Bhim Raj KC (A#221-390-163) v. Christopher Chestnut, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BHIM RAJ KC (A#221-390-163), No. 1:26-cv-03159-TLN-SCR 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 CHRISTOPHER CHESTNUT, et al., 15 Respondents. 16 17 Petitioner challenges his federal immigration through this habeas corpus action. The 18 matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 19 Local Rule 302. 20 I. Factual and Procedural History 21 Petitioner is a native and citizen of Nepal who came to the United States on January 5, 22 2025 and was immediately detained by Customs and Border Protection. ECF No. 1 at 1. He 23 remains in immigration custody at the California City Detention Center located in this judicial 24 district. ECF No. 1 at 4. After being placed in expedited removal proceedings, petitioner 25 indicated a fear of persecution if returned to his home country. ECF No. 1 at 8. An asylum 26 officer determined that he had a credible fear of persecution, which resulted in petitioner’s case 27 being placed in standard removal proceedings. Id. (citing 8 C.F.R. § 208.30(f)); see also ECF No. 28 1-2 at 11-34 (Record of Determination/SB Fear Worksheet); ECF No. 1-2 at 7-9 (Notice to 1 Appear). He timely filed his asylum application on May 7, 2025. ECF No. 1-2 at 36-48. An 2 immigration judge denied petitioner asylum, withholding of removal, and relief under the 3 Convention Against Torture and ordered him removed to Nepal on October 8, 2025. ECF No. 1- 4 2 at 50-53. He appealed this decision to the Board of Immigration Appeals (“BIA”) on 5 November 7, 2025. ECF No. 1-2 at 55-58. The BIA appeal remains pending, and it appears no 6 briefing schedule has yet been set. See https://perma.cc/2B6B-KQMH (EOIR’s Automated Case 7 Information database searchable by A# and country of origin) (indicating no case information was 8 available). In his habeas application, petitioner challenges his prolonged detention without an 9 individualized bond hearing as a violation of his Fifth Amendment right to due process. ECF No. 10 1 at 15. By way of relief, petitioner requests a bond hearing before an immigration judge (“IJ”). 11 ECF No. 1 at 16. 12 Respondents’ opposition contends that “[t]his case is different than the majority of cases 13 this court sees involving detention under 8 U.S.C. § 1225(b)(1) because Petitioner was detained at 14 the border and has never been ‘released’ into the U.S.” ECF No. 8 at 1. Respondents further 15 submit that petitioner’s detention has become prolonged largely due to petitioner’s litigation 16 choices in the form of continuances before the IJ and an appeal to the BIA. ECF No. 8 at 4-5. 17 Additionally, respondents submit that petitioner’s detention is not indefinite nor is he in a 18 “diplomatic limbo” as in Zadvydas v. Davis, 533 U.S. 678, 693 (2001). ECF No. 8 at 4. 19 By way of reply, petitioner emphasizes that his 16 months of detention without a bond 20 hearing constitutes prolonged detention “that courts in this District have found constitutionally 21 problematic.” ECF No. 9 at 3. 22 II. Legal Standards 23 A. Constitutional Standards 24 The Supreme Court has held that “the Due Process Clause applies to all ‘persons’ within 25 the United States, including [non-citizens], whether their presence here is lawful, unlawful, 26 temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Similarly, Ninth 27 Circuit precedent holds that the Due Process Clause applies to noncitizens regardless of whether 28 they are “seeking admission” or are “admitted” under immigration law. Wong v. United States, 1 373 F.3d 952, 973 (9th Cir. 2004), abrogated on other grounds by Wilkie v. Robbins, 551 U.S. 2 537 (2007); see also Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1171-72 3 (W.D. Wash. 2023) (finding that the plaintiffs who were detained under § 1225(b)(1) adequately 4 alleged a right under “substantive due process to bond hearings” because “the Supreme Court has 5 consistently held that non-punitive detention violates the Constitution unless it is strictly limited, 6 and, typically, accompanied by a prompt individualized hearing before a neutral decisionmaker to 7 ensure that the imprisonment serves the government's legitimate goals”); Rosales-Garcia v. 8 Holland, 322 F.3d 386, 412 (6th Cir. 2003) (en banc) (“If excludable [non-citizens] were not 9 protected by even the substantive component of constitutional due process, ... we do not see why 10 the United States government could not torture or summarily execute them. ... [W]e conclude that 11 government treatment of excludable [noncitizens] must implicate the Due Process Clause of the 12 Fifth Amendment.”). The Due Process Clause “protects individuals against two types of 13 government action: violations of substantive due process and procedural due process.” United 14 States v. Quintero, 995 F.3d 1044, 1051 (9th Cir. 2021) (internal quotation omitted). As a matter 15 of substantive due process, governmental action may only infringe a fundamental right if “the 16 infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 17 292, 302 (1993). 18 Courts examine procedural due process claims in two steps: the first step is determining 19 whether there exists a protected liberty interest under the Due Process Clause. The second step 20 examines the procedures necessary to ensure any deprivation of that protected liberty interest 21 accords with the Constitution. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 22 460 (1989); Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“Once it is determined that due 23 process applies, the question remains what process is due.”). In deciding what process is due to 24 immigration detainees, the Ninth Circuit has assumed, without deciding, that the three-part test 25 articulated in Mathews, 424 U.S. 319, applies. See Rodriguez Diaz v. Garland, 53 F.4th 1189, 26 1206-07 (9th Cir. 2022). Under Mathews, the court considers three factors: (1) the private 27 interest affected; (2) the risk of an erroneous deprivation of that interest; and (3) the government's 28 interest involved including any fiscal or administrative burden that additional procedures would 1 include. Mathews, 424 U.S. at 335. 2 An as-applied challenge “contends that the law is unconstitutional as applied to the 3 litigant's particular [circumstances], even though the law may be capable of valid application to 4 others.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (citation omitted). 5 B. Statutory Immigration Framework 6 A non-citizen arrested at or near the border without valid entry documents is normally 7 ordered removed “without further hearing or review” pursuant to an expedited removal process. 8 See 8 U.S.C. § 1225(b)(1)(A)(i). But if such non-citizen “indicates either an intention to apply 9 for asylum ... or a fear of persecution,” then that non-citizen is referred for an asylum interview. 10 See 8 U.S.C. § 1225(b)(1)(A)(ii). While awaiting this credible fear interview, the non-citizen is 11 to remain detained. See 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). If an immigration officer determines 12 after that interview that the non-citizen has a credible fear of persecution, “the [non-citizen] shall 13 be detained for further consideration of the application for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii). 14 At that point, the asylum applicant will receive full consideration of the asylum claim in a 15 standard removal hearing. 16 The statutory mechanism for release from detention for an asylum applicant apprehended 17 at the border is temporary release on parole “for urgent humanitarian reasons or significant public 18 benefit.” 8 U.S.C. § 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3. Such parole, however, 19 “shall not be regarded as an admission of the [non-citizen].” 8 U.S.C. § 1182(d)(5)(A). Instead, 20 when the purpose of the parole has been served, “the [non-citizen] shall forthwith return or be 21 returned to the custody from which he was paroled and thereafter his case shall continue to be 22 dealt with in the same manner as that of any other applicant for admission to the United States.” 