1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAOFEI FANG, Case No.: 26cv2982-LL-DDL
12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS [ECF No. 10]; 14 MARKWAYNE MULLIN, SECRETARY
OF THE DEPARTMENT OF 15 ORDER DENYING AS MOOT HOMELAND SECURITY; et al., MOTION FOR TEMPORARY 16 Respondents. RESTRAINING ORDER [ECF No. 4] 17 18 19 Before the Court is Petitioner Daofei Fang’s operative Amended Petition for a Writ 20 of Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 10 (“Pet.”). The Government 21 filed a Return. ECF No. 11 (“Ret.”). Mr. Fang filed a Traverse. ECF No. 12. For the reasons 22 set forth below, the Court GRANTS Mr. Fang’s Petition for Writ of Habeas Corpus and 23 DENIES AS MOOT Mr. Fang’s Motion for Temporary Restraining Order. 24 I. BACKGROUND 25 Mr. Fang, a Chinese citizen, entered the United States in May 2024. Pet. at 1. The 26 Department of Homeland Security (“DHS”) held Mr. Fang in custody for “about two days” 27 before releasing him on conditional parole because he did not pose “a danger to the 28 community nor a flight risk.” Id. at 2. Mr. Fang filed an asylum claim and has since 1 attended his check-ins and complied with the conditions of his release. Id. at 2. In late April 2 2026, ICE detained Mr. Fang without any notice or opportunity to be heard. Id. at 3. 3 II. LEGAL STANDARD 4 A federal prisoner challenging the execution of his or her sentence, rather than the 5 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 6 his or her confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 7 judicial body able to review challenges to final orders of deportation, exclusion, or removal 8 is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. 9 Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 10 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral issues 11 arising independently from the removal process — for example, a claim of indefinite 12 detention — federal habeas corpus jurisdiction remains in the district court. Nadarajah v. 13 Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings 14 v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048-49 15 (N.D. Cal. 2018) (citations omitted). 16 III. DISCUSSION 17 Mr. Fang argues that the summary revocation of his release without justification or 18 consideration of his individualized circumstances violates the Due Process Clause. Pet. at 19 4-6. The Court agrees. 20 In the Return, Respondents state that “it is the government’s position that Petitioner 21 is subject to mandatory detention under § 1225(b)” but acknowledges that “this Court and 22 Courts in this District, have repeatedly reached the opposite conclusion under the same and 23 similar facts.” Ret. at 2. Respondents also state that the “government does not oppose the 24 petition and defers to the Court on the appropriate relief.” Id. 25 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 26 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 27 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 28 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 1 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment entitles 2 aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 3 (1993). The Due Process Clause generally “requires some kind of a hearing before the State 4 deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). 5 “Even individuals who face significant constraints on their liberty or over whose liberty 6 the government wields significant discretion retain a protected interest in their liberty.” 7 Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) (citations omitted). Although 8 the initial decision to detain or release an individual may be within the government’s 9 discretion, “the government’s decision to release an individual from custody creates ‘an 10 implicit promise,’ upon which that individual may rely, that their liberty ‘will be revoked 11 only if [they] fail[] to live up to the . . . conditions [of release].’” Id. (quoting Morrissey v. 12 Brewer, 408 U.S. 471, 482 (1972)). “Thus, even when ICE has the initial discretion to 13 detain or release a noncitizen pending removal proceedings, after that individual is released 14 from custody she has a protected liberty interest in remaining out of custody.” Pinchi, 792 15 F. Supp. 3d at 1032 (citing Romero v. Kaiser, No. 22-cv-02508, 2022 WL 1443250, at *2 16 (N.D. Cal. May 6, 2022)). 