1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 ELDIMIR GOMES, 4 Petitioner, Case No.: 2:26-cv-00420-GMN-MDC 5 vs. ORDER GRANTING PETITION FOR 6 MICHAEL BERNAKE, et al.,1 WRIT OF HABEAS CORPUS 7 Respondents. 8 9 Pending before the Court is Petitioner Eldimir Gomes’s First Amended Petition for Writ 10 of Habeas Corpus, (ECF No. 9). Federal Respondents Michael Bernacke, Pamela Bondi, Todd 11 M. Lyons, and Kristi Noem filed a Response, (ECF No. 14),2 to which Petitioner replied, (ECF 12 No. 15). For the reasons discussed below, the Court GRANTS the Petition and orders 13 Petitioner’s immediate release. 14 I. BACKGROUND 15 Petitioner Eldimir Gomes is a citizen of Guinea-Bissau who came to the United States in 16 April 2021. (Am. Pet. 2:25–26, ECF No. 9). He entered without inspection but was arrested 17 near the border on April 29, 2021, shortly after his arrival. (Id. 2:26–27); (I-213 at 2, Ex. A to 18 Fed. Resp., ECF No. 14-1). Petitioner was placed in expedited removal proceedings, but after 19 an asylum officer determined that he had a credible fear of persecution or torture, DHS issued a 20 Notice to Appear (“NTA”). (Am. Pet. 2:27–3:2); (Fed. Resp. 1:23–25, ECF No. 14). The NTA, 21 22 23 1 Pursuant to Federal Rule of Civil Procedure 25(d), Acting U.S. Attorney General Todd Blanche is substituted for the currently named Pamela Bondi, and Secretary of Homeland Security Markwayne Mullin is substituted or 24 currently named Kristi Noem. The Clerk of Court is kindly directed to update the docket to reflect these substitutions. 25 2 Respondent John Mattos filed a separate Response, (ECF No. 12), indicating that he has no independent authority to release Petitioner, and thus takes no position on the relief sought. 1 issued on May 26, 2021, charged Petitioner as an “alien present in the United States who has 2 not been admitted or paroled.” (NTA, Ex. A to Am. Pet., ECF No. 9-1). In a Notice to EOIR 3 regarding Petitioner’s address, an ICE official indicated that Petitioner was released from ICE 4 custody on bond in the amount of $7,500. (Notice, Ex. B to Am. Pet., ECF No. 9-2). Petitioner 5 has remained out of custody for approximately four years while his removal proceedings have 6 been pending, during which time he applied for asylum and withholding of removal and 7 established a residence with his wife and children in Utah. (Am. Pet. 3:5–8). 8 On July 11, 2025, an Immigration Judge (“IJ”) denied Petitioner relief and ordered him 9 removed. (IJ Order, Ex. C to Am. Pet, ECF No. 9-3). On July 30, 2025, Petitioner was charged 10 with misdemeanor assault and arrested. (I-213 at 2, Ex. A to Fed. Resp.).3 ICE re-detained 11 Petitioner on August 6, 2025. (Am. Pet. 3:11–12).4 Petitioner timely appealed the IJ’s removal 12 order on August 11, 2025, and the appeal remains pending. See EOIR Automated Case 13 Information.5 Petitioner has now been in ICE detention for almost 10 months, and with this 14 Amended Petition, he seeks immediate release from detention. (See generally Am. Pet.). 15 II. LEGAL STANDARD 16 A. Habeas Petitions 17 The Constitution guarantees that the writ of habeas corpus is “available to every 18 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) 19 (citing U.S. Const., art. I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in
20 custody upon the legality of that custody, and . . . the traditional function of the writ is to secure 21
