Arshpreet Singh v. Tonya Andrews, et al.

• Court: District Court, E.D. California
• Decided: November 19, 2025
• Docket: 1:25-cv-01543
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARSHPREET SINGH, No. 1:25-cv-01543-DCJ-SCR 12 Plaintiff, 13 v. ORDER 14 TONYA ANDREWS, et al., 15 Defendants. 16 17 18 Petitioner, a native and citizen of India, entered the United States without 19 inspection in March 2023, near Lukeville, Arizona. After a brief detention by 20 immigration authorities, he was released on his own recognizance on March 21, 2023. 21 On October 26, 2025, United States Immigration and Customs Enforcement (“ICE”) 22 officers detained him, purportedly pursuant to 8 U.S.C. § 1225(b). Petitioner is 23 presently in ICE custody at the Golden State Annex Center in McFarland, California. 24 On November 6, 2025, United States Citizenship and Immigration Services 25 (“USCIS”) approved Petitioner’s application for Special Immigrant Juvenile 26 classification. On November 12, 2025, Petitioner filed a Petition for a Writ of Habeas 27 Corpus along with a Motion for Temporary Restraining Order and Preliminary 28 Injunction, arguing that he cannot be lawfully detained pursuant to 8 U.S.C. § 1225(b) 1 and that his present detention violates his due process rights, the Immigration and 2 Nationality Act, the Administrative Procedure Act, federal regulations, and the 3 Suspension Clause of the United States Constitution. 4 In numerous cases, district courts in this Circuit have applied a similar 5 approach. Based on the substantial weight of authority and for the reasons stated 6 below, the Court GRANTS IN PART and DENIES IN PART Petitioner’s Motion for 7 Temporary Restraining Order. The Court orders Respondents to set a bond hearing 8 within seven (7) days of this Order but declines to order Petitioner’s release. The 9 Court will set a briefing schedule on the Motion for Preliminary Injunction. 10 BACKGROUND 11 Petitioner Arshpreet Singh is a 20-year-old native and citizen of India. (Pet. 12 (ECF No. 1) ¶ 81.) He entered the United States near Lukeville, Arizona, on or about 13 March 15, 2023. (Notice to Appear (“NTA”) (ECF No. 7) at 2.)1 He was apprehended 14 by immigration officials and served with a NTA on March 19, 2023. (Id.) The NTA 15 charged Petitioner with removability under INA § 212(a)(6)(A)(i) because he was “an 16 alien present in the United States without being admitted or paroled, or who arrived in 17 the United States at any time or place other than as designated by the Attorney 18 General.” (Id. at 2). The initial detention was brief, and Petitioner was released 19 pursuant to an Order of Release on Recognizance (“ORR”). (Pet. ¶ 83; ORR (ECF 20 No. 6).) The ORR directed Petitioner to comply with certain conditions. (See generally 21 ORR.) Thereafter, Petitioner applied for guardianship in the State of California and 22 was placed under the legal custody of Dalvinder Singh. (Id. ¶84.) On April 25, 2025, 23 Petitioner filed a Form I-360—Petition for Amerasian, Widow(er), or Special Immigrant— 24 which USCIS approved on November 7, 2025, thereby conferring Special Immigrant 25 Juvenile (“SIJ”) status. (Id.) Petitioner awaits an available visa number to submit his 26

27 1 The Petition varies slightly from the NTA, listing a different date and location of entry. The Court will 28 rely on the date and location identified in the NTA. 1 application for adjustment of status to lawful permanent resident. (Id.) He has no 2 criminal record or adverse immigration or removal history. (Id.) 3 On October 22, 2025, Petitioner received a phone call from his assigned 4 deportation officer instructing him to appear for an-person appointment on Sunday, 5 October 26, 2025. (Id. ¶ 85.) When Petitioner arrived at the appointment, he was 6 detained by ICE officers and is now held without bond at the Golden State Annex 7 Detention Center and faces removal. (Id. ¶¶ 85, 87.) Petitioner informed the officers 8 of his SIJ status and presented his Employment Authorization Document as proof of 9 his identity, but he was not released. (Id. ¶¶ 86, 87.) 