1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AJAY AJAY, No. 1:26-cv-0993-DC-CKD P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 ENFORCEMENT AND REMOVAL OPERATIONS, et al., 15 Respondents. 16 17 Petitioner Ajay Ajay is detained by Immigrations and Customs Enforcement (“ICE”) and 18 seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner’s first amended petition 19 naming his custodian and others as respondents, first amended motion for preliminary injunction, 20 respondents’ opposition to both, and petitioner’s reply are before the court. (ECF Nos. 11, 15, 17, 21 18.) This matter was referred to the undersigned by operation of Local Rule 302(c)(17) and 28 22 U.S.C. § 636(b)(1). For the following reasons, the undersigned recommends the court consolidate 23 the motion for preliminary injunction with the merits of the amended petition and grant the 24 amended petition. 25 I. Background 26 Petitioner is a national of India and a non-citizen who entered the United States on or 27 about August 29, 2024. (ECF No. 17-1 at 1-3.) Petitioner was placed in expedited removal 28 proceedings and charged as inadmissible. (Id. at 3.) In regard to his present detention, petitioner 1 has been continuously detained since September 24, 2025, when he was served with a notice to 2 appear on October 6, 2025. (ECF No. 1-1; ECF No. 15 at 3; ECF No. 18 at 4.) On November 5, 3 2025, petitioner was ordered removed to India. (ECF No. 17-2.) 4 The pending amended petition and amended motion for preliminary injunction contain 5 minimal factual allegations, but petitioner alleges he has been continuously detained by ICE for a 6 period of more than five months, since September 24, 2025. (ECF No. 15 at 3; ECF No. 18 at 4.) 7 The amended petition brings a single claim for relief asserting a violation of petitioner’s Fifth 8 Amendment right to due process of law. (ECF No. 11 at 6.) Through the amended petition and 9 amended motion for preliminary injunctive relief, petitioner seeks immediate release from 10 custody. (Id. at 7; ECF No. 15 at 6-7.) 11 The amended petition and amended motion for preliminary injunction initially alleged 12 petitioner is detained under 8 U.S.C. § 1231(a) “pursuant to a final order of removal entered on 13 November 5, 2025,” and that he timely appealed that order to the Board of Immigration Appeals 14 (“BIA”). (ECF No. 11 at 3-4, 6; ECF No. 15 at 3.) The amended petition initially alleged 15 petitioner has a “Form I-360 Special Immigrant Juvenile Status (“SIJS”)” pending before U.S. 16 Citizenship and Immigration Services, and thus that respondents are legally barred from 17 executing his removal on account of the pending SIJS petition. (Id.) Thus, petitioner alleged, 18 removal is not reasonably foreseeable, and his continued detention has become indefinite and 19 unconstitutional. (ECF No. 11 at 6; ECF No. 15 at 2.) 20 Respondents filed a combined opposition to the amended petition and amended motion for 21 a preliminary injunction. (ECF No. 17.) Respondents argue petitioner is subject to mandatory 22 detention under 8 U.S.C. § 1225(b)(2). (Id. at 2.) Respondents argue petitioner can be removed 23 while an SIJS application is pending, as SIJS does not itself alter the immigration laws he is 24 subject to unless and until he applies for and receives an adjustment of status, at which point he 25 would be considered “admitted” to the United States. (Id. at 3.) Respondents assert, however, 26 there is an automatic stay of removal in place because of petitioner’s timely appeal of his order of 27 removal with the Board of Immigration Appeals, which remains pending. (Id.) 28 //// 1 In reply, petitioner does not dispute respondents’ assertion that he is currently detained 2 under 8 U.S.C. § 1225(b)(2). (ECF No. 18 at 2.) Petitioner also argues in reply that his SIJS 3 petition has been “approved” (rather than still pending) and asserts he has no criminal history. 4 (Id.; see also ECF No. 1-4 (indicating “approval” of petitioner’s Form I-360 on October 30, 5 2025.)) Under these circumstances, petitioner argues, continued mandatory detention without 6 individualized review violates the Due Process Clause. (Id. at 3.) 