22 3 The parties present no evidence corroborating the assertion in the I-213 regarding Petitioner’s misdemeanor 23 assault charge, nor do they provide any additional information about the charge. 4 There is no evidence in the record before the Court relating to when and how ICE detained Petitioner. 24 5 The Court takes judicial notice of the information on Petitioner’s EOIR Automated Case Information page because it may take judicial notice of information posted on official government websites. See Daniels-Hall v. 25 Nat’l Educ. Ass’n, 629 F.3d 992, 998–999 (9th Cir. 2010); Fed. R. Evid. 201 (allowing a court to take judicial notice of a fact not subject to reasonable dispute in that it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned). 1 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas 2 corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the 3 Constitution or federal law. 28 U.S.C. § 2241(c)(3). A district court’s habeas jurisdiction 4 includes challenges to immigration-related detention. Zadvydas v. Davis, 533 U.S. 678, 687 5 (2001); see also Demore v. Kim, 538 U.S. 510, 517 (2003). 6 B. Statutory Detention Scheme 7 Under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., two 8 statutory provisions generally govern the government’s authority to detain noncitizens during 9 the pendency of removal proceedings: 8 U.S.C. §§ 1225(b) and 1226. In Jennings v. 10 Rodriguez, 538 U.S. 281 (2018), the Supreme Court explained these statutory provisions. The 11 Court explained that § 1225 generally governs “at the Nation’s borders and ports of entry, 12 where the Government must determine whether [a noncitizen] seeking to enter the country is 13 admissible.” Id. at 287. In contrast, § 1226 “generally governs the process of arresting and 14 detaining” noncitizens already “inside the United States.” Id. at 288. 15 Section 1225 authorizes the government to detain certain noncitizens seeking admission 16 into the United States. Id. at 289. Section 1225(b) applies to “applicants for admission” to the 17 United States, defined as a noncitizen “present in the United States who has not been admitted 18 or who arrives in the United States[.]” 8 U.S.C. § 1225(a)(1). “[A]pplicants for admission fall 19 into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).”
20 Jennings, 583 U.S. at 287. 21 Section 1225(b)(1) applies to noncitizens who are “initially determined to be 22 inadmissible due to fraud, misrepresentation, or lack of valid documentation.” Id. (citing 23 § 1225(b)(1)(A)(i)). Noncitizens who fall under § 1225(b)(1) are “normally ordered removed 24 ‘without further hearing or review’ pursuant to an expedited removal process.” Id. (citing 25 § 1225(b)(1)(A)(i)). Section 1225(b)(2) is broader and “serves as a catchall provision that 1 applies to all applicants for admission not covered by § 1225(b)(1).” Id. Applicants for 2 admission under either § 1225(b)(1) or § 1225(b)(2) are subject to mandatory detention and 3 may only be released on parole “for urgent humanitarian reasons or significant public benefit.” 4 Id. at 288 (citing § 1182(d)(5)(A)). 5 III. DISCUSSION 6 Petitioner has been in ICE custody for approximately 10 months without a bond hearing 7 while in removal proceedings. He argues that his continued detention without a bond hearing 8 violates his due process rights because he cannot legally be subject to mandatory detention 9 under 8 U.S.C. § 1225(b)(2). (Am. Pet. 4:3–5:16). Federal Respondents provide no substantive 10 response to Petitioner’s legal argument and argue only that the Amended Petition should be 11 denied because Petitioner has not exhausted his administrative remedies before seeking relief in 12 this Court. (See generally Fed. Resp., ECF No. 11). The Court begins by addressing Federal 13 Respondents’ exhaustion argument. 14 A. Exhaustion 15 Federal Respondents ask the Court to deny the Amended Petition because Petitioner has 16 not exhausted administrative remedies before seeking relief in this Court, so this issue is not 17 “ripe.” (Id. 2:14–17). First, Federal Respondents appear to conflate the concepts of exhaustion 18 and ripeness. “Article III’s ripeness doctrine is designed to ‘prevent the courts, through 19 premature adjudication, from entangling themselves in abstract disagreements.’” Flaxman v.