10 Petitioner filed a Petition for Writ of Habeas Corpus along with a Motion for 11 Temporary Restraining Order and Preliminary Injunction. (ECF Nos. 1, 3.) The Motion 12 is fully briefed. (Opp’n (ECF No. 14); Reply (ECF No. 16.).) The parties filed 13 declarations in support of the briefing. (Gallencamp Decl. (ECF No. 15); Kaur Decl. 14 (ECF No. 17); Singh Decl. (ECF No. 18).) Petitioner requests that this Court (1) order 15 Petitioner’s immediate release; or, in the alternative, (2) order a constitutionally 16 adequate § 1226(a) bond hearing within seven (7) days; (3) enjoin Respondents from 17 transferring Petitioner outside the District pending resolution; (4) declare that 18 Petitioner may remain in the United States to pursue adjustment of status based on his 19 approved SIJ classification; and 5) stay removal proceedings pending completion of 20 SIJ-related adjustment, or until further order of this Court. (Reply at 18.) 21 LEGAL STANDARD 22 The standards for issuing a temporary restraining order and a preliminary 23 injunction are “substantially identical.” See Stuhlbarg Int'l Sales Co. v. John D. Brush & 24 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). To obtain preliminary injunctive relief, 25 Plaintiff must show (1) likelihood of success on the merits; (2) likelihood of irreparable 26 harm in the absence of preliminary relief; (3) that the balance of equities tips in his 27 favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. 28 Council, Inc., 555 U.S. 7, 20 (2008). “[I]f a plaintiff can only show that there are ‘serious 1 questions going to the merits’—a lesser showing than likelihood of success on the 2 merits—then a preliminary injunction may still issue if the ‘balance of hardships tips 3 sharply in the plaintiff's favor,’ and the other two Winter factors are satisfied.” All. for 4 the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017) (citations omitted). The 5 Ninth Circuit employs a sliding scale approach to the Winter factors, under which a 6 strong showing on the balance of hardships may compensate for a lesser showing of 7 likelihood of success. See Where Do We Go Berkeley v. California Dep't of Transp., 32 8 F.4th 852, 859 (9th Cir. 2022). 9 ANALYSIS 10 I. Likelihood of Success on the Merits 11 Petitioner is likely to succeed on the merits of his claim that he has been 12 unlawfully detained under 8 U.S.C. § 1225 and is instead subject to 8 U.S.C § 1226. 13 Respondents assert Petitioner has been detained pursuant to Section 1225(b)(2) and, 14 therefore, he is “an applicant [who] must be detained” and is not entitled to a bond 15 hearing. (Opp’n at 5.) Petitioner counters that he is not subject to Section 1225 but 16 rather is subject to Section 1226, which entitles him to a bond hearing. 17 Sections 1225 and 1226 both govern the detention and removal of noncitizens 18 from the United States. However, Section 1225 provides for mandatory detention of 19 certain individuals, while Section 1226 establishes a discretionary detention scheme. 20 Section 1225 provides that a noncitizen “who is an applicant for admission . . . shall be 21 detained.” 8 U.S.C. § 1225(b)(2)(A). In contrast, under Section 1226’s discretionary 22 scheme, a noncitizen “may be arrested and detained pending a decision on whether 23 the [noncitizen] is to be removed from the United States.” 8 U.S.C § 1226(a). Pending 24 this decision, the Attorney General may continue to detain the arrested individual or 25 may release the individual on bond or conditional parole. 8 U.S.C § 1226(a)(2)(A)–(B). 26 Section 1226(a) affords noncitizens a statutory right to a bond hearing before an 27 immigration judge. Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1256 (W.D. Wash. 28 2025) (citing 8 C.F.R. § 1236.1(d)); see also Rodriguez Diaz v. Garland, 53 F.4th 1189, 1 1197 (9th Cir. 2022) (explaining that under “§ 1226(a) and its implementing 2 regulations, a detainee may request a bond hearing before an IJ at any time before a 3 removal order becomes final”). “At that hearing, the noncitizen may present evidence 4 of their ties to the United States, lack of criminal history, and other factors that show 5 they are not a flight risk or danger to the community.” Bostock, 779 F. Supp. 3d at 6 1256. 7 Though discretionary detention is the “default rule” under Section 1226, there 8 are exceptions to Section 1226’s discretionary scheme. Jennings v. Rodriguez, 583 9 U.S. 281, 288 (2018). Section 1226(c) “carves out a statutory category of [noncitizens] 10 who may not be released under § 1226(a).” Id. at 289. Under Section 1226(c), the 11 “Attorney General shall take into custody any [noncitizen] who falls into one of several 12 enumerated categories involving criminal offenses and terrorist activities.” Id. (citing 8 13 U.S.C. § 1226(c)(1)) (internal quotation marks omitted). 