7 II. Discussion 8 To determine whether petitioner’s detention is authorized, the court first looks to the 9 statutory provision purporting to confer authority for his detention. See Prieto-Romero v. Clark, 10 534 F.3d 1053, 1057 (9th Cir. 2008). Although the amended petition alleged petitioner was 11 detained under 8 U.S.C. § 1231(a), in the reply brief, petitioner does not dispute respondents’ 12 assertion that he is instead detained under 8 U.S.C. § 1225(b)(2). (ECF No. 17 at 2; ECF No. 18 13 at 2.) 14 It is well established that the “post-removal” detention period under 8 U.S.C. § 1231(a) 15 does not begin until a non-citizen’s appeal of his removal order is resolved by the BIA. See 16 Johnson v. Guzman Chavez, 594 U.S. 523, 535 (2021) (an order of removal becomes 17 “administratively final” within the meaning of 8 U.S.C. § 1231(a)(1)(B)(i) when “the agency’s 18 review proceedings” are complete). Petitioner’s removal proceedings are still pending because his 19 appeal to the BIA is still pending, and he is not currently subject to detention under § 1231(a). 20 The court next considers whether petitioner is detained under § 1226(a) or § 1225, instead. 21 Section 1226(a) applies to non-citizens who are “detained pending a decision on whether 22 the [noncitizen] is to be removed from the United States.” 8 U.S.C. § 1226(a). Section 1226(a) “is 23 the default detention statute for noncitizens in removal proceedings[.]” Avilez v. Garland, 69 24 F.4th 525, 529 (9th Cir. 2023). Under § 1226(a), the government has discretion whether to release 25 or detain the individual, subject to “extensive procedural protections… including several layers of 26 review of the agency’s initial custody determination, an initial bond hearing before a neutral 27 decisionmaker, the opportunity to be represented by counsel and to present evidence, the right to 28 appeal, and the right to seek a new hearing when circumstances materially change.” Rodriguez 1 Diaz v. Garland, 53 F.4th 1189, 1202 (9th Cir. 2022). 2 Section 1225, in contrast, applies to noncitizens who are “applicants for admission.” An 3 applicant for admission is a noncitizen “who ‘arrives in the United States,’ or ‘is present’ in this 4 country but ‘has not been admitted.’” Jennings v. Rodriguez, 583 U.S. 281, 287 (2018) (quoting 8 5 U.S.C. § 1225(a)(1)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AJAY AJAY, No. 1:26-cv-0993-DC-CKD P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 ENFORCEMENT AND REMOVAL OPERATIONS, et al., 15 Respondents. 16 17 Petitioner Ajay Ajay is detained by Immigrations and Customs Enforcement (“ICE”) and 18 seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner’s first amended petition 19 naming his custodian and others as respondents, first amended motion for preliminary injunction, 20 respondents’ opposition to both, and petitioner’s reply are before the court. (ECF Nos. 11, 15, 17, 21 18.) This matter was referred to the undersigned by operation of Local Rule 302(c)(17) and 28 22 U.S.C. § 636(b)(1). For the following reasons, the undersigned recommends the court consolidate 23 the motion for preliminary injunction with the merits of the amended petition and grant the 24 amended petition. 25 I. Background 26 Petitioner is a national of India and a non-citizen who entered the United States on or 27 about August 29, 2024. (ECF No. 17-1 at 1-3.) Petitioner was placed in expedited removal 28 proceedings and charged as inadmissible. (Id. at 3.) In regard to his present detention, petitioner 1 has been continuously detained since September 24, 2025, when he was served with a notice to 2 appear on October 6, 2025. (ECF No. 1-1; ECF No. 15 at 3; ECF No. 18 at 4.) On November 5, 3 2025, petitioner was ordered removed to India. (ECF No. 17-2.) 4 The pending amended petition and amended motion for preliminary injunction contain 5 minimal factual allegations, but petitioner alleges he has been continuously detained by ICE for a 6 period of more than five months, since September 24, 2025. (ECF No. 15 at 3; ECF No. 18 at 4.) 