1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANKLIN JOSE FERNANDEZ Case No. 1:26-cv-02063-KES-CDB (HC) QUIROZ 12 (A-Number 240 994 481), FINDINGS AND RECOMMENDATIONS TO GRANT PETITION FOR WRIT OF HABEAS 13 Petitioner, CORPUS AND DENY MOTION TO EXPEDITE AS MOOT 14 v. (Docs. 1, 10) 15 PAMELA BONDI, et al., 7-Day Objection Period 16 Respondents. 17 18 Petitioner Franklin Jose Fernandez Quiroz, a federal immigration detainee proceeding by 19 counsel, initiated this action on March 16, 2026, with the filing of a petition for writ of habeas 20 corpus under 28 U.S.C. § 2241. (Doc. 1). Petitioner is in custody the of Immigration and Customs 21 Enforcement (“ICE”) at the California City Correctional Facility. Id. ¶ 1. Respondents are: Todd 22 Blanche, Acting United States Attorney General;1 the unnamed Secretary of the Department of 23 Homeland Security (“DHS”); Todd Lyons, Acting Director of ICE; the unnamed Field Office 24 Director of the ICE Los Angeles Field Office; and the unnamed Warden of the California City 25 Correctional Facility. See id. 26 The undersigned issued an order on March 17, 2026, directing the Respondents to show 27 1 Todd Blanche is automatically substituted for Pamela Bondi, former United States Attorney 28 General. Fed. R. Civ. P. 25(d). 1 cause in writing whether there are any factual or legal issues in this case rendering it distinct from 2 the Court’s prior orders. (Doc. 6; citing Hernandez v. Warden of the Mesa Verde Annex Det. 3 Facility, No. 1:25-cv-01676-KES-CDB (HC), 2026 WL 472656 (E.D. Cal. Feb. 19, 2026)). 4 Respondents timely filed a response (Doc. 8) and Petitioner replied (Doc. 9). Petitioner also filed 5 a motion to expedite (Doc. 10) on May 15, 2026. For the reasons set forth herein, the undersigned 6 recommends that Petitioner’s petition for writ of habeas corpus be granted and the motion to 7 expedite be denied as moot. 8 I. Relevant Background 9 The relevant facts are undisputed. See (Docs. 1, 8). Petitioner is a native of Nicaragua and 10 entered the United States without inspection in June 2022. He was detained by United States 11 Customs and Border Protection (“CBP”) and released under an order of supervision. (Doc. 1 ¶¶ 12 50-52). Petitioner filed a pending application for asylum. Id. ¶ 51. He was re-detained on January 13 28, 2026, during a scheduled check-in with ICE. Id. ¶ 57; (Doc. 8 at 1). Petitioner has no criminal 14 history in the United States and has lived in New York where he maintained steady employment as 15 a cable installer. Id. ¶¶ 53-55. 16 In their response, Respondents concur that Petitioner entered the United States on June 17, 17 2022, and was “released with an I-94 as an alternate to detention as a condition of parole.” 18 Respondents concede that the “case does not appear to be materially distinguishable from the cases 19 cited in the Court’s minute order.” Id. at 3. Respondents attach to their response a Record of 20 Deportable/Inadmissible Alien form and a Notice to Appear form. (Docs. 8-1, 8-2). 21 In his reply, Petitioner asserts that he remains in active removal proceedings and that the 22 exhibits attached to Respondents’ response do not allege any violation of release conditions or any 23 change in circumstance warranting re-detention. (Doc. 9 at 3). Petitioner asserts that he complied 24 with all conditions of his release. Id. at 4. 25 The Court also takes judicial notice that Petitioner’s immigration case remains pending.2 26 2 See https://acis.eoir.justice.gov/en/caseInformation (last visited May 22, 2026, using Petitioner’s 27 A-Number and nationality); Daniels-Hall v. National Edu. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by government 28 entities ... and neither party disputes the authenticity of the web sites or the accuracy of the information 1 II. Governing Authority 2 A. The Writ of Habeas Corpus 3 Writ of habeas corpus relief extends to a person in custody under the authority of the United 4 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 5 shall “award the writ or issue an order directing the respondent to show cause why the writ should 6 not be granted, unless it appears from the application that the applicant or person detained is not 7 entitled thereto.” 28 U.S.C. § 2243. 8 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 9 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 10 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 11 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 12 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 13 detention” in ICE custody). 14 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 15 Two statutes govern the detention and removal of inadmissible noncitizens from the United 16 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 17 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 18 Sept 12, 2025), which the undersigned adopts herein: 19 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 20 The “usual removal process” involves an evidentiary hearing before 21 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 22 § 1229(a), also known as “full removal,” by filing a Notice to Appear with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N. 23 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 24 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 25 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 26 under § 1226(a), an ICE officer makes the initial custody 27 displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F. Supp. 3d 1028, 1034 (E.D. Cal. 2024) (taking 28 judicial notice of information on federal government agency’s website). 