6 UNITED STATES DISTRICT COURT 7
8 EASTERN DISTRICT OF CALIFORNIA 9
10 E.E.O.H., Case No. 1:26-cv-01266-JLT-SAB-HC
11 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 12 v. HABEAS CORPUS, DENY RESPONDENTS’ MOTION TO DISMISS, 13 KRISTI NOEM, et al., AND DIRECT RESPONDENTS TO IMMEDIATELY RELEASE PETITIONER 14 Respondents. (ECF Nos. 1, 8) 15 ORDER GRANTING PETITIONER’S 16 MOTION TO PROCEED VIA PSEUDONYM 17 (ECF No. 2) 18 19 Petitioner, represented by counsel, is an immigration detainee proceeding with a petition 20 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 21 I. 22 BACKGROUND 23 Petitioner is a citizen of Honduras who entered the United States without inspection in 24 approximately June 2021. On October 10, 2023, Petitioner filed an I-589 application for asylum, 25 which is currently pending. Petitioner filed for and obtained a work authorization with five years 26 validity through July 29, 2029. (ECF No. 1 at 4;1 ECF No. 1-2.) Petitioner has no criminal 27 history. On or around September 19, 2025, Petitioner was working at a construction site in 1 southern Florida when he arrested by U.S. Immigration and Customs Enforcement (“ICE”). 2 (ECF No. 1 at 4.) Petitioner was placed in regular immigration proceedings and charged as an 3 “alien present in the United States who has not been admitted or paroled.” (ECF No. 1-3.) 4 At a hearing on February 3, 2026, an immigration judge (“IJ”) denied bond “based on its 5 independent assessment of relevant law, regulations, statues, and caselaw” due to lack of 6 jurisdiction under Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025). (Ex. 3.) 7 On February 12, 2026, Petitioner filed a petition for writ of habeas corpus and motion for 8 temporary restraining order (“TRO”). (ECF Nos. 1, 3.) On February 13, 2026, the assigned 9 district judge denied the motion for TRO as untimely. (ECF No. 7.) On March 13, 2026, 10 Respondents filed a motion to dismiss. (ECF No. 8.) On March 21, 2026, Petitioner filed an 11 opposition. (ECF No. 9.) To date, no reply in support of the motion to dismiss has been filed, and 12 the time for doing so has passed. 13 II. 14 DISCUSSION 15 A. Motion to Proceed Via Pseudonym 16 Rule 10 of the Federal Rules of Civil Procedure requires that every complaint must 17 include the name of all parties. Fed. R. Civ. P. 10(a). Rule 17 further provides that “[a]n action 18 must be prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 17(a)(1). The normal 19 presumption is that the parties will use their real names, which is “loosely related” to the public’s 20 right to open courts and the rights of individuals to confront their accusers. Doe v. Kamehameha 21 Schools, 596 F.3d 1036, 1042 (9th Cir. 2010). However, courts have allowed a party to proceed 22 in anonymity where special circumstances justify the secrecy. Does I thru XXIII v. Advanced 23 Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000). In the Ninth Circuit, a party may proceed 24 with the use of a pseudonym “in the ‘unusual case’ when nondisclosure of the party’s identity ‘is 25 necessary . . . to protect a person from harassment, injury, ridicule or personal embarrassment.’” 26 Advanced Textile Corp., 214 F.3d at 1067–68 (alteration in original) (quoting United States v. 27 Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981)). The Ninth Circuit has held that “a party may 1 need for anonymity outweighs prejudice to the opposing party and the public’s interest in 2 knowing the party’s identity.” Advanced Textile Corp., 214 F.3d at 1068. 