1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GENNADII ALEKSANDROVICH Case No. 1:26-cv-00046-JLT-HBK (HC) KOSTAREV, 12 FINDINGS AND RECOMMENDATIONS TO Petitioner, GRANT PETITION FOR WRIT OF HABEAS 13 CORPUS IN PART, AND DENY MOTION v. FOR PRELIMINARY INJUNCTION AS 14 MOOT2 WARDEN OF THE GOLDEN STATE 15 ANNEX DETENTION FACILITY,1 (Docs. 1, 3) 16 Respondent. FIVE-DAY OBJECTION PERIOD 17 18 Petitioner Gennadii Aleksandrovich Kostarev, an immigrant detainee in U.S. Immigration 19 Customs and Enforcement (“ICE”) custody at the Golden State Annex Detention Facility in 20 McFarland, California, initiated this action by filing a pro se petition for writ of habeas corpus 21 under 28 U.S.C. § 2241, docketed on January 5, 2026. (Doc. 1, “Petition”). 22 //// 23
24 1 The Court sua sponte directs the Clerk of Court to update the case caption to reflect Warden of the Golden State Annex Detention Facility as the proper Respondent. See Rumsfeld v. Padilla, 542 U.S. 426, 25 435 (2004); Doe v. Garland, 109 F.4th 1188, 1199 (9th Cir. 2004) (affirming “the application of the immediate custodian and district of confinement rules to core habeas petitions filed pursuant to 28 U.S.C. 26 § 2241, including those filed by immigrant detainees.”). 2 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 27 (E.D. Cal. 2025).
28 1 I. BACKGROUND 2 It is uncontested that Petitioner is a native and citizen of Russia who attempted to enter the 3 United States without inspection at a port of entry on or around March 1, 2022, was immediately 4 arrested and detained, and was processed for expedited removal per Immigration and Nationality 5 Act (“INA”) Section 235(b)(1). (Doc. 22-2, 22-3). Petitioner expressed fear of persecution for 6 practicing his religion and received information about a credible fear interview. (Doc. 22-4, 22- 7 5). On March 11, 2022, U.S. Citizenship and Immigration Services (“USCIS”) issued an Order 8 of Release on Recognizance. (Doc. 22-7, 22-8). 9 On September 8, 2025, at a voluntary appointment with ICE, Petitioner was arrested and 10 taken into custody based on his 2022 Notice and Order of Expedited Removal. (Doc. 14-1 at 5; 11 Doc. 22-14). On the same date, he was issued a Notice to Appear charging him as subject to 12 removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) (alien entry without inspection). (Doc. 14-2). 13 Subsequently, On September 25, 2025, “additional charges” were filed against Petitioner, 14 charging him instead as subject to removal as an “arriving alien” pursuant to 8 U.S.C. § 15 1182(a)(7)(i)(I) (alien not in possession of valid entry document). (Doc. 14 at 2; Doc. 14-3). 16 On November 11, 2025, Petitioner filed an unopposed motion for voluntary departure. 17 (Doc. 14-4). On December 3, 2025, the Department of Homeland Security (“DHS”) and 18 Petitioner filed a joint motion for voluntary departure. (Doc. 14-5 (including Petitioner’s 19 acknowledgment that should he fail to comply with voluntary departure, he would “accept the 20 alternate written order of removal as a final disposition.”)). On December 4, 2025, the 21 Immigration Judge (“IJ”) granted Petitioner voluntary departure, to occur on or before January 5, 22 2026. (Doc. 14-6; Doc. 22-11). 23 On January 5, 2026, Petitioners filed a pro se petition for writ of habeas corpus under 28 24 U.S.C. § 2241. (Doc. 1, “Petition”). To the extent discernable, the Petition raises the following 25 claims for relief: (1) he was unlawfully arrested and re-detained “without a reason” by ICE when 26 he came to “ask questions” about the status of his visa application, (2) his continued detention is 27 endangering his health; (3) he is unable to practice his religion as a Jehovah’s witness because he 28 was detained by ICE; and (4) his prolonged detention for four months is unlawful as he has been 1 “granted voluntary departure.” (Doc. 1 at 6-7). As relief, inter alia, Petitioner asked that he be 2 released so he and his wife can voluntarily depart the United States. (Id.). On January 9, 2026, 3 Petitioner filed a motion for temporary restraining order. (Doc. 3). On January 13, 2026, the 4 assigned district judge denied Petitioner’s motion for a temporary restraining order as untimely, 5 converted to motion to one seeking preliminary injunction, and referred the matter to the 6 undersigned magistrate judge. (Doc. 6). On January 16, 2026, the Court directed response to the 7 Petition and the motion for preliminary injunction. (Doc. 7). 8 On January 27, 2026, Petitioner was issued a Warrant of Removal/Deportation, and a 9 Warning to Alien Ordered Removed or Deported. (Doc. 22-9, Doc. 22-10). 10 On February 6, 2026, Respondent filed a response to the Petition arguing that because 11 Petitioner did not voluntarily depart by January 5, 2026, per the Court’s December 4, 2025 order 12 granting voluntary departure, the voluntary departure order automatically converted to a final 13 removal order; thus, Petitioner is subject to mandatory detention for 90 days pursuant to 8 U.S.C. 14 § 1231(a)(2). (Doc. 14 at 3 (citing 8 C.F.R. § 1241.1(f))). On February 9, 2026, Petitioner filed a 15 reply, again requesting release so he could obtain the necessary travel documents to voluntarily 16 depart, and, as particularly relevant here, arguing that his re-detention without a hearing was a 17 violation of his procedural due process rights. (Doc. 18 at 1-5). 