Deudi Mendez Nava v. Kristi Noem, et al.

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 DEUDI MENDEZ NAVA, Case No. 1:26-cv-01716-JLT-SAB-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 13 v. HABEAS CORPUS AND DIRECT RESPONDENTS TO IMMEDIATELY 14 KRISTI NOEM, et al., RELEASE PETITIONER

15 Respondents.

16 17 Petitioner, represented by counsel, is an immigration detainee proceeding with a petition 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 I. 20 BACKGROUND 21 Petitioner is a citizen of Venezuela who entered the United States on or around August of 22 2021 together with his daughter and surrendered himself to immigration authorities at the border. 23 Petitioner was granted interim parole pursuant to 8 U.S.C. § 1182(d)(5), released on reporting 24 requirements, and placed in removal proceedings pursuant to Immigration and Nationality Act 25 § 240. (ECF No. 1 at 4.1) 26 Petitioner’s Temporary Protected Status (“TPS”)2 application was filed and approved in

27 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 “Pursuant to the TPS statute, 8 U.S.C. § 1254a, the DHS Secretary may designate a foreign state for TPS when 1 April 2024, making him a beneficiary of the 2023 TPS designation for Venezuela. This grant of 2 TPS remained valid for a period of one year, until April 2025. (ECF No. 1 at 5.) In July 2025, 3 Petitioner timely re-registered for TPS pursuant to the January 17, 2025 extension of the 2023 4 Designation made by then-Department of Homeland Security (“DHS”) Secretary Alejandro 5 Mayorkas, which extended the TPS designation through October 2, 2026. (ECF No. 1 at 5.) 6 On October 14, 2025, Petitioner attended a routine scheduled U.S. Immigration and 7 Customs Enforcement (“ICE”) check-in. Without notice or explanation, Petitioner was detained. 8 The petition alleges that Petitioner has no criminal record and has diligently complied with all 9 ICE check-in requirements and other conditions of supervision for over four years with his 10 supervision requirements being reduced over time. (ECF No. 1 at 6.) 11 On March 2, 2026, Petitioner filed a petition for writ of habeas corpus and motion for 12 temporary restraining order (“TRO”). (ECF Nos. 1, 2.) The assigned district judge denied the 13 motion for TRO as untimely. (ECF No. 5.) On March 24, 2026, Respondents filed response. 14 (ECF No. 6.) On April 8, 2026, and Petitioner filed an untimely reply.3 (ECF No.7.) 15 II. 16 DISCUSSION 17 A. Statutory Framework 18 An intricate statutory scheme governs the detention of noncitizens during removal 19 proceedings and after a final removal order is issued. “Where an alien falls within this statutory 20 scheme can affect whether his detention is mandatory or discretionary, as well as the kind of 21 review process available to him if he wishes to contest the necessity of his detention.” Prieto- 22 Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 23 temporary conditions,’ unless the Secretary ‘finds that permitting the [noncitizens] to remain temporarily in the 24 United States is contrary to the national interest of the United States.’” Nat’l TPS All. v. Noem, 150 F.4th 1000, 1010 (9th Cir. 2025) (quoting 8 U.S.C. § 1254a(b)(1)(C)). “Such a designation permits certain nationals of the 25 foreign state, who have continuously resided in the United States since the effective date of the designation, to register for employment authorization and protection from deportation for the duration of the TPS period.” Nat’l TPS All., 150 F.4th at 1010 (citing 8 U.S.C. § 1254a(a)(1), (b)(2)). “Other restrictions apply: applicants must be 26 ‘admissible’ under the immigration laws, id. § 1254a(c)(1)(A)(iii); they must not have been ‘convicted of any felony or 2 or more misdemeanors committed in the United States,’ id. § 1254a(c)(2)(B)(i); and they risk revocation of 27 status if the Secretary ‘finds that the [noncitizen] was not in fact eligible for such status,’ id. § 1254a(c)(3)(A).” Nat’l TPS All., 150 F.4th at 1010 1 “Four statutes grant the Government authority to detain noncitizens who have been 2 placed in removal proceedings: 8 U.S.C. §§ 1225(b) (‘Section 1225(b)’), 1226(a) (‘Subsection 3 A’), 1226(c) (‘Subsection C’), and 1231(a) (‘Section 1231(a)’).” Avilez v. Garland, 69 F.4th 4 525, 529 (9th Cir. 2023). “Subsection A is the default detention statute for noncitizens in 5 removal proceedings and applies to noncitizens ‘[e]xcept as provided in [Subsection C].’”4 6 Avilez, 69 F.4th at 529 (alterations in original) (quoting 8 U.S.C. § 1226(a)). “[D]etention under 7 Subsection A is discretionary” and “provides for release on bond or conditional parole.” Avilez, 8 69 F.4th at 529. “When a person is apprehended under § 1226(a), an ICE officer makes the initial 9 custody determination,” and the noncitizen “will be released if he ‘demonstrate[s] to the 10 satisfaction of the officer that such release would not pose a danger to property or persons, and 11 that the alien is likely to appear for any future proceeding.’” Rodriguez Diaz v. Garland, 53 F.4th 12 1189, 1196 (9th Cir. 2022) (quoting 8 C.F.R. § 236.1(c)(8)). 