14 This Court agrees with Petitioner that he is likely subject to Section 1226(a)’s 15 discretionary detention scheme rather than Section 1225(b)(2)’s mandatory detention 16 scheme and, therefore, is entitled to a bond hearing. Respondents argue Petitioner is 17 an “applicant for admission” within the meaning of Section 1225. (Opp’n at 5.) This 18 argument reflects a recent executive branch policy change directing federal 19 immigration officials to seek expedited removal of a larger swath of noncitizens by 20 classifying all noncitizens present in the United States as “applicant[s] for admission” 21 under Section 1225. C.A.R.V. v. Wofford, No. 1:25-cv-01395-JLT-SKO, 2025 WL 22 3059549, at *5 (E.D. Cal. Nov. 3, 2025) (quoting Salcedo Aceros v. Kaiser, No. 25-CV- 23 06924-EMC, 2025 WL 2637503, at *1–4 (N.D. Cal. Sept 12, 2025), describing this 24 policy change). 25 This Court rejects Respondents’ argument and finds that the applicability of 26 these provisions is governed by when and where a noncitizen encounters immigration 27 enforcement officials. Courts in this Circuit have found that Section 1225 applies to 28 those apprehended upon arrival to the United States while Section 1226 applies to 1 those already living within the United States. See, e.g., Bostock, 779 F. Supp. 3d at 2 1257 (finding petitioner likely to succeed on merits of argument that 1225(b)(2)(A) 3 “should be read to narrow mandatory detention under that subsection to noncitizens 4 who are apprehended while seeking to enter the country, and that noncitizens already 5 residing in the United States, including those who are charged with inadmissibility, 6 continue to fall under the discretionary detention scheme in Section 1226”) (internal 7 quotation marks omitted); J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO-HC, 2025 8 WL 3013328, at *6–7 (E.D. Cal. Oct. 27, 2025). This interpretation of these provisions 9 is further supported by the canon against surplusage, a recent Supreme Court 10 decision, and longstanding agency practice. 11 First, this interpretation is supported by the canon against surplusage. As 12 explained above, Section 1226(c) creates a class of exceptions to Section 1226(a)’s 13 “default” rule of discretionary detention. See Jennings, 583 U.S. at 288. Under 14 Section 1226(c), those who have committed certain offenses are subject to mandatory 15 detention. See 8 U.S.C. § 1226(c). For example, Section 1226(c) requires detention of 16 a noncitizen who is inadmissible, that is “present in the United States without being 17 admitted or paroled,” and “is charged with, is arrested for, is convicted of, admits 18 having committed, or admits committing acts which constitute the essential elements 19 of” specified criminal offenses. See 8 U.S.C. § 1226(c)(1)(E); § 1182(a)(6)(A)(i). Section 20 1225 requires detention of “applicant[s] for admission.” 8 U.S.C. § 1225(b)(2)(a). If the 21 government is correct that the term “applicants for admission” extends to all 22 inadmissible noncitizens there would be no reason for Section 1226 to require 23 detention of particular classes of inadmissible noncitizens. Therefore, the 24 government’s argument would render the whole of Section 1226(c) surplusage. 25 Respondents’ interpretation of these provisions would similarly render recent 26 amendments to this statute surplusage. As Petitioner highlights, in 2025 Congress 27 enacted the Laken Riley Act, which added additional categories of individuals to those 28 subject to mandatory detention under Section 1226(c). (Mot. at 10.) It would make 1 little sense for Congress to enact these amendments subjecting new individuals to 2 mandatory detention if they were already subject to such detention pursuant to 3 Section 1225. See Garcia v. Noem, No. 25-cv-02180-DMS-MMP, 2025 WL 2549431, at 4 *6 (S.D. Cal. Sept. 3, 2025) (explaining that “assuming any inadmissible noncitizen is 5 an ‘applicant for admission’ who is ‘seeking admission’ (and, therefore, subject to 6 mandatory detention under § 1225(b)(2)), would render the Riley Laken Act 7 unnecessary”). At a minimum, Congress’ enactment of the Laken Riley Act, which 8 clearly contemplated that § 1226 applies generally to undocumented individuals who 9 have been living in the United States, would constitute Congressional acquiescence in 10 that longstanding interpretation of Sections 1225 and 1226. See, e.g., United States v. 11 Mays, 430 F.3d 963, 967 (9th Cir. 2005). 