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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 FRANKLIN ALBERTO SANCHEZ CASE NO. 2:26-cv-00707-LK 8 HENAO, Petitioner, ORDER GRANTING IN PART AND 9 DENYING IN PART PETITION FOR WRIT v. OF HABEAS CORPUS 10 JULIO HERNANDEZ et al., 11 Respondents. 12 13
This matter comes before the Court on Petitioner Franklin Alberto Sanchez Henao’s 14 petition for writ of habeas corpus. Dkt. No. 1. For the reasons stated below, the Court grants in 15 part and denies in part the petition.1 16 17 I. BACKGROUND Sanchez is a 51-year-old native of Colombia who came to the United States to seek asylum 18 with his wife and son in October of 2023. Dkt. No. 1 at 2. He was briefly detained by the 19 Department of Homeland Security (“DHS”) after entering the United States and was “released on 20 [his] own recognizance[.]” Dkt. No. 7-1 at 4; see also Dkt. No. 7-4 at 2. His Order for Release on 21 Recognizance (“OREC”) was issued on October 27, 2023 “[i]n accordance with section 236 of the 22 23 1 The Court declines to hold an evidentiary hearing because the record is sufficient for adjudication of the petition. See Owino v. Napolitano, 575 F.3d 952, 954 (9th Cir. 2009) (holding that “the district court must hold an evidentiary 24 hearing” where “the record is insufficient to decide whether [the petitioner’s] detention is authorized[.]”). 1 Immigration and Nationality Act” (“INA”). Dkt. No. 7-5 at 2. He was placed into the Alternatives 2 to Detention (“ATD”) program in Yakima, Washington. Dkt. No. 7-6 at 4. Sanchez was also issued 3 a Notice to Appear (“NTA”) which listed him as a noncitizen “present in the United States who
4 has not been admitted or paroled”—as opposed to an arriving noncitizen—and stated that he was 5 “subject to removal from the United States pursuant to . . . [section] 212(a)(6)(A)(i) of the 6 [INA][.]” Dkt. No. 7-3 at 2. 7 Sanchez was instructed to report to the Yakima, Washington Immigration and Customs 8 Enforcement (“ICE”) Enforcement and Removal Operations office on January 23, 2026. Dkt. No. 9 8 at 3. When Sanchez did so, he was placed into custody “due to violating the terms of his release 10 on recognizance.” Dkt. No. 7-6 at 3–4. A warrant for his arrest was issued, Dkt. No. 7-7, and an 11 immigration officer canceled his OREC on the same day because he “failed to comply with the 12 conditions of release,” Dkt. No. 7-8 at 2.
13 DHS records state that Sanchez committed ATD violations on April 29, 2025; July 22, 14 2025; and August 5, 2025. Dkt. No. 7-6 at 5. The declaration of Deportation Officer Sheldon 15 Benjamin states that Sanchez also had an ATD violation on October 29, 2024, Dkt. No. 8 at 2, but 16 that is not reflected in the accompanying DHS records, Dkt. No. 7-6 at 5, and Respondents2 state 17 that “ICE inadvertently overlooked one of the ATD violations when the database was reviewed,” 18 Dkt. No. 6 at 3 n.3. The record does not clearly indicate how Sanchez violated his ATD terms, 19 though Respondents aver that he violated “reporting requirements[.]” Id. at 3 (citing Dkt. No. 8 at 20 2 ¶ 8, which states that the officer “reviewed Petitioner’s violations, which reflect that Petitioner 21 2 Although Bruce Scott, the warden of the NWIPC, has not appeared in this case, (1) the purpose of naming the 22 petitioner’s custodian is to effectuate injunctive relief where appropriate, see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (the custodian has “the power to produce the body of [the petitioner] before the court or judge,” such that “he may be liberated if no sufficient reason is shown to the contrary” (citation modified)); and (2) federal respondents 23 often represent the warden’s interests, as they do in this case, see Doe v. Garland, 109 F.4th 1188, 1196 (9th Cir. 2024) (“Even in cases where private contract wardens are named as respondents, the government can and has stepped 24 in to defend its interest in keeping petitioners detained.”). 1 had ATD violations on October 29, 2024, April 29, 2025, July 22, 2025, and August 05, 2025”); 2 see also Dkt. No. 8 at 3 (Benjamin Declaration stating “[a] Spanish speaker explained to Petitioner 3 that he was being placed into custody due to having multiple ATD violations while on the