7 The amended petition brings a single claim for relief asserting a violation of petitioner’s Fifth 8 Amendment right to due process of law. (ECF No. 11 at 6.) Through the amended petition and 9 amended motion for preliminary injunctive relief, petitioner seeks immediate release from 10 custody. (Id. at 7; ECF No. 15 at 6-7.) 11 The amended petition and amended motion for preliminary injunction initially alleged 12 petitioner is detained under 8 U.S.C. § 1231(a) “pursuant to a final order of removal entered on 13 November 5, 2025,” and that he timely appealed that order to the Board of Immigration Appeals 14 (“BIA”). (ECF No. 11 at 3-4, 6; ECF No. 15 at 3.) The amended petition initially alleged 15 petitioner has a “Form I-360 Special Immigrant Juvenile Status (“SIJS”)” pending before U.S. 16 Citizenship and Immigration Services, and thus that respondents are legally barred from 17 executing his removal on account of the pending SIJS petition. (Id.) Thus, petitioner alleged, 18 removal is not reasonably foreseeable, and his continued detention has become indefinite and 19 unconstitutional. (ECF No. 11 at 6; ECF No. 15 at 2.) 20 Respondents filed a combined opposition to the amended petition and amended motion for 21 a preliminary injunction. (ECF No. 17.) Respondents argue petitioner is subject to mandatory 22 detention under 8 U.S.C. § 1225(b)(2). (Id. at 2.) Respondents argue petitioner can be removed 23 while an SIJS application is pending, as SIJS does not itself alter the immigration laws he is 24 subject to unless and until he applies for and receives an adjustment of status, at which point he 25 would be considered “admitted” to the United States. (Id. at 3.) Respondents assert, however, 26 there is an automatic stay of removal in place because of petitioner’s timely appeal of his order of 27 removal with the Board of Immigration Appeals, which remains pending. (Id.) 28 //// 1 In reply, petitioner does not dispute respondents’ assertion that he is currently detained 2 under 8 U.S.C. § 1225(b)(2). (ECF No. 18 at 2.) Petitioner also argues in reply that his SIJS 3 petition has been “approved” (rather than still pending) and asserts he has no criminal history. 4 (Id.; see also ECF No. 1-4 (indicating “approval” of petitioner’s Form I-360 on October 30, 5 2025.)) Under these circumstances, petitioner argues, continued mandatory detention without 6 individualized review violates the Due Process Clause. (Id. at 3.) 7 II. Discussion 8 To determine whether petitioner’s detention is authorized, the court first looks to the 9 statutory provision purporting to confer authority for his detention. See Prieto-Romero v. Clark, 10 534 F.3d 1053, 1057 (9th Cir. 2008). Although the amended petition alleged petitioner was 11 detained under 8 U.S.C. § 1231(a), in the reply brief, petitioner does not dispute respondents’ 12 assertion that he is instead detained under 8 U.S.C. § 1225(b)(2). (ECF No. 17 at 2; ECF No. 18 13 at 2.) 14 It is well established that the “post-removal” detention period under 8 U.S.C. § 1231(a) 15 does not begin until a non-citizen’s appeal of his removal order is resolved by the BIA. See 16 Johnson v. Guzman Chavez, 594 U.S. 523, 535 (2021) (an order of removal becomes 17 “administratively final” within the meaning of 8 U.S.C. § 1231(a)(1)(B)(i) when “the agency’s 18 review proceedings” are complete). Petitioner’s removal proceedings are still pending because his 19 appeal to the BIA is still pending, and he is not currently subject to detention under § 1231(a). 20 The court next considers whether petitioner is detained under § 1226(a) or § 1225, instead. 21 Section 1226(a) applies to non-citizens who are “detained pending a decision on whether 22 the [noncitizen] is to be removed from the United States.” 8 U.S.C. § 1226(a). Section 1226(a) “is 23 the default detention statute for noncitizens in removal proceedings[.]” Avilez v. Garland, 69 24 F.4th 525, 529 (9th Cir. 2023). Under § 1226(a), the government has discretion whether to release 25 or detain the individual, subject to “extensive procedural protections… including several layers of 26 review of the agency’s initial custody determination, an initial bond hearing before a neutral 27 decisionmaker, the opportunity to be represented by counsel and to present evidence, the right to 28 appeal, and the right to seek a new hearing when circumstances materially change.” Rodriguez 1 Diaz v. Garland, 53 F.4th 1189, 1202 (9th Cir. 2022). 