12 Second, this interpretation of the statute is consistent with the Supreme Court’s 13 recent description of these provisions in Jennings v. Rodriguez, 583 U.S. 281 (2018). 14 In Jennings, the Supreme Court explained that “U.S. immigration law authorizes the 15 Government to detain certain [noncitizens] seeking admission into the country under 16 §§ 1225(b)(1) and (b)(2). It also authorizes the Government to detain certain 17 [noncitizens] already in the country pending the outcome of removal proceedings 18 under §§ 1226(a) and (c).” Id. at 289. The Supreme Court described proceedings 19 under Section 1225 as a process that “generally begins at the Nation’s borders and 20 ports of entry, where the government must determine whether a [noncitizen] seeking 21 to enter the country is admissible.” Jennings, 583 U.S. at 287. “Then, when discussing 22 Section 1226, Jennings describes it as governing ‘the process of arresting and 23 detaining’ noncitizens who are living ‘inside the United States’ but ‘may still be 24 removed,’ including noncitizens ‘who were inadmissible at the time of entry.’” 25 Bostock, 779 F. Supp. 3d at 1258 (quoting Jennings, 583 U.S. at 288). 26 Third, this interpretation is consistent with longstanding agency practice. Until 27 recently, the Department of Homeland Security (“DHS”) consistently treated 28 noncitizens apprehended while living in the United States as detained under Section 1 1226(a). See Bostock, 779 F. Supp. 3d at 1258, 1260–61; C.A.R.V., 2025 WL 3059549, 2 at *5. Executive Branch regulations implementing these provisions issued just six 3 months after their enactment provide that “[d]espite being applicants for admission, 4 [noncitizens] who are present without having been admitted or paroled (formerly 5 referred to as [noncitizens] who entered without inspection) will be eligible for bond 6 and bond determination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). As this 7 interpretation “was issued roughly contemporaneously with the enactment of the 8 statute and remained consistent over time,” this “longstanding practice of the 9 government—like any other interpretive aid —can inform a court’s determination of 10 what the law is.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 386 (2024) (cleaned 11 up). 12 As Petitioner has been present in the United States for since March 2023, he is 13 likely to succeed on the merits of his claim that he is unlawfully detained under Section 14 1225(b)(2)’s mandatory detention provision. See J.A.C.P., 2025 WL 3013328, at *7 15 (holding petitioner was likely to succeed on the merits of their claim that they were not 16 subject to mandatory detention under section 1225(b)(2)(A) under similar 17 circumstances); Bostock, 779 F. Supp. 3d at 1261 (same). Therefore, Petitioner is likely 18 to succeed on the merits of his claim that he is subject to the procedures laid out by 19 and entitled to the rights afforded under Section 1226(a), most notably, a bond 20 hearing. 21 II. Irreparable Harm 22 Petitioner will suffer irreparable harm in the absence of a temporary restraining 23 order as he “suffers potentially irreparable harm every day that he remains in custody 24 without a hearing, which could ultimately result in his release from detention.” Cortez 25 v. Sessions, 318 F. Supp. 3d 1134, 1139 (N.D. Cal. 2018). The Ninth Circuit has 26 acknowledged the “irreparable harms imposed on anyone subject to immigration 27 detention” including “the economic burdens imposed on detainees and their families 28 1 as a result of detention.” Hernandez, 872 F.3d at 995. Petitioner has thus established 2 irreparable harm. 3 III. Balance of the Harms & the Public Interest 4 The final two Winter factors merge when the government is the nonmoving 5 party. Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023). “[I]n addition to the 6 potential hardships facing [Petitioner] in the absence of an injunction,” the court may 7 consider “the indirect hardship to their friends and family members.” Hernandez, 872 8 F.3d at 996 (quoting Golden Gate Rest. Ass'n v. City & Cty. of San Francisco, 512 F.3d 9 1112, 1126 (9th Cir. 2008)). 10 Here, the interests of equity and the public weigh in favor of Petitioner. Every 11 day that Petitioner is in custody separates him from his community, counsel, and the 12 ability to prepare his adjustment and asylum cases. A temporary restraining order 13 also inflicts minimal harm to the government. Though Respondents have an interest 14 in enforcing immigration laws, they have no interest in erroneously enforcing the 15 wrong law, as they have done here. This Order instead furthers that interest through 16 application of the correct law. Finally, this relief benefits the public. “[N]either equity 17 nor the public’s interest are furthered by allowing violations of federal law to 18 continue.” Galvez v. Jaddou, 52 F.4th 821, 832 (9th Cir. 2022). 19 IV. Bond 20 “The court may issue a preliminary injunction or a temporary restraining order 21 only if the movant gives security in an amount that the court considers proper to pay 22 the costs and damages sustained by any party found to have been wrongfully 23 enjoined or restrained.” Fed. R. Civ. P. 65(c). The Court has “discretion as to the 24 amount of security required, if any,” and it “may dispense with the filing of a bond 25 when it concludes there is no realistic likelihood of harm to the defendant from 26 enjoining his or her conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 27 2003). Because the “the [Government] cannot reasonably assert that it is harmed in 28 any legally cognizable sense by being enjoined from constitutional violations,” 1 Zepeda v. U.S. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983), the Court finds that no security 2 is required here. 3 V. Scope 4 Under Federal Rule of Civil Procedure 65(d), every order granting an injunction 5 must “describe in reasonable detail—and not by referring to the complaint or other 6 document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d). “[A]n 7 injunction must be narrowly tailored . . . to remedy only the specific harms shown by 8 [Petitioner], rather than ‘to enjoin all possible breaches of the law.’” Price v. City of 9 Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (quoting Zepeda v. INS, 753 F.2d 719, 10 728 n.1 (9th Cir. 1983)). “Injunctive relief ‘should be no more burdensome to the 11 defendant than necessary to provide complete relief to the plaintiffs before the 12 court.’” Bostock, 779 F. Supp. 3d at 1263 (citing E. Bay Sanctuary Covenant v. Biden, 13 993 F.3d 640, 680 (9th Cir. 2021)). 14 Respondents correctly argue that there is no right to release under § 1226(a) as 15 the Attorney General “may continue to detain the arrested alien” or “may release the 16 alien.” (Opp’n at 5.) There is then the possibility of detention even after a bonding 17 hearing. As such, the Court finds that the specific harm alleged—that Petitioner is 18 “unlawfully barred from receiving a bond hearing under the proper statute—is 19 remedied by granting [Petitioner’s] request for a bond hearing under § 1226(a) and 20 enjoining [Respondents] from denying bond on the basis that [Petitioner is] detained 21 under § 1225(b)(2).” Bostock, 779 F. Supp. 3d at 1263. 22 VI. Type of Bond Hearing and Burden of Proof 23 The Court next determines whether a pre-deprivation or post-deprivation bond 24 hearing is appropriate. In granting a post-deprivation bond hearing under § 1226(a), 25 the district court's analysis in Rodriguez Diaz v. Kaiser, No. 25-CV-05071-TLT, 2025 WL 26 3011852 (N.D. Cal. Sept. 16, 2025), is instructive. There, the petitioner had allegedly 27 incurred six violations of his release conditions, including missed check-ins and home 28 visits. Id. at *3–4. Following the petitioner's last missed home visit, he appeared for a 1 scheduled check-in. Id. The court found that the petitioner was entitled to a pre- 2 deprivation hearing because each time that the petitioner “reported to ICE for a 3 check-in” following one of his six alleged violations, “an ICE officer, at least implicitly, 4 made a finding that [the petitioner] was not a flight risk.” Id. at *13 (internal quotations 5 omitted); see E.A.T.B. v. Wamsley, ---F. Supp.3d---, 2025 WL 1402130, at *5 (W.D. 6 Wash. Aug. 19, 2025) (“That Petitioner's alleged violations occurred months before 7 they were acted upon, and Petitioner attended multiple immigration court hearings 8 where any violations could have been addressed but were not, undermines any 9 suggestion that the Government's interests must be satisfied immediately or that the 10 cost of procedural safeguards would be insurmountable.”). 