17 Mr. Fang was released from DHS custody in May 2024. See Pet. at 1-2. Mr. Fang is 18 not a newly arrived noncitizen seeking admission at the border. Id. Mr. Fang has been in 19 the United States since May 2024. Id. When he was released, Mr. Fang was determined to 20 not be a danger to the community or a flight risk. Id. at 2. Mr. Fang is not merely an 21 “applicant for admission” at the border with minimal due process rights; he has a protected 22 liberty interest in remaining out of custody. See, e.g., Pinchi, 792 F. Supp. 3d at 1034 23 (“[Petitioner’s] release from ICE custody after her initial apprehension reflected a 24 determination by the government that she was neither a flight risk nor a danger to the 25 community, and [Petitioner] has a strong interest in remaining at liberty unless she no 26 longer meets those criteria.”); Noori v. LaRose, 807 F. Supp. 3d 1146, 1164 (S.D. Cal. 27 2025) (“Petitioner is not an ‘arriving’ noncitizen but one that has [been] present in our 28 country for over a year. This substantial amount of time indicates he is afforded the Fifth 1 Amendment’s guaranteed due process before removal.”); Alvarenga Matute v. Wofford, 2 807 F. Supp. 3d 1120, 1128 (E.D. Cal. 2025) (finding petitioner had a protected liberty 3 interest in his release). 4 As Mr. Fang has a protected liberty interest, the Due Process Clause requires 5 procedural protections before he can be deprived of that interest. See Mathews v. Eldridge, 6 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally sufficient 7 to satisfy the Due Process Clause, the Court must apply the Mathews factors. See id. Courts 8 must consider: (1) “the private interest that will be affected by the official action”; (2) “the 9 risk of an erroneous deprivation of such interest through the procedures used, and the 10 probable value, if any, of additional or substitute procedural safeguards”; and (3) “the 11 Government’s interest including the function involved and the fiscal and administrative 12 burdens that the additional or substitute procedural requirement would entail.” Id.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAOFEI FANG, Case No.: 26cv2982-LL-DDL
12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS [ECF No. 10]; 14 MARKWAYNE MULLIN, SECRETARY
OF THE DEPARTMENT OF 15 ORDER DENYING AS MOOT HOMELAND SECURITY; et al., MOTION FOR TEMPORARY 16 Respondents. RESTRAINING ORDER [ECF No. 4] 17 18 19 Before the Court is Petitioner Daofei Fang’s operative Amended Petition for a Writ 20 of Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 10 (“Pet.”). The Government 21 filed a Return. ECF No. 11 (“Ret.”). Mr. Fang filed a Traverse. ECF No. 12. For the reasons 22 set forth below, the Court GRANTS Mr. Fang’s Petition for Writ of Habeas Corpus and 23 DENIES AS MOOT Mr. Fang’s Motion for Temporary Restraining Order. 24 I. BACKGROUND 25 Mr. Fang, a Chinese citizen, entered the United States in May 2024. Pet. at 1. The 26 Department of Homeland Security (“DHS”) held Mr. Fang in custody for “about two days” 27 before releasing him on conditional parole because he did not pose “a danger to the 28 community nor a flight risk.” Id. at 2. Mr. Fang filed an asylum claim and has since 1 attended his check-ins and complied with the conditions of his release. Id. at 2. In late April 2 2026, ICE detained Mr. Fang without any notice or opportunity to be heard. Id. at 3. 3 II. LEGAL STANDARD 4 A federal prisoner challenging the execution of his or her sentence, rather than the 5 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 6 his or her confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole 7 judicial body able to review challenges to final orders of deportation, exclusion, or removal 8 is the court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. 9 Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 10 119 Stat. 231, § 106(a)). However, for claims challenging ancillary or collateral issues 11 arising independently from the removal process — for example, a claim of indefinite 12 detention — federal habeas corpus jurisdiction remains in the district court. Nadarajah v. 13 Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by Jennings 14 v. Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048-49 15 (N.D. Cal. 2018) (citations omitted). 16 III. DISCUSSION 17 Mr. Fang argues that the summary revocation of his release without justification or 18 consideration of his individualized circumstances violates the Due Process Clause. Pet. at 19 4-6. The Court agrees. 