1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORWIN ALEJANDRO GARCIA Case No. 1:25-cv-01006 JLT SAB BARRERA, 12 ORDER GRANTING PRELIMINARY Petitioner, INJUNCTION1 13 v. (Doc. 2) 14 TONYA ANDREWS, et. al, 15 Respondents. 16 17 Norwin Garcia Barrera2, a Nicaraguan national, claims to have fled his home country after 18 facing violent political persecution, including being beaten daily during a period of political 19 imprisonment. (Doc. 1, ¶¶ 1, 7.) His father remains in prison in Nicaragua, his mother and one of 20 his brothers are under house arrest, and another brother is in hiding, all because of their 21 opposition to the current Nicaraguan government. (Id., ¶ 38.) 22 Mr. Garcia entered the United States by “illegally crossing the international boundary 23 without being inspected by an immigration officer at a designated Port of Entry.” (Doc. 10-1 at 24 6) He was taken into custody on September 9, 2022 (Doc. 10-1 at 7) and detained for two days 25 1 Upon the agreement of the parties, the Court converts the motion for temporary restraining order into one for 26 preliminary injunction. Respondents had notice, opportunity to respond and be heard. Additional briefing is not required and the standard for a TRO and a preliminary injunction is the same. As such, given the nature of the relief 27 granted by this order and to allow Respondents to appeal should they choose, the Court converts this to a Motion for Preliminary Injunction. 28 1 and then paroled into the United States on an “A-220A Order of Release.”3 (Doc. 1, ¶ 1.) In 2 doing so, immigration officials necessarily determined that Petitioner did not present a risk of 3 flight or danger to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue 4 a warrant of arrest may, in the officer's discretion, release an alien not described in section 5 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that 6 the alien must demonstrate to the satisfaction of the officer that such release would not pose a 7 danger to property or persons, and that the alien is likely to appear for any future proceeding.”). 8 Mr. Garcia has two children (aged 1 and 2 years) who are U.S. Citizens. (Doc. 1, ¶ 1.) He has 9 appeared for all scheduled court dates and required check ins. (Id., ¶¶ 1, 40.) He has no criminal 10 history in the United States. (Id., ¶ 41.)4 11 On July 23, 2025, Mr. Garcia appeared for his scheduled master calendar hearing, at 12 which he submitted his asylum petition. (Id., ¶ 2.) At the hearing, DHS orally moved to dismiss 13 his case; over Mr. Garcia’s objections, the Immigration Judge (IJ) granted that motion and 14 dismissed his removal proceedings, noting that Mr. Garcia filed his asylum application almost 3 15 years after his entry into the United States. (Id., ¶¶ 2, 45); see also 8 U.S.C. 1158 (a)(2)(B), (D) 16 (requiring asylum petitions to be filed within one year after the date of arrival subject to 17 exceptions for changed or extraordinary circumstances). On August 10, 2025, Mr. Garcia 18 appealed the dismissal to the Board of Immigration Appeals (“BIA”). (Id.; see also Doc. 12-1 19 (filing receipt for appeal).) That appeal remains pending. 20 Upon exiting the courtroom after the July 23, 2025 hearing, Petitioner was arrested by 21 ICE agents. (Doc. 1, ¶ 3.) He alleges:
22 I left the immigration court building and as I was walking on the street, around six men, masked, armed, and in protective vests 23 approached me. They pointed their weapons at me. I asked them what this was about, and they told me to “shut up” and listen to 24 what they are going to say. They said that my case is closed, and I have no reason to be here and that I was going to be deported. I 25 tried to tell them I have two young daughters, and I need to let my 26 3 This is commonly referred to as “conditional release” or “release on own recognizance.” 