Carlos Enrique Tojxitumul v. Warden of the Mesa Verde Detention Facility, et al.

• Court: District Court, E.D. California
• Decided: March 6, 2026
• Docket: 1:26-cv-01060
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS ENRIQUE TOJXITUMUL, Case No. 1:26-cv-01060-JLT-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT PETITION FOR WRIT OF HABEAS 13 v. CORPUS

14 WARDEN OF THE MESA VERDE (Doc. 1) DETENTION FACILITY, et al., 15 7-DAY OBJECTION PERIOD Respondents. 16 17 Petitioner Carlos Enrique Tojxitumul, a federal immigration detainee proceeding pro se, 18 initiated this action on February 6, 2026, with the filing of a petition for writ of habeas corpus under 19 28 U.S.C. § 2241. (Doc. 1). Petitioner is in custody the of Immigration and Customs Enforcement 20 (“ICE”) at the Mesa Verde Detention Facility, located in Bakersfield, California. Id. ¶ 1. 21 Respondents are: the unnamed Secretary of the Department of Homeland Security (“DHS”); 22 unnamed Attorney General of the United States; unnamed Acting ICE Director; unnamed ICE Field 23 Office Director, San Francisco Field Office; and the unnamed Warden, Mesa Verde Detention 24 Facility. See id. 25 At the Court’s direction, Respondents filed a response to the petition on February 19, 2026. 26 (Doc. 10). Petitioner did not file a traverse. For the reasons set forth herein, the undersigned 27 recommends that Petitioner’s petition for writ of habeas corpus be granted. 28 /// 1 I. Relevant Background 2 Petitioner is a citizen of Guatemala who unlawfully entered the United States on or about 3 March 25, 2019, and was apprehended by U.S. Border Patrol; he was released on parole on March 4 27, 2019, with supervision under the Alternatives to Detention program. See (Doc. 10 at 1; Doc. 5 10-1). He alleges that he was re-arrested and detained by immigration authorities on December 10, 6 2025, when he was summonsed by his “ISAP officer” (Doc. 1 ¶ 23), a presumed reference to ICE’s 7 “Intensive Supervision Appearance Program” that monitors non-detained noncitizens under ICE’s 8 supervision. Petitioner also alleges that he complied with ISAP’s rules regarding calls, photos, and 9 officer visits. Id. 10 After his release on parole, on September 6, 2020, Petitioner was arrested for driving under 11 the influence of alcohol or drugs (“DUI”) and for evading a peace officer; he was fined for the 12 misdemeanor DUI and the other charges were dismissed. On July 14, 2022, he was arrested for 13 DUI with a prior, as a misdemeanor, and ultimately was fined. On March 23, 2023, he was arrested 14 for battery of a spouse, as a misdemeanor; the charges were dropped for insufficient evidence. On 15 November 19, 2023, he was arrested for willful cruelty to a child and DUI, as well as driving on a 16 suspended license, also as misdemeanors; he was convicted on counts of child abuse and DUI. He 17 was fined and sentenced to a jail term and four years’ probation. See (Doc. 10 at 1-2; Doc. 10-2 at 18 4-8; Doc. 10-3). On February 10, 2025, he was booked into Marin County Jail to serve his sentence. 19 See (Doc. 10 at 2; Doc. 10-3). 20 During his most recent check-in with ICE (December 10, 2025), Petitioner was re-detained. 21 (Doc. 1 ¶ 23; Doc. 10 at 2; Doc. 10-1 at 4). DHS records mention Petitioner’s arrest on DUI charges 22 alongside the record of his recent detainment by ICE officers. However, Petitioner’s most recent 23 arrest predated his detainment by over one year, and his confinement in jail predated it by 24 approximately ten months. See (Doc. 10-at 4). 25 Respondents assert that Petitioner’s arrests and convictions are violations of his terms of 26 release. See (Doc. 10). Petitioner does not directly address these claims in his petition and did not 27 file a traverse. See (Doc. 1). In his petition, Petitioner asserts generally that he “was doing 28 everything correctly” and is in the process of seeking asylum. Id. ¶ 18, 23. Publicly available 1 information provided by the Department of Justice, Executive Office for Immigration Review 2 (“EOIR”), does not evidence that Petitioner is the subject of any final order of removal.1 3 II. Governing Authority 4 A. The Writ of Habeas Corpus 5 Writ of habeas corpus relief extends to a person in custody under the authority of the United 6 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 7 shall “award the writ or issue an order directing the respondent to show cause why the writ should 8 not be granted, unless it appears from the application that the applicant or person detained is not 9 entitled thereto.” 28 U.S.C. § 2243. 10 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 11 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 12 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 13 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 14 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 15 detention” in ICE custody). 16 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 17 Two statutes govern the detention and removal of inadmissible noncitizens from the United 18 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 19 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC, 2025 WL 2637503 (N.D. Cal. Sept 12, 20 2025), which the undersigned adopts herein: 21 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 22 The “usual removal process” involves an evidentiary hearing before 23 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 24 § 1229(a), also known as “full removal,” by filing a Notice to Appear 25 1 See https://acis.eoir.justice.gov/en/caseInformation (last visited March 6, 2026, using Petitioner’s 26 A-Number and nationality); Daniels-Hall v. National Edu. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by government 27 entities ... and neither party disputes the authenticity of the web sites or the accuracy of the information displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F. Supp. 3d 1028, 1034 (E.D. Cal. 2024) (taking 28 judicial notice of information on federal government agency’s website). 1 with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 520 (BIA 2011). Section § 1226 provides that while 2 removal proceedings are pending, a noncitizen “may be arrested and detained” and that the government “may release the alien on ... 3 conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 108 (during removal proceedings, applicant may either be “detained” 4 or “allowed to reside in this country”). When a person is apprehended under § 1226(a), an ICE officer makes the initial custody 5 determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) (citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be released if he or 6 she “demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is 7 likely to appear for any future proceeding.” Id. (citing 8 C.F.R. § 236.1(c)(8)). 