1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 FABIAN ALEXANDER ALVARENGA No. 1:25-cv-01206-KES-SKO (HC) MATUTE, 10 Petitioner, ORDER GRANTING MOTION FOR 11 TEMPORARY RESTRAINING ORDER v. 12 Doc. 7 MINGA WOFFORD, Mesa Verde ICE 13 Processing Center Facility Administrator; JOHNNY J. BAILEY, Acting Field Office 14 Director of the San Francisco Immigration and Customs Enforcement Office; TODD 15 LYONS, Acting Director of United States Immigration and Customs Enforcement; 16 KRISTI NOEM, Secretary of the United States Department of Homeland Security; 17 PAMELA BONDI, Attorney General of the United States, 18 Respondents. 19 20 21 Petitioner Fabian Alexander Alvarenga Matute is a 40-year-old asylum seeker from 22 Honduras who entered the United States in 2024. After entry, he was briefly detained by 23 immigration officials but then released after the officials determined that he was neither a danger 24 nor a flight risk. On September 9, 2025, Immigration and Customs Enforcement (“ICE”) agents 25 re-detained him at a scheduled check-in. 26 Petitioner filed a petition for writ of habeas corpus on September 15, 2025, Doc. 2, and a 27 motion for temporary restraining order on September 17, 2025, Doc. 7, arguing that he was 28 entitled to a pre-deprivation bond hearing under the Due Process Clause and that the Court should 1 order his immediate release pending any such hearing. The Court ordered respondents to file an 2 opposition by September 24, 2025. Doc. 10. Respondents untimely filed an opposition on 3 September 25, 2025. Doc. 11. Petitioner filed a reply on September 26, 2025. Doc. 13. For the 4 reasons set forth below, petitioner’s motion for temporary restraining order is granted. 5 I. Background 6 Petitioner is a 40-year-old asylum seeker from Honduras. See Doc. 2 at ¶ 1; Doc. 11-1, 7 Martinez Decl. at ¶ 5. Petitioner was previously removed twice in 2001 upon attempting to enter 8 the United States. Doc. 11-1, Martinez Decl. at ¶ 5. Petitioner subsequently re-entered in 2001 9 and remained in the United States until 2007. Id. The government indicates that, in 2005, 10 petitioner was convicted of one count of hindering apprehension or prosecution in New Jersey for 11 giving false information to a law enforcement officer. Doc. 11-1, Martinez Decl. at ¶ 6; Doc. 11- 12 1, Ex. 5. In 2007, petitioner was removed from the United States. See id. ¶ 7; Doc. 11-1, Ex. 4 at 13 23. 14 In 2024, petitioner fled Honduras because he faced violence and death threats. Doc. 2 at 15 ¶ 40. He scheduled an appointment with immigration officials at a port of entry through a phone 16 application called CBP One. Id. at ¶ 41; see CBP One Fact Sheet, U.S. Customs and Border 17 Protection, https://www.cbp.gov/sites/default/files/assets/documents/2023- 18 Jan/CBP%20One%20Fact%20Sheet_English_3.pdf. He arrived for his appointment on 19 September 4, 2024 at the San Ysidro, California port of entry. Doc. 2 at ¶¶ 11, 41; Doc. 11-1, 20 Martinez Decl. at ¶ 9. At the appointment, immigration officials placed him in removal 21 proceedings and released him on his own recognizance pursuant to 8 U.S.C. § 1226 pending those 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 proceedings.1 See id.; Doc. 11-1, Ex. 3 (record of deportable/inadmissible alien); Doc. 11-1, 2 Ex. 2 (notice to appear); Doc. 13 at 11–12 (order of release on recognizance). 3 The regulations that authorize immigration authorities to release a noncitizen on his own 4 recognizance require that the noncitizen “demonstrate to the satisfaction of the officer that such 5 release would not pose a danger to property or persons” and that the noncitizen is “likely to 6 appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). “Release [therefore] reflects a 7 determination by the government that the noncitizen is not a danger to the community or a flight 8 risk.” Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017), aff’d sub nom. Saravia 9 for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). 