2 Section 1225, in contrast, applies to noncitizens who are “applicants for admission.” An 3 applicant for admission is a noncitizen “who ‘arrives in the United States,’ or ‘is present’ in this 4 country but ‘has not been admitted.’” Jennings v. Rodriguez, 583 U.S. 281, 287 (2018) (quoting 8 5 U.S.C. § 1225(a)(1)). 6 Here, no party has informed the court regarding petitioner’s custody status between the 7 time he was initially arrested near the border on August 30, 2024 (ECF No. 17-1 at 2), and the 8 date on which he was ordered removed, on November 5, 2025. However, because petitioner 9 alleges he has been in continuous custody for a time period of “more than five months” since 10 September 24, 2025 (see ECF No. 15 at 3; ECF No. 18 at 4), it appears petitioner was released 11 sometime after August 30, 2024, and prior to being re-detained on September 24, 2025. 12 Consistent with such an inference, respondents reference petitioner’s “prior release in the 13 discretion of DHS” in their argument in opposition to the amended petition and amended motion 14 for preliminary injunction. (ECF No. 17 at 3.) Respondents do not assert petitioner has failed to 15 comply with any conditions of release, do not assert petitioner has committed any crimes, and do 16 not proffer any facts to suggest he is a danger to the public or a flight risk. 17 Courts nationwide, including courts in this district, have overwhelmingly rejected 18 respondents’ legal position that § 1225(b) is the applicable detention authority for all “applicants 19 for admission.” Herna v. Chesnut, No. 1:25-CV-01919-JLT-SAB (HC), 2026 WL 177801, at *3 20 (E.D. Cal. Jan. 22, 2026) (collecting cases). A theory of petitioner’s immigration status as being 21 subject to mandatory detention under § 1225 does not comport with the apparent circumstance 22 that he was released into the interior of the United States at some point, until being re-detained on 23 September 24, 2025. See Altin v. Chestnut, No. 1:26-CV-00792-DC-CSK (HC), 2026 WL 24 309563, at *5 (E.D. Cal. Feb. 5, 2026) (“courts, including this court, have generally held that § 25 1226 rather than § 1225 is the appropriate section to apply in cases in which a noncitizen is 26 already living in the United States”); Mendoza v. Warden of the Golden State Annex, No. 1:25- 27 CV-2030 CSK, 2026 WL 310116, at *3 (E.D. Cal. Feb. 5, 2026) (citing collected cases finding 28 that non-citizens in the interior of the country are not “seeking admission” within the meaning of 1 § 1225).1 2 Based on the circumstance of petitioner being apparently released into the interior of the 3 United States where he resided for some period of time before being re-detained on September 4 24, 2025, the court “need not determine whether § 1225 or § 1226 applies in this case because 5 petitioner has a liberty interest in his continued release regardless of the applicable detention 6 scheme.” Enriquez Escarcega, Petitioner, v. Warden of the Golden State Annex Faciity, No. 1:26- 7 CV-01012 DAD SCR, 2026 WL 480500, at *2 (E.D. Cal. Feb. 20, 2026); Cajina v. Wofford, No. 8 1:25-CV-01566-DAD-AC (HC), 2025 WL 3251083, at *3 (E.D. Cal. Nov. 21, 2025) (“The court 9 therefore need not determine whether § 1225 or § 1226 applies in this case because petitioner has 10 a liberty interest in his continued release regardless of the applicable detention scheme.”). Thus, 11 the undersigned focuses on the Fifth Amendment due process claim and finds petitioner’s present 12 detention violates his due process rights. 13 The Due Process Clause protects persons in the United States from being deprived of life, 14 liberty, or property without due process of law. U.S. CONST. AMEND. V. It is firmly established 15 that these protections extend to noncitizens present in the United States. See Zadvydas v. Davis, 16 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause applies to all ‘persons’ within the United 17 States, including [non-citizens], whether their presence here is lawful, unlawful, temporary, or 18 permanent.”); Wong Wing v. U.S., 163 U.S. 228, 238 (1896) (“It must be concluded that all 19 persons within the territory of the United States are entitled to the protection guaranteed by [the 20 Fifth Amendment], and that even [non-citizens] shall not ... be deprived of life, liberty, or