8 “Federal regulations provide that aliens detained under § 1226(a) 9 receive bond hearings at the outset of detention.” Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)). 10 If, at this hearing, the detainee demonstrates by the preponderance of the evidence that he or she is not “a threat to national security, a 11 danger to the community at large, likely to abscond, or otherwise a poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at 12 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)). Once released, the noncitizen’s bond is subject to revocation. Under 13 8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s bond or parole ‘at any time,’ even if that individual has previously 14 been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D. Cal. 2019). However, if an immigration judge has determined the 15 noncitizen should be released, the DHS may not re-arrest that noncitizen absent a change in circumstance. See Panosyan v. 16 Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release decision was made by a DHS officer, not an immigration judge, the 17 Government’s practice has been to require a showing of changed circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 18 3d 1168, 1197 (N.D. Cal. 2017).

19 2. Expedited Removal and Mandatory Detention (§ 1225)

20 While “§ 1226 applies to aliens already present in the United States,” U.S. immigration law also “authorizes the Government to detain 21 certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2),” a process that provides for expedited 22 removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a noncitizen “who has not been admitted or who arrives in the United 23 States” is considered “an applicant for admission.” 8 U.S.C. § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 24 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides that: 25 “If an immigration officer determines that an alien 26 (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in 27 clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C) 28 or 1182(a)(7)], the officer shall order the alien 1 removed from the United States without further hearing or review unless the alien indicates either an 2 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 3 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 4 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 5 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 6 designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 7 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 8 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 9 § 1225(b)(1)(A)(iii)(II).

10 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 11 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 12 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 13 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 14 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 15 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 16 among those whom the Secretary of Homeland Security has designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 17 1225(b)(1).

18 “Initially, DHS’s predecessor agency did not make any designation [under (3)], thereby limiting expedited removal only to ‘arriving 19 aliens,’” that is, noncitizens encountered at ports of entry. Make the Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS 20 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS extended by designation expedited removal to noncitizens who arrive 21 by sea and who have been present for fewer than two years, and to noncitizens apprehended within 100 air miles of any U.S. 22 international land border who entered within the last 14 days. Id. This was the status quo until January 2025, when the Department of 23 Homeland Security revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” 24 Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025). Under this designation, expedited removal applies to 25 noncitizens encountered anywhere within the United States, who have been in the United States for less than two years and are 26 inadmissible for lack of valid documentation or misrepresentation. In short, expedited removal was expanded to apply for the first time to 27 vast numbers of noncitizens present in the interior of the United States. 28 1 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 2 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 3 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 4 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order 5 the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may 6 be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable within 24 7 hours, but in no case later than 7 days after the date of the determination.” Id. Detention under § 1225(b)(1) is “mandatory” 8 “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing 9 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible 10 fear of persecution and, if found not to have such a fear, until removed.”) 11 [Section] 1225 also contains a provision that applies to applicants for 12 admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory 13 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking 14 admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full 15 removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited 16 removal but are subject to mandatory detention while their full removal proceedings are pending. This is in contrast to the default 17 detention regime under § 1226(a), which allows for discretionary release and review of detention through a bond hearing. 18 3. The Government’s Recent Change in Position 19 Until this year, the DHS has applied § 1226(a) and its discretionary 20 release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice 21 was codified by regulation. The regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 22 (“IIRIRA”) state that “Despite being applicants for admission, aliens who are present without having been admitted or paroled (formerly 23 referred to as aliens who entered without inspection) will be eligible for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 24 (Mar. 6, 1997). In fact, the government has conceded in other contexts that “DHS’s long-standing interpretation has been that 25 1226(a) [discretionary detention] applies to those who have crossed the border between ports of entry and are shortly thereafter 26 apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 27 (2022) (No. 21-954)) . . .