4 SmartLink program” and “Petitioner never offered an explanation as to why he missed his 5 SmartLink appointments”; the declaration does not provide the Court with any other information 6 about the alleged ATD violations or “SmartLink appointments”). 7 Sanchez avers that before he was re-detained on January 23, 2026, “Respondents did not 8 provide [him] with any written notice explaining the basis for detention” and “Respondents did 9 not provide a hearing before a neutral decisionmaker where ICE was required to justify the basis 10 for re-detention or explain why Mr. Sanchez is a flight risk or danger to the community.” Dkt. No. 11 1 at 2–3. 12 On February 27, 2026, Sanchez appeared before an Immigration Judge (“IJ”) for a final
13 hearing on the merits of his applications for relief from removal. Dkt. No. 8 at 3. The IJ “denied 14 all relief and ordered [Sanchez] removed to Colombia.” Id. Sanchez timely filed an appeal of the 15 IJ’s decision with the Board of Immigration Appeals (“BIA”), which “remains pending at this 16 time, and as such [Sanchez] is not yet removable to Colombia.” Id. 17 On March 1, 2026, Sanchez filed his petition for a writ of habeas corpus. Dkt. No. 1. 18 Respondents filed a return, Dkt. No. 6, and Sanchez filed a traverse, Dkt. No. 9. 19 II. DISCUSSION 20 Sanchez asserts that Respondents violated his right to procedural due process under the 21 Fifth Amendment based on the procedural deficiencies described above. Dkt. No. 1 at 6–10. He 22 seeks immediate release as well as an order (1) “permanently enjoining his re-detention during the
23 pendency of his removal proceedings absent written notice and a hearing prior to re-detention 24 where Respondents must prove by clear and convincing evidence that [he] is a flight risk or a 1 danger to the community and that no alternatives to detention would mitigate those risks” and 2 (2) declaring that his “re-detention while removal proceedings are ongoing without first providing 3 an individualized determination before a neutral decisionmaker violates the Due Process Clause
4 of the Fifth Amendment[.]” Dkt. No. 1 at 10–11. He also seeks attorney’s fees and costs. Id. at 12. 5 A. Legal Standard 6 The Constitution guarantees the availability of the writ of habeas corpus “to every 7 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing 8 U.S. Const., Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in custody 9 upon the legality of that custody, and . . . the traditional function of the writ is to secure release 10 from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus 11 may be granted to a petitioner who demonstrates that he is in custody in violation of the 12 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has
13 served as a means of reviewing the legality of Executive detention, and it is in that context that its 14 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, a district 15 court’s habeas jurisdiction includes challenges to immigration detention. See Zadvydas v. Davis, 16 533 U.S. 678, 687 (2001). “Once a [constitutional] right and a violation have been shown, the 17 scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and 18 flexibility are inherent in equitable remedies.” Roman v. Wolf, 977 F.3d 935, 942 (9th Cir. 2020) 19 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). 20 Under the Due Process Clause of the Fifth Amendment to the United States Constitution, 21 no person shall be “deprived of life, liberty, or property, without due process of law[.]” U.S. Const. 22 amend. V. “The Fifth Amendment guarantees due process in deportation proceedings.” Torres-
23 Aguilar v. I.N.S., 246 F.3d 1267, 1270 (9th Cir. 2001). “[T]he Due Process Clause applies to all 24 ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, 1 unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693; see also Demore v. Kim, 538 U.S. 2 510, 523 (2003) (recognizing that Fifth Amendment due process protections extend to deportation 3 proceedings, but noting that “detention during deportation proceedings [is] a constitutionally valid
4 aspect of the deportation process”). 5 The federal courts have “long recognized the existence of an implied cause of action 6 through which plaintiffs may seek equitable relief to remedy a constitutional violation.” Roman v. 7 Wolf, 977 F.3d 935, 941 (9th Cir. 2020). A plaintiff seeking a permanent injunction must 8 demonstrate (1) that she has suffered an irreparable injury; (2) that remedies available at law, such 9 as monetary damages, are inadequate to compensate for that injury; (3) that, considering the 10 balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and 11 (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. 12 MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “Once a [constitutional] right and a violation