10 Since his release, petitioner has lived with his wife in California. Doc. 7-1 at 9–10; Doc. 11 13-1, Second Suazo Decl. at ¶¶ 2–3, 11. His wife suffers from fibromyalgia, psoriasis, and high 12 blood pressure. See id.; Doc. 7-3, Suazo Decl. at ¶¶ 1–3; Doc. 13-1, Second Suazo Decl. at 13 ¶¶ 12–14. Petitioner is her sole caretaker, and she relies on him to administer her medicine and 14 assist her with daily tasks. Doc. 7-3, Suazo Decl. at ¶¶ 1–3; Doc. 13-1, Second Suazo Decl. at 15 ¶¶ 9–14. He also financially supports his wife. Doc. 7-1 at 8–10; Doc. 13-1, Second Suazo Decl. 16 at ¶¶ 10. Petitioner also lost his employment after ICE detained him on September 9, 2025. 17 Doc. 13-1, Second Suazo Decl. at ¶ 15. Petitioner has pursued relief in his removal proceedings 18 by filing an application for asylum and withholding of removal under the Convention Against 19 Torture. Doc. 2 at ¶ 42. The government’s records indicate that petitioner has not been arrested 20 1 The declaration of Deportation Officer Daniel Martinez states that petitioner was “paroled” by 21 immigration officials on September 4, 2024. Doc. 11-1, Martinez Decl. at ¶ 9. The government argues that this means petitioner was initially detained pursuant to 8 U.S.C. § 1225(b) and was 22 released on parole pursuant to 8 U.S.C. § 1182(d)(5)(A). Doc. 11 at 8. However, the 23 government’s argument is contradicted by petitioner’s order of release on recognizance, which states that “[i]n accordance with section 236 of the Immigration and Nationality Act [8 U.S.C. 24 § 1226] . . ., you are being released on your own recognizance . . . .” Doc. 13 at 11. Additionally, “parole” may also refer to “conditional parole” authority under 8 U.S.C. § 1226(a). See 8 U.S.C. 25 § 1226(a) (stating that a noncitizen may be released on “bond” or “conditional parole”). Conditional parole under § 1226(a) and parole under § 1182(d)(5)(A) are distinct procedures that 26 apply to different groups of noncitizens. See Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 27 1115–16, 1119–20 (9th Cir. 2007); Espinoza v. Kaiser, No. 1:25-CV-01101 JLT SKO, 2025 WL 2675785, at *6 (E.D. Cal. Sept. 18, 2025) (explaining that conditional parole under § 1226(a) and 28 parole under § 1182(d)(5)(A) “are distinct procedures”). 1 or charged with any crime since his release by immigration authorities in September 2024. Doc. 2 11-1, Ex. 5. 3 Upon being released by immigration officials in September 2024, petitioner was placed in 4 the Alternatives to Detention Program. Doc. 2 at ¶ 11; Doc. 11-1, Martinez Decl. at ¶ 10. He was 5 initially required to wear a tracker in the form of a watch. Doc. 2 at ¶ 44; Doc. 13-1, Second 6 Suazo Decl. at ¶ 4. Later that year, immigration officials removed the watch and required 7 petitioner to check in periodically through a phone application. Doc. 2 at ¶ 44; Doc. 13-1, Second 8 Suazo Decl. at ¶ 5. Respondents assert that petitioner missed three check-in appointments 9 through the application: on January 25, 2025, April 28, 2025, and August 11, 2025. Doc. 11-1, 10 Martinez Decl. at ¶ 10. Petitioner indicates that he completed all virtual and in-person check ins, 11 but that, during some attempts to check in, the phone application did not work properly and he 12 completed the check-in late. Doc. 2 at ¶ 44; Doc. 13-1, Second Suazo Decl. at ¶¶ 6–7. After his 13 last attempt to check in, he was instructed to appear at the San Francisco ICE office in person. 14 Doc. 2 at ¶ 44; Doc. 13-1, Second Suazo Decl. at ¶ 8. On September 9, 2025, petitioner appeared 15 at the San Francisco ICE office as instructed, and ICE agents arrested him. Doc. 2 at ¶ 45; Doc. 16 11-1, Martinez Decl. at ¶ 11. Petitioner’s attorney asserts that a deportation officer told her that 17 petitioner was being arrested for three check-in violations that involved checking-in but doing so 18 after the allotted time. Doc. 2 at ¶ 45. 19 ICE transferred petitioner to Mesa Verde ICE Processing Center, where he remains 20 detained. Id. ¶ 46; Doc. 11-1, Martinez Decl. at ¶ 11. 