Dieuffte Lazard v. Patrick Divver, et al.

• Court: District Court, S.D. California
• Decided: April 8, 2026
• Docket: 3:26-cv-01778
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIEUFFTE LAZARD, Case No.: 26-CV-1778 JLS (JLB)

12 Petitioners, ORDER GRANTING IN PART 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 PATRICK DIVVER, et al.,

15 Respondents. (ECF No. 1) 16 17 18 Presently before the Court is Petitioner Dieuffte Lazard’s Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Pet.,” ECF No. 1). Also before the Court 20 is Respondents’ Return to Habeas Petition (“Ret.,” ECF No. 4). Petitioner did not file a 21 Traverse. See generally Docket. For the reasons set forth below, the Court GRANTS IN 22 PART Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1). 23 BACKGROUND 24 Petitioner is a native and citizen of Haiti who entered the United States in 2023, was 25 briefly detained by the Department of Homeland Security, and released on parole under 8 26 27 28 1 U.S.C. § 1182(d)(5). Ret. at 2. On January 2, 2025, Petitioner approached a Navy base 2 in San Diego where he was detained. Pet. ¶ 19. Petitioner never received notice or an 3 individualized determination of his circumstances before his re-detention. Id. ¶ 21. 4 LEGAL STANDARD 5 A federal prisoner challenging the execution of his or her sentence, rather than the 6 legality of the sentence itself, may file a petition for writ of habeas corpus in the district of 7 his confinement pursuant to 28 U.S.C. § 2241. See 28 U.S.C. § 2241(a). The sole judicial 8 body able to review challenges to final orders of deportation, exclusion, or removal is the 9 court of appeals. See generally 8 U.S.C. § 1252; see also Alvarez–Barajas v. Gonzales, 10 418 F.3d 1050, 1052 (9th Cir. 2005) (citing REAL ID Act, Pub. L. No. 109-13, 119 Stat. 11 231, § 106(a)). However, for claims challenging ancillary or collateral issues arising 12 independently from the removal process—for example, a claim of indefinite detention— 13 federal habeas corpus jurisdiction remains in the district court. Nadarajah v. Gonzales, 14 443 F.3d 1069, 1076 (9th Cir. 2006), abrogated on other grounds by, Jennings v. 15 Rodriguez, 583 U.S. 281 (2018); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048–49 (N.D. 16 Cal. 2018) (citations omitted). 17 DISCUSSION 18 I. Jurisdiction 19 Respondents argue that this Court lacks jurisdiction under 8 U.S.C. §§ 1252(g) and 20 1252(b)(9). Ret. at 2–4. Section 1252(g) provides that “no court shall have jurisdiction to 21 hear any cause or claim by or on behalf of any alien arising from the decision or action by 22 the Attorney General to commence proceedings, adjudicate cases, or execute removal 23 orders against any alien under this chapter.” 8 U.S.C. § 1252(g). Respondents claim that 24 “Petitioner’s claims arise from his detention during removal proceedings, which stem from 25 26

27 28 1 Petitioner claims he was detained on or about February 21, 2025, but Respondents’ Exhibit 2, Petitioner’s 1 the Attorney General’s decision to commence such proceedings.” Ret. at 3. The Court 2 disagrees. 3 Section 1252(g) should be read “narrowly” as to apply “only to three discrete actions 4 that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, 5 adjudicate cases, or execute removal orders.’” Ibarra-Perez v. United States, No. 24-631, 6 2025 WL 2461663, at *6 (9th Cir. Aug. 27, 2025) (quoting Reno v. American-Arab Anti- 7 Discrimination Committee, 525 U.S. 471, 482, 487 (1999)). Section 1252(g) “does not 8 prohibit challenges to unlawful practices merely because they are in some fashion 9 connected to removal orders.” Id. at *7. Section 1252(g) does not bar due process claims. 10 Walters v. Reno, 145 F.3d 1032, 1052–53 (9th Cir. 1998) (finding that the petitioners’ 11 objective was not to review the merits of their proceeding, but rather “to enforce their 12 constitutional rights to due process in the context of those proceedings”). 