20 Ferguson, 151 F.4th 1178, 1184 (9th Cir. 2025) (quoting Thomas v. Union Carbide Agric. 21 Prods. Co., 473 U.S. 568, 580 (1985)). “Constitutional ripeness equates with Article III's 22 injury-in-fact requirement for standing.” Id. at 1184–85. “The well-worn prerequisites are an 23 invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or 24 imminent, not conjectural or hypothetical.” Id. at 1185 (quotation modified) (quoting Twitter, 25 Inc. v. Paxton, 56 F.4th 1170, 1173 (9th Cir. 2022)). 1 Here, Petitioner is suffering an injury in fact due to his current detention. There is 2 nothing abstract or hypothetical about this dispute, and the fact that an IJ has not yet determined 3 his eligibility for bond does not change that fact. See Alvarado v. Mattos, No. 2:26-CV-00416- 4 APG-DJA, 2026 WL 963227, at *2 (D. Nev. Apr. 9, 2026) (citing Galvan v. Hermosillo, No. 5 2:25-CV-02349-TMC, 2025 WL 3484755, at *2 (W.D. Wash. Dec. 4, 2025)) (finding the 6 noncitizen detainee’s habeas petition was ripe for review where an IJ had not determined the 7 petitioner’s eligibility for bond). 8 As to the issue of exhaustion, Federal Respondents again appear to confuse the issues. 9 Federal Respondents argue that “Petitioner has a pending administrative appeal so that the 10 necessity of detention can be reviewed by the [Board of Immigration Appeals (“BIA”)].” (Fed. 11 Resp. 2:17–18). They assert that Petitioner should have waited for a decision from the BIA 12 before asking this Court to review the IJ’s decision. But Petitioner has only one appeal pending 13 at the BIA, and that appeal is seeking review of the IJ’s removal order. The appeal has no 14 relation to the issue of whether Petitioner should be detained during the pendency of this 15 removal proceedings. Moreover, Petitioner does not ask this Court to review the IJ’s decision 16 on his removal order. Thus, Federal Respondents’ exhaustion argument misses the mark. 17 To the extent Federal Respondents intended to argue that Petitioner has not exhausted 18 his administrative remedies because he has not requested a custody redetermination, the Court 19 does not agree. First, Federal Respondents cite no authority to support this argument.
20 Moreover, exhaustion here is a prudential, rather than jurisdictional, requirement. See 21 Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017). A court may require prudential 22 exhaustion where: 23 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the 24 deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review. 25 1 Id. (quoting Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007)). But even if these factors 2 weigh in favor of prudential exhaustion, the Court may waive the requirement if 3 “administrative remedies are inadequate or not efficacious, pursuit of administrative remedies 4 would be a futile gesture, irreparable injury will result, or the administrative proceedings would 5 be void.” Id. (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). 6 Here, the Court finds that Petitioner’s claims fall into the futility exception. Because 7 Petitioner was arrested near the border, Federal Respondents would likely argue that Matter of 8 Q. Li, 29 I & N Dec. 66 (B.I.A. 2025), applies to require Petitioner’s mandatory detention. In 9 Matter of Q. Li, the BIA held that a noncitizen “who is arrested and detained without a warrant 10 while arriving in the United States, whether or not at a port of entry, and subsequently placed in 11 removal proceedings, is detained under [8 U.S.C. § 1225(b)], and is ineligible for any 12 subsequent release on bond under [8 U.S.C. § 1226(a)].” Id. at 69. Given Matter of Q. Li is a 13 precedential decision, the IJ is likely to conclude that Petitioner is detained pursuant to 14 § 1225(b) under that precedent. And because, as a statutory matter, § 1225(b) “mandate[s] 15 detention” and does not allow for release on bond, Jennings, 583 U.S. at 297, any bond request 16 under that statute would be futile. See Vasquez-Rodriguez v. Garland, 7 F.4th 888, 896 (9th Cir. 17 2021) (“[W]here the agency’s position appears already set and recourse to administrative 18 remedies is very likely futile, exhaustion is not required.”). The Court therefore waives any 19 exhaustion requirement.