21 II. Legal Standard 22 The standards for issuing a temporary restraining order and a preliminary injunction are 23 “substantially identical.” See Stuhlbarg Int’l Sales Co. v. John D. Bush & Co., 240 F.3d 832, 839 24 n.7 (9th Cir. 2001). “A preliminary injunction is an extraordinary remedy never awarded as of 25 right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 26 U.S. 674, 689–90 (2008)). “A plaintiff seeking a preliminary injunction must establish that he is 27 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 28 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 1 public interest.” Id. at 20 (citing Munaf, 553 U.S. at 689–90; Amoco Prod. Co. v. Vill. of 2 Gambell, AK, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–12 3 (1982)). “Likelihood of success on the merits is a threshold inquiry and is the most important 4 factor.” Simon v. City & Cnty. of San Francisco, 135 F.4th 784, 797 (9th Cir. 2025) (quoting 5 Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020)). “[I]f a plaintiff can only 6 show that there are serious questions going to the merits—a lesser showing than likelihood of 7 success on the merits—then a preliminary injunction may still issue if the balance of hardships 8 tips sharply in the plaintiff's favor, and the other two Winter factors are satisfied.” Friends of the 9 Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations 10 omitted). 11 III. Discussion 12 a. Petitioner is Likely to Succeed on the Merits 13 Civil immigration detention, which is “nonpunitive in purpose and effect[,]” is typically 14 justified under the Due Process Clause only when a noncitizen presents a risk of flight or danger 15 to the community. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Padilla v. ICE, 704 F. 16 Supp. 3d 1163, 1172 (W.D. Wash. 2023); see also Hernandez v. Sessions, 872 F.3d 976, 994 (9th 17 Cir. 2017) (“[T]he government has no legitimate interest in detaining individuals who have been 18 determined not to be a danger to the community and whose appearance at future immigration 19 proceedings can be reasonably ensured by a lesser bond or alternative conditions.”). Petitioner 20 asserts that he possesses a protected liberty interest under the Due Process Clause and that, under 21 the factors outlined in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), he was entitled to a pre- 22 deprivation bond hearing at which the government must prove that he is a flight risk or danger to 23 the community. Doc. 7-1 at 13–16. 24 Respondents argue that petitioner is not entitled to the protections of the Due Process 25 Clause, asserting that petitioner is an applicant for admission to the United States and “has only 26 those rights regarding admission that Congress has provided by statute.” Doc. 11 at 9 (quoting 27 DHS v. Thuraissigiam, 591 U.S. 103, 139–40 (2020)). Noting that Congress possesses “plenary 28 power to make rules for the admission of” noncitizens, id. (quoting Kleindienst v. Mandel, 408 1 U.S. 753, 766 (1972), they argue that petitioner’s “rights are limited to whatever statutory rights 2 Congress provides.”2 Id. 3 Respondents’ argument is unpersuasive. First, it fails to appreciate the distinction 4 between persons already located inside the United States, like petitioner, and persons attempting 5 to enter the United States, like the petitioner in Thuraissigiam. “It is well established that certain 6 constitutional protections available to persons inside the United States are unavailable to aliens 7 outside of our geographic borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citing United 8 States v. Verdugo–Urquidez, 494 U.S. 259, 269 (1990); Johnson v. Eisentrager, 339 U.S. 763, 9 784 (1950)). “But once an alien enters the country, the legal circumstance changes, for the Due 10 Process Clause applies to all ‘persons’ within the United States, including aliens, whether their 11 presence here is lawful, unlawful, temporary, or permanent.” Id.; see Hernandez v. Sessions, 872 12 F.3d 976, 990 (9th Cir. 2017) (“[I]t is well-established that the Due Process Clause stands as a 13 significant constraint on the manner in which the political branches may exercise their plenary 14 authority.”). 15 Second, respondents’ argument misconstrues the nature of the challenge that petitioner 16 brings in this case, which is a challenge to his detention. Thuraissigiam held that a petitioner who 17 was stopped at the border did not have any due process rights regarding admission into the 18 United States. Thuraissigiam, 591 U.S. at 107. However, petitioner challenges his re-detention 19 without a hearing; he does not challenge in this habeas action any determination regarding his 20 admissibility. See Padilla v. ICE, 704 F. Supp. 3d 1163, 1170–72 (W.D. Wash. 2023) (discussing 21 Thuraissigiam and explaining the distinction between a challenge to admission and a challenge to 22 detention); Hernandez, 872 F.3d at 981 (“[T]he government’s discretion to [detain] non-citizens 23 is always constrained by the requirements of due process.”). 24 “Although the Supreme Court has described Congress’s power over the ‘policies and rules 25