13 Here, Petitioner does not challenge the decision to commence removal proceedings 14 or any act to adjudicate or execute a removal order. Pet. ¶ 3. Rather, Petitioner is 15 challenging the legality of his parole revocation, alleged wrongful arrest, and continued 16 detention. Id. Petitioner is enforcing his “constitutional rights to due process in the context 17 of the removal proceedings—not the legitimacy of the removal proceedings or any removal 18 order.” Garcia v. Noem, 803 F. Supp. 3d 1064, 1074 (S.D. Cal. 2025). Therefore, § 19 1252(g) does not strip the Court of jurisdiction. See, e.g., Navarro Sanchez v. Larose et 20 al., 25-cv-2396 JES (MMP), 2025 WL 2770629, at *2 (S.D. Cal. Sept. 26, 2025) (finding 21 the Court had jurisdiction in a similar matter); Noori v. Larose, 807 F. Supp. 3d 1146, 22 1159–60 (S.D. Cal. 2025) (same). 23 Section 1252(b)(9) provides that “[j]udicial review of all questions of law and fact, 24 including interpretation and application of constitutional and statutory provisions, arising 25 from any action taken or proceeding brought to remove an alien from the United States 26 under this subchapter shall be available only in judicial review of a final order under this 27 section.” 8 U.S.C. § 1252(b)(9) (emphasis added). Section 1252(b)(9) “has built-in limits, 28 specifically, claims that are independent of or collateral to the removal process do not fall 1 within the scope” of § 1252(b)(9). Gonzalez v. United States Immigration and Customs 2 Enforcement, 975 F.3d 788, 810 (9th Cir. 2020) (citing J.E.F.M. v. Lynch, 837 F.3d 1026, 3 1032 (9th Cir. 2016) (internal quotation marks omitted)). Respondents argue that the Court 4 lacks jurisdiction under § 1252(b)(9). Ret. at 4. Again, the Court disagrees. “[C]laims 5 challenging the legality of detention pursuant to an immigration detainer are independent 6 of the removal process.” Id.; see also Garcia, 803 F. Supp. 3d at 1072–73; Nielson v. 7 Preap, 586 U.S. 392, 402 (2019) (quoting Jennings, 583 U.S. at 294) (finding § 1252(b)(9) 8 did not strip the court of jurisdiction because the petitioners were “not asking for review of 9 an order of removal; they [were] not challenging the decision to detain them in the first 10 place or to seek removal (as opposed to decision to deny them bond hearings); and they 11 [were] not even challenging any part of the process by which their removability w[ould] 12 be determined”). 13 Here, as discussed above, Petitioner is not challenging the Department of Homeland 14 Security’s decision to commence removal proceedings or to adjudicate removability. See 15 Pet. ¶ 3. Petitioner is instead challenging the Respondents’ wrongful arrest and detention 16 of Petitioner given his status and due process rights as a parolee. Id. Therefore, 17 § 1252(b)(9) also does not strip the Court of jurisdiction. 18 II. Exhaustion 19 Respondents also argue that Petitioner failed to exhaust his administrative remedies. 20 Ret. at 4 n.2. “Exhaustion can be either statutorily or judicially required.” Acevedo- 21 Carranza v. Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). While 28 U.S.C. § 2241 “does 22 not specifically require petitioners to exhaust direct appeals before filing petitions for 23 habeas corpus,” the Ninth Circuit “require[s], as a prudential matter, that habeas petitioners 24 exhaust available judicial and administrative remedies before seeking relief under § 2241.” 25 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds 26 by, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Prudential exhaustion may be 27 required if: “(1) agency expertise makes agency consideration necessary to generate a 28 proper record and reach a proper decision; (2) relaxation of the requirement would 1 encourage the deliberate bypass of the administrative scheme; and (3) administrative 2 review is likely to allow the agency to correct its own mistakes and to preclude the need 3 for judicial review.” Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (citing Noriega- 4 Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003)). “[A] court may waive the prudential 5 exhaustion requirement if ‘administrative remedies are inadequate or not efficacious, 6 pursuit of administrative remedies would be a futile gesture, irreparable injury will result, 7 or the administrative proceedings would be void.’” Hernandez v. Sessions, 872 F.3d 976, 8 988 (9th Cir. 2017) (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). 