20 B. Section 1225(b) 21 Petitioner asserts that he is being wrongfully detained under 8 U.S.C § 1225(b). Federal 22 Respondents provide no response to this argument and thus concede the merits of Petitioner’s 23 challenge. See, e.g., Pernell v. City of Los Angeles, 650 F. Supp. 3d. 910, 933 (C.D. Cal. 2022) 24 (“[I]n most circumstances, failure to respond in an opposition brief to an argument put forward 25 in an opening brief constitutes waiver or abandonment in regard to the uncontested issue.”). 1 The Court nevertheless analyzes whether Petitioner has been wrongfully detained under 2 § 1225(b)(2). 3 As described above, detention of noncitizens is governed by 8 U.S.C. §§ 1225–26. 4 Section 1226(a) provides the “default rule,” allowing discretionary detention of noncitizens 5 “already present in the United States.” Jennings v. Rodriguez, 583 U.S. 281, 303 (2018). In 6 Jennings, the Supreme Court drew a clear line between the two provisions: § 1225 “applies 7 primarily to [noncitizens] seeking entry into the United States,” while § 1226 governs “the 8 process of arresting and detaining” noncitizens “already in the country.” Id. at 287–88. 9 Applicants for admission are generally subject to mandatory detention under § 1225(b) and 10 may be released only on parole “for urgent humanitarian reasons or significant public benefit.” 11 8 U.S.C. § 1182(d)(5)(A); Jennings, 583 U.S. at 287. The Ninth Circuit has also described 12 § 1226 as “provid[ing] the general process for arresting and detaining [noncitizens] who are 13 present in the United States and eligible for removal.” Rodriguez Diaz v. Garland, 53 F.4th 14 1189, 1196 (9th Cir. 2022). 15 Here, Petitioner was released from ICE detention in 2021 on bond. (Notice, Ex. B to 16 Am. Pet.). He then lived in the interior of the United States for approximately four years. 17 Thus, Petitioner was a noncitizen “already in the country” when he was most recently arrested 18 by ICE. See Jennings, 538 U.S. at 287–88. This aligns with how the government has treated 19 Petitioner from the outset: Petitioner’s NTA, issued when he was released in 2021, charged him
20 as a noncitizen “present in the United States who has not been admitted or paroled,” rather than 21 an “arriving [noncitizen].” (NTA, Ex. A to Am. Pet.). And his release from detention on bond 22 suggests he was likely released under 8 U.S.C. § 1226(a)(2)(A), which allows for release of a 23 noncitizen in removal proceedings on bond. In sum, the facts before the Court support a 24 finding that Petitioner is not subject to mandatory detention under § 1225(b) and is instead 25 subject to discretionary detention under § 1226(a). Federal Respondents make no argument 1 otherwise. Accordingly, the Court concludes that Petitioner has been wrongfully detained 2 under § 1225(b)(2) mandatory detention for ten months. 3 C. Due Process 4 The Court also finds that Petitioner’s detention violates the Due Process Clause of the 5 Fifth Amendment. Under the Fifth Amendment, “[n]o person shall be . . . deprived of life, 6 liberty, or property, without due process of law.” U.S. Const. amend. V. Though noncitizens 7 do not enjoy constitutional protections outside the borders of the United States, once a 8 noncitizen “enters the country, the legal circumstance changes, for the Due Process Clause 9 applies to all ‘persons’ within the United States, including [noncitizens], whether their presence 10 here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. Thus, “[i]t is 11 well established that the Fifth Amendment entitles [noncitizens] to due process of law in 12 deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). But the “recognized 13 liberty interests of U.S. citizens and [noncitizens] are not coextensive: the Supreme Court has 14 ‘firmly and repeatedly endorsed the proposition that Congress may make rules as to 15 [noncitizens] that would be unacceptable if applied to citizens.” Rodriguez Diaz v. Garland, 53 16 F.4th 1189, 1206 (9th Cir. 2022) (quoting Demore, 538 U.S. at 522). 17 To determine whether detention violates due process, courts apply the three-part test set 18 out in Mathews v. Eldridge, 424 U.S. 319 (1976). See Rodriguez Diaz, 53 F.4th at 1203–07 19 (“Ultimately, Mathews remains a flexible test that can and must account for the heightened