28 In 2025, however, the Government’s policy changed dramatically. 1 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 2 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 3 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 4 to expedited removal but to whom expedited removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps 5 to terminate any ongoing removal proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the 6 actions contemplated by the memorandum “in a manner that takes account of legitimate reliance interests,” but states that “the 7 expedited removal process includes asylum screening, which is sufficient to protect the reliance interests of any alien who has 8 applied for asylum or planned to do so in a timely manner.” Huffman Memorandum (Jan. 23, 2025). 9 Since mid-May of 2025, the Department of Homeland Security has 10 made a practice of appearing at regular removal proceedings in immigration court, moving to dismiss the proceedings, and then re- 11 arresting the individual in order to place them in expedited removal proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does 12 not dismiss the full removal proceedings, ICE still makes an arrest, apparently in reliance on § 1225(b)(2)’s detention provision. 13 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 14 C. Parole Revocation 15 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 16 process in immigration cases and noted that before parole may be revoked, the parolee must be 17 given written notice of the impending revocation, which must include a cogent description of the 18 reasons supporting the revocation decision. The court held: 19 Section 1182 . . . has a subsection titled “Temporary admission of 20 nonimmigrants,” which allows noncitizens, even those in required detention, to be “paroled” into the United States. This provision, at 21 issue in this case, states:

22 The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this 23 title, in his discretion parole into the United States temporarily under such conditions as he may prescribe 24 only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying 25 for admission to the United States, but such parole of such alien shall not be regarded as an admission of the 26 alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 27 have been served the alien shall forthwith return or be returned to the custody from which he was paroled 28 and thereafter his case shall continue to be dealt with 1 in the same manner as that of any other applicant for admission to the United States. 2

3 8 U.S.C. § 1182(d)(5)(A). 4 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 5 immigration parolees are entitled to determinations related to their parole revocations that are not 6 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 7 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 8 a satisfactory explanation for its action including a rational connection between the facts found and 9 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 10 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 11 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 12 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 13 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 14 the immigrant has departed or when the specified period of parole has expired. 15 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 16 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 17 to revoke humanitarian parole:

18 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 19 basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no 20 indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received 21 merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required 22 by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for 23 which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] 24 continued presence...in the United States.” See 8 C.F.R. § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s 25 parole violated his rights under the statute and regulations. See Y-Z- L-H, 2025 WL 1898025, at *13. 26 27 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 28 1 a similar conclusion relying on the Due Process Clause: 2 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 3 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 4 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court joins other courts of this district facing facts similar to the present 5 case and finds Petitioner raised serious questions going to the merits of his claim that due process requires a hearing before an IJ prior to 6 re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021 WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v. 7 Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal. Aug. 23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on 8 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 9 liberty interest in remaining out of custody on bond.”). 10 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 11 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 12 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 13 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 14 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 15 imprisonment serves the government’s legitimate goals.”). 16 III. Exhaustion 17 A. Governing Authority 18 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 19 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 20 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 21 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 22 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 23 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 24 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 25 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 26 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 27 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 28 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 1 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 2 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 3 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 4 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 5 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 6 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 7 to be disregarded.”). 