9 The Court, following other courts in this District, finds that exhaustion would be 10 futile because of the current DHS guidance to find detention mandatory under 8 U.S.C. 11 § 1225(b)(2). See, e.g., Garcia, 803 F. Supp. 3d at 1074; Valdovinos v. Noem, No. 25-CV- 12 2439 TWR (KSC), slip op. at 9 (S.D. Cal. Sept. 25, 2025). Therefore, the Court concludes 13 that exhausting administrative remedies would be futile. 14 III. Merits 15 Petitioner argues that the summary revocation of his parole without justification or 16 consideration of his individualized circumstances violates the Due Process Clause. Pet. ¶ 17 25. The Court agrees. 18 The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life, 19 liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due 20 Process Clause applies to all ‘persons’ within the United States, including aliens, whether 21 their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 22 U.S. 678, 693 (9th Cir. 2001). “[I]t is well established that the Fifth Amendment entitles 23 aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 24 306 (1993). The Due Process Clause generally “requires some kind of a hearing before the 25 State deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 26 (1990). “Even individuals who face significant constraints on their liberty or over whose 27 liberty the government wields significant discretion retain a protected interest in their 28 liberty.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) (citations omitted). 1 Although the initial decision to detain or release an individual may be within the 2 government’s discretion, “the government’s decision to release an individual from custody 3 creates ‘an implicit promise,’ upon which that individual may rely, that their liberty ‘will 4 be revoked only if [they] fail[] to live up to the . . . conditions [of release].’” Id. (quoting 5 Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). “Thus, even when ICE has the initial 6 discretion to detain or release a noncitizen pending removal proceedings, after that 7 individual is released from custody[,] she has a protected liberty interest in remaining out 8 of custody.” Pinchi, 792 F. Supp. 3d at 1032 (citing Romero v. Kaiser, No. 22-cv-20508, 9 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)). 10 Respondents contend that as an “applicant for admission” under 8 U.S.C. § 1225 11 Petitioner is subject to mandatory detention and therefore his alleged statutory and 12 constitutional violations fail. Ret. at 4–6. The Court disagrees. Petitioner has been granted 13 humanitarian parole, granting him parole for a limited period which has now expired.2 Ret. 14 at 5, Ex-2 at 2. Petitioner is not a newly arrived noncitizen seeking admission at the border, 15 as Petitioner has been in the United States since October 2023. Ret. at 2. Upon arrival, he 16 was determined to not be a danger to the community or a flight risk. Petitioner is not 17 merely an “applicant for admission” at the border with minimal due process rights; 18 Petitioner has a protected liberty interest in remaining out of custody. See, e.g., Pinchi, 19 792 F. Supp. 3d at 1034 (“[Petitioner’s] release from ICE custody after her initial 20

21 2 Respondents contend that because Petitioner’s parole expired after a year, any due process arguments 22 are foreclosed. Ret. at 5. The Court disagrees because Petitioner’s liberty “interest did not expire along with Petitioner’s parole agreement.” Ramirez Tesara v. Wamsley, 800 F. Supp. 3d 1130, 1136 (W.D. 23 Wash. 2025). “Once established, Petitioner’s interest in liberty is a constitutional right which may only 24 be revoked through methods that comport with due process, such as a hearing in front of a neutral party to determine whether Petitioner’s re-detainment is warranted.” Id. (citing Padilla v. U.S. Immigr. & 25 Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023)). Therefore, the