20 governmental interest in the immigration detention context.”).6 Under Mathews, “identification 21 22 6 The Ninth Circuit in Rodriguez Diaz “assumed without deciding” that the Mathews test applies in due process challenges to immigration detention. 53 F.4th at 1207. However, the Rodriguez Diaz court noted that other 23 circuits have applied Mathews in considering due process challenges to immigration detention. Id. at 1204–05 (citing Miranda v. Garland, 34 F.4th 338 (4th Cir. 2022); Hernandez-Lara v. Lyons, 10 F.4th 19 (1st Cir. 2021); 24 Velasco Lopez v. Decker, 978 F.3d 842 (2d Cir. 2020)). The court also explained that the Ninth Circuit has regularly applied Mathews in due process challenges to removal proceedings. Id. at 1206 (citing Cruz Pleitez v. 25 Barr, 938 F.3d 1141, 1145–46 (9th Cir. 2019); Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1160–61 (9th Cir. 2004); Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800, 805 (9th Cir. 2004). Accordingly, the Court will apply the Mathews test here. 1 of the specific dictates of due process generally requires consideration of three distinct factors”: 2 (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous 3 deprivation of such interest through the procedures used, and the probable value, if any, of 4 additional or substitute procedural safeguards;” and (3) “the Government’s interest, including 5 the function involved and the fiscal and administrative burdens that the additional or substitute 6 procedural requirement would entail.” Mathews, 424 U.S. at 335. 7 First, the private interest at stake here “is the most elemental of liberty interests—the 8 interest in being free from physical detention.” Hamdi, 542 U.S. at 529; see also Rodriguez 9 Diaz, 53 F.4th at 1207 (“[A]n individual’s private interest in freedom from prolonged detention 10 is unquestionably substantial.”). “That interest is especially weighty considering the process he 11 has received, and that was available to him, throughout his months of detention—that is, 12 regarding the government’s custody determinations, no process at all.” Melendez Paz v. Mullin, 13 No. 2:26-CV-00296-RFB-MDC, 2026 WL 1194944, at *5 (D. Nev. May 1, 2026) (citing 14 Rodriguez Diaz, 53 F.4th at 1208) (considering the process the immigration detainee had 15 already received during his detention pursuant to § 1226(a) and further process that was 16 available to him in weighing his private liberty interest). 17 The record before the Court indicates that immigration authorities determined that 18 Petitioner was neither a flight risk nor dangerous when they chose to release him into the 19 United States five years ago. Since then, Petitioner has developed ties in the community—he
20 has applied for asylum and withholding of removal and established a stable residence with his 21 wife and children. (Am. Pet. 3:5–8). Federal Respondents do not rebut any of these facts. The 22 government’s decision to “release Petitioner under §1226(a) provided Petitioner with a liberty 23 interest that is protected by the Due Process Clause.” Jaraba Oliveros v. Kaiser, No. 25-cv- 24 07117-BLF, 2026 WL 1162724 at *4 (N.D. Cal Apr. 29, 2026); see also Ortega v. Bonnar, 415 25 F. Supp. 3d 963, 969 (N.D. Cal. 2019) (“Just as people on preparole, parole, and probation 1 status have a liberty interest, so too does [the noncitizen] have a liberty interest in remaining 2 out of custody on bond.”); Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) 3 (“[E]ven when ICE has the initial discretion to detain or release a noncitizen pending removal 4 proceedings, after that individual is released from custody she has a protected liberty interest in 5 remaining out of custody.”); He v. Lyons, No. 3:25-cv-10639-JSC, 2026 WL 280074, at *3 6 (N.D. Cal. Feb. 3, 2026) (collecting cases). Because Petitioner was released from DHS custody 7 on bond five years ago, he has a strong liberty interest in remaining out of custody. 8 Second, the risk of erroneous deprivation of Petitioner’s liberty is also high, especially 9 given Petitioner has not received any hearing, either pre- or post-detention. The government’s 10 current procedures “do not require any individualized determination that Petitioner’s detention 11 is justified. Nor is Petitioner provided with a timely opportunity to challenge the government’s 12 basis for his arrest and detention under § 1225(b)(2)(A), as, for example, based on a mistake of 13 fact . . . .” Melendez Paz, 2026 WL 1194944, at *5. The record before the Court indicates that 14 there was no independent finding of changed circumstances by a neutral arbiter before 15 Petitioner was re-detained. Because there have been no procedural safeguards to determine if 16 Petitioner’s re-detention is justified, the probative value of additional procedural safeguards is 17 high. 18 Third, the final factor of the Mathews test considers the “government’s interest, 19 including the function involved and the fiscal and administrative burdens that the additional or