13 have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, 14 for breadth and flexibility are inherent in equitable remedies.” Roman, 977 F.3d at 942 (quoting 15 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). 16 B. Sanchez Has Established a Due Process Violation 17 Like many petitions before the Court, Sanchez’s petition ignores the statute to which he is 18 subject, and instead essentially insists that due process demands the same procedures no matter 19 which statute applies. See Dkt. No. 1 at 7–10; see also Dkt. No. 9 at 2. But the Ninth Circuit has 20 rejected such a proposition, and this Court does too. Rodriguez Diaz v. Garland, 53 F.4th 1189, 21 1196 (9th Cir. 2022). The applicable statute matters because the constitutional process required is 22 not necessarily the same for “different statutory provision[s] with [their] own procedural
23 safeguards in place.” Id.; see also id. at 1203 (explaining that because “§ 1226(a) provides 24 substantially different procedures than the provisions [the court had] examined in the past,” the 1 court could not accept petitioner’s “suggestion that [the court’s decisions regarding other detention 2 provisions] mandate[d] the same procedural relief in this case”). Accordingly, the Court first 3 addresses the applicable statutory process and then addresses due process.
4 1. Process Required by Statute 5 (a) 8 U.S.C. § 1226(a) is the Applicable Statutory Authority Respondents aver that Sanchez is subject to mandatory detention under 8 U.S.C. 6 § 1225(b)(2)(A) because he is an applicant for admission. Dkt. No. 6 at 3–4 (citing Buenrostro- 7 Mendez v. Bondi, 166 F.4th 494, 498 (5th Cir. Feb. 6, 2026)). 8 U.S.C. § 1225 applies to 8 “applicants for admission” to the United States, defined as a noncitizen “present in the United 9 States who has not been admitted or who arrives in the United States[.]” 8 U.S.C. § 1225(a)(1). 10 Applicants for admission face mandatory detention and may only be released on parole “for urgent 11 humanitarian reasons or significant public benefit,” id. § 1182(d)(5)(A). Jennings v. Rodriguez, 12 583 U.S. 281, 287 (2018). “That express exception to detention implies that there are no other 13 circumstances under which aliens detained under §1225(b) may be released.” Id. at 300. 14 Respondents acknowledge that courts in this District have rejected their argument that 15 noncitizens in Sanchez’s position are detained pursuant to Section 1225(b). Dkt. No. 6 at 5. As 16 stated in Balwan v. Bondi, No. 2:26-cv-00248-LK, 2026 WL 497098, at *4 (W.D. Wash. Feb. 23, 17 2026), this Court agrees with the reasoning of Rodriguez Vazquez v. Bostock, 802 F. Supp. 3d 1297 18 (W.D. Wash. Sept. 30, 2025) and countless other courts across the country: “The plain text of 19 section 1226(a)” implies that the “default discretionary bond procedures in section 1226(a)”— 20 rather than mandatory detention procedures under 8 U.S.C. § 1225(b)—apply to noncitizens who 21 are “‘present in the United States without being admitted or paroled’ under section 1182(a)(6)(A) 22 but have not been implicated in any crimes as set forth in section 1226(c).” Rodriguez Vazquez, 23 802 F. Supp. 3d at 1322–23. “[I]f the Court were to adopt the reading of section 1225 advanced 24 1 by the [Respondents], it would render significant portions of section 1226(c) meaningless,” 2 including the recently enacted Laken Riley Act, which “carved out an additional category of 3 noncitizens from section 1226(a)’s discretionary detention scheme who now fall under section
4 1226(c)’s mandatory detention authority.” Id. at 1324–25. Furthermore, had Congress wanted 5 Section 1225(b) to have the effect urged by the government, “it could have said so in words far 6 simpler than those that it wrote.” Buenrostro-Mendez, 166 F.4th at 511 (Douglas, J., dissenting 7 (quoting Biden v. Texas, 597 U.S. 785, 798 (2022)). 8 Additionally, “where a petitioner has been ‘treated by Respondents as subject to 9 discretionary detention under section 1226, rather than mandatory detention under section 1225,’ 10 the former is more likely to apply.” Del Valle Castillo v. Wamsley, No. 2:25-CV-02054-TMC, 11 2025 WL 3524932, at *5 (W.D. Wash. Nov. 26, 2025) (quoting Romero v. Hyde, No. CV 25- 12 11631-BEM, 2025 WL 2403827, at *8 (D. Mass. Aug. 19, 2025)). The government has treated