expiration of Petitioner’s parole does not impact the liberty interest in his release. See, e.g., Omer G. G. v. Kaiser, 26 No. 1:25-CV-01471-KES-SAB (HC), 2025 WL 3254999, at *5 (E.D. Cal. Nov. 22, 2025) (finding the expiration of petitioner’s parole did not extinguish his liberty interest); Quiroga-Chaparro v. Warden of 27 Golden State Annex Det. Facility, No. 1:25-CV-1731 AC, 2025 WL 3771473, at *4 (E.D. Cal. Dec. 31, 28 2025) (same); Kazybayeva v. Warden of Otay Mesa Det. Ctr., No. 26-CV-0421-GPC-MMP, 2026 WL 1 apprehension reflected a determination by the government that she was neither a flight risk 2 nor a danger to the community, and [Petitioner] has a strong interest in remaining at liberty 3 unless she no longer meets those criteria.”); Noori, 807 F. Supp. 3d at 1164 (“Petitioner is 4 not an ‘arriving’ noncitizen but one that has [been] present in our country for over a year. 5 This substantial amount of time indicates he is afforded the Fifth Amendment’s guaranteed 6 due process before removal.”); Alvarenga Matute v. Wofford, 807 F. Supp. 3d 1120, 1128 7 (E.D. Cal. 2025) (finding petitioner had a protected liberty interest in his release). 8 As Petitioner has a protected liberty interest, the Due Process Clause requires 9 procedural protections before he can be deprived of that interest. See Matthews v. Eldridge, 10 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally sufficient 11 to satisfy the Due Process Clause, the Court must apply the Matthews factors. See 12 Matthews, 424 U.S. at 335. Courts must consider: (1) “the private interest that will be 13 affected by the official action”; (2) “the risk of an erroneous deprivation of such interest 14 through the procedures used, and the probable value, if any, of additional or substitute 15 procedural safeguards”; and (3) “the Government’s interest including the function involved 16 and the fiscal and administrative burdens that the additional or substitute procedural 17 requirement would entail.” Id. 18 The Court finds that all three factors support a finding that the Government’s 19 revocation of Petitioner’s release without notification, reasoning, or an opportunity to be 20 heard, denied Petitioner of his due process rights. First, as discussed above, Petitioner has 21 a significant liberty interest in remaining out of custody pursuant to his parole. “Freedom 22 from imprisonment—from government custody, detention, or other forms of physical 23 restraint—lies at the heart of the liberty [the Due Process Clause] protects.” Zadvydas, 533 24 U.S. at 690. Petitioner has an interest in remaining with and providing for his family and 25 continuing the asylum process. See Morrissey, 408 U.S. 471 at 482 (“Subject to the 26 conditions of his parole, he can be gainfully employed and is free to be with family and 27 friends and to form the other enduring attachments of normal life.”). 28 1 Second, the risk of an erroneous deprivation of such interest is high as Petitioner’s 2 parole was revoked without providing him a reason for revocation or giving him an 3 opportunity to be heard. Pet. ¶¶ 40–46. Since DHS’s initial determination that Petitioner 4 should be paroled because he posed no danger to the community and was not a flight risk, 5 there is no evidence that these findings have changed. See Saravia v. Sessions, 280 F. 6 Supp. 3d 1168, 1760 (N.D. Cal. 2017) (“Release reflects a determination by the 7 government that the noncitizen is not a danger to the community or a flight risk.”). “Once 8 a noncitizen has been released, the law prohibits federal agents from rearresting him merely 9 because he is subject to removal proceedings. Rather, the federal agents must be able to 10 present evidence of materially changed circumstances—namely, evidence that the 11 noncitizen is in fact dangerous or has become a flight risk. . . .” Saravia, 280 F. Supp. 3d 12 at 1760. Respondents, failing to address Petitioner’s Due Process argument in their 13 response, do not point to any material circumstances that have changed that would warrant 14 reconsideration of his parole. See generally Ret. “Where as here, ‘the petitioner has not 15 received any bond or custody hearing,’ ‘the risk of an erroneous deprivation of liberty is 16 high’ because neither the government nor [Petitioner] has had an opportunity to determine 17 whether there is any valid basis for her detention.” Pinchi, 792 F. Supp. 3d at 1035 (quoting 18 Singh v. Andrews, 803 F. Supp. 3d 1035, 1047 (E.D. Cal. 2025)) (cleaned up). 