2 The record shows that, in September 2024, immigration officials released petitioner on his own 26 recognizance under § 1226. See Doc. 13 at 11–12 (order of release on recognizance). 27 Notwithstanding the fact that petitioner was released pursuant to § 1226 for over a year, respondents now assert that petitioner’s detention is subject to 8 U.S.C. § 1225(b)(2) and that he 28 is mandatorily detained pursuant to that statute. Doc. 9 at 7–8. 1 for exclusion of aliens’ as ‘plenary,’ and held that this court must generally ‘defer to Executive 2 and Legislative Branch decisionmaking in that area,’ it is well-established that the Due Process 3 Clause stands as a significant constraint on the manner in which the political branches may 4 exercise their plenary authority”—through detention or otherwise. Hernandez, 872 F.3d at 990 5 n.17 (citing Kleindienst, 408 U.S. at 769; Zadvydas, 533 U.S. at 695). The Due Process Clause 6 protects petitioner, a person inside the United States, from unlawful detention. See Zadvydas, 533 7 U.S. at 693.3 8 Petitioner’s Due Process challenge is analyzed “in two steps: the first asks whether there 9 exists a protected liberty interest under the Due Process Clause, and the second examines the 10 procedures necessary to ensure any deprivation of that protected liberty interest accords with the 11 Constitution.” Garcia v. Andrews, No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. 12 Cal. July 14, 2025) (citing Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 13 (1989)). These two steps are examined in turn. 14 1. Petitioner Possesses a Protected Liberty Interest 15 A protected liberty interest may arise from a conditional release from physical restraint. 16 Young v. Harper, 520 U.S. 143, 147–49 (1997). Even when a statute allows the government to 17 arrest and detain an individual, a protected liberty interest under the Due Process Clause may 18 entitle the individual to procedural protections not found in the statute. See id. (Due Process 19 requires pre-deprivation hearing before revocation of preparole); Gagnon v. Scarpelli, 411 U.S. 20 778, 782 (1973) (same, in probation context); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) 21 (same, in parole context). To determine whether a specific conditional release rises to the level of
22 3 Respondents also argue that petitioner’s motion goes beyond a request to preserve the status quo 23 and instead inappropriately seeks “the ultimate relief he demands in this case,” citing Senate of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992). Doc. 11 at 6–7. In Mosbacher, the trial 24 court ordered as preliminary relief the release of data that the state sought to keep private, and once the data was released the state would “have lost the whole case for all practical purposes.” 25 Mosbacher, 968 F.2d at 978. In that context, the Court held that “judgment on the merits in the guise of preliminary relief is a highly inappropriate result.” Id. But awarding temporary relief of 26 the kind requested here does not constitute a final judgment on the merits in this case or foreclose 27 further litigation of the issues raised in petitioner’s habeas petition. See Castellon v. Kaiser, No. 1:25-cv-00968-JLT-EPG, 2025 WL 2373425, at *7 n.7 (E.D. Cal. Aug. 14, 2025) (rejecting 28 similar government argument). 1 a protected liberty interest, “[c]ourts have resolved the issue by comparing the specific 2 conditional release in the case before them with the liberty interest in parole as characterized by 3 Morrissey.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 887 (1st Cir. 2010) (internal quotation 4 marks and citation omitted). 