Beritan Gunes v. Christopher Chestnut, et al.

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 BERITAN GUNES, Case No. 1:26-cv-00080-JLT-SAB-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 13 v. HABEAS CORPUS, DENY PETITIONER’S MOTION FOR PRELIMINARY 14 CHRISTOPHER CHESTNUT, et al., INJUNCTION AS MOOT, DENY RESPONDENTS’ MOTION TO DISMISS, 15 Respondents. AND DIRECT RESPONDENTS TO PROVIDE PETITIONER WITH A BOND 16 HEARING

17 (ECF Nos. 1, 2, 10)

18 19 Petitioner, represented by counsel, is an immigration detainee proceeding with a petition 20 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 21 I. 22 BACKGROUND 23 Petitioner is a citizen of Turkey who entered the United States without inspection on May 24 4, 2022, seeking asylum. When Petitioner arrived in the United States, federal agents briefly 25 detained her, determined that she was not a flight risk or danger to the community, and released 26 her on her own recognizance with a notice to appear for removal proceedings in immigration 27 court. Petitioner has a valid driver license and work authorization card, and worked at Door Dash before she was detained. (ECF No. 1 at 2.) 1 Since her release, the petition alleges that Petitioner has diligently attended every 2 Immigration and Customs Enforcement (“ICE”) and United States Citizenship and Immigration 3 Services (“USCIS”) appointment and check-in, complied with all immigration obligations and 4 ICE orders, and has not committed any violation of any local, State or Federal law. (ECF No. 1 5 at 2.) 6 On September 28, 2022, Petitioner filed an asylum application with the immigration 7 court. On February 10, 2023, Petitioner was ordered deported in her absentia. On March 10, 8 2023, Petitioner moved to reopen her case for lack of notice, but that motion was denied by the 9 immigration judge on April 18, 2023. Petitioner immediately appealed that decision and the case 10 was reopened on October 24, 2025 by the Board of Immigration Appeals (“BIA”) due to lack of 11 notice. While Petitioner’s appeal was pending, Petitioner was detained by ICE on August 19, 12 2025. (ECF No. 1 at 9; ECF No. 2 at 3.) Her case is now pending before the immigration court. 13 (ECF No. 2 at 3.) 14 On January 6, 2026, Petitioner filed a petition for writ of habeas corpus and a motion for 15 temporary restraining order (“TRO”). (ECF Nos. 1, 2.) On January 7, 2026, the assigned district 16 judge denied the motion for TRO as untimely but as “Petitioner raises a serious question as to the 17 process she is due,” the motion for TRO was converted “to one seeking a preliminary injunction” 18 and the matter was referred to the undersigned. (ECF No. 6.) On January 20, 2026, Respondents 19 filed a motion to dismiss the petition. (ECF No. 10.) On January 21, 2026, Petitioner filed a 20 reply. (ECF No. 11.) 21 II. 22 DISCUSSION 23 The Court recommends advancing the merits determination and consolidating it with the 24 resolution of the preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a)(2), 25 which provides that “[b]efore or after beginning the hearing on a motion for a preliminary 26 injunction, the court may advance the trial on the merits and consolidate it with the hearing.” 27 Fed. R. Civ. P. 65(a)(2). See Dzhabrailov v. Decker, No. 20-CV-3118 (PMH), 2020 WL 1 2731966, at *4 (S.D.N.Y. May 26, 2020) (considering preliminary injunction and merits of 2 habeas petition simultaneously). 3 A. Statutory Framework 4 An intricate statutory scheme governs the detention of noncitizens during removal 5 proceedings and after a final removal order is issued. “Where an alien falls within this statutory 6 scheme can affect whether his detention is mandatory or discretionary, as well as the kind of 7 review process available to him if he wishes to contest the necessity of his detention.” Prieto- 8 Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 9 “Four statutes grant the Government authority to detain noncitizens who have been 10 placed in removal proceedings: 8 U.S.C. §§ 1225(b) (‘Section 1225(b)’), 1226(a) (‘Subsection 11 A’), 1226(c) (‘Subsection C’), and 1231(a) (‘Section 1231(a)’).” Avilez v. Garland, 69 F.4th 12 525, 529 (9th Cir. 2023). “Subsection A is the default detention statute for noncitizens in 13 removal proceedings and applies to noncitizens ‘[e]xcept as provided in [Subsection C].’”1 14 Avilez, 69 F.4th at 529 (alterations in original) (quoting 8 U.S.C. § 1226(a)). “[D]etention under 15 Subsection A is discretionary” and “provides for release on bond or conditional parole.” Avilez, 16 69 F.4th at 529. “When a person is apprehended under § 1226(a), an ICE officer makes the initial 17 custody determination,” and the noncitizen “will be released if he ‘demonstrate[s] to the 18 satisfaction of the officer that such release would not pose a danger to property or persons, and 19 that the alien is likely to appear for any future proceeding.’” Rodriguez Diaz v. Garland, 53 F.4th 20 1189, 1196 (9th Cir. 2022) (quoting 8 C.F.R. § 236.1(c)(8)). 