11 Here, however, petitioner missed a home visit on July 2025, and Petitioner’s 12 declaration does not explain this absence. The record does not reflect that petitioner 13 had an in-person check-in or immigration court hearing between that date and 14 October 26, 2025, when he was detained. (Singh Decl. ¶¶ 5–6.). In these 15 circumstances, a post-deprivation hearing is appropriate, as other courts have found. 16 See J.S.H.M. v. Wofford, No. 1:25-cv-01309-JLT-SKO, 2025 WL 2938808, at *16 (E.D. 17 Cal. Oct. 16, 2025) (collecting cases). 18 Petitioner also requests that the Government bear the burden of proof. (Mot. at 19 16.) When a noncitizen is granted a bond hearing pursuant to § 1226(a), he ordinarily 20 carries the burden to “establish to the satisfaction of the Immigration Judge . . . that he 21 [ ] does not present a danger to persons or property, is not a threat to national 22 security, and does not pose a risk of flight.” Hernandez, 872 F.3d at 982. In Rodriguez 23 Diaz v. Garland, the Ninth Circuit considered whether a noncitizen detained under 24 § 1226(a) pending removal proceedings had a right to a second bond hearing where 25 the government would have the burden to establish by clear and convincing evidence 26 that his continued detention was justified. 53 F.4th at 1203. Rodriguez Diaz 27 concluded that due process did not require that procedure, reasoning in part that: 28 1 Nothing in this record suggests that placing the burden of proof on the government was 2 constitutionally necessary to minimize the risk of error, much less that such burden shifting would be 3 constitutionally necessary in all, most, or many cases. There is no reason to believe that, as a general 4 proposition, the government will invariably have more evidence than the alien on most issues 5 bearing on alleged lack of future dangerousness or flight risk. 6 7 Id. at 1212. 8 However, Rodriguez Diaz “held only that a noncitizen detained under section 9 1226(a) does not have a right to a second bond hearing when the only changed 10 material condition since their first bond hearing is the duration of their detention.” 11 Pinchi, 2025 WL 2084921, at *4. It did not address the burden of proof applicable 12 under the present circumstances, where Petitioner has an approved Special 13 Immigrant Juvenile classification, which “is a form of parole that confers eligibility for 14 adjustment to [Legal Permanent Adjustment] status to noncitizen minors who have 15 been abused, abandoned, or neglected.” Murillo-Chavez v. Bondi, 128 F.4th 1076, 16 1085 (9th Cir. 2025); see 8 U.S.C. § 1101(a)(27)(J) (setting out definition of special 17 immigrant juvenile); see 8 U.S.C. § 1255(h) (a special immigrant juvenile “shall be 18 deemed . . . to have been paroled into the United States”). 19 Pinchi went on to discuss why the calculus changes for an individual who had 20 been paroled from immigration custody after their initial detention:

21 Even assuming arguendo that the post-detention bond hearing provided under section 1226(a) provides 22 constitutionally sufficient process for those noncitizens who have never previously been detained and released by 23 DHS, [Petitioner's] circumstance is different. [Petitioner’s] release from ICE custody after her initial apprehension 24 reflected a determination by the government that she was neither a flight risk nor a danger to the community, and 25 [she] has a strong interest in remaining at liberty unless she no longer meets those criteria. The regulations authorizing 26 ICE to release a noncitizen from custody require that the noncitizen “demonstrate to the satisfaction of the officer 27 that such release would not pose a danger to property or persons” and that the noncitizen is “likely to appear for any 28 future proceeding.” 8 C.F.R. § 1236.1(c)(8). 