18 On February 20, 2026, Petitioner filed a “Notice of Supplemental Authority and 19 Developments” (“Notice”), with an attached “Motion to Reopen” the proceedings in Petitioner’s 20 underlying immigration removal proceedings filed on February 9, 2026, which was three days 21 after Respondent filed their Answer to the Petition. (Doc. 20, “Motion”). In the Motion, the 22 Department of Homeland Security (“DHS”) argues the joint motion for voluntary departure 23 granted on December 4, 2025 was filed “in error” because it was based, in part, on Petitioner’s 24 concession and admission to the charges set forth in the original Notice To Appear; however, 25 DHS subsequently filed a Form I-261 on September 25, 2024 (See Doc. 14-3) correcting the 26 original charge and alleging Petitioner is an arriving alien and inadmissible pursuant to INA § 27 212(a)(7)(A)(i)(I). (Doc. 20 at 5). DHS claims that due to his “corrected” status as an arriving 28 alien, Petitioner is no longer eligible for voluntary departure; instead, Petitioner must file a 1 motion to withdraw his request for admission. Thus, DHS requested that the IJ reopen 2 proceedings so DHS can plead to the “correct” charges and “join a motion to withdraw his 3 request for admission.” (Id.). 4 On February 23, 2026, after reviewing Petitioner’s Notice, the Court entered an Order 5 directing Respondent to submit additional briefing to clarify Petitioner’s current detention status 6 and the status of his removal proceedings before the immigration court, and expressing reluctance 7 to rule on Petitioner’s claim based on his detention status after being granted voluntary departure 8 in light of the DHS’s subsequent discovery that the joint motion for voluntary departure was 9 perhaps filed in error. (Doc. 21). 10 Also on February 23, 2026, the IJ granted DHS’s motion to reopen the proceedings, 11 rescinded the December 4, 2025 order granting the joint motion for voluntary departure, and 12 found Petitioner was “not eligible for voluntary departure as an arriving alien.” (Doc. 22-1). On 13 March 3, 2026, Respondent filed supplemental briefing arguing that despite no longer being 14 subject to a final removal order, Petitioner is still subject to mandatory detention under 8 U.S.C. § 15 1225(b)(2) as an “applicant for admission,” and is therefore ineligible for a bond hearing. (Doc. 16 22 at 2-3). 17 Significant to the consideration of the Petition is Petitioner’s status as a Russian citizen 18 who was detained at the border but later released pursuant to an Order of Release on 19 Recognizance. The undersigned recommends the district court grant the Petition as to 20 Petitioner’s construed procedural due process claim for the reasons set forth below.3 21 II. APPLICABLE LAW AND ANALYSIS 22 The parties were notified in the Court’s January 16, 2026 Order directing response, that 23 the undersigned intended to issue findings and recommendations on the merits of the Petition 24 with the understanding that the Court would also consider arguments made in support of the 25 motion for preliminary injunction. (Doc. 7). Accordingly, the Court recommends advancing the 26
27 3 In light of the Court's conclusion that Petitioner's re-detention was in violation of his procedural due process rights (claim one), and recommendation that Petitioner be granted immediate release, it is 28 unnecessary for the Court to address Petitioner's additional claims for relief. 1 merits determination and consolidating it with the resolution of the preliminary injunction 2 pursuant to Federal Rule of Civil Procedure 65(a)(2), which provides that “[b]efore or after 3 beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on 4 the merits and consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2); see also Dzhabrailov v. 5 Decker, 2020 WL 2731966, at *4 (S.D.N.Y. May 26, 2020) (considering preliminary injunction 6 and merits of petition simultaneously). 7 A. Jurisdiction 8 A district court may grant a writ of habeas corpus when the petitioner “is in custody in 9 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). As 10 pertinent here, “district courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas 11 challenges to immigration detention that are sufficiently independent of the merits of [a] removal 12 order.” Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) (citing Singh v. Holder, 638 13 F.3d 1196, 1211–12 (9th Cir. 2011)); see also Jennings v. Rodriguez, 538 U.S. 281, 294 (2018). 14 B. Statutory and Legal Framework 15 As background, the Court will briefly outline the statutory framework of detention 16 authority under the INA, and the recent shift in long-standing practice by Executive agencies in 17 interpreting these statues. 18 1. Mandatory Detention under 8 U.S.C. § 1225(b) 19 Title 8 U.S.C. § 1225, titled “Inspection by immigration officers; expedited removal of 20 inadmissible arriving aliens; referral for hearing,” states that an “alien present in the United States 21 who has not been admitted or arrives in the United States … shall be deemed for purposes of this 22 chapter an applicant for admission.” 