3 Courts have generally allowed a party to proceed with anonymity in three circumstances: 4 (1) “when identification creates a risk of retaliatory physical or mental harm”; (2) “when 5 anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature’”; 6 and (3) “when the anonymous party is ‘compelled to admit [his or her] intention to engage in 7 illegal conduct, thereby risking criminal prosecution[.]’” Advanced Textile Corp., 214 F.3d at 8 1068 (first alteration in original) (internal citations omitted). The Ninth Circuit has held that 9 where the use of a pseudonym is used to shield the party from retaliation, the district court 10 should evaluate the following factors: (1) the severity of the threatened harm; (2) the 11 reasonableness of the anonymous party’s fears; and (3) the anonymous party’s vulnerability to 12 such retaliation. Advanced Textile Corp., 214 F.3d at 1068 (citations omitted). 13 Here, Petitioner moves to proceed with a pseudonym due to his “fear of retaliatory harm 14 [as] an asylum seeker” and “[g]iven the risk to Petitioner and his family of harassment and 15 retaliation.” (ECF No. 2 at 2.) Courts have granted motions to file pseudonymously based on the 16 petitioners’ fears of persecution and retaliation should their identities be revealed. See, e.g., Doe 17 v. Becerra, 732 F. Supp. 3d 1071, 1091 (N.D. Cal. 2024) (“Given the circumstances of Mr. 18 Doe’s petition and his allegations that he will face torture or death if he returns to Mexico, the 19 Court previously granted Mr. Doe’s motions to proceed under pseudonym[.]”); E.O.P. v. 20 Andrews, No. 1:25-cv-00721-SKO (HC), 2025 WL 1735396, at *1 (E.D. Cal. June 23, 2025); 21 Doe v. Wofford, No. 1:24-cv-00943-EPG-HC, 2025 WL 1305859, at *4 (E.D. Cal. May 6, 22 2025); A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 871334, at *1 (E.D. Cal. 23 Mar. 19, 2025). 24 Based on the Court’s review of the severity of the harm, the reasonableness of the 25 Petitioner’s proffered fears, and Petitioner’s vulnerability to retaliation, the Court finds that the 26 need for anonymity in this case outweighs countervailing considerations. See Kamehameha 27 Schools, 596 F.3d at 1042. Accordingly, Petitioner’s motion to proceed via pseudonym is 1 B. Statutory Framework 2 An intricate statutory scheme governs the detention of noncitizens during removal 3 proceedings and after a final removal order is issued. “Where an alien falls within this statutory 4 scheme can affect whether his detention is mandatory or discretionary, as well as the kind of 5 review process available to him if he wishes to contest the necessity of his detention.” Prieto- 6 Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 7 “Four statutes grant the Government authority to detain noncitizens who have been 8 placed in removal proceedings: 8 U.S.C. §§ 1225(b) (‘Section 1225(b)’), 1226(a) (‘Subsection 9 A’), 1226(c) (‘Subsection C’), and 1231(a) (‘Section 1231(a)’).” Avilez v. Garland, 69 F.4th 10 525, 529 (9th Cir. 2023). “Subsection A is the default detention statute for noncitizens in 11 removal proceedings and applies to noncitizens ‘[e]xcept as provided in [Subsection C].’”2 12 Avilez, 69 F.4th at 529 (alterations in original) (quoting 8 U.S.C. § 1226(a)). “[D]etention under 13 Subsection A is discretionary” and “provides for release on bond or conditional parole.” Avilez, 14 69 F.4th at 529. “When a person is apprehended under § 1226(a), an ICE officer makes the initial 15 custody determination,” and the noncitizen “will be released if he ‘demonstrate[s] to the 16 satisfaction of the officer that such release would not pose a danger to property or persons, and 17 that the alien is likely to appear for any future proceeding.’” Rodriguez Diaz v. Garland, 53 F.4th 18 1189, 1196 (9th Cir. 2022) (quoting 8 C.F.R. § 236.1(c)(8)). 