1 Release [therefore] reflects a determination by the 2 government that the noncitizen is not a danger to the community or a flight risk.” Saravia v. Sessions, 280 F. 3 Supp. 3d 1168, 1176 (N.D. Cal. 2017), aff'd sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). 4 [Petitioner] was apprehended by ICE officers when she crossed the border into the United States [ ]. ICE then 5 released her on her own recognizance. As ICE was not authorized to release [her] if she was a danger to the 6 community or a flight risk, the Court must infer from [her] release that ICE determined she was neither. [Her] release 7 from ICE custody constituted an “implied promise” that her liberty would not be revoked unless she “failed to live up to 8 the conditions of her release.” Morrissey, 408 U.S. at 482, 92 S.Ct. 2593. The regulatory framework makes clear that 9 those conditions were that she remain neither a danger to the community nor a flight risk. [She] justifiably relied on 10 the government's implied promise in obtaining employment, taking on financial responsibility for her 11 family members, and developing community relationships. The more than two years that she has spent out of custody 12 since ICE initially released her have only heightened her liberty interest in remaining out of detention. Accordingly, 13 [her] private interest in retaining her liberty is significant.

14 15 Pinchi, 2025 WL 2084921, at *4. 16 This reasoning contributed to the conclusion in Pinchi that a pre-deprivation 17 hearing was required under Mathews. The court in Pinchi also placed the burden at 18 any such hearing on the government to demonstrate to a neutral decisionmaker by 19 clear and convincing evidence that re-detention is necessary to prevent danger to the 20 community or flight. Id. at *7. Doing so is logical even for a post-detention custody 21 hearing for the reasons articulated in Pinchi; namely that the immigrant's initial release 22 reflected a determination by the government that the noncitizen is not a danger to the 23 community or a flight risk. Since it is the government that initiated Petitioner’s re- 24 detention, it follows that the government should be required to bear the burden of 25 providing a justification for the re-detention. 26 Considering the findings above, the Court DENIES Petitioner's request to be 27 released from custody, but GRANTS Petitioner's request to be provided an 28 individualized bond hearing. 1 ORDER 2 In accordance with the above, IT IS HEREBY ORDERED that: 3 1. Petitioner’s Motion for Temporary Restraining Order (ECF No. 3) is 4 GRANTED IN PART and DENIED IN PART; 5 2. Within five (5) days of this Order, Petitioner shall be afforded a 6 constitutionally adequate bond hearing pursuant to 8 U.S.C. § 1226(a) 7 before an Immigration Judge. The Government shall bear the burden of 8 establishing, by clear and convincing evidence, that Petitioner poses a 9 danger to the community or risk of flight, and Petitioner shall be allowed to 10 have counsel present. Respondents shall file a status report within seven (7) 11 days of the date of this Order, confirming whether a bond hearing was held 12 and, if so, the outcome of that hearing; 13 3. Petitioner’s remaining requests are DENIED without prejudice to renewed 14 argument on the motion for preliminary injunction; 15 4. Respondents are ORDERED TO SHOW CAUSE on or before November 26, 16 2025, as to why this Court should not issue a preliminary injunction on the 17 same terms as this Order. On or before December 1, 2025 Petitioner may 18 file a reply, if any, to Respondents’ opposition; 19 5. Petitioner may file on or before November 26, 2025 a further brief in 20 support of those portions of the requested injunctive relief that are denied 21 in this Order. Respondents may file a reply to any such further brief on or 22 before December 1, 2025; and 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 6. Pursuant to Local Rule 230(g), the Motion for Preliminary Injunction is 2 submitted on the papers. If the Court subsequently concludes that oral 3 argument is necessary, a hearing will be set and the parties notified 4 accordingly. 5 6 IT IS SO ORDERED. 7 | Dated: _November 19, 2025 “Daniel A CoD Hon. Daniel alabretta 8 UNITED STATES DISTRICT JUDGE 9 10 11 | □□□□□□□□□□□□□□□□□□□□□□□ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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