1 determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) (citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be released if he or 2 she “demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is 3 likely to appear for any future proceeding.” Id. (citing 8 C.F.R. § 236.1(c)(8)). 4 “Federal regulations provide that aliens detained under § 1226(a) 5 receive bond hearings at the outset of detention.” Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)). 6 If, at this hearing, the detainee demonstrates by the preponderance of the evidence that he or she is not “a threat to national security, a 7 danger to the community at large, likely to abscond, or otherwise a poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at 8 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)). Once released, the noncitizen’s bond is subject to revocation. Under 9 8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s bond or parole ‘at any time,’ even if that individual has previously 10 been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D. Cal. 2019). However, if an immigration judge has determined the 11 noncitizen should be released, the DHS may not re-arrest that noncitizen absent a change in circumstance. See Panosyan v. 12 Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release decision was made by a DHS officer, not an immigration judge, the 13 Government’s practice has been to require a showing of changed circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 14 3d 1168, 1197 (N.D. Cal. 2017). 15 2. Expedited Removal and Mandatory Detention (§ 1225) 16 While “§ 1226 applies to aliens already present in the United States,” 17 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 18 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 19 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 20 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 21 that:
22 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 23 who is arriving in the United States or is described in clause (iii) is inadmissible under section 24 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C) or 1182(a)(7)], the officer shall order the alien 25 removed from the United States without further hearing or review unless the alien indicates either an 26 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 27 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 28 to noncitizens who are inadmissible due to misrepresentation or 1 failure to meet document requirements. Clause (iii) of § 1225(b)(1) allows the Attorney General (who has since delegated the 2 responsibility to the Department of Homeland Security Secretary) to designate for expedited removal noncitizens “who ha[ve] not been 3 admitted or paroled into the United States, and who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, 4 that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of 5 the determination of inadmissibility under this subparagraph.” § 1225(b)(1)(A)(iii)(II). 6 To summarize, under § 1225(b)(1), two groups of noncitizens are 7 subject to expedited removal. First, there are “arriving” noncitizens who are inadmissible due to misrepresentation or failure to meet 8 document requirements. The implementing agency regulations define “arriving alien” as applicants for admission “coming or 9 attempting to come into the United States at a port-of-entry.” 8 C.F.R. § 1.2. The second group –designated noncitizens –includes 10 noncitizens who meet all of the following criteria: (1) they are inadmissible due to lack of a valid entry document or 11 misrepresentation; (2) they have not “been physically present in the United States continuously for the 2-year period immediately prior 12 to the date of the determination of inadmissibility”; and (3) they are among those whom the Secretary of Homeland Security has 13 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 1225(b)(1). 14 “Initially, DHS’s predecessor agency did not make any designation 15 [under (3)], thereby limiting expedited removal only to ‘arriving aliens,’” that is, noncitizens encountered at ports of entry. Make the 16 Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS 17 extended by designation expedited removal to noncitizens who arrive by sea and who have been present for fewer than two years, and to 18 noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. Id. This 19 was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to “apply 20 expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 21 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 22 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 23 short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United 24 States.