13 “[A]n alien who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has not 14 been admitted,’ is treated as ‘an applicant for admission.’” Jennings v. Rodriguez, 583 U.S. 281, 15 287 (2018) (quoting 8 U.S.C. § 1225(a)(1)). “Applicants for admission must ‘be inspected by 16 immigration officers’ to ensure that they may be admitted into the country consistent with U.S. 17 immigration law.” Jennings, 583 U.S. at 287 (quoting 8 U.S.C. § 1225(a)(3)). “[A]pplicants for 18 admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by 19 § 1225(b)(2).” Jennings, 583 U.S. at 287. “Both § 1225(b)(1) and § 1225(b)(2) authorize the 20 detention of certain aliens.” Id. 21 “Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, 22 misrepresentation, or lack of valid documentation. Section 1225(b)(1) also applies to certain 23 other aliens designated by the Attorney General in his discretion.” Jennings, 583 U.S. at 287 24 (citations omitted). “Aliens covered by § 1225(b)(1) are normally ordered removed ‘without 25 further hearing or review’ pursuant to an expedited removal process.” Id. (quoting 8 U.S.C. 26 § 1225(b)(1)(A)(i)). “But if a § 1225(b)(1) alien ‘indicates either an intention to apply for asylum 27 4 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 ... or a fear of persecution,’ then that alien is referred for an asylum interview.” Jennings, 583 2 U.S. at 287 (quoting 8 U.S.C. § 1225(b)(1)(A)(ii)). “If an immigration officer determines after 3 that interview that the alien has a credible fear of persecution, ‘the alien shall be detained for 4 further consideration of the application for asylum.’” Jennings, 583 U.S. at 287 (quoting 8 5 U.S.C. § 1225(b)(1)(B)(ii)). 6 Section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for 7 admission, if the examining immigration officer determines that an alien seeking admission is 8 not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a 9 proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Thus, “[a]ll applicants 10 for admission who are not processed for expedited removal [pursuant to § 1225(b)(1)] are placed 11 in regular removal proceedings under § 1225(b)(2)(A). That process generally entails a hearing 12 before an immigration judge pursuant to § 1229a.” Innovation Law Lab v. McAleenan, 924 F.3d 13 503, 507 (9th Cir. 2019). 14 “Regardless of which of those two sections authorizes their detention, applicants for 15 admission may be temporarily released on parole ‘for urgent humanitarian reasons or significant 16 public benefit.’” Jennings, 583 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)) (citing 8 C.F.R. 17 §§ 212.5(b), 235.3 (2017)). “Such parole, however, ‘shall not be regarded as an admission of the 18 alien.’” Jennings, 583 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)). “Instead, when the 19 purpose of the parole has been served, ‘the alien shall forthwith return or be returned to the 20 custody from which he was paroled and thereafter his case shall continue to be dealt with in the 21 same manner as that of any other applicant for admission to the United States.’” Jennings, 583 22 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)). 23 B. Due Process 24 In the fourth cause of action, Petitioner asserts that his re-detention without a pre- 25 deprivation hearing violated due process. (ECF No. 1 at 19–22.) Respondents argue that 26 Petitioner is “an ‘applicant for admission’ who is subject to mandatory detention by ICE under 8 27 U.S.C. § 1225(b)(2)” and “does not possess a right to freedom from immigration detention in any 1 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 2 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. 3 Davis, 533 U.S. 678, 693 (2001). “Even when the government has discretion to detain an 4 individual, its subsequent decision to release the individual creates ‘an implicit promise’ that she 5 will be re-detained only if she violates the conditions of her release.” Garro Pinchi v. Noem, No. 6 25-CV-05632-PCP, --- F. Supp. 3d. ----, 2025 WL 3691938, at *30 (N.D. Cal. Dec. 19, 2025) 7 (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). “Other courts, including this Court, have 8 held similarly.” J.E.H.G. v. Chestnut, No. 1:25-cv-01673-JLT-SKO, 2025 WL 3523108, at *10 9 (E.D. Cal. Dec. 9, 2025) (citing Doe v. Becerra, No. 2:25-CV-00647-DJC-DMC, 2025 WL 10 691664, at *4 (E.D. Cal. Mar. 3, 2025)). “Accordingly, a noncitizen released from custody 11 pending removal proceedings has a protected liberty interest in remaining out of custody.” 12 Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC (EMC), 2025 WL 2637503, at *6 (N.D. Cal. 13 Sept. 12, 2025). Regardless of whether mandatory detention under § 1225(b) is facially 14 constitutional, and “[e]ven assuming Respondents are correct that § 1225(b) is the applicable 15 detention authority for all ‘applicants for admission,’ Respondents fail to contend with the liberty 16 interest created by the fact that the Petitioner in this case was released” on parole. J.E.H.G., 2025 17 WL 3523108, at *10. 18 “Many district courts in the Ninth Circuit have found that non-citizens paroled into the 19 United States pursuant to § 1182(d)(5) have a liberty interest in their continued release, entitling 20 them to certain due process protections, the extent of which are determined by applying the test 21 provided in Mathews v. Eldridge, 424 U.S. 319, 335 (1976).” Rocha Chavarria v. Chestnut, No. 22 1:25-cv-01755-DAD-AC, 2025 WL 3533606, at *3 (E.D. Cal. Dec. 9, 2025). See D. L.C. v. 23 Wofford, No. 1:25-cv-01996-DC-JDP (HC), 2026 WL 25511, at *4 (E.D. Cal. Jan. 5, 2026) 24 (“Following Pinchi, a substantial number of district courts in the Ninth Circuit have found that 25 noncitizens paroled into the United States under § 1182(d)(5) have a liberty interest in their 26 continued release and are entitled to certain due process protections.”). 27 “Thus, the Court must evaluate the three-part test set forth in Mathews v. Eldridge, 424 1 applied to Petitioner are sufficient to protect the liberty interest at issue.” J.E.H.G., 2025 WL 2 3523108, at *11.