27 4 Mr. Garcia was arrested once in December 2023, after a passerby called the police when he had a verbal argument with his partner, but no charges were filed. (Doc. 1, ¶ 41.) He claims to have informed ICE of the arrest and that 28 charges were not brought; he further indicates that ICE was “satisfied” by that showing. (Doc. 1, ¶5.) Nonetheless, 1 family know what is happening. They took my phone and shut it off. I was scared and told them it was ok to take me, just don’t beat 2 me up. This reminded me of what happened to me in Nicaragua where the police beat me up. 3 4 (Doc. 4-2, Declaration of Mr. Garcia, ¶ 5.) Thereafter he was transported to San Francisco to be 5 processed for detention. (Doc 1, ¶ 4.) On July 24, 2025, he was transported to Golden State 6 Annex, a detention facility in McFarland, California, where he remains. (Id.) 7 His detention has caused Mr. Garcia extreme distress “as he fears being harmed and being 8 deported to Nicaragua, a place he is seeking asylum from.” (Id., ¶ 7.) He continues to suffer pain 9 in his shoulders from injuries sustained during his imprisonment in Nicaragua, and he suffers 10 from eye pain, both of which are apparently being treated with pain medication at the detention 11 facility. (Doc. 4-2, ¶ 8.) In addition, he is concerned about the wellbeing of his partner and 12 daughters who have no independent means to support themselves. (Id.; see also Doc. 4-2, ¶ 11.) 13 His family has very limited financial resources and cannot readily afford to communicate with 14 Mr. Garcia while he is detained. (Doc. 4-3, ¶¶ 2, 4 (Declaration of Janury Mejia Vergara).) 15 On August 12, 2025, Mr. Garcia filed a petition for writ of habeas corpus alleging that his 16 detention constitutes a violation of the Fifth Amendment’s right to substantive and procedural due 17 process. (Doc. 1, ¶¶ 54–63.) He seeks immediate release from custody; a declaration of the 18 violation of his rights under the Fifth Amendments5; an injunction prohibiting his transfer away 19 from this District and from his further unlawful detention; and for costs and attorney’s fees. (Id. at 20 16.) 21 On the same day, he also filed an ex parte motion for a temporary restraining order. (Doc 22 2.) In this motion, he seeks immediate release “without bond or electronic monitoring6” where 23 Respondents shall bear the burden of proof to show, by clear and convincing evidence, that 24 Petitioner is a danger or a flight risk. (Doc. 4 at 2.) 25 The government opposes the issuance of preliminary injunctive relief and maintains that 26
27 5 The jurisdictional allegations (Doc. 1, ¶ 10) and prayer (id. at 16) also mention the Administrative Procedure Act, but there is no APA claim alleged specifically. 28 6 Petitioner seeks, as an alternative, “his immediate release and the setting of a pre-deprivation bond hearing before 1 Petitioner’s detention is “mandatory” under expedited removal procedures set forth at 8 U.S.C. 2 § 1225(b)(1), (see generally Doc. 10), notwithstanding the fact that Petitioner’s removal 3 proceedings pursuant to 8 U.S.C. § 1229a are on appeal to the BIA. Moreover, the parties agree 4 that Mr. Garcia was not placed in expedited removal upon his arrival (or at any other time). At 5 most, the government suggests that ICE sought the dismissal of the § 240 proceedings to put him 6 in expedited removal, but there is no evidence this has occurred. 7 For the reasons set forth below, the Court converts the request for a temporary restraining 8 order into a request for a preliminary injunction and GRANTS the motion. 9 II. LEGAL BACKGROUND 10 A. Section 240 v. Expedited Removal Proceedings 11 Immigration law provides two main processes for removing noncitizens deemed ineligible 12 to enter or remain in the United States. The first, commonly referred to as “Section 240” or 13 “Section 1229a” proceedings, is the standard mechanism for removing inadmissible noncitizens. 14 See generally 8 U.S.C. § 1299a. “Section 240 removal proceedings take place before an 15 [Immigration Judge (IJ)], an employee of the Department of Justice (DOJ) who must be a 16 licensed attorney and has a duty to develop the record in cases before them.” Coalition For 17 Humane Immigrant Rights, v. Noem, No. 25-CV-872 (JMC), , at *3 (D.D.C. Aug. 1, 2025)7 18 (citing 8 U.S.C. § 1229a(a)(1), (b)(1) (“The immigration judge shall administer oaths, receive 19 evidence, and interrogate, examine, and cross-examine the alien and any witnesses.”).)