20 substitute procedural requirement would entail.” 424 U.S. at 335. The Court acknowledges that 21 the government’s interests in enforcing immigration laws, including “protecting the public from 22 dangerous criminal” noncitizens and “securing [a noncitizen’s] ultimate removal,” are 23 “interests of the highest order.” Rodriguez Diaz, 53 F.4th at 1208. But Respondents have not 24 explained how detaining Petitioner without due process serves these interests. In fact, limiting 25 detention to noncitizens who are shown to be dangerous or a flight risk may serve the 1 government’s and the public’s interest by limiting “the fiscal and administrative burdens 2 attendant to immigration detention.” E.C. v. Noem, No. 2:25-CV-01789-RFB-BNW, 2025 WL 3 2916264, at *11 (D. Nev. Oct. 14, 2025); see also Hernandez v. Sessions, 872 F.3d 976, 996 4 (9th Cir. 2017) (noting that in 2017 “the costs to the public of immigration detention are 5 staggering: $158 each day per detainee, amounting to a total daily cost of $6.5 million. 6 Supervised release programs cost much less by comparison: between 17 cents and 17 dollars 7 each day per person.”). On balance, the Mathews factors weigh in favor of Petitioner, and the 8 Court therefore finds that he is entitled to a pre-deprivation hearing, before any arrest, under 9 Mathews. 10 D. Relief 11 Petitioner asks this Court to order his immediate release, or, in the alternative, to order 12 that he receive a bond hearing immediately. (Reply 4:25–5:3, ECF No.). The federal habeas 13 corpus statute “does not limit the relief that may be granted to discharge of the applicant from 14 physical custody.” Carafas v. LaVallee, 391 U.S. 234, 239 (1968). “Its mandate is broad with 15 respect to the relief that may be granted.” Id. “It provides that ‘[t]he court shall . . . dispose of 16 the matter as law and justice require.’” Id. (quoting 28 U.S.C. § 2243). 17 Based on the record before it, the Court finds that Petitioner has been subjected to 18 arbitrary, erroneous, and prolonged detention in violation of his statutory and constitutional 19 rights. The Court now turns to determine the appropriate remedy for this matter. See Sanders v.
20 Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994) (“A federal court is vested with the largest power to 21 control and direct the form of judgment to be entered in cases brought up before it on habeas 22 corpus . . . . The court is free . . . to fashion the remedy as law and justice require . . . .”) 23 (citations and quotation marks omitted). In doing so, the Court finds that immediate release is 24 the appropriate equitable remedy in this case. 25 1 While ordering a prompt bond hearing at which the government bears the evidentiary 2 burden by clear and convincing evidence may be an appropriate remedy in some cases, here the 3 Court declines to keep Petitioner detained as it would not adequately remedy the statutory and 4 constitutional injury he has suffered. Petitioner has been detained for ten months despite 5 receiving no process prior to his re-detention. (Pet. 2:6–12). On the record before the Court, it 6 appears Petitioner was arrested and detained without a warrant or initial custody determination 7 as required under 8 C.F.R. § 236.1. The Court finds that ordering a bond hearing here “would 8 effectively allow the Government to transform an unlawful detention into a lawful one through 9 post-hoc justifications” and would fail to adequately remedy the harms suffered by Petitioner. 10 Zheng v. Rokosky, No. 26-CV-01689, 2026 WL 800203, at *11 (D.N.J. Mar. 23, 2026); see 11 also, e.g., E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316, 1324 (W.D. Wash. 2025) (“Although 12 the Government notes that Petitioner may request a bond hearing while detained, such a post- 13 deprivation hearing cannot serve as an adequate procedural safeguard because it is after the fact 14 and cannot prevent an erroneous deprivation of liberty.”); Domingo v. Kaiser, No. 25-cv-05893 15 (RFL), 2025 WL 1940179, at *3 (N.D. Cal. July 14, 2025) (“Even if Petitioner[ ] received a 16 prompt post-detention bond hearing under 8 U.S.C. § 1226(a) and was released at that point, he 17 will have already suffered the harm that is the subject of his motion: that is, his potentially 18 erroneous detention.”). The Court thus finds “the typical remedy” for “unlawful executive 19 detention”—immediate release from custody—is appropriate here. Munaf v. Geren, 553 U.S.