21 1 In addition, although petitioner initially alleged his SIJS petition was pending (ECF No. 11 at 4), in reply, he asserts his SIJS petition has been “approved.” (ECF No. 18 at 4; see also ECF No. 22 1-4.) Some courts have found a non-citizen being granted such status “weighs in favor of finding 23 petitioner is not detained under § 1225(b)(2)” and weighs in favor of finding instead that the petitioner is detained under § 1226(a). See Quinonez Torres v. Hermilloso, et al., No. 2:26-CV- 24 00076-TLF, 2026 WL 547591, at *5 (W.D. Wash. Feb. 23, 2026) (citing collected cases). However, the status of petitioner’s SIJS petition remains unclear on the present record and 25 petitioner does not allege he has been granted “deferred action” in connection with his SIJS petition. See De Sousa v. Dir. of USCIS, 755 F. Supp. 3d 1266, 1270 (N.D. Cal. 2024) (“Deferred 26 action” refers to an “exercise in administrative discretion” under which “no action will thereafter 27 be taken to proceed” with the applicant’s removal from the United States); Sepulveda Ayala v. Bondi, 794 F. Supp. 3d 901, 912 (“deferred action prevents recipients’ removal from the United 28 States”) (W.D. Wash. July 24, 2025). 1 property without due process of law.”). 2 Courts analyze procedural due process claims in two steps: the first asks whether there 3 exists a protected liberty interest under the Due Process Clause, and the second examines the 4 procedures necessary to ensure any deprivation of that protected liberty interest accords with the 5 Constitution. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989). The 6 Due Process Clause applies to noncitizens in this country in connection with removal 7 proceedings, even if their presence is unlawful or temporary. See Zadvydas, 533 U.S. at 693. 8 Having determined that petitioner has a protected liberty interest in continued release 9 having been released at some point previously, the court proceeds to determine the procedures 10 necessary to ensure any deprivation of that protected liberty interest accords with the 11 Constitution. To make that determination, the court applies the test established in Mathews v. 12 Eldridge, 424 U.S. 319 (1976). The Mathews test considers three factors: (1) the private interest 13 affected; (2) the risk of an erroneous deprivation; and (3) the government’s interest. 424 U.S. at 14 335. 15 Considering the first Mathews factor, petitioner has a private interest in remaining free 16 from detention. “Freedom from imprisonment—from government custody, detention, or other 17 forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause protects.” 18 Zadvydas, 533 U.S. at 690. The undersigned has determined petitioner was released from custody 19 for some period of time prior to being re-detained on his current detention exceeding five months. 20 Petitioner’s prior release from custody creates a powerful interest for him in his continued liberty. 21 See Doe v Becerra, 787 F. Supp. 3d 1083, 1094 (E.D. Cal. 2025). Thus, this factor favors finding 22 petitioner’s private interest has been affected by his detention. 23 The second Mathews factor, the risk of erroneous deprivation to petitioner, also weighs in 24 his favor. See A.E. v. Andrews, No. 25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. 