8 U.S.C. § 1225(a)(1). “Applicants for admission must ‘be 23 inspected by immigration officers’ to ensure that they may be admitted into the country consistent 24 with U.S. immigration law.” Jennings, 583 U.S. at 287 (quoting § 1225(a)(3)). Pursuant to § 25 1225(b)(1), if an immigration officer determines that an arriving alien is inadmissible, and the 26 alien does not indicate an intention to apply for asylum or a fear of persecution, “the officer 27 [must] order the alien removed from the United States without further hearing or review.” § 28 1225(b)(1)(A)(i); 8 U.S.C. § 1182(a)(7). As relevant here, pursuant to § 1225(b)(2)(A), subject to 1 certain exceptions, “in the case of an alien who is an applicant for admission, if the examining 2 officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be 3 admitted, the alien shall be detained for a proceeding under 1229a of this title.” § 1225(b)(2)(A) 4 (emphasis added). “Applicants for admission” may be temporarily released on parole only “for 5 urgent humanitarian reasons or significant public benefit.” Jennings, 583 U.S. at 288 (quoting 8 6 U.S.C. § 1182(d)(5)(A) and citing 8 C.F.R §§ 212.5(b), 235.3 (2017)). As explained by the 7 Supreme Court in Jennings v. Rodriguez, 8 [r]ead most naturally, §§ 1225(b)(1) and (b)(2) … mandate detention of applicants for admission until certain proceedings have concluded. 9 Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and § 1225(b)(2) aliens are in turn 10 detained for “[removal] proceeding[s].” Once those proceedings end, detention under § 1225(b) must end as well. Until that point, 11 however, nothing in the statutory text imposes any limit on the length of detention. And neither § 1225(b)(1) nor § 1225(b)(2) says 12 anything whatsoever about bond hearings. 13 583 U.S. at 297. 14 2. Discretionary Detention under 8 U.S.C. § 1226(a)4 15 Title 8 U.S.C. § 1226, titled “Apprehension and detention of aliens,” instructs that “[o]n a 16 warrant issued by the Attorney General, an alien may be arrested and detained pending a decision 17 on whether the alien is to be removed from the United States.” Pursuant to § 1226(a) the 18 government has broad discretion whether to continue to detain the arrested alien or release the 19 alien on (A) bond of at least $1,500 … or (B) conditional parole. § 1226(a); Rodriguez Diaz v. 20 Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) (citing 8 C.F.R. § 236.1(c)(8)) (noting an ICE 21 officer makes the initial custody determination when a person is apprehended under § 1226(a) 22 and may release the alien if he or she “demonstrate[s] to the satisfaction of the officer that such 23 release would not pose a danger to property or persons, and that the alien is likely to appear for 24
25 4 Section 1226(c) “carves out a statutory category of aliens who may not be released under § 1226(a),” mandating detention for an alien apprehended under § 1226 “who falls into one of several enumerated 26 categories involving criminal offenses.” Jennings, 583 U.S. at 289 (emphasis in original). In January 2025, the Laken Riley Act (“LRA”) amended § 1226(c) to add a new category of alien ineligible for 27 release under § 1226(a), including aliens deemed “inadmissible” for being “present in the United States without being admitted or paroled,” who have been arrested for, charged with, or convicted of certain 28 crimes. LRA, Pub. L. No. 119-1 (Jan. 29, 2025); see 8 U.S.C. § 1182(a)(6)(A)(i), § 1226(c)(1)(E). 1 any future proceeding.”). Section 1226 also provides that “a detainee may request a bond hearing 2 before an IJ at any time before a removal order becomes final,” and may request an additional 3 bond hearing if he or she can demonstrate a material change in circumstances. Id. at 1197 (citing 4 8 C.F.R. § 236.1(d)(1), 1003.19(e)). 5 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at 6 the outset of detention.” Jennings, 583 U.S. at 306 (citing 8 C.F.R. § 236.1(d)(1)). To obtain 7 release, the detainee must demonstrate by the preponderance of the evidence that he or she is “not 8 a threat to national security, a danger to the community at large, likely to abscond, or otherwise a 9 poor bail risk.” Matter of Guerra, 24 I.& N. Dec. 37, 40 (B.I.A. 2006); Ortega-Cervantes v. 10 Gonzales, 501 F.3d 1111, 1115 (9th Cir. 2007). After discretionary release under § 1226(a), the 11 government retains authority “at any time” to revoke bond or conditional parole, rearrest the alien 12 under the original warrant, and detain the alien. § 1226(b). However, “if an immigration judge 13 has determined the noncitizen should be released, the DHS may not re-arrest that noncitizen 14 absent a change in circumstance. Where the release decision was made by a DHS officer, not an 15 immigration judge, the Government’s practice has been to require a showing of changed 16 circumstance before re-arrest.” M.R.R. v. Chestnut, 2025 WL 3265446, at *3 (E.D. Cal. Nov. 24, 17 2025) (internal citations omitted); Martinez Hernandez v. Andrews, 2025 WL 2495756, at *10 18 (E.D. Cal. Aug. 28, 2025) (noting that while statute allows for rearrest at any time, “this does not 19 mean that DHS may exercise its discretion in a manner that is inconsistent with constitutional 20 requirements.”). 