Fabian Dean Russell v. Warden of the California City Immigration Processing Center, et al.

• Court: District Court, E.D. California
• Decided: May 27, 2026
• Docket: 1:26-cv-01231
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6

7 FABIAN DEAN RUSSELL, Case No. 1:26-cv-01231-JLT-EPG-HC

8 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 9 v. HABEAS CORPUS AND DIRECT RESPONDENT TO PROVIDE PETITIONER 10 WARDEN OF THE CALIFORNIA CITY WITH BOND HEARING BEFORE IMMIGRATION PROCESSING CENTER, et IMMIGRATION JUDGE 11 al.,

12 Respondents.

13 14 Petitioner, represented by counsel, is a federal immigration detainee proceeding with a 15 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 16 For the reasons set forth herein, the undersigned recommends granting the petition for 17 writ of habeas corpus and ordering that Respondents provide Petitioner with an individualized 18 bond hearing before an immigration judge at which the government must justify Petitioner’s 19 continued detention by clear and convincing evidence. 20 I. 21 BACKGROUND 22 Petitioner is a citizen of Jamaica who entered Canada as a landed immigrant in 1995. In 23 1998 Petitioner was paroled into the United States for criminal prosecution and after he received 24 a one-year sentence for being a criminal in possession of a loaded firearm, Petitioner was placed 25 in removal proceedings and ordered removed from the United States. After Petitioner was 26 removed to Canada, he reentered the United States at an unknown time and place. (ECF No. 22-1 27 at 3.1) 1 On June 16, 2023, Petitioner was convicted of assault with a deadly weapon, in violation 2 of California Penal Code section 245(a)(1), and received a three-year sentence. At the conclusion 3 of his sentence, Petitioner was released to the custody of the Department of Homeland Security 4 (“DHS”) on January 16, 2025, and placed into removal proceedings. (ECF No. 18 at 3; ECF No. 5 22-1 at 2–3.) DHS alleged that Petitioner was inadmissible to the United States because he was 6 present without admission or parole, in violation of 8 U.S.C. § 1182(a)(6)(A)(i), and because he 7 had been convicted of a crime involving moral turpitude, in violation of 8 U.S.C. 8 § 1182(a)(2)(A)(i)(I). (ECF No. 22-1 at 5–8.) On September 25, 2025, Petitioner was ordered 9 removed to Canada, or in the alternative, to Jamaica. (ECF No. 10-1.) Petitioner appealed the 10 decision to the Board of Immigration Appeals (“BIA”), and the appeal is still pending. (ECF No. 11 22-2.) 12 Petitioner was initially detained at Golden State Annex, and on or about September 6, 13 2025, Petitioner was transferred to California City Detention Center. In the entire time Petitioner 14 has been in immigration detention, he has not received a bond hearing. (ECF No. 18 at 3.) 15 On February 12, 2026, Petitioner filed a petition for writ of habeas corpus. (ECF No. 1.) 16 On February 20, 2026, Respondent filed a response. (ECF No. 10.) On March 2, 2026, the 17 Federal Defender filed an amicus motion to appoint counsel. (ECF No. 12.) On March 3, 2026, 18 the Court appointed counsel. (ECF No. 13.) 19 On March 31, 2026, Petitioner filed a first amended petition (“FAP”) and a motion for 20 temporary restraining order (“TRO”) challenging Petitioner’s detention on substantive and 21 procedural due process grounds. (ECF Nos. 18, 19.) The assigned district judge denied the 22 motion for TRO as untimely. (ECF No. 20.) On April 3, 2026, Respondents filed an answer. 23 (ECF No. 22.) On April 14, 2026, Petitioner filed a reply. (ECF No. 23.) 24 II. 25 DISCUSSION 26 A. Immigration Detention Statutes and Bond Hearings 27 Congress has enacted a complex statutory scheme governing the detention of noncitizens 1 alien falls within this statutory scheme can affect whether his detention is mandatory or 2 discretionary, as well as the kind of review process available to him if he wishes to contest the 3 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 4 Here, Petitioner is detained pursuant to 8 U.S.C. § 1226(c),2 which provides in pertinent 5 part that the “Attorney General shall take into custody any alien who . . . is inadmissible by 6 reason of having committed any offense covered in section 1182(a)(2) of this title[.]” 