20 674, 693 (2008). 21 Additionally, the Court finds that it must adopt equitable remedies to ensure that 22 Respondents provide due process to Petitioner in the future, in the event of Petitioner’s re- 23 detention pursuant to § 1226(a). Cf. Burnett v. Lampert, 432 F.3d 996, 999 (9th Cir. 2005) 24 (“Federal courts have a fair amount of flexibility in fashioning specific habeas relief.”); United 25 States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997), as amended on reh’g (Aug. 4, 1997) 1 (describing the broad, flexible power federal courts possess to fashion equitable relief in the 2 context of habeas corpus proceedings). Here, the Court finds it appropriate to order that in the 3 event of Petitioner’s re-detention under 8 U.S.C. § 1226(a), Respondents must provide 4 Petitioner a pre-deprivation bond hearing wherein the government must prove, by clear and 5 convincing evidence, that detention is appropriate under § 1226(a) and its implementing 6 regulations. See Martinez v. Clark, 124 F.4th 775, 784 (9th Cir. 2024) (reviewing the 7 immigration court’s compliance with a district court’s order that the government provide an 8 immigration detainee a bond hearing “under the Due Process Clause,” which required “the 9 government to show by clear and convincing evidence that the detainee presents a flight risk or 10 a danger to the community at the time of the bond hearing.”) (citing Singh v. Holder, 638 F.3d 11 1196, 1203 (9th Cir. 2011)). 12 IV. CONCLUSION 13 IT IS HEREBY ORDRED that Petitioner’s Amended Petition for Writ of Habeas 14 Corpus, (ECF No. 9), is GRANTED. 15 IT IS FURTHER ORDERED that Petitioner must be released from detention by May 16 29, 2026, between 12:00 p.m. and 3:00 p.m., subject to his prior conditions of parole. 17 IT IS FURTHER ORDERED that Respondents are prohibited from imposing release 18 conditions that substantially interfere with Petitioner’s liberty, such as location monitoring, 19 without having established the reasonableness of those restrictions, by clear and convincing
20 evidence, at a pre-deprivation hearing. 21 IT IS FURTHER ORDERED that Respondents must return Petitioner’s personal 22 property upon his release. 23 IT IS FURTHER ORDERED that, prior to any re-detention of Petitioner, the 24 government must provide no less than seven days’ notice to Petitioner and must hold a 25 constitutionally compliant pre-deprivation hearing before a neutral arbiter at which the 1 || government bears the burden of providing flight risk or danger by clear and convincing 2 ||evidence.’ This Order does not address the circumstances in which Respondents may detain 3 || Petitioner in the event he becomes subject to an executable final order of removal. 4 IT IS FURTHER ORDERED that the parties shall file a JOINT status report by June 5 |} 1.2026, to certify compliance with the Court’s Order. 6 IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil Procedure 25(d), 7 || Acting U.S. Attorney General Todd Blanche is substituted for the currently named Pamela 8 || Bondi, and Secretary of Homeland Security Markwayne Mullin is substituted or currently 9 ||named Kristi Noem. The Clerk of Court is kindly directed to update the docket as well as the 10 || case caption to reflect this substitution. 11 Counsel for Respondents are directed to immediately provide notice of this Order to the 12 || parties they represent. 13 The Clerk of Court is further directed to SEAL the Petition, (ECF No. 1), and Motion 14 || for Appointment of Counsel, (ECF No. 2), due to the sensitive information contained therein. 15 || The Clerk of Court is further directed to FILE the redacted versions of the Petition and Motion 16 || for Appointment of Counsel on the docket. 17 The Clerk of Court is further directed to enter judgment in favor of Petitioner. 18 DATED this 28 day of May, 2026. 19 Yj,
Gloria M. Maparro, District Judge United States District Court 22 23 | 24 ||’ Given Petitioner’s prolonged detention in violation of his constitutional rights, and “[b]ecause it is improper to ask the individual to ‘share equally with society the risk of error when the possible injury to the individual’— 25 || deprivation of liberty—is so significant,” the Court finds it constitutionally necessary to impose this equitable remedy in order to minimize the risk of additional error. Singh v. Holder, 638 F.3d 1196, 1203-04 (9th Cir. 2011). Page 14 of 14