25 May 16, 2025) (“The risk of an erroneous deprivation [of liberty] is high” when “[the petitioner] 26 has not received any bond or custody redetermination hearing.”). Civil immigration detention is 27 “nonpunitive in purpose and effect” and is justified when a noncitizen presents as a danger to the 28 community or risk of flight. Zadvydas, 533 U.S. at 690; Padilla v. U.S. Immigr. & Customs Enf’t, 1 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023). Petitioner has been detained for more than five 2 months without being provided a bond hearing before an immigration judge to evaluate his 3 dangerousness and/or flight risk. The undersigned concludes “the probable value of additional 4 procedural safeguards” including a bond hearing—which should have occurred before his re- 5 detention—is high. A.E., 2025 WL 1424382, at *5. 6 Turning to the third Mathews factor, the court acknowledges the government has an 7 interest in the steady enforcement of its immigration laws but also recognizes the government’s 8 interest in re-detaining petitioner without any procedural protections is substantially “low.” 9 Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019); Doe v. Becerra, 787 F. Supp. 3d at 10 1094. Custody hearings in immigration court are routine and impose a “minimal” cost on the 11 government. Doe, 787 F. Supp. 3d at 1094. “If the government wishes to re-arrest [petitioner] at 12 any point, it has the power to take steps toward doing so; but its interest in doing so without [any 13 procedural protections] is low.” Ortega, 415 F. Supp. 3d at 970. 14 On balance, the Mathews factors favoring petitioner show due process required that he be 15 provided a bond hearing prior to his re-detention. “[A] pre-deprivation hearing is required to 16 satisfy due process.” Guillermo M. R. v. Kaiser, 71 F. Supp. 3d 1021, 1036 (N.D. Cal. 2025). 17 Respondents point to no reasons why a pre-deprivation hearing could not be held and provide no 18 evidence warranting petitioner’s re-detention without a hearing. 19 Accordingly, the court should find petitioner’s Fifth Amendment due process rights have 20 been violated. Given that the amended petition and the amended motion for preliminary 21 injunction raise the same due process claim and seek the same relief, and for purposes of judicial 22 efficiency, the undersigned recommends “advanc[ing] the trial on the merits and consolidat[ing] it 23 with” the motion for preliminary injunction. Fed. R. Civ. P. 65(a)(2); see also Prior v. Chestnut, 24 No. 1:25-CV-01131-JLT-EPG-HC, 2026 WL 309560, at *3 (E.D. Cal. Feb. 5, 2026) (considering 25 preliminary injunction and merits of habeas petition simultaneously); 28 U.S.C. § 2243 (“The 26 court shall summarily hear and determine the facts, and dispose of [a petitioner’s habeas petition] 27 as law and justice require.”). 28 ///// 1 Ill. Recommendation 2 In accordance with the above, IT IS RECOMMENDED as follows: 3 1. Petitioner’s first amended motion for preliminary injunction (ECF No. 15) be granted 4 and petitioner’s initial motion for preliminary injunction (ECF No. 3) be denied as 5 moot. 6 2. Petitioner’s first amended petition for writ of habeas corpus (ECF No. 11) be granted, 7 as follows: 8 a. Respondents be ordered to release petitioner immediately with the same 9 conditions he was subject to immediately prior to his re-detention on September 10 24, 2025. 11 b. Respondents be ENJOINED AND RESTRAINED from re-detaining petitioner 12 unless they provide 7 days’ notice to petitioner and a pre-deprivation bond hearing 13 before a neutral arbiter pursuant to 8 U.S.C. § 1226(a) and its implementing 14 regulations, at which petitioner’s eligibility for bond must be considered; and 15 3. The Clerk of the Court be directed to enter judgment for petitioner and close this case. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven days after 18 || being served with these findings and recommendations, any party may file written objections with 19 || the court and serve a copy on all parties. Such a document should be captioned “Objections to 20 | Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 21 || filed and served within seven days after service of the objections. The parties are advised that 22 || failure to file objections within the specified time may waive the right to appeal the District 23 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: March 4, 2026 / ae I / dle ae
2% UNITED STATES MAGISTRATE JUDGE 27 28 || 8 ajay0993.mer