20 In the Return, Respondents state that “it is the government’s position that Petitioner 21 is subject to mandatory detention under § 1225(b)” but acknowledges that “this Court and 22 Courts in this District, have repeatedly reached the opposite conclusion under the same and 23 similar facts.” Ret. at 2. Respondents also state that the “government does not oppose the 24 petition and defers to the Court on the appropriate relief.” Id. 25 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 26 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 27 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 28 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 1 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment entitles 2 aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 3 (1993). The Due Process Clause generally “requires some kind of a hearing before the State 4 deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). 5 “Even individuals who face significant constraints on their liberty or over whose liberty 6 the government wields significant discretion retain a protected interest in their liberty.” 7 Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) (citations omitted). Although 8 the initial decision to detain or release an individual may be within the government’s 9 discretion, “the government’s decision to release an individual from custody creates ‘an 10 implicit promise,’ upon which that individual may rely, that their liberty ‘will be revoked 11 only if [they] fail[] to live up to the . . . conditions [of release].’” Id. (quoting Morrissey v. 12 Brewer, 408 U.S. 471, 482 (1972)). “Thus, even when ICE has the initial discretion to 13 detain or release a noncitizen pending removal proceedings, after that individual is released 14 from custody she has a protected liberty interest in remaining out of custody.” Pinchi, 792 15 F. Supp. 3d at 1032 (citing Romero v. Kaiser, No. 22-cv-02508, 2022 WL 1443250, at *2 16 (N.D. Cal. May 6, 2022)). 17 Mr. Fang was released from DHS custody in May 2024. See Pet. at 1-2. Mr. Fang is 18 not a newly arrived noncitizen seeking admission at the border. Id. Mr. Fang has been in 19 the United States since May 2024. Id. When he was released, Mr. Fang was determined to 20 not be a danger to the community or a flight risk. Id. at 2. Mr. Fang is not merely an 21 “applicant for admission” at the border with minimal due process rights; he has a protected 22 liberty interest in remaining out of custody. See, e.g., Pinchi, 792 F. Supp. 3d at 1034 23 (“[Petitioner’s] release from ICE custody after her initial apprehension reflected a 24 determination by the government that she was neither a flight risk nor a danger to the 25 community, and [Petitioner] has a strong interest in remaining at liberty unless she no 26 longer meets those criteria.”); Noori v. LaRose, 807 F. Supp. 3d 1146, 1164 (S.D. Cal. 27 2025) (“Petitioner is not an ‘arriving’ noncitizen but one that has [been] present in our 28 country for over a year. This substantial amount of time indicates he is afforded the Fifth 1 Amendment’s guaranteed due process before removal.”); Alvarenga Matute v. Wofford, 2 807 F. Supp. 3d 1120, 1128 (E.D. Cal. 2025) (finding petitioner had a protected liberty 3 interest in his release). 4 As Mr. Fang has a protected liberty interest, the Due Process Clause requires 5 procedural protections before he can be deprived of that interest. See Mathews v. Eldridge, 6 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally sufficient 7 to satisfy the Due Process Clause, the Court must apply the Mathews factors. See id. Courts 8 must consider: (1) “the private interest that will be affected by the official action”; (2) “the 9 risk of an erroneous deprivation of such interest through the procedures used, and the 10 probable value, if any, of additional or substitute procedural safeguards”; and (3) “the 11 Government’s interest including the function involved and the fiscal and administrative 12 burdens that the additional or substitute procedural requirement would entail.” Id. 13 The Court finds that all three factors support the finding that the Government’s 14 revocation of Mr. Fang’s conditional parole without notification, reasoning, or an 15 opportunity to be heard, denied Mr. Fang of his due process rights. First, as discussed 16 above, Mr. Fang has a significant liberty interest in remaining out of custody pursuant to 17 his initial release by DHS. “Freedom from imprisonment — from government custody, 18 detention, or other forms of physical restraint — lies at the heart of the liberty [the Due 19 Process Clause] protects.” Zadvydas, 533 U.S. at 690. 