8 U.S.C. 7 § 1226(c)(1)(A). Section 1226(c) “specif[ies] that the Attorney General ‘may release’ one of 8 those aliens ‘only if the Attorney General decides’ both that doing so is necessary for witness- 9 protection purposes and that the alien will not pose a danger or flight risk.” Jennings v. 10 Rodriguez, 583 U.S. 281, 303 (2018) (emphasis in original). 11 In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court addressed a challenge to 12 prolonged detention under § 1231(a)(6) by noncitizens who “had been ordered removed by the 13 government and all administrative and judicial review was exhausted, but their removal could 14 not be effectuated because their designated countries either refused to accept them or the United 15 States lacked a repatriation treaty with the receiving country.” Prieto–Romero, 534 F.3d at 1062 16 (citing Zadvydas, 533 U.S. at 684–86). The Supreme Court held that § 1231(a)(6) does not 17 authorize indefinite detention and “limits an alien’s post-removal-period detention to a period 18 reasonably necessary to bring about that alien’s removal from the United States.” Zadvydas, 533 19 U.S. at 689. Thus, after a presumptively reasonable detention period of six months, a noncitizen 20 was entitled to release if “it has been determined that there is no significant likelihood of removal 21 in the reasonably foreseeable future.” Id. at 701. 22 In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a facial challenge to 23 mandatory detention under 8 U.S.C. § 1226(c). The Supreme Court upheld its “longstanding 24 view that the Government may constitutionally detain deportable aliens during the limited period 25 necessary for their removal proceedings.” Id. at 526. The Supreme Court distinguished Zadvydas 26

27 2 The Ninth Circuit has “conclude[d] that Subsection C applies throughout the administrative and judicial phases of removal proceedings.” Avilez v. Garland, 69 F.4th 525, 535 (9th Cir. 2023). Petitioner does not 1 by emphasizing that mandatory detention under § 1226(c) has “a definite termination point” and 2 “in the majority of cases it lasts for less than the 90 days . . . considered presumptively valid in 3 Zadvydas.” Id. at 529. However, Justice Kennedy specifically noted that “a lawful permanent 4 resident alien such as respondent could be entitled to an individualized determination as to his 5 risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 6 Demore, 538 U.S. at 532 (Kennedy, J., concurring). 7 “In a series of decisions, the [Ninth Circuit] . . . grappled in piece-meal fashion with 8 whether the various immigration detention statutes may authorize indefinite or prolonged 9 detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. 10 Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010). This culminated in Rodriguez v. 11 Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), in which the Ninth Circuit held that for 12 noncitizens detained under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), “the government must 13 provide periodic bond hearings every six months so that noncitizens may challenge their 14 continued detention as ‘the period of . . . confinement grows.’” 804 F.3d at 1089 (quoting Diouf 15 v. Napolitano (Diouf II), 634 F.3d 1081, 1091 (9th Cir. 2011)). Importantly, the Ninth Circuit 16 applied the canon of constitutional avoidance to interpret these immigration detention provisions 17 as providing a statutory right to a bond hearing once detention become prolonged. See Rodriguez 18 Diaz v. Garland, 53 F.4th 1189, 1195 (9th Cir. 2022). 19 In Jennings v. Rodriguez, the Supreme held that the Ninth Circuit misapplied the 20 constitutional avoidance canon to find that “§§ 1225(b)(1) and (b)(2) contain an implicit 6– 21 month limit on the length of detention” and “[o]nce that 6–month period elapses, respondents 22 contend, aliens previously detained under those provisions must instead be detained under the 23 authority of § 1226(a), which allows for bond hearings in certain circumstances.” 