25 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 26 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 27 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 28 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the 1 officer determines there is no “credible fear,” the officer “shall order the alien removed from the United States without further hearing or 2 review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may be appealed by the applicant to an immigration judge, who must 3 conduct the review “to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the 4 determination.” Id. Detention under § 1225(b)(1) is “mandatory” “pending a final determination of credible fear of persecution and if 5 found not to have such a fear, until removed.” Id. (citing § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under 6 this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until 7 removed.”)
8 [Section] 1225 also contains a provision that applies to applicants for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. 9 This provision, 1225(b)(2), states that, subject to statutory exceptions, “in the case of an alien who is an applicant for admission, 10 if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, 11 the alien shall be detained for a proceeding under section 1229a [full removal proceedings] of this title.” § 1225(b)(2). In other words, 12 noncitizens subject to 1225(b)(2) are not eligible for expedited removal but are subject to mandatory detention while their full 13 removal proceedings are pending. This is in contrast to the default detention regime under § 1226(a), which allows for discretionary 14 release and review of detention through a bond hearing.
15 3. The Government’s Recent Change in Position
16 Until this year, the DHS has applied § 1226(a) and its discretionary release and review of detention to the vast majority of noncitizens 17 allegedly in this country without valid documentation. This practice was codified by regulation. The regulations implementing the Illegal 18 Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens 19 who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible 20 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other 21 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 22 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 23 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . . 24 In 2025, however, the Government’s policy changed dramatically. 25 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 26 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 27 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 28 to expedited removal but to whom expedited removal has not been 1 applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps to terminate any ongoing removal proceeding and/or any active 2 parole status.” Id. The memorandum states that DHS shall take the actions contemplated by the memorandum “in a manner that takes 3 account of legitimate reliance interests,” but states that “the expedited removal process includes asylum screening, which is 4 sufficient to protect the reliance interests of any alien who has applied for asylum or planned to do so in a timely manner.” Huffman 5 Memorandum (Jan. 23, 2025).
6 Since mid-May of 2025, the Department of Homeland Security has made a practice of appearing at regular removal proceedings in 7 immigration court, moving to dismiss the proceedings, and then re- arresting the individual in order to place them in expedited removal 8 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does not dismiss the full removal proceedings, ICE still makes an arrest, 9 apparently in reliance on § 1225(b)(2)’s detention provision. 10 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 11 C. Parole Revocation 12 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 13 process in immigration cases and noted that before parole may be revoked, the parolee must be 14 given written notice of the impending revocation, which must include a cogent description of the 15 reasons supporting the revocation decision. The court held: 16 Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required 17 detention, to be “paroled” into the United States. This provision, at issue in this case, states: 18 The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this 19 title, in his discretion parole into the United States temporarily under such conditions as he may prescribe 20 only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying 21 for admission to the United States, but such parole of such alien shall not be regarded as an admission of the 22 alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 23 have been served the alien shall forthwith return or be returned to the custody from which he was paroled 24 and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for 25 admission to the United States. 26 8 U.S.C. § 1182(d)(5)(A). 27 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 28 immigration parolees are entitled to determinations related to their parole revocations that are not 1 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 2 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 3 a satisfactory explanation for its action including a rational connection between the facts found and 4 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 5 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 6 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 7 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 8 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 9 the immigrant has departed or when the specified period of parole has expired. 