21 “[A]n alien who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has not 22 been admitted,’ is treated as ‘an applicant for admission.’” Jennings v. Rodriguez, 583 U.S. 281, 23 287 (2018) (quoting 8 U.S.C. § 1225(a)(1)). “Applicants for admission must ‘be inspected by 24 immigration officers’ to ensure that they may be admitted into the country consistent with U.S. 25 immigration law.” Jennings, 583 U.S. at 287 (quoting 8 U.S.C. § 1225(a)(3)). “[A]pplicants for 26

27 1 Subsection C, which is not at issue here, “provides for the detention of ‘criminal aliens’ and states that ‘[t]he Attorney General shall take into custody any alien who’ is deportable or inadmissible based on a qualifying, 1 admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by 2 § 1225(b)(2).” Jennings, 583 U.S. at 287. “Both § 1225(b)(1) and § 1225(b)(2) authorize the 3 detention of certain aliens.” Id. 4 “Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, 5 misrepresentation, or lack of valid documentation. Section 1225(b)(1) also applies to certain 6 other aliens designated by the Attorney General in his discretion.” Jennings, 583 U.S. at 287 7 (citations omitted). “Aliens covered by § 1225(b)(1) are normally ordered removed ‘without 8 further hearing or review’ pursuant to an expedited removal process.” Id. (quoting 8 U.S.C. 9 § 1225(b)(1)(A)(i)). “But if a § 1225(b)(1) alien ‘indicates either an intention to apply for asylum 10 ... or a fear of persecution,’ then that alien is referred for an asylum interview.” Jennings, 583 11 U.S. at 287 (quoting 8 U.S.C. § 1225(b)(1)(A)(ii)). “If an immigration officer determines after 12 that interview that the alien has a credible fear of persecution, ‘the alien shall be detained for 13 further consideration of the application for asylum.’” Jennings, 583 U.S. at 287 (quoting 8 14 U.S.C. § 1225(b)(1)(B)(ii)). 15 Section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for 16 admission, if the examining immigration officer determines that an alien seeking admission is 17 not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a 18 proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Thus, “[a]ll applicants 19 for admission who are not processed for expedited removal [pursuant to § 1225(b)(1)] are placed 20 in regular removal proceedings under § 1225(b)(2)(A). That process generally entails a hearing 21 before an immigration judge pursuant to § 1229a.” Innovation Law Lab v. McAleenan, 924 F.3d 22 503, 507 (9th Cir. 2019). 23 “Regardless of which of those two sections authorizes their detention, applicants for 24 admission may be temporarily released on parole ‘for urgent humanitarian reasons or significant 25 public benefit.’” Jennings, 583 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)) (citing 8 C.F.R. 26 §§ 212.5(b), 235.3 (2017)). “Such parole, however, ‘shall not be regarded as an admission of the 27 alien.’” Jennings, 583 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)). “Instead, when the 1 custody from which he was paroled and thereafter his case shall continue to be dealt with in the 2 same manner as that of any other applicant for admission to the United States.’” Jennings, 583 3 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)). 4 B. Due Process 5 In her second claim for relief, Petitioner asserts that “[a]s part of the liberty protected by 6 the Due Process Clause, Petitioner has a weighty liberty interest in avoiding re-incarceration 7 after her release,” and that “Petitioner’s re-detention without a pre-deprivation hearing violated 8 due process.” (ECF No. 1 at 11–12.) Respondents contend that Petitioner “is an ‘applicant for 9 admission’ within the meaning of 8 U.S.C. § 1225(a) and subject to mandatory detention by 10 Immigration and Customs Enforcement under 8 U.S.C. § 1225(b)(2)(A) during the pendency of 11 h[er] removal proceedings.” (ECF No. 10 at 2.) 12 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 13 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. 