21 3. Government’s Change in Position 22 “Until this year, the DHS has applied § 1226(a) and its discretionary release and review of 23 detention to the vast majority of noncitizens allegedly in this country without valid 24 documentation.” Salcedo Aceros v. Kaiser, 2025 WL 2637503, at *3 (N.D. Cal. Sept. 12, 2025); 25 see also, e.g., Escobar Salgado v. Mattos, 2025 WL 3205356, at *3 (D. Nev. Nov. 17, 2025) 26 (citing Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997) 27 (“Until the government adopted its new interpretation of § 1225(b)(2) this year, the longstanding 28 (almost three decades) practice of the agencies charged with interpreting and enforcing the INA 1 without inspection and were apprehended while present in the U.S. By contrast, those 2 apprehended at or near a port of entry were designated as ‘arriving aliens.’); Rodriguez v. 3 Bostock, 779 F. Supp. 3d 1239, 1244 (W.D. Wash. 2025r) (“The longstanding practice of the 4 Executive branch agencies charged with interpreting and enforcing the INA considered 5 noncitizens like [petitioner] who had entered without inspection, and were apprehended while 6 residing in the United States, as subject to Section 1226(a).”). However, in July 2025, the 7 Department of Homeland Security (“DHS”), in conjunction with the Department of Justice 8 (“DOJ”) adopted the legal position that § 1225, instead of § 1226, is the applicable immigration 9 authority for an “applicant for admission” including an alien present in the United States “who 10 has not been admitted or who arrives in the United States, whether or not at a designated port of 11 arrival,” and all applicants for admission are subject to mandatory detention under § 1225(b). 12 The Notice further provides “[t]hese aliens are also ineligible for a custody redetermination 13 hearing (‘bond hearing’) before an immigration judge and may not be released for the duration of 14 their removal proceedings absent a parole by DHS. For custody purposes, these aliens are now 15 treated in the same manner that ‘arriving aliens’ have historically been treated.” See ICE Memo: 16 Interim Guidance Regarding Detention Authority for Applications for Admission, American 17 Immigration Lawyers Association (July 8, 2025), https://www.aila.org/library/ice-memo-interim- 18 guidance-regarding-detention-authority-for-applications-for-admission (last visited January 7, 19 2026). As noted above, in September 2025, the BIA issued a precedential decision adopting this 20 interpretation of the government’s detention authority under the INA and holding that IJ’s do not 21 have authority to hear bond requests or grant bond to aliens “who are present in the United States 22 without admission,” because they are applicants for admission and subject to mandatory detention 23 under § 1225(b)(2)(A). See Matter of Yajure Hurtado, 29 I&N Dec. 216 at *9. 24 C. Due Process 25 The Fifth Amendment's Due Process Clause provides that “[n]o person shall be ... 26 deprived of life, liberty, or property, without due process of law.” Further, it is “well established 27 that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” 28 Trump v. J.G.G., 604 U.S. 670 (2025) (citing Reno v. Flores, 507 U.S. 292, 305 (1993); Zadvydas 1 v. Davis, 533 U.S. 678, 693-94 (2001). However, the Supreme Court has simultaneously 2 acknowledged that “the nature of protection [under the Due Process clause] may vary depending 3 on [immigration] status and circumstance.” Zadvydas, 522 U.S. at 693 (“The distinction between 4 an alien who has effected an entry into the United States and one who has never entered runs 5 throughout immigration law.”). As relevant here, “once an alien enters the country, the legal 6 circumstances change, for the Due Process Clause applies to all ‘persons’ within the United 7 States, including aliens, whether their presence here is lawful, unlawful, temporary or 8 permanent.” Id.; see also Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“our immigration 9 laws have long made a distinction between those aliens who have come to our shores seeking 10 admission ... and those who are within the United States after an entry, irrespective of its legality. 11 In the latter instance, the Court has recognized additional rights and privileges not extended to 12 those in the former category who are merely ‘on the threshold of initial entry.’”). The Due 13 Process Clause generally “requires some kind of a hearing before the State deprives a person of 14 liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). 15 D. Claim One: Procedural Due Process 16 Relevant here, Petitioner claims his arrest and re-detention without a hearing is unlawful 17 and violates his procedural due process rights. (Doc. 1 at 6; Doc. 18 at 1). First, the Court does 18 not look favorably on Respondent’s failure to apprise the Court of the eleventh-hour “correction” 19 of Petitioner’s immigration status to an “arriving alien” and how this “correction” impacted 20 Petitioner’s claim regarding his detention pending voluntary departure, and more significantly, 21 whether Petitioner was subject to a final order of removal upon his failure to voluntarily depart. 22 Second, Respondent does not substantively address whether Petitioner’s repeated claims of 23 violation of his due process rights under the Fifth Amendment (See Doc. 18-1, Doc. 20 at 1); 24 rather, Respondent’s revised argument in supplemental briefing submitted after determining 25 Petitioner is no longer eligible for voluntary departure as a newly re-classified “arriving alien,” is 26 the now familiar boilerplate response that “Petitioner does not possess a right to freedom from 27 immigration in any form other than the form provided by Congress,” and, as “an applicant for 28 admission,” Petitioner is subject to the mandatory detention under § 1225(b)(2) and is thus 1 “ineligible” for a bond hearing. (Doc. 22 at 2-3). 