10 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 11 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 12 to revoke humanitarian parole: 13 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 14 basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no 15 indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received 16 merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required 17 by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for 18 which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] 19 continued presence...in the United States.” See 8 C.F.R. § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s 20 parole violated his rights under the statute and regulations. See Y-Z- L-H, 2025 WL 1898025, at *13. 21 22 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 23 a similar conclusion relying on the Due Process Clause: 24 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 25 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 26 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court joins other courts of this district facing facts similar to the present 27 case and finds Petitioner raised serious questions going to the merits of his claim that due process requires a hearing before an IJ prior to 28 re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021 1 WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v. Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal. Aug. 2 23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on preparole, parole, and probation status have a liberty interest, so too 3 does [a noncitizen released from immigration detention] have a liberty interest in remaining out of custody on bond.”). 4 5 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 6 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 7 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 8 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 9 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 10 imprisonment serves the government’s legitimate goals.”). 11 III. Exhaustion 12 A. Governing Authority 13 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 14 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 15 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 16 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 17 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 18 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 19 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 20 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 21 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 22 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 23 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 24 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 25 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 26 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 27 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 28 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 1 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 2 to be disregarded.”). 3 B. Analysis 4 Neither Petitioner nor Respondents address exhaustion in their filings. See (Docs. 1, 8, 9). 5 The Court finds that the prudential exhaustion requirement should be waived as it would be 6 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 7 to mandatory detention under § 1225(b). See (Doc. 8 at 2).; Jennings v. Rodriguez, 583 U.S. 281, 8 282 (2018) (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings 9 during the course of their detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 10 2022). Further, the BIA has held that all noncitizens present within the country without admission 11 are seeking admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. 12 v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 13 2025) (“In addition, pursuit of administrative remedies would almost certainly be futile given the 14 BIA’s recent holding that all noncitizens present in the United States without admission are 15 ‘seeking admission’ for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing 16 Hurtado, 29 I&N Dec. 216). 17 For these reasons and because Respondents do not argue Petitioner should be required to 18 exhaust administrative remedies, the undersigned recommends that the prudential exhaustion 19 requirement be waived for Petitioner’s claim for habeas corpus relief. See, e.g., Chavez v. Noem, 20 No. 3:25-cv-02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving 21 prudential exhaustion requirement because the BIA “already applied its expertise in deciding and 22 designating” Hurtado as precedential, pursuant to which detainees are subject to mandatory 23 detention without bond under § 1225(b)(2)); J.A.C.P., 2025 WL 3013328, at *7 n.9. 24 IV. Discussion 25 Petitioner asserts two causes of action in his petition: violation of the Immigration and 26 Nationality Act (“INA”) and violation of procedural due process under the Fifth Amendment to the 27 U.S. Constitution. (Doc. 1 at 14-15). 28 As set forth below, because the undersigned finds that Respondents have violated 1 Petitioner’s constitutional rights to procedural due process, and because Petitioner’s other claims 2 seek the same or similar relief (i.e., for immediate release and to enjoin Respondents from re- 3 detaining Petitioner unless his re-detention is justified at a custody hearing before a neutral arbiter 4 in which the government bears the burden of proof), the undersigned forbears from addressing 5 Petitioner’s other claims. 