13 Sanchez as subject to discretionary detention under 8 U.S.C. § 1226 from his arrival in the United 14 States until his January 23, 2026 detention. Specifically, after Sanchez entered the United States 15 in December 2022, he was released on an OREC pursuant to “section 236 of the Immigration and 16 Nationality Act,” Dkt. No. 7-5 at 2, which is codified at 8 U.S.C. § 1226, see Diouf v. Mukasey, 17 542 F.3d 1222, 1227 (9th Cir. 2008). Furthermore, as discussed above, unlike noncitizens detained 18 under 8 U.S.C. § 1226(a), noncitizens detained under 8 U.S.C. § 1225(b) are subject to mandatory 19 detention unless they are temporarily paroled into the United States “for urgent humanitarian 20 reasons or significant public benefit[.]” Jennings, 583 U.S. at 283 (quoting 8 U.S.C. § 21 1182(d)(5)(A)). Nothing in the record suggests that Sanchez’s release in 2023 was pursuant to 22 Section 1225(b). Indeed, as discussed above, he was released on his own recognizance pursuant to
23 Section 1226. Dkt. No. 7-5 at 2. And on the Form I-862, DHS selected the checkbox indicating 24 that he is “a[] [noncitizen] present in the United States who has not been admitted or paroled” and 1 not the checkbox designating him “an arriving [noncitizen].” Dkt. No. 7-3 at 2. These facts 2 demonstrate that his detention is governed by 8 U.S.C. § 1226 rather than 8 U.S.C. § 1225. 3 As noted above, Sanchez does not discuss the adequacy (or lack thereof) of the procedural
4 safeguards in Section 1226(a) and its implementing regulations, and absent any argument to the 5 contrary, the Court assumes that these safeguards suffice for due process purposes. See Clark v. 6 Sweeney, 607 U.S. 7, 9 (2025) (“To put it plainly, courts call balls and strikes; they don't get a turn 7 at bat.” (citation modified)); Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 8 2003) (“Our adversarial system relies on the advocates to inform the discussion and raise the issues 9 to the court.”). The Court addresses those safeguards below. 10 (b) Procedures Required under 8 U.S.C. § 1226(a)and Implementing Regulations 11 Section 1226 authorizes the government to detain a noncitizen “pending a decision on 12 whether the [noncitizen] is to be removed from the United States.” 8 U.S.C. § 1226(a); see also 13 Jennings, 583 U.S. at 288 (“Section 1226 generally governs the process of arresting and detaining 14 . . . [noncitizens] pending their removal.”). As the Supreme Court instructed in Jennings, “[s]ection 15 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and 16 detention of a[] [noncitizen]” pending a removal decision, and “‘may release’ a[] [noncitizen] 17 detained under § 1226(a) ‘on bond . . . or conditional parole.’” 583 U.S. at 288 (ellipses in original) 18 (quoting 8 U.S.C. § 1226(a)). 19 “Federal regulations provide that [noncitizens] detained under § 1226(a) receive bond 20 hearings at the outset of detention.” Jennings, 583 U.S. at 306 (citing 8 C.F.R. §§ 236.1(d)(1), 21 1236.1(d)(1)). In the first instance, the arresting officer makes the initial determination whether to 22 release a noncitizen detained under § 1226(a) on bond or parole. 8 C.F.R. § 236.1(c)(8). Following 23 24 1 this initial custody determination, the noncitizen may request a bond hearing before an 2 immigration judge. See 8 C.F.R. §§ 236.1(d)(1), 1003.19. 3 Under DHS regulations, a noncitizen detained under Section 1226(a) bears the burden of
4 showing, by a preponderance of the evidence, that he does not pose a danger to the community 5 and he is not a flight risk. 8 C.F.R. § 1236.1(c)(8); see also Rodriguez Diaz, 53 F.4th at 1197; 6 Matter of Guerra, 24 I&N Dec. 37, 40 (B.I.A. 2006); Matter of Barreiros, 10 I&N Dec. 536, 537 7 (B.I.A. 1964). In assessing whether to release a noncitizen on bond, the immigration judge 8 considers, among other factors, “the individual’s ties to the United States as well as his 9 employment history, criminal record, history of immigration violations, and manner of entry into 10 this country.” Rodriguez Diaz, 53 F.4th at 1197 (citing Guerra, 24 I&N Dec. at 40); see also Matter 11 of E-Y-F-G, 29 I&N Dec. 103, 104 (2025). The detainee may be represented by counsel and can 12 submit evidence in support of his claims. See 8 C.F.R. § 1003.19(b); Matter of Fatahi, 26 I. & N.