583 U.S. at 24 297–98. Jennings also rejected the Ninth Circuit’s interpretation of a statutory right under 8 25 U.S.C. § 1226(a) to “periodic bond hearings every six months in which the Attorney General 26 must prove by clear and convincing evidence that the alien’s continued detention is necessary.” 27 Id. at 306. The case was remanded to the Ninth Circuit “to consider [the] constitutional 1 district court to consider the constitutional arguments in the first instance but observed that it had 2 “grave doubts that any statute that allows for arbitrary prolonged detention without any process 3 is constitutional or that those who founded our democracy precisely to protect against the 4 arbitrary deprivation of liberty would have thought so.” Rodriguez v. Marin, 909 F.3d 252, 255, 5 256 (9th Cir. 2018). 6 There has been a dearth of guidance regarding the point at which an immigration 7 detainee’s continued mandatory detention becomes unconstitutional. See Rodriguez Diaz, 53 8 F.4th at 1203 (noting that both the Ninth Circuit “and the Supreme Court have repeatedly 9 declined to decide constitutional challenges to bond hearing procedures in the immigration 10 detention context”). The Ninth Circuit has yet to take a position on whether due process requires 11 a bond hearing for noncitizens detained under 8 U.S.C. § 1226(c), but it has recognized that 12 “district courts throughout this circuit have ordered immigration courts to conduct bond hearings 13 for noncitizens held for prolonged periods under § 1226(c)” based on due process and noted that 14 “[a]ccording to one such court order, the ‘prolonged mandatory detention pending removal 15 proceedings, without a bond hearing, will—at some point—violate the right to due process.’” 16 Martinez v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (citation omitted), vacated on other 17 grounds, 144 S. Ct. 1339 (2024). 18 In upholding mandatory detention under 8 U.S.C. § 1226(c) in Demore, the Supreme 19 Court made repeated references to the “brief” and “limited” timeframe at issue. See Demore, 538 20 U.S. at 513 (“brief period”); id. at 523 ((“brief period”); id. at 526 (“limited period”); id. at 529 21 n.12 (“[t]he very limited time of the detention at stake under § 1226(c)”); id. at 531 (“limited 22 period”). Demore specifically noted that “the detention at stake under § 1226(c) lasts roughly a 23 month and a half in the vast majority of cases in which it is invoked, and about five months in 24 the minority of cases in which the alien chooses to appeal,” relying on statistics from the 25 Executive Office for Immigration Review (“EOIR”). 538 U.S. at 530. However, “[t]hirteen years 26 after the decision in Demore, the government admitted that the figures it provided to the Court, 27 and which the Court relied on, contained ‘several significant errors,’” and for the years 1999– 1 little more than a year.” Rodriguez v. Nielsen, No. 18-CV-04187-TSH, 2019 WL 7491555, at *5 2 (N.D. Cal. Jan. 7, 2019) (citing Letter from Acting Solicitor General Ian H. Gershengorn to Hon. 3 Scott S. Harris (Aug. 26, 2016), at 2, 3, Demore v. Kim, 538 U.S. 510 (2003) (No. 01-1491)). 4 “The data from the Jennings case show that 460 members of the respondent section 1226(c) 5 subclass were detained for an average of 427 days (over fourteen months) with some individual 6 detention periods exceeding four years.” Rodriguez, 2019 WL 7491555, at *5 (citing Joint 7 Appendix (Table 20) (Aug. 26, 2016), Jennings v. Rodriguez, 583 U.S. 281 (2018) (No. 15- 8 1204)). The Government Accountability Office conducted a study and “found that as of 2015, 9 the median length of time it takes the BIA to complete an appeal of a removal order exceeds 450 10 days.” Rodriguez, 2019 WL 7491555, at *5 (citing United States Government Accountability 11 Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long- 12 Standing Management and Operational Challenges 33 (2017), 13 https://www.gao.gov/assets/690/685022.pdf). 