19 “[A]n alien who ‘arrives in the United States,’ or ‘is present’ in this country but ‘has not 20 been admitted,’ is treated as ‘an applicant for admission.’” Jennings v. Rodriguez, 583 U.S. 281, 21 287 (2018) (quoting 8 U.S.C. § 1225(a)(1)). “Applicants for admission must ‘be inspected by 22 immigration officers’ to ensure that they may be admitted into the country consistent with U.S. 23 immigration law.” Jennings, 583 U.S. at 287 (quoting 8 U.S.C. § 1225(a)(3)). “[A]pplicants for 24 admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by 25 § 1225(b)(2).” Jennings, 583 U.S. at 287. “Both § 1225(b)(1) and § 1225(b)(2) authorize the 26 detention of certain aliens.” Id. 27 2 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 “Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, 2 misrepresentation, or lack of valid documentation. Section 1225(b)(1) also applies to certain 3 other aliens designated by the Attorney General in his discretion.” Jennings, 583 U.S. at 287 4 (citations omitted). “Aliens covered by § 1225(b)(1) are normally ordered removed ‘without 5 further hearing or review’ pursuant to an expedited removal process.” Id. (quoting 8 U.S.C. 6 § 1225(b)(1)(A)(i)). “But if a § 1225(b)(1) alien ‘indicates either an intention to apply for asylum 7 ... or a fear of persecution,’ then that alien is referred for an asylum interview.” Jennings, 583 8 U.S. at 287 (quoting 8 U.S.C. § 1225(b)(1)(A)(ii)). “If an immigration officer determines after 9 that interview that the alien has a credible fear of persecution, ‘the alien shall be detained for 10 further consideration of the application for asylum.’” Jennings, 583 U.S. at 287 (quoting 8 11 U.S.C. § 1225(b)(1)(B)(ii)). 12 Section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for 13 admission, if the examining immigration officer determines that an alien seeking admission is 14 not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a 15 proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Thus, “[a]ll applicants 16 for admission who are not processed for expedited removal [pursuant to § 1225(b)(1)] are placed 17 in regular removal proceedings under § 1225(b)(2)(A). That process generally entails a hearing 18 before an immigration judge pursuant to § 1229a.” Innovation Law Lab v. McAleenan, 924 F.3d 19 503, 507 (9th Cir. 2019). 20 “Regardless of which of those two sections authorizes their detention, applicants for 21 admission may be temporarily released on parole ‘for urgent humanitarian reasons or significant 22 public benefit.’” Jennings, 583 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)) (citing 8 C.F.R. 23 §§ 212.5(b), 235.3 (2017)). “Such parole, however, ‘shall not be regarded as an admission of the 24 alien.’” Jennings, 583 U.S. at 288 (quoting 8 U.S.C. § 1182(d)(5)(A)). “Instead, when the 25 purpose of the parole has been served, ‘the alien shall forthwith return or be returned to the 26 custody from which he was paroled and thereafter his case shall continue to be dealt with in the 27 same manner as that of any other applicant for admission to the United States.’” Jennings, 583 1 C. Due Process 2 In Count Two, Petitioner asserts that his detention violates procedural due process. (ECF 3 No. 1 at 12–13.) Petitioner argues: 4 Petitioner had already presented himself to the authorities on his asylum claim, for which he had to appear for fingerprinting and background checks. 5 Respondents issued him a work permit valid through 2029, which created a liberty interest as well as an ‘implicit promise’ that Petitioner would be free from 6 custody during that time so long as he obeyed laws and remained eligible for the relief he was seeking. 7 8 (ECF No. 9 at 3 (quoting Pinchi v. Noem, 792 F.Supp.3d 1025, 1032 (N.D. Cal. 2025)).) 9 Respondents argue that the petition should be dismissed because Petitioner is “an 10 ‘applicant for admission’ who is subject to mandatory detention by ICE under 8 U.S.C. 11 § 1225(b)(2)” and “does not possess a right to freedom from immigration detention in any form 12 other than the form provided by Congress,” citing to Dep’t of Homeland Sec. v. Thuraissigiam, 13 591 U.S. 103, 139 (2020). (ECF No. 8 at 1, 2.) Respondents’ reliance on Thuraissigiam to argue 14 that Petitioner has no due process rights is unavailing. “Thuraissigiam and its progeny are 15 distinguishable,” Aguilera v. Albarran, No. 1:25-CV-01619 JLT SAB, 2025 WL 3485016, at *10 16 n.8 (E.D. Cal. Dec. 4, 2025), because “[i]n Thuraissigiam the Supreme Court held that a 17 petitioner who was stopped at the border did