13 Dec. 791, 792 (B.I.A. 2016). He can also appeal an adverse decision to the BIA. 8 C.F.R. § 14 236.1(d)(3). The detainee may also request an additional bond hearing based on a material change 15 in circumstances. 8 C.F.R. § 1003.19(e). 16 If bond is granted, the noncitizen’s bond can be revoked at any time, even if the noncitizen 17 was previously released; however, if an immigration judge has determined that the noncitizen 18 should be released, DHS may not re-arrest that noncitizen absent a change in circumstance. Saravia 19 for A.H. v. Sessions, 905 F.3d 1137, 1145 n.10 (9th Cir. 2018) (citing Matter of Sugay, 17 I. & N. 20 Dec. 637, 640 (B.I.A. 1981)). “DHS has incorporated this holding into its practice, requiring a 21 showing of changed circumstances both where the prior bond determination was made by an 22 immigration judge and where the previous release decision was made by a DHS officer.” Saravia
23 v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017); see also Y.M.M. v. Wamsley, No. 2:25- 24 cv-02075-TMC, Dkt. No. 10 at 2 (W.D. Wash. Nov. 4, 2025) (Respondents’ brief stating that it 1 has “long been recognized by the Board of Immigration Appeals [that] a senior immigration 2 official’s exercise of discretion to revoke an individual’s release under 8 C.F.R. § 236.1(c)(9) is 3 limited to situations in which there has been a ‘change in circumstance’ since the non-citizen was
4 initially released.”). Only specific officials may revoke a noncitizen’s OREC under 8 C.F.R. § 5 236.1(c)(9). 6 2. Due Process Requirements 7 As discussed above, Sanchez contends that his Fifth Amendment rights were violated by 8 his re-detention without “written notice and a pre-deprivation hearing before a neutral 9 decisionmaker[.]” Dkt. No. 1 at 10. He alleges that “Respondents revoked [his] release and 10 deprived him of his liberty without affording him any written notice or meaningful opportunity to 11 be heard by a neutral decisionmaker prior to re-detention.” Id. Respondents’ position is that 12 Sanchez faces mandatory detention under 8 U.S.C. § 1225(b)(2)(A) and he was therefore not
13 entitled to a pre-deprivation hearing prior to OREC revocation. Dkt. No. 6 at 8 (“[A] predeprivation 14 hearing would be futile as his detention is based on his mandatory detention.”). 15 “Procedural due process imposes constraints on governmental decisions which deprive 16 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 17 Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “The 18 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and 19 in a meaningful manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). In 20 analyzing a procedural due process claim, the court engages in a two-step analysis: First, the court 21 determines whether the detainee “was deprived of a constitutionally protected liberty or property 22 interest.” Johnson v. Ryan, 55 F.4th 1167, 1179 (9th Cir. 2022). Second, the court examines
23 “whether that deprivation was accompanied by sufficient procedural protections” using the test 24 enunciated in Mathews v. Eldridge. Id. at 1179–80. 1 (a) Constitutionally Protected Liberty Interest “Freedom from imprisonment—from government custody, detention, or other forms of 2 physical restraint—lies at the heart of the liberty th[e] [Due] Clause protects.” Zadvydas, 533 U.S. 3 at 690. Noncitizens “who have once passed through our gates, even illegally,” are entitled to 4 “proceedings conforming to traditional standards of fairness encompassed in due process of law.” 5 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)); see also Zadvydas, 533 6 U.S. at 693. Although merely “set[ting] foot on U.S. soil” may not be sufficient to “effect[ ] an 7 entry” and trigger due-process protections for admissions decisions