20 [Section 240 proceedings] are adversarial proceedings in which the noncitizen has the right to hire counsel, examine and present 21 evidence, and cross-examine witnesses. 8 U.S.C. § 1229a(b)(4). The hearings are recorded, and a transcript is made available if a 22 party appeals the decision. Id. § 1229a(b)(4)(C). A section 240 proceeding typically takes place over the course of multiple 23 hearings due to the built-in procedures. This allows time for noncitizens to both gather evidence in support of petitions for relief 24 available in immigration court (like asylum and certain adjustments of status) and seek collateral relief from other components of DHS 25 (like adjustment of status on the basis of marriage or family). Upon a decision by the IJ, either party may appeal to the Board of 26 Immigration Appeals (BIA). 8 C.F.R. §§ 1240.15, 1003.1. If the BIA upholds a removal order, the noncitizen may then appeal that 27
28 7 This ruling has been appealed to the D.C. Circuit, Coalition for Humane Immigrant Rights, et al v. Kristi Noem, et 1 decision to a U.S. court of appeals. 8 U.S.C. § 1252. 2 Coalition, 2025 WL 2192986, at *3 (internal record citations omitted). 3 Alternatively, an immigrant may be placed in “expedited removal” status for reasons, 4 including that the person entered the United States without a valid visa or other valid entry 5 documents. See generally 8 U.S.C. § 1225. In expedited removal, the process is overseen by an 6 immigration officer, rather than an IJ. 8 C.F.R. § 235.3(b)(2)(i). The officer asks the immigrant 7 questions about their “identity, alienage, and inadmissibility,” and whether they intend to apply 8 for asylum, fear persecution or torture, or fear returning to their country of origin. 9 § 235.3(b)(2)(i), (b)(4). Noncitizens are not entitled to counsel during this questioning, and no 10 recording or transcript is made. 8 C.F.R. § 235.3(b)(2)(i). 11 Under the expedited removal process, if the immigrant claims asylum of fear of 12 persecution or torture, or a fear of returning to his or her country, “the inspecting officer shall not 13 proceed further with removal of the alien until the alien has been referred for an interview by an 14 asylum officer in accordance with 8 CFR 208.30.” § 253(b)(4). Once the referral happens, the 15 referring officer must provide the immigrant with a written disclosure (Form M-444), which 16 describes the credible fear interview, including,
17 (A) The purpose of the referral and description of the credible fear interview process; 18 (B) The right to consult with other persons prior to the interview and any review thereof at no expense to the United States Government; 19 (C) The right to request a review by an immigration judge of the asylum officer'’ credible fear determination; and 20 (D) The consequences of failure to establish a credible fear of persecution or torture. 21 22 § 253(b)(4)(i). The asylum officer then must interview the immigrant and determine if the 23 immigrant expressed a credible fear of persecution or torture. Whatever the officer’s 24 determination, it must be reviewed by the supervisory asylum officer before it becomes effective. 25 § 208.30(3)(8). If there is a finding of credible fear, the case is converted to a § 240 proceeding8 26 and set before an IJ. If the asylum officer and the supervisor determine that the immigrant has not 27 demonstrated a credible fear of persecution or torture, the immigrant may request review by an IJ. 28 1 § 208.30(g). Essentially, the IJ’s determination is final. Id. Likewise, habeas corpus review of the 2 determinations made related to the expedited removal is limited. 8 U.S.C. § 1252(e)(2). 3 In Coalition, the District of Columbia District Court determined that under 8 U.S.C. 4 § 1225(b)(1)(A)(iii)(II), a person who has been paroled without first having been placed in 5 expedited removal cannot be designated for expedited removal. As Coalition explained:
6 Noncitizens may be eligible for expedited, rather than section 240, removal only if they are inadmissible on the basis that they either 7 lack proper entry documents or falsified or misrepresented their application for admission. 8 U.S.C. § 1225(b)(1)(A)(i); see id. 8 § 1182(a)(6)(C), (a)(7) (grounds of inadmissibility). Among that set, only two categories of noncitizens are eligible for expedited 9 removal: (1) noncitizens “arriving in the United States,” and (2) noncitizens who “ha[ve] not been admitted or paroled into the 10 United States” and cannot affirmatively show that they have been “physically present in the United States continuously for the 2-year 11 period immediately prior to the date of the determination of inadmissibility.” 8 U.S.C. § 1225(b)(1)(A)(i)–(iii).6 The statute 12 permits the Attorney General (who has since delegated this authority to the DHS Secretary) to designate the population of 13 noncitizens within that second category who will be subject to expedited removal. And that designation lies within the Secretary’s 14 “sole and unreviewable discretion.” Id. § 1225(b)(1)(A)(iii); see 8 C.F.R. § 235.3(b)(ii) . . . 15 16 Coalition concluded that the statute “forbids the expedited removal of noncitizens who have been, 17 at any point in time, paroled into the United States.” 2025 WL 2192986, at *22.9 Indeed, though 18 the government asserts that under 8 C.F.R. § 235.3(b)(1)(ii), “Expedited Remocal provisions can 19 be applied at any time,” this is contrary to the express language of the section. This section reads,
20 (1) The expedited removal provisions shall apply to the following classes of aliens who are determined to be inadmissible under 21 section 212(a)(6)(C) or (7) of the Act:
22 (i) Arriving aliens, as defined in 8 CFR 1.2;10
23 9 Coalition also stayed several administrative actions undertaken by DHS, including one memorandum issued in 24 January 2023 that directed relevant officials to “consider” placing in expedited removal “any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been applied,” a process that “may 25 include steps to terminate any ongoing removal proceeding and/or active parole status,” as well as a separate February 2025 directive that ICE “consider” for expedited removal “paroled arriving aliens.” Coalition, 2025 WL 26 2192986, *9–10, 39. The government does not address Coalition or its consequences in its briefing here. 10 “Arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of- 27 entry . . . An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.” Section 212(d)(5) is set forth at 8 U.S.C. § 1182, which, as 28 noted above, vests discretion in ICE officials to place immigrants on parole for humanitarian reasons or due to it 1 (ii) As specifically designated by the Commissioner, aliens who arrive in, attempt to enter, or have entered the United States 2 without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, and who have 3 not established to the satisfaction of the immigration officer that they have been physically present in the United States continuously 4 for the 2–year period immediately prior to the date of determination of inadmissibility. The Commissioner shall have the sole discretion 5 to apply the provisions of section 235(b)(1) of the Act, at any time, to any class of aliens described in this section. 6 7 8 C.F.R. § 235.3(b)(1)(ii) (Emphasis added). This section specifically precludes expedited 8 removal as to any alien placed on parole. 9 B. Parole 10 ICE may choose to release a person on parole. The decision is discretionary and is made 11 on a case-by-case basis. An immigrant who has been detained at the border, may be paroled for 12 humanitarian reasons or due to it providing a significant public benefit (8 U.S.C. § 1182(d)(5)(A)) 13 or he may be conditionally released (8 U.S.C. § 1226(a)). These are distinct procedures. A person 14 on conditional parole is usually released on their own recognizance subject to certain conditions 15 such as reporting requirements.11 To be released on conditional parole/ own recognizance, there 16 must be a finding that the immigrant does not pose a risk of flight or danger to the community. 17 Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1115 (9th Cir. 2007). One important difference 18 between these types of parole is that conditional release does not provide a pathway for the 19 immigrant to seek adjustment of status under 8 U.S.C. § 1255(a). Id. at 1119-1120. 20 C. Parole/OR Revocation 21 In Y-Z-H-L v Bostock, 2025 WL 1898025, at *10–12 (D. Or. July 9, 2025)—issued 22 several weeks before Mr. Garcia’s arrest on July 23, 2025—the court explained the parole process 23 in immigration cases and noted that before parole may be revoked, the parolee must be given 24 written notice of the impending revocation, which must include a cogent description of the 25 reasons therefore. The court held:
26 Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required 27
28 11 An immigrant cannot be released on conditional parole if they are subject to mandatory detention under § 1226(c). 1 detention, to be “paroled” into the United States. This provision, at issue in this case, states: 2 The Secretary of Homeland Security may, except as 3 provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States 4 temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian 5 reasons or significant public benefit any alien applying for admission to the United States, but such parole of 6 such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in 7 the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or 8 be returned to the custody from which he was paroled and thereafter his case shall continue to be 9 dealt with in the same manner as that of any other applicant for admission to the United States. 10 8 U.S.C. § 1182(d)(5)(A). 11 12 Y-Z-H-L v Bostock, 2025 WL 1898025, at *3 (emphasis added). Y-Z-H-L determined that under 13 the Administrative Procedure Act, immigration parolees are entitled to determinations related to 14 their parole revocations that are not arbitrary, capricious or an abuse of discretion. Id. at *10. An 15 agency acts arbitrarily and capriciously by failing to make a reasoned determination or where the 16 agency fails to “articulate[] a satisfactory explanation for its action including a rational 17 connection between the facts found and the choice made.” Id. Parole revocations in the context of 18 the INA, must occur on a case-by-case basis and may occur “when the purposes of such parole 19 shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall 20 forthwith return or be returned to the custody from which he was paroled.” Id. at *12 (quoting 21 § 212.5(e)). Section 212.5(e) requires written notice of the termination of parole except where the 22 immigrant has departed or when the specified period of parole has expired. 23 In considering Y-Z-H-L and § 212.5(e), other courts have found that the statute requires a 24 case-by-case analysis as to the decision to revoke parole. In Mata Velasquez v. Kurzdorfer, No. 25 25-CV-493-LJV, 2025 WL 1953796, at *11 (W.D.N.Y. July 16, 2025), the Court held similarly, 26 though in the context of humanitarian parole:
27 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 28 basis and that a decision to revoke parole “must attend to the 1 reasons an individual [noncitizen] received parole.” See id. There is no indication in the record that the government conducted any such 2 analysis here. On the contrary, the letter Mata Velasquez received merely stated summarily that DHS had “revoked [his] parole.” 3 Docket Item 62-1 at 5. Thus, there is no indication that—as required by the statute and regulations—an official with authority 4 made a determination specific to Mata Velasquez that either “the purpose for which [his] parole was authorized” has been 5 “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] continued presence...in the United States.” 6 See 8 C.F.R. § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez's parole violated his rights under the statute and 7 regulations. See Y-Z-L-H, 2025 WL 1898025, at *13. 8 In Pinchi v. Noem, No. 5:25-CV-05632-PCP, ___ F. Supp. 3d ___, 2025 WL 2084921, at *3 9 (N.D. Cal. July 24, 2025), the Court reached a similar conclusion relying on the Due Process 10 Clause. In Pinchi, the court held, 11 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 12 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv- 13 02508, 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 14 present case and finds Petitioner raised serious questions going to the merits of his claim that due process requires a hearing before an 15 IJ prior to re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv- 01434, 2021 WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz 16 Vargas v. Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal. Aug. 23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as 17 people on preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration 18 detention] have a liberty interest in remaining out of custody on bond.”). 19 20 Id., emphasis added. Other courts, including this Court, have held similarly. Doe v. Becerra, No. 21 2:25-CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); see also Padilla v. 22 U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme 23 Court has consistently held that non-punitive detention violates the Constitution unless it is 24 strictly limited, and, typically, accompanied by a prompt individualized hearing before a neutral 25 decisionmaker to ensure that the imprisonment serves the government's legitimate goals.”). 26 /// 27 /// 28 /// 1 II. ANALYSIS 2 A. Jurisdiction 3 1. Habeas Corpus 4 Under 28 U.S.C. § 2241, the Court the authority to determine a petition for writ of habeas 5 corpus in which the petitioner asserts he is being held in custody “in violation of the Constitution 6 or laws or treaties of the United States.” “The essence of habeas corpus is an attack by a person in 7 custody upon the legality of that custody, and that the traditional function of the writ is to secure 8 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 9 Mr. Garcia seeks his immediate release from custody, which he contends violates the 10 Constitution of the United States. (See Doc. 1 at 16.) Thus, he properly invokes the Court’s 11 habeas jurisdiction. 12 2. Judicial Review under the INA 13 The INA limits judicial review in many instances. Though 8 U.S.C § 1252(g), precludes 14 this Court from exercising jurisdiction over the executive’s decision to “commence proceedings, 15 adjudicate cases, or execute removal orders against any alien,” there is no removal order at issue 16 here. Thus, Court has the authority to review the termination of Mr. Garcia’s parole. See Jennings 17 v. Rodriguez, 583 U.S. 281, 294 (2018) (holding that § 1252(g) precludes judicial review only as 18 to the three areas specifically outlined in the subsection); see also Reno v. American–Arab Anti– 19 Discrimination Committee, 525 U.S. 471, 482 (1999). 20 B. Preliminary Injunction 21 The standard for issuing a TRO is the same as the standard for issuing a preliminary 22 injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 23 2001) (explaining that the analysis for temporary restraining orders and preliminary injunctions is 24 “substantially identical”). When seeking a TRO or PI, plaintiffs must establish: (1) they are 25 “likely to succeed on the merits” of their claims, (2) they are “likely to suffer irreparable harm in 26 the absence of a preliminary injunction,” (3) “the balance of equities tips in [their] favor” and (4) 27 “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 28 (2008). The moving party has the burden to “make a showing on all four prongs” of the Winter 1 test to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 2 1135 (9th Cir. 2011). Thus, the moving party has “the burden of persuasion.” Mazurek v. 3 Armstrong, 520 U.S. 968, 972 (1997); Hecox v. Little, 104 F.4th 1061, 1073 (9th Cir. 2023). The 4 Court may weigh the request for a preliminary injunction with a sliding-scale approach. Alliance, 5 at 1135 (9th Cir. 2011). Accordingly, a stronger showing on the balance of hardships may support 6 the issuance of a preliminary injunction where there are “serious questions on the merits … so 7 long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 8 injunction is in the public interest.” Id. “A preliminary injunction is an extraordinary remedy 9 never awarded as of right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). 10 Preliminary injunctions are intended to “merely to preserve the relative positions of the parties 11 until a trial on the merits can be held, and to balance the equities at the litigation moves forward.” 12 Lackey v. Stinnie, 604 U.S. ___, 145 S. Ct. 659, 667 (2025) (citations omitted). 13 The status quo refers to “the last uncontested status which preceded the pending 14 controversy.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963) (quoting 15 Westinghouse Elec. Corp. v. Free Sewing Mach. Co., 256 F.2d 806, 808 (7th Cir. 1958)). In the 16 Court’s view, that is the status before Mr. Garcia was arrested and was still on parole. See 17 Kuzmenko v. Phillips, No. 25-CV-00663, 2025 WL 779743, at *3 (E.D. Cal. Mar. 10, 2025) 18 (granting a temporary restraining order requiring immediate release of the petitioner back to home 19 confinement from custody, as a restoration of the status quo). 20 Even if the Court’s action here constitutes a mandatory injunction,12 the evidence supports 21 that action. Mr. Garcia alleges he has suffered and is suffering violations of his substantive and 22 procedural due process rights and that his continued unlawful detention will impose on him 23 serious injury if the injunction does not issue. The injunction issued here is on firm legal footing; 24