5 In Morrissey, the Supreme Court explained that parole “enables [the parolee] to do a wide 6 range of things open to persons” who have never been in custody or convicted of any crime, 7 including to live at home, work, and “be with family and friends and to form the other enduring 8 attachments of normal life.” Morrissey, 408 U.S. at 482. “Though the [government] properly 9 subjects [the parolee] to many restrictions not applicable to other citizens,” such as monitoring 10 and seeking authorization to work and travel, his “condition is very different from that of 11 confinement in a prison.” Id. “The parolee has relied on at least an implicit promise that parole 12 will be revoked only if he fails to live up to the parole conditions.” Id. The revocation of parole 13 undoubtedly “inflicts a grievous loss on the parolee.” Id. (quotations omitted). Therefore, a 14 parolee possesses a protected interest in his “continued liberty.” Id. at 481–84. Petitioner’s 15 release on his own recognizance pending his immigration proceedings was similar. Among other 16 things, it allowed him to live with, care for, and financially support his wife. Petitioner also 17 pursued relief in his removal proceedings.4 18 The Court finds that petitioner has a protected liberty interest in his release. See 19 Guillermo M. R. v. Kaiser, No. 25-CV-05436-RFL, 2025 WL 1983677, at *4 (N.D. Cal. July 17, 20 2025) (recognizing that “the liberty interest that arises upon release [from immigration detention] 21 is inherent in the Due Process Clause”); Ortega v. Kaiser, No. 25-cv-05259-JST, 2025 WL 22 1771438, at *3 (N.D. Cal. June 26, 2025) (collecting cases finding that noncitizens who have 23 been released have a strong liberty interest). The Court must therefore determine what process is 24 due before the government may terminate his liberty.
25 4 Respondents assert that petitioner “failed to adhere to [the release] requirements,” Doc. 11 at 8, while petitioner indicates that he complied with the release terms and appeared at all immigration 26 check-ins as required, only checking in late once due to technical difficulties. It is not necessary 27 to resolve this factual dispute in this action. The issue here is whether the Due Process Clause requires a hearing before a neutral arbiter who will determine whether there are any changed 28 circumstances warranting petitioner’s re-detention. 1 2. A Pre-Deprivation Bond Hearing Is Required 2 Due process “is a flexible concept that varies with the particular situation.” Zinermon v. 3 Burch, 494 U.S. 113, 127 (1990). The procedural protections required in a given situation are 4 evaluated using the Mathews v. Eldridge factors:
5 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through 6 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s 7 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 8 requirement would entail. 9 Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)); see Hernandez, 872 F.3d 976, 993 10 (9th Cir. 2017) (applying Mathews factors in immigration detention context). 11 Turning to the first factor, petitioner has a significant private interest in remaining free 12 from detention. “Freedom from imprisonment—from government custody, detention, or other 13 forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” 14 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Since immigration authorities released petitioner 15 on his own recognizance in September 2024, petitioner lived with, cared for, and financially 16 provided for his ill wife. His detention denies him that freedom. 17 Second, “the risk of an erroneous deprivation [of liberty] is high” where, as here, “[the 18 petitioner] has not received any bond or custody redetermination hearing.” A.E. v. Andrews, No. 19 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025). Civil 20 immigration detention, which is “nonpunitive in purpose and effect[,]” is justified when a 21 noncitizen presents a risk of flight or danger to the community. See Zadvydas, 533 U.S. at 690; 22 Padilla, 704 F. Supp. 3d at 1172. Immigration officials’ release of petitioner in 2024 reflected a 23 determination that he did not pose a flight risk or danger to the community. See Saravia, 280 F. 24 Supp. 3d at 1176. The government’s records show that petitioner has not been arrested or cited 25 for a crime since then. See Doc. 11-1, Ex. 5. Although respondents assert that petitioner “failed 26 to adhere to [the release] requirements,” Doc. 11 at 8, petitioner indicates that he complied with 27 the release terms and appeared at all immigration check-ins as required, only checking in late 28 1 once due to technical difficulties. No neutral arbiter has determined whether the facts show that 2 petitioner is a flight risk or danger to the community. Given the absence of any procedural 3 safeguards to determine if his detention was justified, “the probable value of additional 4 procedural safeguards, i.e., a bond hearing, is high.” A.E., 2025 WL 1424382, at *5. 