23 Id. 24 III. Analysis 25 In reviewing petitioner’s due process challenge, the Court turns first to the question of 26 whether petitioner has a protected liberty interest from prolonged detention during his removal 27 proceedings. While petitioner’s immigration case will at some point have a “definite termination 28 point,” there is no clear end in sight to his ongoing detention, which has now lasted for sixteen 1 months. See Chen v. Aitken, 917 F. Supp. 2d 1013, 1018 (N.D. Cal. 2013) (holding petitioner's 2 seven-month detention under § 1225(b) was “prolonged” because it “has lasted well beyond the 3 typical period described in Demore” and “neither release nor removal are imminent”). The record 4 does not provide this Court with any time frame in which petitioner’s removal proceedings will 5 ultimately be resolved. Therefore, in such circumstance, even mandatory detention statutes like § 6 1225(b)(1) and their implementing regulations are subject to constitutional limitations on an as- 7 applied basis. See, e.g., Nielsen v. Preap, 586 U.S. 392, 420 (2019) (recognizing that habeas 8 petitioners could raise as-applied challenges to another mandatory detention statute); Demore v. 9 Kim, 538 U.S. 510, 532-33 (2003) (Kennedy, J., concurring). Accordingly, the undersigned finds 10 that petitioner has a protected liberty interest and may invoke the Due Process Clause to seek 11 protections against prolonged detention in his individualized circumstances.1 12 Having so found, the Court applies the Mathews v. Eldridge, 424 U.S. 319 (1976), 13 framework to determine whether petitioner is entitled to a bond hearing during the pendency of 14 his removal proceedings. See Rodriguez Diaz, 53 F.4th at 1206-07 (assuming without deciding 15 that the Mathews standard applies to a due process challenge to a non-citizen’s ongoing 16 detention). 17 1. Private Interest 18 Turning to the first factor in Mathews, petitioner has a strong liberty interest in avoiding 19 prolonged detention without any bond hearing before a neutral arbiter. “Freedom from 20 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 21 the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. 22 Petitioner has been detained for sixteen months. Compared to the six-month presumptive period 23

24 1 Respondents briefly argue that petitioner does not possess a right to freedom from immigration detention in any form other than the form provided by Congress. ECF No. 8 at 2-3 (citing DHS 25 v. Thuraissigiam, 591 U.S. 103, 139 (2020)). However, Thuraissigiam is materially 26 distinguishable from this case. Its “discussion of due process is necessarily constrained to challenges to admissibility to the United States” and “[t]he Court answered no broader question.” 27 Padilla, 704 F. Supp. 3d at 1171-72. Thuraissigiam “does not foreclose . . . due process claims which seek to vindicate a right to a bond hearing with certain procedural protections.” Padilla, 28 704 F. Supp. 3d at 1172. 1 set forth in Zadvydas, beyond which continued detention becomes prolonged, petitioner’s 2 detention qualifies as prolonged. See Zadvydas, 533 U.S. at 701; Tigranyan v. Warden of 3 California City Detention, No. 1:25-cv-01554-DJC-SCR, 2026 WL 91765 (E.D. Cal. Jan. 13, 4 2026) (finding a 14 month detention under § 1225(b) qualified as prolonged), adopted by 2026 5 WL 130843 (Jan. 16, 2026). An individual’s private interest in “freedom from prolonged 6 detention” is “unquestionably substantial.” Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir. 2011); 7 see also Lopez v. Garland, 631 F.Supp.3d 870, 880 (E.D. Cal. 2022) (“As detention continues 8 past a year, courts become extremely wary of permitting continued custody absent a bond 9 hearing.”) (internal citation omitted). Petitioner’s pursuit of an appeal to the BIA does not 10 undercut his private interest. See Lopez, 631 F.Supp.3d at 882 (“[T]he fact that Petitioner chose 11 to pursue [an application for relief] and requested continuances to further that application does 12 not deprive him of a constitutional right to due process.”).] Despite being in custody for sixteen 13 months, there is no clear end date for petitioner’s detention because a briefing schedule hasn’t 14 even been set in his pending BIA appeal. For all these reasons, the first Mathews factor tilts in 15 favor of petitioner. 