if a noncitizen is detained 8 shortly thereafter, Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139–40 (2020), if a 9 noncitizen “gain[s a] foothold in the United States,” Kaplan v. Tod, 267 U.S. 228, 230 (1925), or 10 “begins to develop . . . ties” in this country, “his constitutional status changes accordingly,” and 11 he “has a right to due process,” Landon v. Plasencia, 459 U.S. 21, 32–33 (1982); see also 12 Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903) (distinguishing noncitizens entitled to due process 13 from those “who ha[ve] been here for too brief a period to have become, in any real sense, a part 14 of our population”). Put another way, “[noncitizens] who have established connections in this 15 country have due process rights in deportation proceedings[.]” Thuraissigiam, 591 U.S. at 107. 16 Here, after briefly detaining Sanchez in 2023, DHS released him on his own recognizance. 17 Dkt. No. 7-1 at 4; Dkt. No. 7-4 at 2; Dkt. No. 7-5 at 2. He was living and working in the United 18 States pursuant to a valid work authorization, see Dkt. No. 7-6 at 3–4, and spent the vast majority 19 of his years in the United States released on an OREC, Dkt. No. 7-5 at 2; Dkt. No. 7-6 at 3–4. He 20 is entitled to at least those protections described above with respect to his protected liberty interest 21 in remaining out of immigration custody. 22 (b) Procedural Protections 23 To determine what procedures are constitutionally sufficient to protect petitioners’ liberty 24 1 interest, courts analyze the three Mathews factors: 2 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the 3 probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and 4 administrative burdens that the additional or substitute procedural requirement would entail. 5 424 U.S. at 335. In Rodriguez Diaz v. Garland, the Ninth Circuit assumed without deciding that 6 Mathews’ three-part test applies in “the immigration detention context,” 53 F.4th at 1206–07, and 7 district courts have applied the Mathews test in that context, see, e.g., Pinchi v. Noem, 792 F. Supp. 8 3d 1025, 1033 (N.D. Cal. 2025). 9 With respect to the first factor, as discussed above, Sanchez has a weighty private interest 10 in remaining out of immigration detention. See Morrissey, 408 U.S. at 482. Despite his liberty 11 interest being “indeterminate” under an OREC, that interest “includes many of the core values of 12 unqualified liberty and its termination inflicts a ‘grievous loss’ on the [noncitizen] and often on 13 others.” Id. Relatedly, Sanchez has an interest in the in the government adhering to the requirement 14 not to re-detain him absent (1) a revocation made by an appropriate official and (2) a material 15 change in circumstances. This factor favors Sanchez. 16 Turning to the second factor, Sanchez argues that notice and a hearing are necessary “[t]o 17 protect against arbitrary re-detention and to ensure the right to liberty[.]” Dkt. No. 1 at 7. Indeed, 18 because Respondents purported to detain Sanchez under 8 U.S.C. § 1225(b), he effectively had no 19 opportunity to demonstrate why he should be released on bond. See Dkt. No. 6 at 8 (“[A] 20 predeprivation hearing would be futile as [Sanchez’s] detention is based on his mandatory 21 detention”; thus, “[a]n analysis of [his] dangerousness or flight risk is not relevant.”). “The risk of 22 erroneous deprivation is extraordinarily high where ICE and DHS agency officials have sole, 23 unguided, and unreviewable discretion to detain Petitioners without any individualized showing 24 1 of why their detention is warranted, nor any process for Petitioners to challenge the exercise of 2 that discretion.” Escobar Salgado v. Mattos, No. 2:25-CV-01872-RFB-EJY, 2025 WL 3205356, 3 at *24 (D. Nev. Nov. 17, 2025).