5 Third, the government’s interest in detaining petitioner without a hearing is “low.” 6 Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019); Doe v. Becerra, No. 2:25-cv- 7 00647-DJC-DMC, 2025 WL 691664, at *6 (E.D. Cal. March 3, 2025). In immigration court, 8 custody hearings are routine and impose a “minimal” cost. Doe, 2025 WL 691664, at *6. “If the 9 government wishes to re-arrest [petitioner] at any point, it has the power to take steps toward 10 doing so; but its interest in doing so without a hearing is low.” Ortega, 415 F. Supp. 3d at 970. 11 On balance, the Mathews factors show that petitioner is entitled to a bond hearing, which 12 should have been provided before petitioner was detained. “‘[T]he root requirement’ of the Due 13 Process Clause” is “‘that an individual be given an opportunity for a hearing before he is deprived 14 of any significant protected interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 15 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); see Zinermon, 494 U.S. at 127 16 (“Applying [the Mathews] test, the Court usually has held that the Constitution requires some 17 kind of a hearing before the State deprives a person of liberty . . . .”). The Supreme Court has 18 held that Due Process requires a pre-deprivation hearing before those released on parole from a 19 criminal conviction can have their bond finally revoked. See Morrissey, 408 U.S. at 480–86. The 20 same is true for those subject to revocation of probation. Gagnon v. Scarpelli, 411 U.S. at 782. 21 Numerous district courts have held that these principles extend to the context of immigration 22 detention. See, e.g., Ramirez Clavijo v. Kaiser, No. 25-CV-06248-BLF, 2025 WL 2419263, at 23 *4–6 (N.D. Cal. Aug. 21, 2025); Garcia, 2025 WL 1927596, at *5; Pinchi v. Noem, No. 25-CV- 24 05632-RMI (RFL), 2025 WL 1853763, at *1 (N.D. Cal. July 4, 2025); Ortega, 415 F. Supp. 3d at 25 970; Doe, 2025 WL 691664, at *6; Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at *2 26 (N.D. Cal. June 14, 2025); Romero v. Kaiser, No. 22-cv-02508-TSH, 2022 WL 1443250, at *4 27 (N.D. Cal. May 6, 2022); Vargas v. Jennings, No. 20-cv-5785-PJH, 2020 WL 5074312, at *4 28 (N.D. Cal. Aug. 23, 2020). Given the absence of “evidence of urgent concerns,” the Court 1 concludes that “a pre-deprivation hearing [was] required to satisfy due process.” Guillermo M. 2 R., 2025 WL 1983677, at *9. 3 With these considerations in mind, petitioner is likely to succeed on the merits. 4 b. Petitioner Will Face Irreparable Harm Without Injunctive Relief 5 Turning to the second Winters factor, “[i]t is well established that the deprivation of 6 constitutional rights ‘unquestionably constitutes irreparable injury.” Hernandez, 872 F.3d at 994 7 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). “When an alleged 8 deprivation of a constitutional right is involved, most courts hold that no further showing of 9 irreparable injury is necessary.”5 Warsoldier v. Woodford, 418 F.3d 989, 1001–02 (9th Cir. 2005) 10 (quoting Wright, Miller, & Kane, Federal Practice and Procedure, § 2948.1 (2d ed. 2004)). 11 Additionally, as the Supreme Court has recognized, incarceration “has a detrimental impact on 12 the individual” because “it often means loss of a job” and “disrupts family life.” Barker v. 13 Wingo, 407 U.S. 514, 532–33 (1972). Since being detained, petitioner has been unable to care for 14 or support his ill wife and he lost his employment. Given these harms and the Court’s conclusion 15 that petitioner is likely to succeed on the merits of his claim that his detention without a bond 16 hearing violates the Due Process Clause, petitioner faces irreparable harm absent a temporary 17 restraining order. 18 c. Balance of Equities and Public Interest 19 When the government is the nonmoving party, “the last two Winter factors merge.” Baird 20 v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (internal citations omitted). Faced with a choice 21 “between [minimally costly procedures] and preventable human suffering,” as discussed above, 22 the Court concludes “that the balance of hardships tips decidedly in [petitioner’s] favor.” 23 Hernandez, 872 F.3d at 996 (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)). 24 The public interest also weighs in petitioner’s favor. “The public has a strong interest in 25 upholding procedural protections against unlawful detention, and the Ninth Circuit has 26