6 A. Procedural Due Process 7 1. Governing Authority 8 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 9 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 10 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 11 individuals against two types of government action’: violations of substantive due process and 12 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 13 “Procedural due process imposes constraints on governmental decisions which deprive 14 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 15 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 16 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 17 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 18 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 19 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 20 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 21 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 22 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 23 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 24 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 25 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 26 v. Brewer, 408 U.S. 471, 481 (1972). 27 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 28 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 1 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 2 Due Process Clause stands as a significant constraint on the manner in which the political branches 3 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 4 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 5 justification for physical confinement outweighs the individual's constitutionally protected interest 6 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 7 1196, 1203 (9th Cir. 2011)). 8 2. Analysis 9 On Petitioner’s as-applied procedural due process challenge to his continuing detention by 10 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 11 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any 12 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 13 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 14 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 15 Petitioner has an underlying, continuing liberty interest in being free from re-detention. 16 Specifically, Petitioner was released on supervision by Customs and Border Protection more than 17 three years prior to his re-arrest. (Doc. 1 ¶¶ 50-57). By releasing Petitioner in their discretion, 18 immigration officials necessarily determined that Petitioner did not present a risk of flight or danger 19 to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest 20 may, in the officer’s discretion, release an alien not described in section 236(c)(1) of the Act, under 21 the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to 22 the satisfaction of the officer that such release would not pose a danger to property or persons, and 23 that the alien is likely to appear for any future proceeding.”). Accord Rodriguez Diaz, 53 F.4th at 24 1196. Petitioner remained released from immigration detention for a significant amount of time. 25 (Doc. 1 ¶¶ 50, 57). Petitioner asserts that he has no criminal history and complied with all 26 requirements of his release under supervision. Id. ¶ 54; (Doc. 9 at 4). Respondents do not dispute 27 this or otherwise assert that Petitioner failed to comply with the conditions of his release, nor do 28 they proffer facts to suggest Petitioner is a danger to the public or a flight risk. See (Doc. 8). 1 The undersigned agrees with other courts and other judges of this Court that noncitizens 2 released from immigration custody on general orders of supervision or on their own recognizance 3 have a liberty interest in their freedom that implicates protections under principles of procedural 4 due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The 5 fact that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks 6 a protectable liberty interest and can be re-detained without process.”); see id. (“[E]ven if 7 immigration detainees must wait months before a periodic re-review of their detention, those 8 already released on immigration bond possess an interest in their continued liberty, which grows 9 over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun v. 10 Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1094 11 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy 12 duration of his conditional release as well as the meaningful connections Petitioner seems to have 13 made with his community during that time create a powerful interest for Petitioner in his continued 14 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5- 15 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an 16 individual, a protected liberty interest under the Due Process Clause may entitle the individual to 17 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES- 18 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily 19 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained 20 in continuous custody and never released on supervision). 21 Respondents assert that Petitioner is an “applicant for admission” and is “subject to 22 mandatory detention by ICE under 8 U.S.C. § 1225(b)(2).” (Doc. 8 at 2; citing, inter alia, Alonzo 23 v. Noem, No. 1:25-cv-01519 WBS SCR, 2025 WL 3208284 (E.D. Cal. Nov. 17, 2025)). The 24 petitioners’ circumstances in Alonzo are factually dissimilar from those presented here, as another 25 judge of this Court has explained: Petitioner here was detained by Customs and Border Protection 26 and released, and immigration proceedings have remained pending for a significant period of time. 27 See Garcia v. Chesnut, No. 1:25-cv-01907-JLT-CDB, 2025 WL 3771348, at *8 (E.D. Cal. Dec. 28 31, 2025) (“However, unlike here, the petitioners in Valencia and Alonzo had never been 1 encountered, let alone processed, by immigration officials, and had not been released on 2 recognizance pending completion of Section 240 removal proceedings.”). 