8 B. Analysis 9 Neither Petitioner nor Respondents address exhaustion. See (Docs. 1, 10). The Court finds 10 that the prudential exhaustion requirement should be waived as it would be futile to seek release by 11 administrative means given Respondents’ position that Petitioner is subject to mandatory detention. 12 Jennings v. Rodriguez, 583 U.S. 281, 282 (2018) (“§§ 1225(b) … do[e]s not give detained aliens 13 the right to periodic bond hearings during the course of their detention.”); Rodriguez Diaz v. 14 Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). Further, the BIA has held that all noncitizens present 15 within the country without admission are seeking admission pursuant to § 1225, rendering any 16 administrative relief futile. See J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 17 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 2025) (“In addition, pursuit of administrative remedies would 18 almost certainly be futile given the BIA’s recent holding that all noncitizens present in the United 19 States without admission are ‘seeking admission’ for purposes of 8 U.S.C. § 1225(b)(2)(A) and 20 must be detained.”) (citing Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)). 21 For these reasons and because Respondents do not address exhaustion in their response, the 22 undersigned recommends that the prudential exhaustion requirement be waived for Petitioner’s 23 claim for habeas corpus relief. See, e.g, Chavez v. Noem, No. 3:25-cv-02325-CAB-SBC, 2025 WL 24 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving prudential exhaustion requirement because the 25 BIA “already applied its expertise in deciding and designating” Hurtado as precedential, pursuant 26 to which detainees are subject to mandatory detention without bond under § 1225(b)(2)); Rodriguez 27 v. Bostock, 779 F. Supp. 3d 1239, 1253 (W.D. Wash. 2025) (“The Ninth Circuit has recognized 28 ‘the irreparable harms imposed on anyone subject to immigration detention.’”) (citing Hernandez 1 v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)); J.A.C.P., 2025 WL 3013328, at *7 n.9. 2 IV. Discussion 3 As set forth below, the undersigned finds that Respondents have violated Petitioner’s 4 constitutional rights to procedural due process under the Fifth Amendment. 5 A. Procedural Due Process 6 1. Governing Authority 7 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 8 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 9 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 10 individuals against two types of government action’: violations of substantive due process and 11 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 12 “Procedural due process imposes constraints on governmental decisions which deprive 13 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 14 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 15 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 16 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 17 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 18 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 19 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 20 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 21 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 22 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 23 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 24 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 25 v. Brewer, 408 U.S. 471, 481 (1972). 26 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 27 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 28 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 1 Due Process Clause stands as a significant constraint on the manner in which the political branches 2 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 3 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 4 justification for physical confinement outweighs the individual's constitutionally protected interest 5 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 6 1196, 1203 (9th Cir. 2011)). 7 2. Analysis 8 On Petitioner’s as-applied procedural due process challenge to his continuing detention by 9 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 10 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any 11 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 12 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 13 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 14 Petitioner has an underlying, continuing liberty interest in being free from re-detention. 15 Specifically, Petitioner was released and paroled from custody by ICE over six years prior to his 16 re-detention on December 10, 2025. In releasing Petitioner in their discretion, immigration officials 17 necessarily determined that Petitioner did not present a risk of flight or danger to the community. 18 See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest may, in the 19 officer’s discretion, release an alien not described in section 236(c)(1) of the Act, under the 20 conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the 21 satisfaction of the officer that such release would not pose a danger to property or persons, and that 22 the alien is likely to appear for any future proceeding.”); accord Rodriguez Diaz, 53 F.4th at 1196. 23 The undersigned agrees with other courts and other judges of this Court that noncitizens 24 released from immigration custody on parole, general orders of supervision or on their own 25 recognizance have a liberty interest in their freedom that implicates protections under principles of 26 procedural due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 27 2025) (“The fact that Petitioner is subject to discretionary conditions of release likewise does not 28 mean he lacks a protectable liberty interest and can be re-detained without process.”); see id. 1 (“[E]ven if immigration detainees must wait months before a periodic re-review of their detention, 2 those already released on immigration bond possess an interest in their continued liberty, which 3 grows over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun 4 v. Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1099 5 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy 6 duration of his conditional release as well as the meaningful connections Petitioner seems to have 7 made with his community during that time create a powerful interest for Petitioner in his continued 8 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5- 9 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an 10 individual, a protected liberty interest under the Due Process Clause may entitle the individual to 11 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES- 12 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily 13 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained 14 in continuous custody and never released on supervision). 15 Because Petitioner has shown he has a protected liberty interest to remain free from re- 16 detention based on his discretionary release on March 27, 2019, the undersigned must determine 17 what process is due before the government may terminate that liberty interest. To determine this, 18 the undersigned considers the following factors articulated in Mathews: “[(1)] the private interest 19 that will be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest 20 through the procedures used, and the probable value, if any, of additional or substitute procedural 21 safeguards; and [(3)] the Government’s interest, including the function involved and the fiscal and 22 administrative burdens that the additional or substitute procedural requirement would entail.” 23 Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 (applying Mathews test in 24 immigration detention context); id. at 993 (“The appropriateness of the requirement that ICE and 25 IJs consider financial circumstances and alternative conditions of release is confirmed by the 26 balance of factors under Mathews[.]”). 27 As to the first factor, Petitioner has shown he has a significant private interest in remaining 28 on release from detention. He had been released from immigration custody for over six years prior 1 to his re-detention. He asserts that he has a wife and two minor children in the country. (Doc. 1 ¶ 2 23). Petitioner’s continued liberty interest in remaining on release is undermined by his re- 3 detention without a bond hearing. Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from imprisonment 4 is at the core of the Due Process Clause…. The lengthy duration of his conditional release as well 5 as the meaningful connections [he] seems to have made with his community during that time create 6 a powerful interest for [him] in his continued liberty.”). 7 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest 8 is considerable here where he has not received any bond or custody redetermination. Id. at 1094; 9 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 10 2025). Because there were no procedural safeguards to determine if Petitioner’s re-detention was 11 justified, the probable value of the additional procedural safeguard of a bond hearing to determine 12 whether Petitioner is a flight risk or a danger to the community is high such that this factor weighs 13 in favor of granting a bond hearing. See Doe, 787 F. Supp. at 1094 (“[G]iven that Petitioner was 14 previously found to not be a danger or risk of flight and the unresolved questions about the timing 15 and reliability of the new information, the risk of erroneous deprivation remains high.”); A.E., 2025 16 WL 1424382 at *5; Ramazan, 2025 WL 3145562, at *6. Therefore, this factor weighs in favor of 17 granting a bond hearing. 18 Third, the government’s interest in detaining Petitioner without a bond hearing is low. Doe, 19 787 F. Supp. 3d at 1094 (citation omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 20 2019)); Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) 21 (“And, like other Courts in this district, the Court concludes that the government’s interest in re- 22 detaining Petitioner-[] without a hearing is ‘low,’ particularly in light of the fact that Petitioner[] 23 has long complied with his reporting requirements.”). “The effort and cost to provide Petitioner 24 with [a bond hearing] is minimal[.]” Doe, 787 F. Supp. 3d at 1094. 25 Respondents assert that each of Petitioner’s arrests were a violation of his conditions of 26 parole but do not advance any arguments as to whether or how this information informs ICE’s 27 authority to re-arrest and detain Petitioner without a hearing. (Doc. 1 at 2). The undersigned does 28 not find Respondents’ assertions regarding Petitioner’s purported lack of compliance with any 1 conditions of supervised release relevant to the issue of whether or not Petitioner is entitled to a 2 custody redetermination by an immigration judge. Therefore, any additional burden from requiring 3 the government to seek a bond hearing before it may re-detain Petitioner does not outweigh his 4 liberty interest and the risk of erroneous deprivation. Accordingly, this factor weighs in favor of 5 granting a bond hearing. 6 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 7 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest 8 in December 2025 and continuing detention thereafter. Accordingly, the undersigned will 9 recommend the Court grant Petitioner’s petition on his claim for violation of procedural due process 10 under the Fifth Amendment and recommend the Court order Respondents to provide Petitioner 11 with a bond hearing as set forth below. 12 B. Relief 13 The undersigned considers whether Petitioner is entitled to a pre-deprivation or post- 14 deprivation bond hearing, and further, addresses what standards should apply at that hearing. 