14 As noted above, the Supreme Court rejected a facial challenge to mandatory detention 15 under 8 U.S.C. § 1226(c) in Demore. See Demore, 538 U.S. at 514 (“Respondent . . . filed a 16 habeas corpus action pursuant to 28 U.S.C. § 2241 . . . challenging the constitutionality of 17 § 1226(c) itself.” (emphasis added)); Black v. Decker, 103 F.4th 133, 149 n.22 (2d Cir. 2024) 18 (“Demore ruled on a due process challenge to the facial constitutionality of section 1226(c)[.]”). 19 In Nielsen v. Preap, 586 U.S. 392 (2019), the Supreme Court expressly preserved the right to 20 bring an as-applied challenge: “Our decision today on the meaning of that statutory provision 21 [§ 1226(c)] does not foreclose as-applied challenges—that is, constitutional challenges to 22 applications of the statute as we have now read it.” Preap, 586 U.S. at 420. See Black, 103 F.4th 23 at 149 (Demore “said nothing about whether due process may eventually require a hearing. If 24 Demore had, in fact, foreclosed the due process challenge now before us, the Jennings Court 25 would have had no reason to remand to the Ninth Circuit ‘to consider ... in the first instance’ the 26 detainees’ argument that ‘[a]bsent ... a bond-hearing requirement, ... [section 1226(c)] would 27 violate the Due Process Clause of the Fifth Amendment.’” (alterations in original) (quoting 1 Based on the foregoing, the Court finds that Petitioner’s as-applied constitutional 2 challenge is not foreclosed. 3 B. Procedural Due Process Analysis 4 Courts in the Ninth Circuit have taken a variety of approaches to determine whether due 5 process requires a bond hearing in a particular immigration detention case. See, e.g., Rodriguez, 6 2019 WL 7491555, at *6 (applying bright-line rule that “detention becomes prolonged after six 7 months and entitles [the petitioner] to a bond hearing” in § 1226(c) context); Banda v. 8 McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (considering six factors, which 9 include: “(1) the total length of detention to date; (2) the likely duration of future detention; (3) 10 the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) 11 delays in the removal proceedings caused by the government; and (6) the likelihood that the 12 removal proceedings will result in a final order of removal” in § 1225(b) context); Juarez v. 13 Wolf, No. C20-1660-RJB-MLP, 2021 WL 2323436, at *4 (W.D. Wash. May 5, 2021) 14 (considering, in addition to six factors set forth above, “whether the detention will exceed the 15 time the petitioner spent in prison for the crime that made him [or her] removable” and “the 16 nature of the crimes the petitioner committed” in § 1226(c) context), report and recommendation 17 adopted, 2021 WL 2322823 (W.D. Wash. June 7, 2021); Lopez v. Garland, 631 F. Supp. 3d 870, 18 879 (E.D. Cal. 2022) (considering “the total length of detention to date, the likely duration of 19 future detention, and the delays in the removal proceedings caused by the petitioner and the 20 government” in § 1226(c) context). 21 There are also some courts that apply the three-part test set forth in Mathews v. Eldridge, 22 424 U.S. 319 (1976). See Zagal-Alcaraz v. ICE Field Off., No. 3:19-cv-01358-SB, 2020 WL 23 1862254, at *3–4 (D. Or. Mar. 25, 2020) (collecting cases), report and recommendation adopted, 24 2020 WL 1855189 (D. Or. Apr. 13, 2020). In Rodriguez Diaz, which concerned a noncitizen 25 detained pursuant to 8 U.S.C. § 1226(a) and whether “continued detention was unconstitutional 26 because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond 27 hearing at which the government bears the burden of proof by clear and convincing evidence,” 1 Ninth Circuit has “regularly applied Mathews to due process challenges to removal 2 proceedings,” and finding “Mathews remains a flexible test that can and must account for the 3 heightened governmental interest in the immigration detention context.” Rodriguez Diaz, 53 4 F.4th at 1193, 1206. Similarly, the dissent “agree[d] that the test developed in Mathews v. 5 Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is the appropriate legal framework 6 to determine whether there was a due process violation.” Rodriguez Diaz, 53 F.4th at 1219 7 (Wardlaw, J., dissenting). See also Black, 103 F.4th at 147 (“conclud[ing] that due process 8 challenges to prolonged detention under section 1226(c) should also be reviewed under 9 Mathews”); A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 1424382 (E.D. Cal. 10 May 16, 2025) (applying Mathews test to determine whether due process entitled petitioner to a 11 bond hearing in § 1225(b) context), findings and recommendations adopted, 2025 WL 1808676 12 (E.D. Cal. July 1, 2025). 