3 [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors. First, the private interest that will be 4 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 5 or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the 6 additional or substitute procedural requirements would entail. 7 Mathews, 424 U.S. at 334. 8 As to private interest, it “is beyond dispute” that Petitioner’s interest here is 9 “fundamental.” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (citing Foucha v. 10 Louisiana, 504 U.S. 71, 80 (1992)). “Freedom from imprisonment—from government custody, 11 detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process] 12 Clause protects.” Zadvydas, 533 U.S. at 690. “Second, the risk of erroneous deprivation is high 13 when, as here, parole is revoked without written notice or reason.” Rocha Chavarria, 2025 WL 14 3533606, at *4. See Kakkar v. Chestnut, No. 1:25-CV-1627 JLT SAB, 2025 WL 3638298, at *7 15 (E.D. Cal. Dec. 15, 2025) (“Turning to the second factor, the risk of erroneous deprivation of 16 Petitioner’s liberty is high where, as here, ‘[the petitioner] has not received [and will not receive] 17 any bond or custody redetermination hearing.’” (alterations in original) (quoting A.E. v. 18 Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025))). 19 “Finally, as other courts have done, this Court concludes that the government’s interest in 20 detaining Petitioner without proper process is slight.” J.E.H.G., 2025 WL 3523108, at *12. 21 Accordingly, the Mathews factors weigh in favor of a bond hearing. 22 Based on the foregoing, the Court recommends finding that Petitioner has a protected 23 liberty interest in remaining out of custody and that his re-detention without a bond hearing 24 violates due process.5