27 5 Respondents argue that this presumption does not apply when a petitioner fails to establish a likelihood of success on the merits, see Doc. 11 at 10–11, but as explained above, petitioner has 28 shown a likelihood of success on his claim. 1 recognized that the costs to the public of immigration detention are staggering.” Diaz, 2025 WL 2 1676854, at *3 (citing Jorge M.F. v. Wilkinson, No. 21-CV-01434-JST, 2021 WL 783561, at *3) 3 (N.D. Cal. Mar. 1, 2021); see also Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 4 838 (9th Cir. 2020) (“It is always in the public interest to prevent the violation of a party’s 5 constitutional rights.”) (citing Padilla, 953 F.3d at 1147–48). 6 d. Burden of Proof 7 Respondents argue that the burden of proof should fall on petitioner at the bond hearing. 8 Doc. 11 at 11–12. The Court finds that in this context the burden is more appropriately placed on 9 the government. See Banda v. McAleenan, 385 F. Supp. 3d 1099, 1107 (W.D. Wash. 2019); 10 Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 11 2025 WL 2099343, at *8 (E.D. Cal. July 25, 2025). 12 In Singh v. Holder, the Ninth Circuit held, in the context of hearings provided for those 13 detained under § 1226(c), that “the substantial liberty interest at stake” warranted placing the 14 burden on the government to “prove by clear and convincing evidence that an alien is a flight risk 15 or a danger to the community to justify denial of bond.” Singh v. Holder, 638 F.3d 1196, 1203 16 (9th Cir. 2011), abrogated on other grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); see 17 also Rodriguez Diaz v. Garland, 53 F.4th 1189, 1199 (9th Cir. 2022) (explaining that Singh was 18 based on general principles of due process). “Because it is improper to ask the individual to 19 ‘share equally with society the risk of error when the possible injury to the individual’— 20 deprivation of liberty—is so significant, a clear and convincing evidence standard of proof 21 provides the appropriate level of procedural protection.” Id. at 1203–04 (quoting Addington v. 22 Texas, 441 U.S. 418, 427 (1979)). These same concerns are present here. 23 Following a line of cases which utilized the constitutional avoidance canon to read a bond 24 hearing requirement into the statute, the Ninth Circuit extended the burden of proof principles 25 from Singh to bond hearings for those detained under § 1225(b) and § 1231(a). See Diouf v. 26 Napolitano, 634 F.3d 1081, 1082 (9th Cir. 2011); Rodriguez v. Robbins, 715 F.3d 1127, 1144 27 (9th Cir. 2013) (“Rodriguez”). Although the Supreme Court subsequently held in Jennings that 28 the constitutional avoidance canon could not be used to read a bond hearing requirement into the 1 statute, it did not address an as-applied constitutional due process challenge. Jennings, 583 U.S. 2 at 304–06, 312 (“Because the Court of Appeals . . . had no occasion to consider respondents’ 3 constitutional arguments on their merits[,] . . . we do not reach those arguments.”). Singh and 4 Rodriguez “relied on the Due Process Clause in determining” who should bear the burden of 5 proof at those bond hearings. Rodriguez Diaz, 53 F.4th at 1202; see Singh, 638 F.3d at 1203–06. 6 The issue of the burden of proof at a hearing required by due process therefore appears to remain 7 governed by Rodriguez and its extension of Singh’s requirements to bond hearings for § 1225(b) 8 detainees. See Maliwat v. Scott, No. 2:25-CV-00788-TMC, 2025 WL 2256711, at *10 (W.D. 9 Wash. Aug. 7, 2025) (applying Singh in § 1225(b) case); Banda, 385 F. Supp. 3d at 1107 (same); 10 Abdul-Samed, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *8 (same). 