruling the BIA could review to an arrest that happened before any hearing. And the case law around these petitions moved, as the September order says.

The December bond hearing changed roles, too. In March it lowered the risk of error, because a neutral judge looked at his custody about a week after the arrest. In September it could not repair an arrest made with no hearing first.

One difference between the orders deserves attention. The March order described a section 1226(a) bond hearing at which the government had to prove danger or flight risk by clear and convincing evidence. The September order addresses a different hearing, the one owed before any re-detention, and it puts the burden there on Jemna. He “bears the burden of demonstrating, by a preponderance of the evidence, that he is not a danger to the community or a flight risk.” For that it cites Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022), which describes the ordinary section 1226(a) rule: The detainee must show by a preponderance of the evidence that release is warranted. Set that beside the September order’s account of the December finding, and a practical question appears about the March statement: Which burden did the immigration judge actually apply? The orders leave that open. The bond order and the hearing recording may answer it. Anyone preparing for a hearing should work from the order that governs that hearing.

Judges have not all treated a first-time detention the same way. In Bo Chen, a Central District of California judge denied relief to a visitor listed on his wife’s asylum application who had been detained for less than three weeks and had not requested a bond hearing. That order quoted Jemna’s March order on the risk of error. Jemna’s September order is about custody. His asylum case and the June 12 removal order are separate from that custody ruling, and the order leaves them where they were.

What to check after a bond denial

• The reason for the denial. Find out whether the immigration judge decided danger and flight risk or decided there was no authority to set bond. In Jemna’s first case, a merits denial meant a BIA appeal was not futile.
• Who carried the burden. Get the bond order and the recording. Jemna’s March order described a government burden, while the September order described a finding that he had failed to show he was safe to release.
• The BIA appeal. Confirm that a separate custody appeal was filed, on what date and where it stands. A federal petition filed ahead of it may be dismissed or put on hold.
• How custody began. Separate a visa admission from a release on parole or on recognizance. Jemna’s first procedural claim failed on that difference, so look for the paper that shows which one happened.
• What the government did after the application. Gather the asylum receipt, work permit, Social Security card, biometrics notices and any hearing notices. Those facts carried the second petition.
• What you are challenging. Decide whether the complaint is about the arrest or about the bond ruling. Different claims met different exhaustion answers.
• Any earlier petition. Read how it ended and what it argued. Words like “without prejudice,” and a ground the first order never reached, helped Jemna return.

For representation in a detention or removal case, see our deportation defense practice. If the government’s charge is a visa overstay, our guide to checking the admission record starts with the dates that matter.