20 Second, the risk of an erroneous deprivation of such interest is high as Mr. Fang’s 21 conditional parole was revoked without providing him with a reason for revocation or 22 giving him an opportunity to be heard. Pet. at 2-3. Since DHS’s determination that Mr. 23 Fang should be released because he posed no danger to the community and was not a flight 24 risk, there is no evidence that these findings have changed. See Saravia v. Sessions, 280 F. 25 Supp. 3d 1168, 1176 (N.D. Cal. 2017) (“Release reflects a determination by the 26 government that the noncitizen is not a danger to the community or a flight risk.”). “Once 27 a noncitizen has been released, the law prohibits federal agents from rearresting him merely 28 because he is subject to removal proceedings. Rather, the federal agents must be able to 1 present evidence of materially changed circumstances — namely, evidence that the 2 noncitizen is in fact dangerous or has become a flight risk. . . .” Id. The Government 3 concedes that Mr. Fang was previously released on conditional parole. Ret. at 2. The 4 Government also states with respect to this argument that it “does not oppose the petition 5 and defers to the Court on the appropriate relief.” Id. “Where, as here, ‘the petitioner has 6 not received any bond or custody hearing,’ ‘the risk of an erroneous deprivation of liberty 7 is high’ because neither the government nor [Petitioner] has had an opportunity to 8 determine whether there is any valid basis for her detention.” Pinchi, 792 F. Supp. 3d at 9 1035 (quoting Singh v. Andrews, 803 F. Supp. 3d 1035, 1047 (E.D. Cal. 2025)). 10 Third, the Government’s interest in detaining Mr. Fang without notice, reasoning, 11 and a hearing is “low.” See Pinchi, 792 F. Supp. 3d at 1036; Alvarenga Matute, 807 F. 12 Supp. 3d at 1130; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. Nov. 22, 2019) 13 (“If the government wishes to re-arrest [Petitioner] at any point, it has the power to take 14 steps toward doing so; but its interest in doing so without a hearing is low.”). The 15 Government fails to identify how providing proper notice, reasoning, and a pre-deprivation 16 hearing would burden the process. See generally Ret. 17 Therefore, because the Government detained Mr. Fang by revoking his release in 18 violation of the Due Process Clause, his detention is unlawful. See, e.g., Alegria Palma v. 19 Larose et al., No. 25-cv-1942 BJC (MMP), slip op. 14 (S.D. Cal. Aug. 11, 2025) (granting 20 a TRO based on a procedural due process challenge to a revocation of parole without a pre 21 deprivation hearing); Sanchez v. LaRose, No. 25-CV-2396-JES-MMP, 2025 WL 2770629, 22 at *5 (S.D. Cal. Sept. 26, 2025) (granting a writ of habeas corpus releasing petitioner from 23 custody to the conditions of her preexisting parole on due process grounds). 24 Accordingly, the Court GRANTS Mr. Fang’s Petition. 25 / / / 26 / / / 27 / / / 28 / / / 1 |}IV. CONCLUSION 2 Based on the foregoing, the Court GRANTS Mr. Fang’s Petition for Writ of Habeas 3 || Corpus (ECF No. 10) as follows: 4 1. The Court ORDERS the Government to immediately release Mr. Fang from 5 custody subject to the conditions of his preexisting release. 6 2. The Court ORDERS the Government to return all property obtained from Mr. 7 Fang during his recent detention. 8 3. The Court ORDERS, prior to any re-detention of Mr. Fang, that Mr. Fang is 9 entitled to notice of the reasons for revocation of his release and a hearing 10 before a neutral decision maker to determine whether detention is warranted. 11 The Government shall bear the burden of establishing, by clear and 12 convincing evidence, that Mr. Fang poses a danger to the community or a risk 13 of flight." 14 4. The Court DENIES AS MOOT Petitioner’s Motion for Temporary 15 Restraining Order [ECF No. 4]. 16 5. The Clerk of Court shall enter judgment in Mr. Fang’s favor and close this 17 case. 18 IT IS SO ORDERED. 19 ||Dated: June 2, 2026 NO 20 DE | 7] Honorable Linda Lopez 9 United States District Judge 23 24 || 26 This relief has been granted in similar matters. See, e.g., Alvarenga Matute, 807 F. Supp. 27 || 3d at 1133; Pinchi, 792 F. Supp. 3d at 1038; Doe v. Becerra, 787 F. Supp. 3d 1083, 1097 28 (E.D. Cal. 2025); Martinez Hernandez v. Andrews, No. 25-CV-1035 JLT HBK, 2025 WL 2495767, at *14 (E.D. Cal. Aug. 28, 2025).