11 Respondents point to Rodriguez Diaz, which held that § 1226(a), which places the burden 12 of proof on the detainee at a bond hearing, was constitutionally adequate. Rodriguez Diaz, 53 13 F.4th at 1210. But “[s]ection 1226(a) offers substantial procedural protections to detained 14 persons,” id. at 1194, which cannot be said of § 1225(b)(2)(A), the provision under which the 15 government maintains petitioner is now detained. In that regard, § 1225(b)(2)(A) is more like 16 § 1226(c), as both mandate detention. Respondents also argue that Zadvydas placed the burden 17 on the petitioner to “provide[] good reason to believe that there is no significant likelihood of 18 removal in the reasonably foreseeable future” before making “the government respond with 19 evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701. But the cited portion of 20 Zadvydas outlined the appropriate procedure to be used at a preliminary showing on a challenge 21 to prolonged detention, not whether the burden of proof should fall on the detainee or the 22 government at any bond hearing to determine whether the detainee was a flight risk or danger to 23 the community. See id. The burden at that kind of hearing should fall on the government for the 24 reasons outlined in Singh. 25 e. Remedy 26 In conclusion, the Court finds that the requirements for issuing a temporary restraining 27 order are met. Petitioner’s immediate release is required to return him to the status quo ante— 28 “the last uncontested status which preceded the pending controversy.” Pinchi, 2025 WL 1 1853763, at *3; Kuzmenko v. Phillips, No. 2:25-cv-00663-DJC-AC, 2025 WL 779743, at *2 2 (E.D. Cal. Mar. 10, 2025); see also Valdez v. Joyce, 25 Civ. 4627, 2025 WL 1707737, at *5 3 (S.D.N.Y. June 18, 2025) (ordering immediate release of unlawfully detained noncitizen); Ercelik 4 v. Hyde, No. 1:25-CV-11007-AK, 2025 WL 1361543, at *15–16 (D. Mass. May 8, 2025) (same); 5 Günaydın v. Trump, No. 25-CV-01151, 2025 WL 1459154, at *10–11 (D. Minn. May 21, 2025) 6 (same). Respondents are ordered to release petitioner immediately. Respondents may not re- 7 detain petitioner unless the government proves by clear and convincing evidence at a bond 8 hearing before a neutral decisionmaker that petitioner is a flight risk or danger to the community. 9 The bond requirement of Federal Rule of Civil Procedure 65(c) is waived. [T]he party 10 affected by the injunction [has the] obligation of presenting evidence that a bond is needed, so 11 that the district court is afforded an opportunity to exercise its discretion in setting the amount of 12 the bond.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 883 (9th 13 Cir. 2003). Respondents ask the Court to require that petitioner post security but do not explain 14 how they risk harm without such a security bond. Doc. 11 at 11. Courts regularly waive security 15 in cases like this one. See Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011); Garcia, 2025 16 WL 1676855, at *3; Pinchi, 2025 WL 1853763, at *4. 17 IV. Conclusion and Order 18 Accordingly, petitioner’s motion for temporary restraining order, Doc. 7, is GRANTED. 19 Respondents are ORDERED to release petitioner immediately. Respondents are ENJOINED 20 AND RESTRAINED from re-detaining petitioner unless they demonstrate, by clear and 21 convincing evidence at a pre-deprivation bond hearing before a neutral decisionmaker, that 22 petitioner is a flight risk or danger to the community such that his physical custody is legally 23 justified. 24 Respondents are ORDERED TO SHOW CAUSE before this Court why a preliminary 25 injunction should not issue pending a final disposition of this matter. The hearing on the order to 26 show cause will be held on October 17, 2025, at 1:30 p.m. in Courtroom 6.6 Respondents shall 27 6 Counsel requesting to appear at the hearing by video appearance shall contact the courtroom 28 deputy at least 24 hours prior to the hearing. 1 | file any further response to petitioner’s motion by October 10, 2025. Petitioner may file a reply 2 | by October 15, 2025. The parties may stipulate to extend the briefing schedule and hearing date, 3 | provided that this temporary restraining order will remain in effect pending any such continuance. 4 5 | ISSO ORDERED. _ 6 Dated: _ October 2, 2025 4h ; UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15