25 12 “A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 26 2009) (internal citations omitted). In other words, a prohibitory injunction “freezes the positions of the parties until the court can hear the case on the merits.” Heckler v. Lopez, 463 U.S. 1328, 1333 (1983). A mandatory injunction, on 27 the other hand, “orders a responsible party to ‘take action.’” Marlyn Nutraceuticals, 571 F.3d at 879 (quoting Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996)). Although subject to a higher standard, a mandatory injunction 28 is permissible when “extreme or very serious damage will result” that is “not capable of compensation in damages,” 1 due process clearly requires that Petitioner be given a hearing before his bond is revoked. These 2 injuries are not capable of redress through monetary compensation. Accordingly, injunctive relief 3 is appropriate even under the higher standard for mandatory injunctions.13 4 1. Likelihood of Success on the Merits 5 This first factor “is the most important” under Winter, and “is especially important when a 6 plaintiff alleges a constitutional violation and injury.” Baird v. Bonta, 81 F.4th 1036, 1041 (9th 7 Cir. 2023). When an immigrant is placed into parole status after having been detained, a protected 8 liberty interest may arise. Young v. Harper, 520 U.S. 143, 147-149 (1997)14. The Due Process 9 Clause may protect this liberty interest even where a statute allows the immigrant’s arrest and 10 detention and does not provide for procedural protections. Id. (Due Process requires pre- 11 deprivation hearing before revocation of preparole); Morrissey v. Brewer, 408 U.S. 471, 482 12 (1972). 13 Morrissey observed that parole allows the parolee to enjoy the same activities as those 14 who have not been arrested and held in custody including, living at home, having a job, and 15 “be[ing] with family and friends and to form the other enduring attachments of normal life.” 16
17 13 The government questions whether the Court can order preliminary relief of the nature requested here because the relief sought is akin to the relief requested in the underlying § 2241 petition. (Doc. 10 at 4.) The government cites 18 Senate of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992), which indeed held that entering “judgment on the merits in the guise of preliminary relief is a highly inappropriate result.” But the circumstances of that case were 19 quite different. In Mosbacher, the trial court ordered as preliminary relief the release of data that the defendant sought to keep private and thus, had the Ninth Circuit not reversed, the defendant would “have lost the whole case for all practical purposes.” Id. Some district courts have relied on this line of cases to deny immigration detainee’s requests 20 for release at the TRO stage. See, e.g., Mendez v. U.S. Immigr. & Customs Enf’t, No. 23-CV-00829-TLT, 2023 WL 2604585, at *3 (N.D. Cal. Mar. 15, 2023) (citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Keo v. 21 Warden of Mesa Verde Ice Processing Center, No. 1:24-cv-00919-HBK, 2024 WL 3970514 (E.D. Cal. Aug. 28, 2024) (citing Mendez, Mosbacher, and Comenisch). But a closer look at Camenisch reveals that the Supreme Court 22 did not intend to bar TROs of the kind requested here. Rather, Camenisch stands for the proposition that “findings of fact and conclusions of law made by a court in a preliminary injunction or TRO posture are preliminary and do not 23 bind the court at the trial on the merits. Thus, it is not appropriate to enter a final judgment at a TRO stage.” Doe v. Noem, 778 F. Supp. 3d 1151, 1167 (W.D. Wash. 2025) (evaluating government argument based on Comenisch). Doe 24 v. Bostock, No. C24-0326JLR-SKV, 2024 WL 2861675 (W.D. Wash. June 6, 2024), cited by the government (Doc. 10 at 4), is not persuasive. There, the petitioner was released from a federal correctional facility after serving a 25 criminal sentence directly into ICE custody and then challenged her continued detention. Doe v. Bostock, No. C24- 0326-JLR-SKV, 2024 WL 3291033, at *2 (W.D. Wash. Mar. 29, 2024) (report and recommendation).Under those 26 circumstances, the status quo was detention not release, so the requested form of preliminary relief –immediate release—was inappropriate for that reason. 27 14 In J.G.G., the Supreme Court re-affirmed that aliens are entitled to due process of law in deportation proceedings 28 and must be given notice and an opportunity to be heard commensurate with the nature of the case. Trump v. J. G. G., 1 Morrissey, 408 U.S. at 482. “Though the [government] properly subjects [the parolee] to many 2 restrictions not applicable to other citizens,” such as monitoring and seeking authorization to 3 work and travel, “his condition is very different from that of confinement in a prison.” Id. “The 4 parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live 5 up to the parole conditions.” Id. The revocation of parole undoubtedly “inflicts a grievous loss on 6 the parolee.” Id. (quotations omitted). Therefore, a parolee possesses a protected liberty interest in 7 his “continued liberty.” Id. at 481–84. As noted above, Pinchi, 2025 WL 2084921, at *3 agreed. 