4 The additional procedures afforded under Section 1226(a), including an individualized 5 custody redetermination by an immigration judge, would substantially mitigate the risk of 6 erroneous deprivation of Sanchez’s liberty, because those procedures allow detention only where 7 the petitioner presents a flight risk or danger to the community. An adverse decision by an 8 immigration judge in a bond hearing can further be appealed, and Sanchez could seek additional 9 custody redeterminations based on changed circumstances, such that the outcome of a bond 10 hearing would be subject to “numerous levels of review, each offering [him] the opportunity to be 11 heard by a neutral decisionmaker.” Rodriguez Diaz, 53 F.4th at 1210 (finding the bond hearing 12 procedures available through the implementing regulations of Section 1226(a) would render “the
13 risk of erroneous deprivation . . . relatively small”) (citation omitted). This factor weighs in favor 14 of Sanchez. 15 The third and final Mathews factor considers the “Government’s interest, including the 16 function involved and the fiscal and administrative burdens that the additional or substitute 17 procedural requirement would entail.” 424 U.S. at 335. The Court acknowledges that the 18 government’s interests in enforcing immigration laws, including “protecting the public from 19 dangerous criminal [noncitizens]” and “securing [a noncitizen’s] ultimate removal,” are “interests 20 of the highest order.” Rodriguez Diaz, 53 F.4th at 1208. “These interests are in fact served by the 21 individualized determination by an immigration judge, based on a review of evidence presented 22 by the government and the noncitizen, as to whether an individual is dangerous or at risk of fleeing
23 removal proceedings, under existing, well-established procedures.” Escobar Salgado, 2025 WL 24 3205356, at *25. Considering the lapse of time between Sanchez’s alleged violations and his arrest, 1 the nature of those violations, and that Sanchez came to the ICE/ERO location upon request, along 2 with his lack of criminal history, see Dkt. No. 7-6 at 3–5, the Court can identify no reason that an 3 individualized hearing would interfere with the government’s interests. Therefore, the Court finds
4 that this factor too weighs in favor of Sanchez. 5 C. Remedy 6 The specific harm faced by Sanchez is his detention for months without a bond hearing 7 pursuant to Section 1226(a). “The Court finds that harm is remedied by ordering a bond hearing 8 within seven days,” and “[g]iven the due process rights at stake, if a bond hearing is not provided 9 promptly within that time frame, Petitioner[] shall be immediately released” on the terms of his 10 most recent OREC. Escobar Salgado, 2025 WL 3205356, at *26; see also Balwan, 2026 WL 11 497098, at *8–10 (ordering same); Martinez Flores v. Kaiser, No. 1:26-CV-00582-KES-CDB 12 (HC), 2026 WL 482739, at *9 (E.D. Cal. Feb. 20, 2026) (ordering same); Solano Gallardo v.
13 Warden, No. 5:26-CV-00485-SSS-BFM, 2026 WL 483207, at *1 (C.D. Cal. Feb. 20, 2026) 14 (ordering same); Araiza v. Hermosillo, No. 2:25-CV-02139-TL, 2025 WL 3516103, at *2 (W.D. 15 Wash. Dec. 8, 2025) (ordering same). 16 Sanchez contends that he is entitled to a bond hearing before an Immigration Judge where 17 “Respondents must prove by clear and convincing evidence that [he] is a flight risk or a danger to 18 the community and that no alternatives to detention would mitigate those risks[.]” Dkt. No. 1 at 19 10–11. But Section 1226(a) is silent as to which party bears the burden of proof or by what standard 20 at a bond hearing. The implementing regulations likewise do not identify who shoulders what 21 burden, simply stating that both parties may present evidence. See 8 C.F.R. § 1003.19(d) (2025) 22 (“The determination of the Immigration Judge as to custody status or bond may be based upon any
23 information . . . that is presented to him or her by the [noncitizen] or the Service.”). The Supreme 24 Court also has not clarified the burden. See Sharon Shaji, Note, The Due Process Owed to 1 Noncitizens, 44 Cardozo L.R. 1635, 1638 (2023) (“In the absence of guidance from the Supreme 2 Court, federal circuit courts of appeals have produced a variety of approaches to burden of proof 3 allocation in § 1226(a) bond hearings.”).