2 Given the relevance of this dispute to the due process analysis, as a threshold matter the 3 Court joins with the overwhelming majority of courts across the country in rejecting 4 Respondent’s argument that noncitizens who were previously released on conditional parole and 5 later re-detained are “applicants for admission” subject to mandatory detention under § 6 1225(b)(2)(A); rather, the detention of those noncitizens, like Petitioner, continues to be governed 7 by § 1226(a) during removal proceedings. See, e.g., Montero-Alvarez v. Alberran, 2025 WL 8 3754116, at *4 (E.D. Cal. Dec. 29, 2025) (collecting cases); Sharan S. v. Chestnut, 2025 WL 9 3167826, at *5 (E.D. Cal. Nov. 12, 2025) (“Respondents’ argument that section 1225(b)(2)(A) 10 applies to all noncitizens present in the United States without admission is unpersuasive. 11 Respondents’ proposed interpretation of the statute (1) disregards the plain meaning of section 12 1225(b)(2)(A); (2) disregards the relationship between sections 1225 and 1226; (3) would render 13 a recent amendment to section 1226(c) superfluous; and (4) is inconsistent with decades of prior 14 statutory interpretation and practice.”); C.A.R.V. v. Wofford, 2025 WL 3059549, at *8 (E.D. Cal. 15 Nov. 3, 2025) (“The government’s recent interpretation of the relationship between § 1225 and § 16 1226 is unfounded and detention is therefore not ‘mandatory’ in this case, where petitioner has 17 been present in the United States for approximately four years and was released on his own 18 recognizance well before Respondents adopted the new interpretation of the governing statutes.”); 19 Barco Mercado v. Francis, 2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 2025) (“By a recent 20 count, the central issue in this case – the administration's new position that all noncitizens who 21 came into the United States illegally, but since have been living in the United States, must be 22 detained until their removal proceedings are completed – has been challenged in at least 362 23 cases in federal district courts. The challengers have prevailed, either on a preliminary or final 24 basis, in 350 of those cases decided by over 160 different judges sitting in about fifty different 25 courts spread across the United States. Thus, the overwhelming, lopsided majority have held that 26 the law still means what it always has meant.”) (collecting cases); But see, e.g., Alonzo v. Noem, 27 2025 WL 3208284, at *5 (E.D. Cal. Nov. 17, 2025) (denying motion for temporary restraining 28 order because petitioner failed to establish he was likely to succeed on the merits of his statutory 1 claim, but also noting the finding “should not be understood an affirmative endorsement of the 2 view that respondents’ interpretation of § 1225(b)(2)(A) – which is in line with the expansive 3 understanding of mandatory detention applicability – is correct.”); Ramos v. Lyons, 2025 WL 4 3199872 (C.D. Cal. Nov. 12, 2025). 5 Procedural due process claims are analyzed in two steps. See Morrissey v. Brewer, 408 6 U.S. 471, 481 (1972) (“Once it is determined that due process applies, the question remains what 7 process is due.”). First, the Court examines whether a protected liberty interest exists. Garcia v. 8 Andrews, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025 (citing Kentucky Dep’t of 9 Corrections v. Thompson, 490 U.S. 454, 460 (1989)). Respondent does not contest that Petitioner 10 was apprehended upon entering the country and subsequently released on his own recognizance. 11 (See Doc. 22-8). As explained supra, an ICE officer makes an initial custody determination when 12 a person is apprehended under § 1226(a) and has the discretion to release the alien if he or she 13 “demonstrate[s] to the satisfaction of the officer that such release would not pose a danger to 14 property or persons, and that the alien is likely to appear for any future proceeding.” Rodriguez 15 Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) (citing 8 C.F.R. § 236.1(c)(8)). Thus, 16 “[r]elease reflects a determination by the government that the noncitizen is not a danger to the 17 community or a flight risk.” Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017), 18 aff’d sub nom, Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018); Espinoza v. Kaiser, 19 2025 WL 2675785, at *6 (E.D. Cal. Sept. 18, 2025) (noting a person on conditional parole is 20 generally released on their own recognizance subject to certain conditions such as reporting 21 requirements). 22 Where, as here, “even when ICE has the initial discretion to detain or release a noncitizen 23 pending removal proceedings, after that individual is released from custody [he or] she has a 24 protected liberty interest in remaining out of custody.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 25 1032-33 (N.D. Cal. 2025) (“[e]ven when the government has discretion to detain an individual, its 26 subsequent decision to release the individual creates ‘an implicit promise’ that [he or] she will be 27 re-detained only if [he or] she violates the conditions of her release.”) (collecting cases). 