not have any due process rights regarding 18 admission into the United States” whereas “the pending § 2241 petition does not challenge any 19 determination regarding [Petitioner’s] admissibility into the United States, but instead involves a 20 challenge to [his] detention pending the conclusion of [his] removal proceedings,” Rosado v. 21 Figueroa, No. CV 25-02157 PHX DLR (CDB), 2025 WL 2337099, at *15 (D. Ariz. Aug. 11, 22 2025), report and recommendation adopted, 2025 WL 2349133 (D. Ariz. Aug. 13, 2025). See 23 Castillo v. Wofford, No. 1:25-CV-01586-JLT-HBK, 2025 WL 3466064, at *8 (E.D. Cal. Dec. 2, 24 2025) (finding Thuraissigiam “inapposite,” rejecting Respondents’ reliance “on the doctrine of 25 ‘entry fiction’ to argue that Petitioner is an inadmissible noncitizen who should be treated as if 26 she has not entered the country and generally has no right to procedural due process,” and 27 “reject[ing] Respondents’ argument that ‘entry fiction’ cases guide the analysis for cases not 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). 14 To the extent that Petitioner has not previously been detained and released, the Court 15 finds the reasoning of Kharitonova v. Albarran, No. 3:26-CV-01362-JSC, 2026 WL 531441 16 (N.D. Cal. Feb. 25, 2026), persuasive. Kharitonova concerned a noncitizen who entered the 17 United States on a nonimmigrant visa in 2012, filed her application for asylum and withholding 18 of removal within one year of her arrival, had her asylum case referred to the Executive Office 19 for Immigration Review, which issued a Notice to Appear, resided continuously in the United 20 States, attended all scheduled hearings, was preparing to appear for her merits hearing scheduled 21 for December 22, 2026, and in February 2026 “was detained on the street in front of the home in 22 San Francisco where she work[ed] as a full-time nanny.” Id. at *1. The district court held that the 23 “government’s decision not to detain Petitioner ‘when it processed her asylum application, took 24 her biometrics, referred her asylum case to EOIR, and advised her to appear for multiple 25 hearings over a period of years,’ . . . gave rise to ‘a liberty interest on Petitioner’s part that she 26 would remain free unless she violated her conditions of release.’” Id. at *2 (citation omitted). 27 The court rejected the “government’s insistence Petitioner lacks a liberty interest because it 1 because “[a]lthough the government did not detain and then release her, it made a decision not to 2 detain her in the first place; Petitioner thus has the same liberty interest in her continued freedom 3 as an individual initially detained.” Kharitonova, 2026 WL 531441, at *2. See also Villanueva- 4 Montanez v. Lyons, No. 2:26-cv-00954-DAD-CKD, 2026 WL 797930, at *1 (E.D. Cal. Mar. 23, 5 2026) (“[T]he release (or decision not to detain) is ‘based on an evaluation[,]’ allows for ‘a 6 relatively normal life[,]’ and as a result the parolee or petitioner ‘relied on at least an implicit 7 promise’ that the parole or decision not to detain will be revoked only if he fails to live up to the 8 applicable ‘conditions.’” (first alteration added) (quoting Morrissey v. Brewer, 408 U.S. 471, 482 9 (1972))). 10 Similarly, here, Petitioner entered the United States without inspection in approximately 11 June 2021, he filed an I-589 application for asylum on October 10, 2023 and it is currently 12 pending, and he filed for and obtained a work authorization with five years validity through July 13 29, 2029. (ECF No. 1 at 4.) Accordingly, the Court recommends finding that Petitioner has a 14 protected liberty interest in his continued freedom. 15 “Thus, the Court must evaluate the three-part test set forth in Mathews v. Eldridge, 424 16 U.S. 319, 334-335 (1976), to determine whether the procedures (or lack thereof) that have been 17 applied to Petitioner are sufficient to protect the liberty interest at issue.” J.E.H.G., 2025 WL 18 3523108, at *11.