4 As the Court discussed in Balwan, “[t]he federal appellate courts that have the addressed 5 this question are split” and the Ninth Circuit has not provided an answer directly on point. 2026 6 WL 497098, at *9. The Court need not address whether as a general matter, a noncitizen detained 7 under Section 1226(a) is entitled to a hearing at which the government is required to prove by clear 8 and convincing evidence that the noncitizen is a danger to the community or a flight risk, because 9 it determines that under the particular and unique circumstances here, Mathews requires such a 10 hearing. 11 D. The Court Denies Sanchez ’s Request for a Permanent Injunction In addition to immediate release, Sanchez requests an order permanently enjoining “his re- 12 detention during the pendency of his removal proceedings absent written notice and a hearing prior 13 to re-detention where Respondents must prove by clear and convincing evidence that [he] is a 14 flight risk or a danger to the community and that no alternatives to detention would mitigate those 15 risks[.]” Dkt. No. 1 at 10–11. Respondents oppose this request because Sanchez “fails to allege 16 that re-detention is likely to occur without proper notice and an opportunity to be heard.” Dkt. No. 17 6 at 2. 18 Where, as here, habeas petitioners raise Due Process claims and have also invoked the 19 Court’s jurisdiction under 28 U.S.C. § 1331, the Court has “the authority both to entertain [the 20 petitioner’s] constitutional challenges and to grant injunctive relief in response to them,” 21 “irrespective of the accompanying habeas petition.” Roman, 977 F.3d at 941–42. Importantly, 22 though, “[i]n seeking a permanent injunction, the moving party must convince the court that relief 23 is needed: ‘The necessary determination is that there exists some cognizable danger of recurrent 24 1 violation, something more than the mere possibility which serves to keep the case alive.’” 2 Cummings v. Connell, 316 F.3d 886, 897 (9th Cir. 2003) (quoting United States v. W.T. Grant Co., 3 345 U.S. 629, 633 (1953)). Nowhere in Sanchez ’s petition does he allege that re-detention is likely
4 if he were to be released or that such detention is likely to occur without compliance with the 5 government’s regulations or policies. Without argument or evidence that those outcomes are likely 6 to occur, Sanchez’s request constitutes nothing more than a “mere possibility” of harm that does 7 not entitle him to relief. Id. For these reasons, the Court denies his request for injunctive relief 8 regarding a potential future, post-release re-detention hearing. 9 III. CONCLUSION 10 For the foregoing reasons, the petition for writ of habeas corpus, Dkt. No. 1, is GRANTED 11 IN PART and DENIED IN PART, and the Court ORDERS as follows: 12 1. Respondents must provide Sanchez with a bond hearing under Section 1226(a)
13 before an immigration judge within seven days of the date of this Order. At the 14 hearing, the government bears the burden of proving by clear and convincing 15 evidence that Sanchez is a danger to the community or a flight risk. Respondents 16 must ensure that the hearing is recorded. Respondents are enjoined from denying 17 bond to Sanchez on the basis that he is detained pursuant to 8 U.S.C. § 1225(b)(2). 18 2. If a bond hearing is not provided within seven days of the date of this Order, 19 Sanchez shall be released from ICE custody immediately on the terms of his most 20 recent OREC or other terms consistent with Section 1226(a). Respondents must file 21 a Status Report with the Court either confirming that Sanchez received a bond 22 hearing—and the results of that hearing—or otherwise confirming his release by
23 April 13, 2026. 24 1 3. If the immigration judge does not order Sanchez released, Respondents are 2 prohibited from transferring Sanchez from this jurisdiction—i.e., the Western 3 District of Washington—for seven days following the immigration judge’s
4 decision, unless such transfer is necessary for medical evaluation, medical 5 treatment, release, or extenuating circumstances. 6 Dated this 2nd day of April, 2026. 7 A 8 Lauren King United States District Judge 9
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