Everaldino Pereira Dos Santos v. Moises Becerra, Acting Director of Field Office, U.S. Immigration and Customs Enforcement; Todd Lyons, Acting Director, U.S. Immigration and Customs Enforcement; Kristi Noem

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EVERALDINO PEREIRA DOS Case No.: 26-cv-01423-GPC-VET SANTOS, 12 ORDER ON EMERGENCY MOTION Petitioner, 13 TO CLARIFY v. 14 [ECF No. 11] MOISES BECERRA, Acting Director of 15 Field Office, U.S. Immigration and 16 Customs Enforcement; TODD LYONS, Acting Director, U.S. Immigration and 17 Customs Enforcement; KRISTI NOEM, 18 Secretary of the U.S. Department of Homeland Security; CHRISTOPHER J. 19 LAROSE, Warden of the Otay Mesa 20 Detention Center; 21 Respondents. 22 23 On March 12, 2026, this Court issued an Order agreeing with Petitioner that he was 24 being improperly subjected to mandatory detention under 8 U.S.C. § 1225(b)(2). ECF No. 25 9. The Court found that Petitioner’s detention was instead governed by § 1226(a) and that 26 he was, therefore, entitled to a bond hearing in compliance with § 1226(a)’s requirements. 27 Id. at 3. 28 1 Petitioner now seeks clarification regarding the burden of proof required at that bond 2 hearing. ECF No. 11. 3 The Ninth Circuit has described the bond hearing requirements of § 1226(a) as 4 follows: 5 Under § 1226(a) and its implementing regulations, a detainee may request a bond hearing before an IJ at any time before a 6 removal order becomes final. If at this hearing the detainee 7 demonstrates by the preponderance of the evidence that he is not a threat to national security, a danger to the community at large, 8 likely to abscond, or otherwise a poor bail risk, the IJ will order 9 his release. 10 Rodriguez Diaz v. Garland, 53 F.4th 1189, 1197 (9th Cir. 2022) (internal quotation 11 marks and citations omitted). Thus, because the Court—in accordance with Petitioner’s 12 arguments—ordered a bond hearing in compliance with § 1226(a), the burden of proof is 13 that associated with a § 1226(a) hearing. That is: Petitioner bears the burden of 14 demonstrating by a preponderance of the evidence that he is not a flight risk or danger to 15 national security. 16 Petitioner argues that it is “customary” for the burden to be on the government at 17 custody hearings held in response to orders on habeas petitions. ECF No. 11. However, he 18 cites no Ninth Circuit case law demonstrating that, when a district court orders a bond 19 hearing in compliance with 8 U.S.C. § 1226(a), it places the burden on the government 20 rather than the Petitioner. 21 Petitioner further relies on Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 22 942 (9th Cir. 2008) and Singh v. Holder, 638 F.3d 1196, 1205 (9th Cir. 2011). Much of 23 Casas-Castrillon is no longer good law, see Avilez v. Garland, 69 F.4th 525, 537 (9th Cir. 24 2023), and the standard for § 1226(a) bond hearings has since been clarified by the Ninth 25 Circuit in Rodriguez Diaz, 53 F. 4th at 1197. Additionally, the Ninth Circuit has made clear 26 that Singh does not apply to detention under § 1226(a). See Rodriguez Diaz, 53 F. 4th at 27 1202 (“To the extent that any parts of Singh [and others] remain good law—an issue we 28 need not decide—those cases in relevant part addressed detention under §§ 1225(b), 1 || 1226(c), or 1231(a)(6), not detention that was based on § 1226(a) throughout.”). Thus, 2 || Petitioner’s reliance on Casas-Castrillon and Singh is unavailing. 3 Lastly, Petitioner argues that the government should bear the burden of proof 4 ||because Petitioner has been in custody for more than six months. ECF No. 11, at 2. 5 || However, Petitioner did not raise the issue of prolonged detention in his initial petition. See 6 || ECF No. 1. Further, Petitioner does not offer any insight or argument—beyond reliance on 7 || Singh and Casas-Castrillon—tregarding how Petitioner’s length of detention would impact 8 standard at a § 1226(a) bond hearing. 9 Thus, the Court confirms that Petitioner’s detention and release is governed by 8 10 |/U.S.C. § 1226(a), and that, as a result, Petitioner is entitled to a bond hearing before a 11 |/neutral decisionmaker at which Petitioner must demonstrate by a preponderance of the 12 || evidence that he is not a flight risk or danger to the community. Rodriguez Diaz, 53 F.4th 13 1197; Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 927 (N.D. Cal. 2025). 14 Should Petitioner have subsequent constitutional challenges to the prolonged nature 15 his detention, or should the Government fail to satisfy its obligations in providing 16 || Petitioner a hearing before a neutral decisionmaker, Petitioner may seek further relief from 17 ||the Court at that time. 18 IT IS SO ORDERED. 19 Dated: March 23, 2026 <=

21 United States District Judge 22 23 24 25 26 27 28