8 The government appears to attempt to skirt this line of cases by arguing that DHS may “at any 9 time” move Mr. Garcia from Section 240 proceedings to expedited removal. (Doc. 10 at 4.) The 10 government argues: 11 Once a petitioner is in expedited removal proceedings, that individual is subject to mandatory detention. 8 U.S.C. § 1225 12 (b)(1)(A)(i)The Petitioner’s parole was at the discretion of ICE Enforcement and Removal Operations (ERO). DHS retains 13 discretion to redetermine or revoke bond at any time following release. 8 C.F.R. §§ 236.1(c)(9) (“When an alien who, having been 14 arrested and taken into custody, has been released, such release may be revoked at any time in the discretion of the district director, 15 acting district director, deputy district director, assistant district director for investigations, assistant district director for detention 16 and deportation, or officer in charge (except foreign), in which event the alien may be taken into physical custody and detained. If 17 detained, unless a breach has occurred, any outstanding bond shall be revoked and canceled.”). 18 19 (Doc. 10 at 4.) Coalition raises serious doubts as to the applicability of such arguments to Mr. 20 Garcia’s factual situation, given that it “forbids the expedited removal of noncitizens who have 21 been, at any point in time, paroled into the United States.” 2025 WL 2192986, at *22. 22 Though DHS could have placed Mr. Garcia in expedited removal proceedings when he 23 arrived in the country, it did not do so. Rather, ICE placed him into § 240 proceedings and 24 conditionally paroled him for well over two years. The Court acknowledges that the statute 25 indicates that, “The Attorney General at any time may revoke a bond or parole authorized under 26 subsection (a), rearrest the alien under the original warrant, and detain the alien.” 8 U.S.C. § 27 28 1 1226(b).15 As noted above, this does not mean that DHS may exercise its discretion in a manner 2 that is inconsistent with constitutional requirements. 3 Respondent suggests that notwithstanding any of the above the dismissal of Mr. Garcia’s 4 Section 240 proceeding is dispositive here. (Doc. 10 at 2.) But the reply demonstrates that Mr. 5 Garcia has appealed that dismissal. (See Doc. 12-1 (BIA receipt of notice of appeal).) According 6 to Mr. Garcia, the pending appeal necessarily means that his 240 proceedings are still ongoing 7 and thus that he cannot be summarily put into expedited removal. (See Doc. 12 at 4); see also 8 Mata Velasquez, 2025 WL 1953796, at *9 (explaining that Petitioner’s “right to have his appeal 9 heard by the BIA prohibits the initiation of expedited removal proceedings—and therefore 10 mandatory detention under 8 U.S.C. § 1225(b)(1)—before his section 240 proceedings have been 11 allowed to run their procedural course.”). 12 Thus, the Court must evaluate the three-part test set forth in Mathews v. Eldridge, 424 13 U.S. 319, 334-335 (1976), to determine whether the procedures (or lack thereof) that have been 14 applied to Mr. Garcia are sufficient to protect the liberty interest at issue. Pinchi at *3. In 15 Mathews, the Court determined, 16
17 15 Even assuming, arguendo, that Mr. Garcia’s original “parole” was processed for “humanitarian reasons” or “significant public benefit” under the exceptions to mandatory expedited removal detention, see 8 U.S.C. 18 § 1182(d)(5)(A), Coalition suggests that a court reviewing revocation of that kind of arrest should not ignore that the parole occurred: 19 [S]ection 1182(d)(5)(A) does not, as Defendants insist, say that parolees return, upon the termination or expiration of their parole, to “the position of an applicant for admission standing at 20 the threshold of entry.” [ ]. Rather, the provision says that two things happen to such a parolee: (1) he “shall forthwith return or be returned to the custody from which he was paroled”; and (2) 21 “thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” In other words, the noncitizen is physically brought 22 back into immigration detention (“custody”) and then legally continues to be treated as an “applicant for admission,” because his parole itself did not constitute an admission. See 8 U.S.C. 23 § 1182(d)(5)(A) (stating that parole “shall not be regarded as an admission of the alien”). That does not prove that the law treats the parole as if it never happened. At minimum, it 24 recognizes that the parole physically happened, because it contemplates that the noncitizen must be returned to detention. Moreover, it does not imply a return to the status of an applicant for 25 admission, because a noncitizen is already an “applicant[ ] for admission” while their parole is active. See, e.g., Biden v. Texas, 597 U.S. 785, 806 [(2022)] (“[T]he INA expressly authorizes 26 DHS to process applicants for admission under a third option: parole.”) (citing 8 U.S.C. § 1182(d)(5)(A)). Accordingly, the statute says that the noncitizen whose parole is terminated 27 “continue[s]” to be treated as an applicant for admission, not that she “returns” to the status of applicant for admission. 28 1 [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three 2 distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such 3 interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the 4 Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute 5 procedural requirement would entail. 