28 Petitioner was issued an Order of Release on Recognizance pending a final removal decision, and 1 attests that he has fully complied with his terms of release and the laws of the United States. 2 (Doc. 1 at 6; Doc. 18 at 1; Doc. 22-8). He is a practicing Jehovah’s witness who volunteers 50 3 hours a month, pays taxes, and owns two businesses in the community. (Doc. 1 at 6; Doc. 18 at 4 1). He has been married for four years to a United States citizen. (Doc. 1 at 9). Thus, the Court 5 finds Petitioner’s release and time spent out of custody gives rise to a protected liberty interest in 6 continued release following conditional parole.5 See Solano v. Robbins, 2025 WL 3718831, at *6 7 (E.D. Cal. Dec. 23, 2025) (“Relying on Morrissey, courts in this district have consistently held 8 that noncitizens who have been released from immigration custody pending civil removal 9 proceedings have a protected interest in remaining out of immigration custody.”) (collecting 10 cases); Pinchi, 792 F. Supp. 3d at 1033 (“These extensive relations of support and 11 interdependence underscore the high stakes of [their] liberty.”). 12 Finding that due process applies, the question before the Court is, what process is due? 13 “The constitution typically requires some kind of hearing before the State deprives a person of 14 liberty or property. This is particularly true when the interest is in liberty, the loss of which 15 cannot fully be compensated after the fact.” Salcedo Aceros, 2025 WL 2637503, at *5 (internal 16 quotations and citations omitted). To determine whether constitutionally sufficient procedures to 17 protect a liberty interest of a previously released and then re-detained noncitizen, courts apply the 18 three factor balancing test outlined in Mathews v. Eldridge:6 (1) the private interest that will be 19 affected by the official action, (2) the risk of erroneous deprivation of such interest through the 20 procedures used, and the probable value, if any, of additional procedural safeguards, and (3) the 21
22 5 As noted recently by this Court, “[e]ven assuming Respondents are correct that § 1225(b) is the applicable detention authority for all ‘applicants for admission,’ Respondents fail to contend with the 23 liberty interest created by the fact that [Petitioners in this case were released] prior to the manifestation of this interpretation.” Garcia v. Chestnut, 2025 WL 3771348, at *9 (E.D. Cal. Dec. 31, 2025) (emphasis in 24 original). 6 The Ninth Circuit has noted that the Supreme Court “when confronted with constitutional challenges to 25 immigration detention has not resolved them through express application of Mathews.” Rodriguez Diaz, 53 F.4th at 1206-07. However, in light of the consistent employment of Mathews by district courts in the 26 Ninth Circuit in determining whether due process applies in the context of re-detention of previously paroled noncitizens, the Court proceeds to apply those factors while still reserving judgment on whether 27 Mathews is an “all embracing test” when encountering due process challenges by immigrant detainees. See A.E. v. Andrews, 2025 WL 1424382, at *4 (citing Dusenbury v. United States, 534 U.S. 161, 168 (2002) 28 (“we have never viewed Mathews as announcing an all-embracing test for deciding due process claims.”). 1 government’s interest, including the function involved, as well as the fiscal and administrative 2 burdens that the procedural requirement would entail. 424 U.S. 319, 335 (1976). 3 First, the Court considers “the private interest that will be affected by the official action.” 4 Id. Petitioner has a substantial private interest in remaining free from detention. See Zadvydas, 5 533 U.S. at 690 (“Freedom from imprisonment – from government custody, detention, or other 6 forms of physical restraint – lies at the heart of the liberty [the Due Process] Clause protects.”); 7 Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (recognizing it is “beyond dispute” that 8 the “private interest at issue here is ‘fundamental’: freedom from imprisonment is the ‘core of the 9 liberty protected by the Due Process Clause.’”). Clearly, Petitioner has an interest in being 10 employed and maintaining relationships in the community. See Pinchi, 792 F. Supp. 3d at 1033. 11 Thus, Petitioner’s private interest is heavily affected, and this factor weighs in favor of Petitioner. 12 Second, the Court considers “the risk of an erroneous deprivation of such an interest 13 through the procedures used, and the probable value, if any, of additional or substitute procedural 14 safeguards.” Mathews, 424 U.S. at 335. Here, Petitioner received no form of pre-deprivation 15 custody redetermination hearing. Thus, the risk of erroneous deprivation is considerable. See 16 A.E. v. Andrews, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025) (“The risk of an erroneous 17 deprivation of [a petitioner’s] interest is high where [h]e has not received any bond or custody 18 redetermination hearing.”) (internal quotations omitted). Civil immigration detention is assumed 19 to be “nonpunitive in purpose and effect,” and is therefore justified when a noncitizen presents a 20 risk of flight or danger to the community. See Zadvydas, 533 U.S. at 690. Based on the 21 documents submitted by Respondent, Petitioner