13 Given that the Ninth Circuit has “regularly applied Mathews to due process challenges to 14 removal proceedings,” Rodriguez Diaz, 53 F.4th at 1193, the Court will apply the Mathews test. 15 In Mathews, the Supreme Court held that “identification of the specific dictates of due process 16 generally requires consideration of three distinct factors”: 17 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 18 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 19 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 20 requirements would entail. 21 Mathews, 424 U.S. at 334. 22 1. Private Interest 23 With respect to the first factor, the Court finds that the private interest at issue here is 24 fundamental. “Freedom from imprisonment—from government custody, detention, or other 25 forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause 26 protects.” Zadvydas, 533 U.S. at 690. The Ninth Circuit has held that it “is beyond dispute” an 27 immigration detainee’s “private interest at issue here is ‘fundamental’: freedom from 1 Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 2 (1992)). See Rodriguez Diaz, 53 F.4th at 1207 (“We have also held, more generally, that an 3 individual’s private interest in ‘freedom from prolonged detention’ is ‘unquestionably 4 substantial.’ . . . Rodriguez Diaz has a legitimate and reasonably strong private liberty interest 5 under Mathews.” (quoting Singh, 638 F.3d at 1208)). Accordingly, the first Mathews factor 6 weighs in favor of Petitioner. 7 2. Risk of Erroneous Deprivation 8 With respect to the second factor, the Court considers the risk of erroneous deprivation of 9 Petitioner’s liberty interest and the probable value of additional procedural safeguards. “In 10 evaluating the risk of erroneous deprivation in the context of noncitizen detention, the Ninth 11 Circuit has looked to whether the detainee has a statutory right to procedural protections, such as 12 individualized custody determinations and the right to seek additional bond hearings throughout 13 detention.” Jensen v. Garland, No. 5:21-cv-01195-CAS (AFM), 2023 WL 3246522, at *6 (C.D. 14 Cal. May 3, 2023) (citing Rodriguez Diaz, 53 F.4th at 1209–10 (finding a small risk of erroneous 15 deprivation where petitioner was detained under § 1226(a) and thus received numerous 16 procedural protections, including individualized custody determinations and right to seek 17 additional bond hearings)). 18 Petitioner is detained under § 1226(c) and thus, does not have a statutory right to a bond 19 hearing. Petitioner has been detained since January 16, 2025, (ECF No. 18 at 3), a period of 20 sixteen months, and has not received any bond hearing before a neutral decisionmaker with 21 authority to grant bond. Accordingly, the Court finds that the risk of erroneous deprivation of 22 Petitioner’s liberty interest and the probable value of additional procedural safeguards is high. 23 See Jimenez v. Wolf, No. 19-cv-07996-NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020) 24 (“[T]he risk of an erroneous deprivation of Landeros Jimenez’s liberty interest is high. He has 25 not received any bond or custody redetermination hearing during his one-year detention. Thus, 26 the probable value of additional procedural safeguards—a bond hearing—is high, because 27 Respondents have provided virtually no procedural safeguards at all.”). Therefore, the second 1 3. Government’s Interest 2 With respect to the third and final factor, the Court recognizes that “the government 3 clearly has a strong interest in preventing aliens from ‘remain[ing] in the United States in 4 violation of our law’” and “has an obvious interest in ‘protecting the public from dangerous 5 criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 538 U.S. at 518, 515). The 6 Ninth Circuit has stated that “[t]hese are interests of the highest order that only increase with the 7 passage of time,” noting that “[t]he longer detention lasts and the longer the challenges to an IJ’s 8 order of removal take, the more resources the government devotes to securing an alien’s ultimate 9 removal” and “[t]he risk of a detainee absconding also inevitably escalates as the time for 10 removal becomes more imminent.” Rodriguez Diaz, 53 F.4th at 1208. 