19 [I]dentification of the specific dictates of due process generally requires consideration of three distinct factors. First, the private interest that will be 20 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 21 or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the 22 additional or substitute procedural requirements would entail. 23 Mathews, 424 U.S. at 334. 24 As to private interest, it “is beyond dispute” that Petitioner’s interest here is 25 “fundamental.” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (citing Foucha v. 26 Louisiana, 504 U.S. 71, 80 (1992)). “Freedom from imprisonment—from government custody, 27 detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process] 1 deprivation of Petitioner’s liberty is high where, as here, Petitioner has not received and will not 2 receive any bond or custody redetermination hearing before a neutral decisionmaker with 3 authority to grant bond. See Kharitonova, 2026 WL 531441, at *3; Kakkar v. Chestnut, No. 4 1:25-CV-1627 JLT SAB, 2025 WL 3638298, at *7 (E.D. Cal. Dec. 15, 2025); A.E. v. Andrews, 5 No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025). “Finally, as 6 other courts have done, this Court concludes that the government’s interest in detaining 7 Petitioner without proper process is slight.” J.E.H.G., 2025 WL 3523108, at *12. Accordingly, 8 the Mathews factors weigh in favor of a bond hearing. 9 Based on the foregoing, the Court recommends finding that Petitioner has a protected 10 liberty interest in remaining out of custody and his detention violates procedural due process.3 11 The Court considers whether a pre-deprivation or post-deprivation bond hearing is 12 appropriate based on the facts of this case. 13 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. 14 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 15 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. 16 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 17 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 18 guidance as to where this line should be drawn. Some courts that have addressed detention-related habeas petitions brought by persons released with enhanced 19 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 20 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. 21 That court agreed with the petitioner that ICE’s post hoc explanation that violations warranted his detention was pretextual, given that ICE first became 22 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 23 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- 24 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. 25 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 26 incurred a misdemeanor arrest while on parole, in part because no charges were ever filed. 27 1 In contrast, this Court ordered a parole revocation hearing in Martinez Hernandez v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767 (E.D. Cal. Aug. 2 28, 2025), where the petitioner’s records indicated numerous violations. Though Martinez Hernandez offered explanations for the violations and there was a 3 dispute of fact as to whether the violations occurred, ICE’s reliance upon those violations was “not obviously pretexual.” Id. at * 12 (“If Respondent’s view of 4 the facts is correct, it is at least arguable that providing Petitioner with notice and a pre-deprivation hearing would have been impracticable and/or would have 5 motivated his flight.”). As this Court noted in Martinez Hernandez:
6 In similar circumstances, courts have refused to release the petitioners but have ordered timely bond hearings. Carballo v. Andrews, No. 1:25-CV- 7 00978-KES-EPG (HC), 2025 WL 2381464, at *8 (E.D. Cal. Aug. 15, 2025), citing Perera v. Jennings, et. al, No. 21-CV-04136-BLF, 2021 WL 8 2400981, at *5 (N.D. Cal. June 11, 2021); Pham v. Becerra, No. 23-CV- 01288-CRB, 2023 WL 2744397, at *6 (N.D. Cal. Mar. 31, 2023). 9 “[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- 10 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. 11 Id. 12 J.E.H.G., 2025 WL 3523108, at *11–12. 13 Here, there is nothing in the record before this Court establishing that Petitioner has 14 violated any conditions of his release. Respondents do not argue that Petitioner’s detention was 15 based on any violations or that Petitioner is now considered a flight risk or danger to the 16 community. Accordingly, the Court recommends finding that a pre-deprivation hearing is 17 appropriate based on the facts of this case and that Petitioner’s immediate release is warranted. 18 See Villanueva-Montanez, 2026 WL 797930, at *2; Kharitonova, 2026 WL 531441, at *4. 19 D. Exhaustion 20 Respondents argue that as it does not appear that Petitioner appealed the IJ’s denial of 21 Petitioner’s request for a change in his custody status to the Board of Immigration Appeals 22 (“BIA”), Petitioner has not exhausted his available administrative remedies and thus, the petition 23 should be dismissed. (ECF No. 8 at 2.) Petitioner contends that administrative exhaustion would 24 be futile and would not address constitutional issues. (ECF No. 9 at 4–5.) 