was released on his own recognizance subject to 22 certain conditions. (Doc. No. 22-8). “In general, release reflects a determination by the 23 government that the noncitizen is not a danger to the community of a flight risk.” Saravia, 280 F. 24 Supp. 3d at 1176. Notably, Respondent makes no argument that Petitioner presents a flight risk 25 or danger, and Petitioner claims he has never violated the terms or conditions of his release from 26 custody. (Doc. 1 at 6 (also alleging he was re-detained when he “came to ask ICE some questions 27 about [his] case”)). Given the absence of determination by a neutral arbitrator as to whether 28 Petitioner is currently a flight risk or danger to the community, both the risk of erroneous 1 deprivation of Petitioner’s interest, and the probable value of additional safeguards, is high. See 2 A.E., 2025 WL 1424382, at *5. 3 Third, the Court considers the government’s interest, “including the function involved and 4 the fiscal and administrative burdens that the additional or substitute procedural requirements 5 would entail.” Mathews, 424 U.S. at 334. Unquestionably, the government has a significant 6 national interest in enforcing its immigration laws. Indeed, it is a sovereign’s fundamental right 7 to control its borders, to protect national security, and ensure integrity in its immigration system. 8 However, Respondent fails to explain how Petitioner threatens these interests or how the 9 government’s interest is weakened by affording him a hearing before a neutral decisionmaker. 10 Nor does Respondent offer evidence of how affording a hearing results in either a fiscal or 11 administrative burden, which has been found to be “minimal” by other courts. See J.A.E.M. v. 12 Wofford, 2025 WL 3013377, at *7 (E.D. Cal. Oct. 27, 2025) (citing Ortega v. Bonnar, 415 F. 13 Supp. 3d 963, 970 (N.D. Cal. 2019) (“In immigration court, custody hearings are routine and 14 impose a ‘minimal’ cost.”). Because Respondent did not provide Petitioner with notice or 15 reasons prior to his re-detention, and has seemingly offered no reasoning in any proceedings, 16 including this one before this Court, as to why that decision was made, the Court finds 17 Respondent has failed to demonstrate a significant interest in Petitioner’s detention. See Noori v. 18 LaRose, 2025 WL 2800149, at *11 (S.D. Cal. Oct. 1, 2025). As recently explained by a court in 19 this district, 20 the government’s asserted interest is hinged on mere speculation about Petitioner’s risk of flight or dangerousness. [Petitioners] seek 21 a bond hearing, not unqualified release. Providing a bond hearing would not undercut the government’s asserted interest in effecting 22 removal. Indeed, the purpose of a bond hearing is to inquire whether the alien represents a flight risk or danger to the community. Given 23 ‘the minimal cost of conducting a bond hearing, and the ability of the IJ to adjudicate the ultimate legal issue as to whether Petitioner’s 24 continued detention is justified,’ courts have concluded that ‘the government’s interest is not as weighty as Petitioner’s. 25 26 A.E. V. Andrews, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025), report and 27 recommendation adopted, 2025 WL 1808676 (E.D. Cal. July 1, 2025). This Court joins in this 28 analysis and finds Petitioner’s interest outweighs the government’s interest in this instance. 1 Based on the foregoing, the Court finds the Mathews factors weigh in favor of the 2 Petitioner, and his re-detention without hearing was a violation of his procedural due process 3 rights. 4 E. Conclusion and Remedy 5 As a final matter, the Court now considers whether a pre-deprivation or post-deprivation 6 bond hearing is appropriate for Petitioner in this case. As previously reasoned by the assigned 7 district judge, 8 The Supreme Court has held that “the Constitution requires some kind of a hearing before the State deprives a person of liberty or 9 property.” See Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (emphasis in original). However, the Court 10 also recognized that there may be situations that urgently require arrest, in which a prompt post-deprivation hearing is appropriate. Id. 11 at 128, 110 S.Ct. 975 (noting there may be “special case[s]” where a pre-deprivation hearing is impracticable); Guillermo M. R. v. Kaiser, 12 No. 25-CV-05436-RFL, 791 F.Supp.3d 1021, 2025 WL 1983677, at *9 (N.D. Cal. July 17, 2025) (“absent evidence of urgent concerns, a 13 pre-deprivation hearing is required to satisfy due process, particularly where an individual has been released on bond by an 14 IJ”). The rapidly developing caselaw on this subject gives limited guidance as to where this line should be drawn. Some courts that 15 have addressed detention-related habeas petitions brought by persons released with enhanced supervision conditions have required pre- 16 deprivation process, but in somewhat different circumstances. In E.A.T.