15 First, the undersigned concludes that Petitioner is entitled only to a post-deprivation bond 16 hearing. As summarized above, Respondents assert that Petitioner’s arrests and convictions are 17 violations of his terms of release. See (Doc. 10). Petitioner does not directly address these issues 18 in his petition and did not file a traverse. See (Doc. 1). In his petition, Petitioner asserts generally 19 that he “was doing everything correctly.” Id. ¶ 23. The undersigned notes that Petitioner 20 nevertheless was arrested by ICE on December 10, 2025, only after he complied with directions to 21 report to the ICE office. 22 ICE’s reliance upon Petitioner’s violations was “not obviously pretex[t]ual.” Martinez 23 Hernandez v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767, at *12 (E.D. Cal. Aug. 24 28, 2025) (“If Respondent’s view of the facts is correct, it is at least arguable that providing 25 Petitioner with notice and a pre-deprivation hearing would have been impracticable and/or would 26 have motivated his flight.”) (citing cases); accord O.A.C.C. v. Wofford, No. 1:25-cv-01652-DAD- 27 CSK (HC), 2025 WL 3485221, at *4-5 (E.D. Cal. Dec. 4, 2025). 28 Second, Petitioner was released by ICE on parole following his initial encounter and arrest 1 in March 2019 and submitted to Alternatives to Detention supervision for approximately six-and- 2 a-half years prior to his re-detention in December 2025. (Doc. 10-1 at 4). In releasing Petitioner, 3 immigration officials necessarily determined that he did not present a risk of flight or danger to the 4 community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest may, 5 in the officer’s discretion, release an alien not described in section 236(c)(1) of the Act, under the 6 conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the 7 satisfaction of the officer that such release would not pose a danger to property or persons, and that 8 the alien is likely to appear for any future proceeding.”). Nevertheless, Petitioner has not been 9 afforded a bond hearing before an immigration judge. 10 Under these circumstances, even in the light of disputed issues of fact concerning the nature 11 and severity of Petitioner’s alleged violation of terms of his supervised release, the undersigned 12 will recommend the Court find that the government should bear the burden of establishing at the 13 bond hearing, by clear and convincing evidence, that Petitioner poses a danger to the community 14 or a risk of flight. E.g., Singh v. Andrews, No. 1:25-cv-01543-DCJ-SCR, 2025 WL 3248059, at *6 15 (E.D. Cal. Nov. 19, 2025) (requiring government to carry burden by clear and convincing evidence, 16 notwithstanding disputed issues of facts involving the petitioner’s alleged violation of release 17 conditions); M.V.I. v. Andrews, No. 1:25-cv-01440-JLT-SKO, 2025 WL 3154403, at *13-14 (E.D. 18 Cal. Nov. 112, 2025) (same). “Doing so is logical” because “the immigrant’s initial release 19 reflected a determination by the government that the noncitizen is not a danger to the community 20 or a flight risk. Since it is the government that initiated re-detention, it follows that the government 21 should be required to bear the burden of providing a justification for the re-detention.” M.R.R. v. 22 Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 3265446, at *14 (E.D. Cal. Nov. 24, 2025) 23 (relying on Pinchi v. Noem, 792 F. Supp. 3d 1025, at 1034, 1038 (N.D. Cal. 2025)); accord Omer 24 G. G. v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 25 2025). 26 V. Conclusion and Recommendation 27 Accordingly, IT IS HEREBY RECOMMENDED that: 28 1. Petitioner’s petition for writ of habeas corpus (Doc. 1) be GRANTED. 1 2. Respondents be ORDERED to provide Petitioner with a bond hearing in accordance 2 with 8 U.S.C. § 1226(a) within seven (7) days, at which Petitioner’s eligibility for bond 3 must be considered, and where the government must demonstrate by clear and 4 convincing evidence that Petitioner is a flight risk or danger to the community, such that 5 physical custody is legally justified. 6 3. If Respondents do not provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) 7 as required herein, Respondents be ORDERED to release Petitioner from custody 8 immediately and forbear from re-detaining Petitioner unless the government provides 9 notice to Petitioner a minimum of seven (7) days in advance and holds a bond hearing 10 consistent with this order; and 11 4. The Clerk of the Court be DIRECTED to enter judgment in favor for Petitioner and 12 close this case. 13 These Findings and Recommendations will be submitted to the United States District Judge 14 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven (7) days 15 after being served with these findings and recommendations, the parties may file written objections 16 with the Court. Although this objection period is shorter than provided by Local Rule, such an 17 adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 18 Constitution by Respondents, and the fact that the parties have extensively briefed the issues 19 involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 20 may require a response within a shorter period if exigencies of the calendar require.”). The 21 document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” 22 and shall not exceed 15 pages without leave of Court and good cause shown. The Court will not 23 consider exhibits attached to the Objections, but a party may refer to exhibits in the record by 24 CM/ECF document and page number. Any pages filed in excess of the 15-page limitation may be 25 disregarded by the District Judge when reviewing these Findings and Recommendations under 28 26 U.S.C. § 636(b)(l)(C). 27 /// 28 /// ] A party’s failure to file any objections within the specified time may result in the waiver of 2 | certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 3 | ITIS SOORDERED. * | Dated: _ March 6, 2026 | bo 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18