14 Davis, 533 U.S. 678, 693 (2001). “Even when the government has discretion to detain an 15 individual, its subsequent decision to release the individual creates ‘an implicit promise’ that she 16 will be re-detained only if she violates the conditions of her release.” Garro Pinchi v. Noem, No. 17 25-CV-05632-PCP, --- F. Supp. 3d. ----, 2025 WL 3691938, at *30 (N.D. Cal. Dec. 19, 2025) 18 (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). “Other courts, including this Court, have 19 held similarly.” J.E.H.G. v. Chestnut, No. 1:25-cv-01673-JLT-SKO, 2025 WL 3523108, at *10 20 (E.D. Cal. Dec. 9, 2025) (citing Doe v. Becerra, No. 2:25-CV-00647-DJC-DMC, 2025 WL 21 691664, at *4 (E.D. Cal. Mar. 3, 2025)). “Accordingly, a noncitizen released from custody 22 pending removal proceedings has a protected liberty interest in remaining out of custody.” 23 Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC (EMC), 2025 WL 2637503, at *6 (N.D. Cal. 24 Sept. 12, 2025). Regardless of whether mandatory detention under § 1225(b) is facially 25 constitutional, and “[e]ven assuming Respondents are correct that § 1225(b) is the applicable 26 detention authority for all ‘applicants for admission,’ Respondents fail to contend with the liberty 27 interest created by the fact that the Petitioner in this case was released on recognizance[.]” 1 “Thus, the Court must evaluate the three-part test set forth in Mathews v. Eldridge, 424 2 U.S. 319, 334-335 (1976), to determine whether the procedures (or lack thereof) that have been 3 applied to Petitioner are sufficient to protect the liberty interest at issue.” J.E.H.G., 2025 WL 4 3523108, at *11.

5 [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors. First, the private interest that will be 6 affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional 7 or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the 8 additional or substitute procedural requirements would entail. 9 Mathews, 424 U.S. at 334. 10 As to private interest, it “is beyond dispute” that Petitioner’s interest here is 11 “fundamental.” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (citing Foucha v. 12 Louisiana, 504 U.S. 71, 80 (1992)). “Freedom from imprisonment—from government custody, 13 detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process] 14 Clause protects.” Zadvydas, 533 U.S. at 690. “Second, the risk of erroneous deprivation is high 15 when, as here, parole is revoked without written notice or reason.” Rocha Chavarria, 2025 WL 16 3533606, at *4. See Kakkar v. Chestnut, No. 1:25-CV-1627 JLT SAB, 2025 WL 3638298, at *7 17 (E.D. Cal. Dec. 15, 2025) (“Turning to the second factor, the risk of erroneous deprivation of 18 Petitioner’s liberty is high where, as here, ‘[the petitioner] has not received [and will not receive] 19 any bond or custody redetermination hearing.’” (alterations in original) (quoting A.E. v. 20 Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025))). 21 “Finally, as other courts have done, this Court concludes that the government’s interest in 22 detaining Petitioner without proper process is slight.” J.E.H.G., 2025 WL 3523108, at *12. 23 Accordingly, the Mathews factors weigh in favor of a bond hearing. 24 Based on the foregoing, the Court recommends finding that Petitioner has a protected 25 liberty interest in remaining out of custody and that her re-detention without a bond hearing 26 violates due process.2 The Court now turns to whether a pre-deprivation or post-deprivation 27 2 In light of this conclusion, the Court declines to address Petitioner’s substantive due process and Fourth 1 hearing is appropriate in this case. 2 The Supreme Court has held that “the Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” See Zinermon v. 3 Burch, 494 U.S. 113, 127 (1990) (emphasis in original). However, the Court also recognized that there may be situations that urgently require arrest, in which a 4 prompt post-deprivation hearing is appropriate. Id. at 128 (noting there may be “special case[s]” where a pre-deprivation hearing is impracticable); Guillermo M. 5 R. v. Kaiser, No. 25-CV-05436-RFL, 2025 WL 1983677, at *9 (N.D. Cal. July 17, 2025) (“absent evidence of urgent concerns, a pre-deprivation hearing is 6 required to satisfy due process, particularly where an individual has been released on bond by an IJ”). The rapidly developing caselaw on this subject gives limited 7 guidance as to where this line should be drawn. Some courts that have addressed detention-related habeas petitions brought by persons released with enhanced 8 supervision conditions have required pre-deprivation process, but in somewhat different circumstances. In E.A.T.-B. v. Wamsley, No. C25-1192-KKE, 2025 WL 9 2402130, at *4 (W.D. Wash. Aug. 19, 2025), the district court ordered the release of a petitioner arrested by ICE immediately after appearing in immigration court. 