-B. v. Wamsley, No. C25-1192-KKE, 795 F.Supp.3d 1316, 17 2025 WL 2402130, at *4 (W.D. Wash. Aug. 19, 2025), the district court ordered the release of a petitioner arrested by ICE immediately 18 after appearing in immigration court. That court agreed with the petitioner that ICE's post hoc explanation that violations warranted 19 her detention was pretextual, given that ICE first became aware of petitioner's alleged violations a few hours before her immigration 20 hearing, DHS did not raise those violations at the hearing or argue the petitioner should be detained for any reason, and the petitioner 21 was then provided multiple, inconsistent justifications for her arrest. Id. In Arzate v. Andrews, No. 1:25-CV-00942-KES-SKO (HC), 2025 22 WL 2230521, at *7 (E.D. Cal. Aug. 4, 2025), converted to preliminary injunction sub nom, 2025 WL 2411010, at *1 (E.D. Cal. 23 Aug. 20, 2025), the court ordered immediate release of in immigration detainee who had been in compliance with his 24 conditions of release, even though he had incurred a misdemeanor arrest while on parole, in part because no charges were ever filed. 25 *12 In contrast, this Court ordered a bond hearing in Martinez 26 Hernandez v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767 (E.D. Cal. Aug. 28, 2025), where the petitioner's records 27 indicated numerous violations. Though Martinez Hernandez offered explanations for the violations and there was a dispute of fact as to 28 whether the violations occurred, ICE's reliance upon those violations 1 was “not obviously pretexual.” Id. at * 12 (“If Respondent's view of the facts is correct, it is at least arguable that providing Petitioner 2 with notice and a pre-deprivation hearing would have been impracticable and/or would have motivated her flight.”). As this 3 Court noted in Martinez Hernandez:
4 In similar circumstances, courts have refused to release the petitioners but have ordered timely bond hearings. Carballo 5 v. Andrews, No. 1:25-CV-00978-KES-EPG (HC), 2025 WL 2381464, at *8 (E.D. Cal. Aug. 15, 2025), citing Perera v. 6 Jennings, et. al, No. 21-CV-04136-BLF, 2021 WL 2400981, at *5 (N.D. Cal. June 11, 2021); Pham v. Becerra, No. 23- 7 CV-01288-CRB, 2023 WL 2744397, at *6 (N.D. Cal. Mar. 31, 2023). “[A]llowing a neutral arbiter to review the facts 8 would significantly reduce the risk of erroneous deprivation.” Guillermo M. R. v. Kaiser, No. 25-CV-05436-RFL, 791 9 F.Supp.3d 1021, 2025 WL 1983677, at *8 (N.D. Cal. July 17, 2025). Thus, the Court concludes that prompt, post- 10 deprivation process is required here. 11 M.R.R., 2025 WL 3265446, at *11-12. 12 Here, Petitioner claims he has never violated the terms or conditions of his release from 13 custody on his own recognizance, and he has no criminal history. Respondent offers no argument 14 or evidence as to any purported violations of Petitioner’s conditions of release, nor do they make 15 any argument that Petitioner is a flight risk or danger to the community. (See Doc. 22). The 16 Court’s review of the verified Petition offers no indicia that Petitioner’s detainment was based on 17 any purported violations of his release conditions. Consequently, the Court recommends that a 18 pre-deprivation hearing is appropriate in this case. 19 Accordingly, it is hereby RECOMMENDED: 20 1. The Petition for Writ of Habeas Corpus (Doc. 1) be GRANTED. 21 2. Petitioner’s Motion for Preliminary Injunction (Doc. 3) be DENIED AS MOOT. 22 3. Respondent be directed to IMMEDIATELY release Petitioner from DHS custody on 23 the conditions of his prior release from custody 24 4. Once released, Respondent be PERMANENTLY ENJOINED AND RESTRAINED 25 from rearresting or re-detaining Petitioner absent compliance with constitutional 26 protections, which include, at a minimum, pre-deprivation notice of at least seven days 27 before a pre-deprivation hearing at which the government will bear the burden of 28 demonstrating by clear and convincing evidence that they are likely to flee or pose a ] danger to society if not arrested. 2 5. Iflegally sufficient circumstances justify arrest without notice in advance, a post- 3 deprivation hearing consistent with the requirements set forth here SHALL be 4 provided within seven days of the arrest. Alternatively, if Petitioner becomes subject 5 to a final order of removal and Petitioner receives notice of such order, Respondent 6 may detain Petitioner for the sole and limited purpose of executing removal. In this 7 event, Respondent SHALL provide a bond hearing in the timeframe required by law. 8 6. This case be CLOSED. 9 NOTICE OF EXPEDITED OBJECTIONS 10 These Findings and Recommendations will be submitted to the United States District 11 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Given the 12 | recommendation to grant the petition in part, a party may file written objections with the 13 | Court within five (5) days of service of these Findings and Recommendations. /d.; Local 14 | Rule 304(b) (permitting court to set a different time). The document should be captioned, 15 | “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 16 | (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 17 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 18 | CM/ECF document and page number, when possible, or otherwise reference the exhibit with 19 | specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 20 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 21 | 636(b)(1)(C). A party’s failure to file any objections within the specified time may result in the 22 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). | Dated: _ March 24, 2026 Wiha. Mh. Bareh Zackie 24 HELENA M. BARCH-KUCHTA 05 UNITED STATES MAGISTRATE JUDGE
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