11 It is important to stress that the “government interest at stake here is not the continued 12 detention of Petitioner, but the government’s ability to detain him without a bond hearing.” 13 Zagal-Alcaraz, 2020 WL 1862254, at *7. See Zerezghi v. U.S. Citizenship & Immigr. Servs., 14 955 F.3d 802, 810 (9th Cir. 2020) (noting that “the question [under the third Mathews factor] is 15 not the government’s interest in immigration enforcement” “in general” (emphasis added)); 16 Henriquez v. Garland, No. 5:22-cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 17 2022) (“Although the Government has a strong interest in enforcing the immigration laws and in 18 ensuring that lawfully issued removal orders are promptly executed, the Government’s interest in 19 detaining Petitioner without providing an individualized bond hearing is low.”). 20 Courts generally have found that the cost of providing a bond hearing is relatively 21 minimal, and there is nothing in the record before this Court demonstrating that providing 22 Petitioner with a bond hearing would be fiscally or administratively burdensome. See Marroquin 23 Ambriz v. Barr, 420 F. Supp. 3d 953, 964 (N.D. Cal. 2019) (noting in context of a § 1226(a) 24 detention, the parties did not contest “that the cost of conducting a bond hearing, to determine 25 whether the continued detention of Petitioner is justified, is minimal”); Singh v. Barr, 400 F. 26 Supp. 3d 1005, 1021 (S.D. Cal. 2019) (noting in the context of § 1226(a) detention that “[t]he 27 government has not offered any indication that a [ ] bond hearing would have outside effects on 1 In sum, each of the Mathews factors weighs in favor of Petitioner. Accordingly, the 2 undersigned recommends finding that Petitioner is entitled to a bond hearing. 3 C. Remedy 4 Petitioner asserts that he is entitled to a bond hearing. (ECF No. 23 at 5.) Respondents 5 argue that “[i]f this Court orders a bond hearing, the Constitution does not require the 6 government to bear the burden of proving that the noncitizen will be a flight risk or danger— 7 much less that the government be subject to a clear-and-convincing-evidence standard—to 8 justify temporary detention pending removal proceedings.” (ECF No. 22 at 6–7.) 9 “The Court finds, consistent with other post-Jennings cases, that the appropriate remedy 10 is a bond hearing before an immigration judge[.]” Lopez, 631 F. Supp. 3d at 882. The Court now 11 turns to the burden of proof at the bond hearing and which party should bear such burden. 12 Having “previously applied the canon of constitutional avoidance to interpret . . . 13 immigration provisions—8 U.S.C. §§ 1225(b), 1226(c), and 1231(a)(6)—as providing a statutory 14 right to a bond hearing once detention becomes prolonged,” the Ninth Circuit in Singh 15 “concluded that for these hearings to comply with due process, the government had to bear the 16 burden of proving by clear and convincing evidence that the alien poses a flight risk or a danger 17 to the community.” Rodriguez Diaz, 53 F.4th at 1196 (citing Singh, 638 F.3d at 1203–05). 