16 2. Risk of Erroneous Deprivation 17 “[T]he risk of an erroneous deprivation of liberty in the absence of a hearing before a 18 neutral decisionmaker is substantial.” Diouf v. Napolitano, 634 F.3d 1081, 1092 (9th Cir. 2011) 19 (abrogated on other grounds); see also, Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018) 20 (expressing “grave doubts that any statute that allows for arbitrary prolonged detention without 21 any process is constitutional”). In petitioner’s case, a bond hearing is a critical procedural 22 safeguard because it provides both the non-citizen and the government with an opportunity to 23 present evidence and to be heard by a neutral adjudicator. This factor under Mathews also favors 24 petitioner. 25 3. Government’s Interest 26 Under this factor, the Court weighs the government’s interest, “including the function 27 involved and the fiscal and administrative burdens that the additional or substitute requirement 28 would entail.” Mathews, 424 U.S. at 335. “[T]he government has a strong interest in effecting 1 removal, and in protecting the public from danger.” Maksim, 2025 WL 2879328, at *5 (citations 2 omitted). “[H]owever, the key government interest at stake here is not the continued detention of 3 Petitioner, but the government’s ability to detain him without a bond hearing.” Id. (citation and 4 quotation omitted). Thus, “[p]roviding a bond hearing would not undercut the government's 5 asserted interest in effecting removal. After all, the purpose of a bond hearing is to inquire 6 whether the [non-citizen] represents a flight risk or danger to the community.” Jimenez v. Wolf, 7 No. 19-CV-7996 NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020) (citing In re Guerra, 24 8 I.&N. Dec. 37 (B.I.A. 2006)); see also Velasco-Lopez v. Decker, 978 F.3d 842, 854 (2d Cir. 9 2020). Moreover, petitioner’s individual request for a bond hearing involves a minimal fiscal and 10 administrative burden. In sum, this factor also weighs in favor of petitioner. In light of this 11 Mathews analysis, the undersigned recommends that the petition for a writ of habeas corpus be 12 granted and respondents be ordered to provide petitioner a bond hearing before an IJ within five 13 days where the IJ must order petitioner released unless petitioner is found by the IJ to constitute a 14 risk of flight or danger to the community by clear and convincing evidence. See Maksim, 2025 15 WL 2879328, at *6 (adopting clear and convincing evidence burden in similar circumstance); 16 Singh, 638 F.3d at 1204 (“[D]ue process places a heightened burden of proof on the State in civil 17 proceedings in which the individual interests at stake ... are both particularly important and more 18 substantial than mere loss of money.”). 19 Accordingly, IT IS HEREBY RECOMMENDED that: 20 1. Petitioner's application for a writ of habeas corpus (ECF No. 1) be granted. 21 2. Respondents be ordered to provide petitioner with a bond hearing before an IJ within 5 22 business days where the IJ must order petitioner released unless petitioner is found by the IJ to 23 constitute a risk of flight or danger to the community by clear and convincing evidence. 24 3. Within 3 days from the date of the bond hearing, respondents be directed to file a 25 notice in this court certifying compliance with the above provision. 26 4. The final order in this case not address the circumstances in which respondents may 27 detain petitioner in the event petitioner becomes subject to an executable final order of removal 28 and Petitioner receives notice of that final order of removal. 1 5. The Clerk of Court be directed to enter judgment in favor of petitioner and to close this 2 || case. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven days after 5 || being served with these findings and recommendations, any party may file written objections with 6 || the court and serve a copy on all parties. The undersigned finds that a shortened objection period 7 || is warranted in this case given the nature of the relief at issue as well as the fact that the parties 8 | have had sufficient time to submit all of their arguments in written briefs. See United States v. 9 || Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (stating that 28 U.S.C. § 636(b)(1) sets 10 | the maximum objection period and not the minimum); see also Local Rule 304(b). The parties 11 | are advised that failure to file objections within the specified time may waive the right to appeal 12 | the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 13 | DATED: May 8, 2026 14

16 SEAN C. RIORDAN 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28