10 That court agreed with the petitioner that ICE’s post hoc explanation that violations warranted his detention was pretextual, given that ICE first became 11 aware of petitioner’s alleged violations a few hours before his immigration hearing, DHS did not raise those violations at the hearing or argue the petitioner 12 should be detained for any reason, and the petitioner was then provided multiple, inconsistent justifications for his arrest. Id. In Arzate v. Andrews, No. 1:25-CV- 13 00942-KES-SKO (HC), 2025 WL 2230521, at *7 (E.D. Cal. Aug. 4, 2025), converted to preliminary injunction sub nom, 2025 WL 2411010, at *1 (E.D. Cal. 14 Aug. 20, 2025), the court ordered immediate release of in immigration detainee who had been in compliance with his conditions of release, even though he had 15 incurred a misdemeanor arrest while on parole, in part because no charges were ever filed. 16 In contrast, this Court ordered a parole revocation hearing in Martinez Hernandez 17 v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767 (E.D. Cal. Aug. 28, 2025), where the petitioner’s records indicated numerous violations. Though 18 Martinez Hernandez offered explanations for the violations and there was a dispute of fact as to whether the violations occurred, ICE’s reliance upon those 19 violations was “not obviously pretexual.” Id. at * 12 (“If Respondent’s view of the facts is correct, it is at least arguable that providing Petitioner with notice and 20 a pre-deprivation hearing would have been impracticable and/or would have motivated his flight.”). As this Court noted in Martinez Hernandez: 21 In similar circumstances, courts have refused to release the petitioners but 22 have ordered timely bond hearings. Carballo v. Andrews, No. 1:25-CV- 00978-KES-EPG (HC), 2025 WL 2381464, at *8 (E.D. Cal. Aug. 15, 23 2025), citing Perera v. Jennings, et. al, No. 21-CV-04136-BLF, 2021 WL 2400981, at *5 (N.D. Cal. June 11, 2021); Pham v. Becerra, No. 23-CV- 24 01288-CRB, 2023 WL 2744397, at *6 (N.D. Cal. Mar. 31, 2023). “[A]llowing a neutral arbiter to review the facts would significantly reduce 25 the risk of erroneous deprivation.” Guillermo M. R. v. Kaiser, No. 25-CV- 05436-RFL, 2025 WL 1983677, at *8 (N.D. Cal. July 17, 2025). Thus, the 26 Court concludes that prompt, post-deprivation process is required here. Id. 27 1 Here, Petitioner was detained because she had an in absentia removal order. (ECF No. 2 2 at 3.) Accordingly, the Court recommends that a post-deprivation hearing is appropriate based on 3 the facts of this case, and that “the burden at any such hearing [be placed] on the government to 4 demonstrate to a neutral decisionmaker by clear and convincing evidence that re-detention is 5 necessary to prevent danger to the community or flight.” J.E.H.G., 2025 WL 3523108, at *14 6 (citing Pinchi v. Noem, 792 F. Supp. 3d 1025, 2025 WL 2084921, at *7 (N.D. Cal. 2025)). See 7 J.E.H.G., 2025 WL 3523108, at *14 (“[T]he immigrant’s initial release reflected a determination 8 by the government that the noncitizen is not a danger to the community or a flight risk. Since it is 9 the government that initiated re-detention, it follows that the government should be required to 10 bear the burden of providing a justification for the re-detention.”). 11 III. 12 RECOMMENDATION 13 Based on the foregoing, the Court HEREBY RECOMMENDS that: 14 1. The petition for writ of habeas corpus be GRANTED on the second claim for relief; 15 2. Petitioner’s motion for preliminary injunction (ECF No. 2) be DENIED as moot; 16 3. Respondents’ motion to dismiss (ECF No. 10) be DENIED; and 17 4. Respondents be directed to provide Petitioner with an individualized hearing before an 18 immigration judge where the government must prove by clear and convincing evidence 19 that Petitioner is a flight risk or a danger to the community to justify her detention. 20 This Findings and Recommendation is submitted to the assigned United States District 21 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 22 Rules of Practice for the United States District Court, Eastern District of California. Within 23 FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 24 written objections with the Court, limited to fifteen (15) pages in length, including any 25 exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 26 Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 27 after service of the objections. The assigned District Judge will then review the Magistrate 1 | objections within the specified time may waive the right to appeal the District Court’s order. 2 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 3 | 1391, 1394 (9th Cir. 1991)). 4 1820 oRneD A (Ee 6 | Dated: _ January 27, 2026 STANLEY A. BOONE 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28