19 Third, the Government’s interest in detaining Petitioner without notice, reasoning, 20 and a hearing is “low.” See Pinchi, 792 F. Supp. 3d at 1036; Matute, 807 F. Supp. 3d at 21 1130; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. Nov. 22, 2019) (“If the 22 government wishes to re-arrest [Petitioner] at any point, it has the power to take steps 23 toward doing so; but its interest in doing so without a hearing is low.”). Respondents fail 24 to point to any burdens on the Government if it were to have provided proper notice, 25 reasoning, and a pre-deprivation hearing. See generally Ret. 26 Therefore, because Respondents detained Petitioner by revoking his parole in 27 violation of the Due Process Clause, his detention is unlawful. See, e.g., Alegria Palma v. 28 Larose et al., No. 25-cv-1942 BJC (MMP), slip op. 14 (S.D. Cal. Aug. 11, 2025) (granting 1 a TRO based on a procedural due process challenge to a revocation of parole without a pre- 2 deprivation hearing); Sanchez v. LaRose, No. 25-CV-2396-JES-MMP, 2025 WL 2770629, 3 at *5 (S.D. Cal. Sept. 26, 2025) (granting a writ of habeas corpus releasing petitioner from 4 custody to the conditions of her preexisting parole on due process grounds). 5 IV. Attorney’s Fees 6 Petitioner has requested costs and attorney’s fees in this action pursuant to the Equal 7 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pet. at 12. The EAJA provides in part: 8 A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an 9 application for fees and other expenses which shows that the 10 party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an 11 itemized statement from any attorney . . . representing or 12 appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were 13 computed. The party shall also allege that the position of the 14 United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be 15 determined on the basis of the record . . . which is made in the 16 civil action for which fees and other expenses are sought. 17 28 U.S.C. § 2412(d)(1)(B). 18 The Court will consider an application requesting reasonable fees and costs under 19 the EAJA that is filed within thirty days of the judgment. 20 CONCLUSION 21 Based on the foregoing, the Court GRANTS IN PART Petitioner’s Petition for Writ 22 of Habeas Corpus (ECF No. 1). The Court ORDERS Respondents to immediately release 23 Petitioner from custody subject to the conditions of his preexisting parole. The Court 24 ORDERS, prior to any re-detention of Petitioner, that Petitioner is entitled to notice of the 25 reasons for revocation of his parole and a hearing before a neutral decision maker to 26 determine whether detention is warranted. The Government shall bear the burden of 27 establishing, by clear and convincing evidence, that Petitioner poses a danger to the 28 1 ||community or a risk of flight.?> The Parties ace ORDERED to file a Joint Status Report by 2 || April 13, 2026, confirming that Petitioner has been released. 3 Lastly, Petitioner’s attorney is directed to submit an attorney fee application and 4 corresponding billing records within thirty (30) days of this Order, and Respondents are 5 ||instructed to file any opposition within fourteen (14) days of Petitioner’s attorney fee 6 || application. 7 IT IS SO ORDERED. 8 ||Dated: April 8, 2026

on. Janis L. Sammartino 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 || ——____—__- 27 This relief has been granted in similar matters. See, e.g., Matute, 807 F. Supp. 3d at 1133; Pinchi, 792 28 || F. Supp. 3d at 1038; Doe v. Becerra, 787 F. Supp. 3d 1083, 1097 (E.D. Cal. 2025); Martinez Hernandez y. Andrews, No. 25-CV-1035 JLT HBK, 2025 WL 2495767, at *14 (E.D. Cal. Aug. 28, 2025).