18 Although Rodriguez Diaz may have declined to impose the standard articulated in Singh, the 19 panel majority specifically stated that it was not “decid[ing] whether Singh remains good law in 20 any respect following Jennings” and even recognized that Singh was based “on general 21 principles of procedural due process, reasoning that a detained person’s liberty interest is 22 substantial.” Rodriguez Diaz, 53 F.4th at 1202 n.4, 1199. Additionally, the Ninth Circuit has 23 suggested post-Jennings that Singh remains good law in Martinez v. Clark, which took “no 24 position” on “[w]hether due process requires a bond hearing for aliens detained under 25 § 1226(c),” but did address “the scope of federal court review of those bond determinations” and 26 found with respect to a bond hearing for a noncitizen detained under § 1226(c) that “the BIA 27 properly noted that the government bore the burden to establish by clear and convincing 1 remand, and after Rodriguez Diaz was decided, the Martinez panel reconfirmed “that the 2 government bore the burden to establish by clear and convincing evidence that Martinez is a 3 danger to the community” and “that the BIA applied the correct burden of proof.” Martinez v. 4 Clark, 124 F.4th 775, 785, 786 (9th Cir. 2024). 5 The Court will follow the “overwhelming majority of courts that have held that the 6 government must justify the continued confinement of a non-citizen detainee under § 1226(c) by 7 clear and convincing evidence that the non-citizen is a flight risk or a danger to the community,” 8 Sanchez-Rivera, 2023 WL 139801, at *7, even post-Rodriguez Diaz. See, e.g., Black, 103 F.4th 9 at 138 (“[T]he district court properly required the government to show at such a bond hearing, by 10 clear and convincing evidence, the necessity of his continued detention. It further correctly 11 directed the immigration judge (“IJ”), in setting his bond and establishing appropriate terms for 12 his potential release, to consider his ability to pay and alternative means of assuring 13 appearance.”); Pham v. Becerra, 717 F. Supp. 3d 877, 888 (N.D. Cal. 2024); J.P. v. Garland, 685 14 F. Supp. 3d 943, 949 (N.D. Cal. 2023). 15 Further, in the event Petitioner is determined not to be a danger to the community and not 16 to be so great a flight risk as to require detention without bond, the IJ should consider 17 Petitioner’s financial circumstances or alternative conditions of release. See Hernandez v. 18 Sessions, 872 F.3d 976, 1000 (9th Cir. 2017) (“Plaintiffs are likely to succeed on their challenge 19 under the Due Process Clause to the government’s policy of allowing ICE and IJs to set 20 immigration bond amounts without considering the detainees’ financial circumstances or 21 alternative conditions of release.”); Black, 103 F.4th at 138 (The district court “correctly directed 22 the immigration judge (‘IJ’), in setting his bond and establishing appropriate terms for his 23 potential release, to consider his ability to pay and alternative means of assuring appearance.”). 24 III. 25 RECOMMENDATION 26 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 27 1. The petition for writ of habeas corpus be GRANTED on the second claim for relief; and 1 judge that complies with the requirements set forth in Singh v. Holder, 638 F.3d 1196 2 (9th Cir. 2011), at which 3 a. “the government must prove by clear and convincing evidence that [Petitioner] is 4 a flight risk or a danger to the community to justify denial of bond,” Singh, 638 5 F.3d at 1203, and 6 b. the IJ should consider Petitioner’s financial circumstances or alternative 7 conditions of release in the event Petitioner is determined not to be a danger to the 8 community and not to be so great a flight risk as to require detention without 9 bond. 10 This Findings and Recommendation is submitted to the assigned United States District 11 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 12 | Rules of Practice for the United States District Court, Eastern District of California. Within 13 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 14 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 15 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 16 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 17 | within fourteen (14) days after service of the objections. The assigned United States District 18 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 19 | The parties are advised that failure to file objections within the specified time may waive the 20 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 21 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. 24! Dated: _ May 27, 2026 [sl Fey 5 UNITED STATES MAGISTRATE JUDGE 26 27 28