3 Additionally, other judges of this Court, as well as many other courts, have considered and 4 rejected the government’s arguments, finding that § 1226(a), not § 1225(b)(2), provides the 5 appropriate framework for noncitizens released following their initial encounter with immigration 6 authorities and have resided in the United States for a significant period, like Petitioner here. See, 7 e.g., H.J.G.G. v. Wofford, No. 1:25-cv-01718-JLT-EPG-HC, 2025 WL 3761803, at *4 (E.D. Cal. 8 Dec. 30, 2025) (citing Castillo v. Wofford, No. 1:25-cv-01586-JLT-HBK, 2025 WL 3466064, at *8 9 (E.D. Cal. Dec. 2, 2025)); accord Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 935-37 (N.D. 10 Cal. 2025), appeal filed, No. 25-7472 (9th Cir. Nov. 26, 2025). Under such circumstances, “the 11 government cannot switch tracks” and subject Petitioner to mandatory detention now under section 12 1225(b)(2) “after it previously released him on his own recognizance under section 1226(a).” 13 Valencia Zapata, 801 F. Supp. 3d at 936; accord Souza v. Robbins, No. 1:25-cv-01597-DJC-JDP, 14 2025 WL 3263897, at *2 (E.D. Cal. Nov. 23, 2025). 15 Respondents cite to two out-of-circuit cases in support of their contention that § 1225(b)(2) 16 applies: Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), and Avila v. Bondi, 170 F.4th 17 1128 (8th Cir. 2026). (Doc. 8 at 3). These cases are not binding upon this Court. The undersigned 18 agrees with other judges of this Court who have found more persuasive the Seventh Circuit’s 19 reasoning in Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 F.4th 1048 (7th Cir. 2025), and 20 the dissent in Buenrostro-Mendez, finding that § 1225(b)(2) does not apply to noncitizens who are 21 residing in the United States. See Guerra Flores v. Chestnut, No. 2:26-cv-00627-DJC-CSK, 2026 22 WL 926071, at *1 (E.D. Cal. Apr. 6, 2026); Chavarria v. Chestnut, No. 1:26-cv-01258-KES-EPG 23 (HC), 2026 WL 905257, at *1 n.1 (E.D. Cal. Apr. 2, 2026). 24 Because Petitioner has shown he has a protected liberty interest to remain free from re- 25 detention based on his discretionary release in June 2022, the undersigned must determine what 26 process is due before the government may terminate that liberty interest. To determine this, the 27 undersigned considers the following factors articulated in Mathews: “[(1)] the private interest that 28 will be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest 1 through the procedures used, and the probable value, if any, of additional or substitute procedural 2 safeguards; and [(3)] the Government’s interest, including the function involved and the fiscal and 3 administrative burdens that the additional or substitute procedural requirement would entail.” 4 Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 (applying Mathews test in 5 immigration detention context); id. at 993 (“The appropriateness of the requirement that ICE and 6 IJs consider financial circumstances and alternative conditions of release is confirmed by the 7 balance of factors under Mathews[.]”). 8 As to the first factor, Petitioner has shown he has a significant private interest in remaining 9 on release from detention. He had been released from immigration custody for more than three 10 years prior to his re-detention. Respondents do not assert that he failed to comply with the 11 conditions of his release nor that he committed any crimes. See (Doc. 8). Petitioner’s continued 12 liberty interest in remaining on release is undermined by his re-detention without a bond hearing. 13 Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from imprisonment is at the core of the Due Process 14 Clause…. The lengthy duration of his conditional release as well as the meaningful connections 15 [he] seems to have made with his community during that time create a powerful interest for [him] 16 in his continued liberty.”). 17 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest 18 is considerable here where he has not received any bond or custody redetermination. Id. at 1094; 19 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 20 2025). Because there were no procedural safeguards to determine if Petitioner’s re-detention was 21 justified, and Respondents present no facts indicating any change in circumstances while Petitioner 22 was on release sufficient to justify Petitioner’s re-detention, the probable value of the additional 23 procedural safeguard of a bond hearing to determine whether Petitioner is a flight risk or a danger 24 to the community is high such that this factor weighs in favor of granting a bond hearing. See Doe, 25 787 F. Supp. at 1094 (“[G]iven that Petitioner was previously found to not be a danger or risk of 26 flight and the unresolved questions about the timing and reliability of the new information, the risk 27 of erroneous deprivation remains high.”); A.E., 2025 WL 1424382 at *5; Ramazan, 2025 WL 28 3145562, at *6. Therefore, this factor weighs in favor of granting a bond hearing. 1 Third, the government’s interest in detaining Petitioner without a bond hearing is low, 2 particularly given that Petitioner remained out of custody and was successfully supervised by 3 immigration authorities prior to his re-arrest and detention. Doe, 787 F. Supp. 3d at 1094 (citation 4 omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019)); Diaz v. Kaiser, No. 3:25- 5 cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) (“And, like other Courts in this 6 district, the Court concludes that the government’s interest in re-detaining Petitioner-[] without a 7 hearing is ‘low,’ particularly in light of the fact that Petitioner[] has long complied with his 8 reporting requirements.”). “The effort and cost to provide Petitioner with [a bond hearing] is 9 minimal[.]” Doe, 787 F. Supp. 3d at 1094. Therefore, any additional burden from requiring the 10 government to seek a bond hearing before it may re-detain Petitioner does not outweigh his liberty 11 interest and the risk of erroneous deprivation. Accordingly, this factor weighs in favor of granting 12 a bond hearing. 