25 5 In light of this conclusion, the Court declines to address Petitioner’s other causes of action. Specifically with respect to Petitioner’s TPS claim, although a noncitizen “provided temporary protected status under this section 26 shall not be detained by the Attorney General on the basis of the alien’s immigration status in the United States,” 8 U.S.C. § 1254a(d)(4), the Court declines to issue a recommendation given the “winding history,” “prolonged 27 litigation,” Herrera v. Noem, No. CV-26-00625-PHX-MTL (JFM), --- F. Supp. 3d ----, 2026 WL 800721, at *4, 5 (D. Ariz. Mar. 12, 2026), and uncertainty regarding the impact of the Ninth Circuit affirming the district court’s 1 The Court considers whether a pre-deprivation or post-deprivation bond hearing is 2 appropriate based on the facts of this case. 3 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. 4 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 5 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. 6 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 7 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 8 guidance as to where this line should be drawn. Some courts that have addressed detention-related habeas petitions brought by persons released with enhanced 9 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 10 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. 11 That court agreed with the petitioner that ICE’s post hoc explanation that violations warranted his detention was pretextual, given that ICE first became 12 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 13 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- 14 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. 15 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 16 incurred a misdemeanor arrest while on parole, in part because no charges were ever filed. 17 In contrast, this Court ordered a parole revocation hearing in Martinez Hernandez 18 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 19 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 20 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 21 a pre-deprivation hearing would have been impracticable and/or would have motivated his flight.”). As this Court noted in Martinez Hernandez: 22 In similar circumstances, courts have refused to release the petitioners but 23 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, 24 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- 25 01288-CRB, 2023 WL 2744397, at *6 (N.D. Cal. Mar. 31, 2023).

26 Nat’l TPS All. v. Noem, 166 F.4th 739 (9th Cir. 2026), and the district court’s declaratory judgment, Nat’l TPS All. v. Noem, No. 25-CV-01766-EMC, 2025 WL 3539156, at *3 (N.D. Cal. Dec. 10, 2025), in light of the Supreme 27 Court’s prior grant of a stay “pending the disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such writ is timely sought,” 1 “[A]llowing a neutral arbiter to review the facts would significantly reduce the risk of erroneous deprivation.” Guillermo M. R. v. Kaiser, No. 25-CV- 2 05436-RFL, 2025 WL 1983677, at *8 (N.D. Cal. July 17, 2025). Thus, the Court concludes that prompt, post-deprivation process is required here. 3 Id. 4 5 J.E.H.G., 2025 WL 3523108, at *11–12. 6 Here, there is nothing in the record before this Court establishing that Petitioner has 7 violated any conditions of his release. Respondents do not argue that Petitioner’s re-detention 8 was based on any violations or that Petitioner is now considered a flight risk or danger to the 9 community. Accordingly, the Court recommends that a pre-deprivation hearing is appropriate 10 based on the facts of this case, and that “the burden at any such hearing [be placed] on the 11 government to demonstrate to a neutral decisionmaker by clear and convincing evidence that re- 12 detention is necessary to prevent danger to the community or flight.” J.E.H.G., 2025 WL 13 3523108, at *14 (citing Pinchi v. Noem, 792 F. Supp. 3d 1025, 2025 WL 2084921, at *7 (N.D. 14 Cal. 2025)). See J.E.H.G., 2025 WL 3523108, at *14 (“[T]he immigrant’s initial release reflected 15 a determination by the government that the noncitizen is not a danger to the community or a 16 flight risk. Since it is the government that initiated re-detention, it follows that the government 17 should be required to bear the burden of providing a justification for the re-detention.”). 18 C. Abeyance Pending Resolution of Ninth Circuit Appeals 19 Alternatively, Respondents argue that the Court should hold the matter in abeyance 20 pending the Ninth Circuit’s resolutions of Rodriguez Vazquez v. Bostock, No. 25-6842, and 21 Benavides Carballo v. Andrews, No. 25-6533. (ECF No. 6 at 3.) The Court recommends 22 declining to hold the petition in abeyance given the uncertain timeline regarding any Ninth 23 Circuit decisions in the above cases. 24 III. 25 RECOMMENDATION 26 Based on the foregoing, the Court HEREBY RECOMMENDS that: 27 1. The petition for writ of habeas corpus be GRANTED on the fourth cause of action; and /// ] 2. Respondents be directed to immediately release Petitioner on the conditions of his prior 2 release from custody until DHS proves to a neutral adjudicator by clear and convincing 3 evidence that re-detention is necessary to prevent danger to the community or flight. 4 This Findings and Recommendation is submitted to the assigned United States District 5 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 6 | Rules of Practice for the United States District Court, Eastern District of California. Within 7 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 8 | written objections with the Court, limited to fifteen (15) pages in length, including any 9 | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 10 | Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 11 | after service of the objections. The assigned District Judge will then review the Magistrate 12 | Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file 13 | objections within the specified time may waive the right to appeal the District Court’s order. 14 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 15 | 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED. DAA Le 1g | Dated: _ April 10, 2026 _ OEE STANLEY A. BOONE 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28