25 “As a prudential matter, courts require that habeas petitioners exhaust all available 26 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 27 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional prerequisite, “a court may waive the prudential exhaustion requirement if ‘administrative 1 remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile 2 gesture, irreparable injury will result, or the administrative proceedings would be void.’” 3 Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Laing v. Ashcroft, 370 F.3d 4 994, 1000 (9th Cir. 2004)). 5 “[W]here the agency’s position on the question at issue ‘appears already set,’ and it is 6 ‘very likely’ what the result of recourse to administrative remedies would be, such recourse 7 would be futile and is not required.” El Rescate Legal Servs., Inc. v. Exec. Off. of Immigr. Rev., 8 959 F.2d 742, 747 (9th Cir. 1991) (quoting SAIF Corp./Oregon Ship v. Johnson, 908 F.2d 1434, 9 1441 (9th Cir. 1990)). “The Court joins the multitude of district courts to consider this issue 10 recently in the context of habeas petitions filed by immigrant detainees and finds ‘pursuit of 11 administrative remedies would almost certainly be futile given the BIA’s recent holding that all 12 noncitizens detained in the United States without admission are “seeking admission” for 13 purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.’” Cerro Huerta v. Bondi, No. 1:25- 14 cv-00941-JLT-HBK (HC), 2026 WL 74152, at *3 (E.D. Cal. Jan. 9, 2026) (quoting Singh v. 15 Andrews, No. 1:25-cv-01543-DCJ-SCR, 2025 WL 3523057, at *2 (E.D. Cal. Dec. 9, 2025)). 16 Accordingly, the Court recommends finding that prudential exhaustion can be waived. 17 E. Abeyance Pending Rodriguez Vazquez v. Bostock Appeal 18 Alternatively, Respondents argue that the Court should hold the matter in abeyance 19 pending the Ninth Circuit’s resolution of Rodriguez Vazquez v. Bostock, No. 25-6842. (ECF No. 20 8 at 2–3.) In Rodriguez Vazquez v. Bostock, 802 F. Supp. 3d 1297 (W.D. Wash. 2025), the 21 district court granted summary judgment “to the Bond Denial Class on their claims that their 22 detention under 8 U.S.C. § 1225(b)(2) is unlawful.” Id. at 1336. The Bond Denial Class is 23 defined as: 24 [A]ll noncitizens without lawful status detained at the Northwest ICE Processing Center who (1) have entered or will enter the United States without inspection, (2) 25 are not apprehended upon arrival, (3) are not or will not be subject to detention under 8 U.S.C. § 1226(c), § 1225(b)(1), or § 1231 at the time the noncitizen is 26 scheduled for or requests a bond hearing. 27 Rodriguez Vazquez, 802 F. Supp. 3d at 1336. The district court declared “that Bond Denial Class 1 8 U.S.C. § 1225(b)(2)” and that “the Tacoma Immigration Court’s practice of denying bond to 2 Bond Denial Class members on the basis of § 1225(b)(2) violates the Immigration and 3 Nationality Act.” Rodriguez Vazquez, 802 F. Supp. 3d at 1336. 4 Although the Ninth Circuit’s resolution of Rodriguez Vazquez may provide guidance on 5 the application of 8 U.S.C. §§ 1225 and 1226, the Court is skeptical the decisions will impact the 6 Court’s conclusion that Petitioner has a protected liberty interest that arises from the 7 government’s decision not to detain Petitioner when it processed his asylum application and 8 granted him work authorization. Accordingly, the Court recommends denying Respondents’ 9 request to hold the matter in abeyance pending the Ninth Circuit’s resolution of Rodriguez 10 Vazquez v. Bostock. 11 III. 12 RECOMMENDATION 13 Based on the foregoing, the Court HEREBY RECOMMENDS that: 14 1. The petition for writ of habeas corpus be GRANTED on Count Two; 15 2. Respondents’ motion to dismiss (ECF No. 8) be DENIED; 16 3. Respondents be directed to immediately release Petitioner without imposing any 17 additional restrictions on him, such as electronic monitoring, unless that is determined to 18 be necessary at a later custody hearing; and 19 4. Respondents be enjoined and restrained from rearresting or re-detaining Petitioner absent 20 compliance with constitutional protections, which include, at a minimum, pre-deprivation 21 notice of at least seven days before a pre-deprivation hearing at which the government 22 will bear the burden of demonstrating by clear and convincing evidence that he is likely 23 to flee or pose a danger to the community if not arrested. 24 This Findings and Recommendation is submitted to the assigned United States District 25 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 26 Rules of Practice for the United States District Court, Eastern District of California. Within 27 FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 1 | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 2 | Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 3 | after service of the objections. The assigned District Judge will then review the Magistrate 4 | Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file 5 | objections within the specified time may waive the right to appeal the District Court’s order. 6 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 7 | 1391, 1394 (9th Cir. 1991)). 8 , | IT IS SO ORDERED. FA. ae 10 | Dated: _ March 26, 2026 STANLEY A. BOONE 1] United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28