13 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 14 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest 15 in January 2026 and continuing detention thereafter. 16 B. Remedy 17 Respondents do not assert that Petitioner is a flight risk or a danger to the community. As 18 § 1225(b) does not apply to Petitioner, the government may not detain him pursuant to § 1225(b)(1) 19 and his detention violates his procedural due process rights. And because Respondents do not 20 provide any other basis to detain Petitioner and do not assert any risk of flight or danger to the 21 community, the appropriate remedy is Petitioner’s immediate release. 22 Further, the undersigned will recommend that in the event the government seeks to re-detain 23 Petitioner, the government must provide notice to Petitioner a minimum of seven days in advance 24 and must hold a bond hearing before a neutral arbiter pursuant to § 1226(a) and applicable 25 regulations, at which Petitioner’s eligibility for bond must be considered. Ordinarily, the Petitioner 26 bears the burden of demonstrating by a preponderance of the evidence at a bond hearing that he is 27 neither a flight risk nor a danger to the community. Rodriguez Diaz, 53 F.4th at 1197. But as set 28 forth above, the BIA has held that all noncitizens within the country without admission are subject 1 to mandatory detention under § 1225(b)(1). See J.A.C.P., 2025 WL 3013328, at *7 (citing Matter 2 of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)). 3 Accordingly, the undersigned will recommend adopting the prevailing view endorsed by 4 judges of this Court that, under the circumstances presented here, if Respondents seek to re-detain 5 Petitioner, Respondents be compelled to provide Petitioner a bond redetermination hearing at which 6 the government will bear the burden of establishing, by clear and convincing evidence, that 7 Petitioner poses a danger to the community or a risk of flight. “Doing so is logical” because “the 8 immigrant’s initial release reflected a determination by the government that the noncitizen is not a 9 danger to the community or a flight risk. Since it is the government that initiated re-detention, it 10 follows that the government should be required to bear the burden of providing a justification for 11 the re-detention.” M.R.R. v. Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 3265446, at *14 12 (E.D. Cal. Nov. 24, 2025) (relying on Pinchi, 792 F. Supp. 3d at 1034, 1038); accord Omer G. G. 13 v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025). 14 C. Respondents’ Reference to Ninth Circuit Appeals 15 Separately, Respondents assert that there are matters pending appeal before the Ninth 16 Circuit that bear on the issues presented in this case. (Doc. 8 at 2 n.3; citing, inter alia, Rodriguez 17 v. Bostock, No. 25-6842). Having found that Petitioner’s re-arrest without a bond determination 18 and continuous detention for a considerable length of time violates the U.S. Constitution, the 19 undersigned will not recommend holding the matter in abeyance pending said appeals. See 20 Zadvydas, 533 U.S. at 690 (reaffirming that “freedom from imprisonment—from government 21 custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due 22 Process] Clause protects.”). 23 V. Conclusion and Recommendation 24 Accordingly, IT IS HEREBY RECOMMENDED that: 25 1. The petition for writ of habeas corpus (Doc. 1) be GRANTED. 26 2. Petitioner’s motion to expedite (Doc. 10) be DENIED as moot. 27 3. Respondents be ORDERED to release Petitioner immediately. 28 1 4. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless 2 the government provides notice to Petitioner a minimum of seven (7) days in advance 3 and holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and 4 applicable regulations, at which Petitioner’s eligibility for bond must be considered, 5 and where the government must demonstrate by clear and convincing evidence that 6 Petitioner is a flight risk or danger to the community, such that physical custody is 7 legally justified. 8 5. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this 9 case. 10 These findings and recommendations will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 12 after being served with these findings and recommendations, the parties may file written objections 13 with the Court. Although this objection period is shorter than provided by Local Rule, such an 14 adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 15 Constitution by Respondents, and the fact that the parties have extensively briefed the issues 16 involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 17 may require a response within a shorter period if exigencies of the calendar require.”). Any 18 objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 19 Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 20 The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 21 refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 22 and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 23 filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 24 these findings and recommendations under 28 U.S.C. § 636(b)(l)(C). 25 /// 26 /// 27 /// 28 /// ] The parties are advised that failure to file objections within the specified time may result in 2 | the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 3 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 | ITISSO ORDERED. >| Dated: _ May 22, 2026 | hrnnrD bo 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19