6 During his almost three years on parole, Mr. Garcia obtained work and built a family in the 7 United States, including becoming the father of two U.S. Citizens. (Doc. 1, ¶ 1) Thus, parole 8 allowed him to build a life outside detention, albeit under the terms of that parole. Mr. Garcia has 9 a substantial private interest in being out of custody, which would allow him to continue in these 10 life activities, including supporting his family. As other courts have done, the Court concludes 11 that the government’s interest in detaining Mr. Garcia or re-detaining him without a hearing, is 12 slight. There is no dispute he has abided by all conditions of his parole and, works and has no 13 criminal record. Other than the non-final (because of appeal) dismissal at the government’s 14 request of his Section 240 proceedings, there has been no change in Mr. Garcia’s circumstances 15 that would warrant a finding that he is either a flight risk or a danger to the community. Thus, the 16 Court concludes that he has demonstrated a likelihood of success on the merits on his procedural 17 due process claim. 18 2. Irreparable Harm 19 “It is well established that the deprivation of constitutional rights ‘unquestionably 20 constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting 21 Elrod v. Burns, 427 U.S. 247, 272 (1976)). Moreover, “[t]he Ninth Circuit has recognized 22 ‘irreparable harms imposed on anyone subject to immigration detention’ including ‘the economic 23 burdens imposed on detainees and their families as a result of detention.’” Hernandez v. Sessions, 24 872 F.3d 976, 995 (9th Cir. 2017)); Leiva-Perez v. Holder, 640 F.3d 962, 969-970 (9th Cir. 2011) 25 [the inability to pursue a petition for review may constitute irreparable harm]. The evidence 26 demonstrates that Mr. Garcia is suffering significant emotional distress from his custodial status 27 and that his family’s circumstances are made even more difficult due to his absence. 28 /// 1 3. Balance of the Harms/Public Interest 2 Because the interest of the government is the interest of the public, the final two factors 3 merge when the government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). The 4 Court agrees with the analysis of Pinchi, and finds it correctly addresses the situation here: 5 “[T]he public has a strong interest in upholding procedural protections against unlawful detention, and the Ninth Circuit has 6 recognized that the costs to the public of immigration detention are staggering.” Jorge M. F., 2021 WL 783561, at *3 (cleaned up) 7 (quoting Ortiz Vargas, 2020 WL 5074312, at *4, and then quoting Hernandez, 872 F.3d at 996); see also Preminger v. Principi, 422 8 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns are implicated when a constitutional right has been violated, 9 because all citizens have a stake in upholding the Constitution.”). Without the requested injunctive relief, Petitioner-Plaintiff faces the 10 danger of significant health consequences and deprivation of her liberty. Yet the comparative harm potentially imposed on 11 Respondents-Defendants is minimal—a mere short delay in detaining Petitioner-Plaintiff, should the government ultimately 12 show that detention is intended and warranted. Moreover, a party “cannot reasonably assert that it is harmed in any legally cognizable 13 sense by being enjoined from constitutional violations.” Zepeda v. U.S. Immigr. & Nat. Serv., 753 F.2d 719, 727 (9th Cir. 1983). 14 This Court therefore joins a series of other district courts that have 15 recently granted temporary restraining orders barring the government from detaining noncitizens who have been on 16 longstanding release in their immigration proceedings, without first holding a pre-deprivation hearing before a neutral decisionmaker. 17 See, e.g., Diaz v. Kaiser, No. 25-cv-05071, 2025 WL 1676854, at *2 (N.D. Cal. June 14, 2025); Garcia v. Bondi, No. 25-cv-05070, 18 2025 WL 1676855, at *3 (N.D. Cal. June 14, 2025). Although Petitioner filed her motion shortly after being detained, rather than 19 immediately beforehand, the same reasoning applies to her situation. Her liberty interest is equally serious, the risk of 20 erroneous deprivation is likewise high, and the government's interest in continuing to detain her without the required hearing is 21 low. See Doe v. Becerra, No. 2:25-cv-00647-DJC-DMC, 2025 WL 691664, at *6 (E.D. Cal. Mar. 3, 2025) (granting a TRO as to an 22 individual who had been detained over a month earlier). 23 Pinchi, at *3. In addition, there appears to be no dispute that there is no evidence that risk that Mr. 24 Garcia poses a risk of flight or a danger to the community. For these reasons and those set forth in 25 Pinchi, the Court concludes that the balance of the equities and public interest weigh in favor of 26 Mr. Garcia. 27 4. Bond 28 “The court may issue a preliminary injunction or a temporary restraining order only if the 1 movant gives security in an amount that the court considers proper to pay the costs and damages 2 sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 3 65(c). The court has “discretion as to the amount of security required, if any,” and it “may 4 dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the 5 defendant from enjoining his or her conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 6 2003) (citation modified). Because “the [Government] cannot reasonably assert that it is harmed 7 in any legally cognizable sense by being enjoined from constitutional violations,” Zepeda, 753 8 F.2d at 727, the Court finds that no security is required here. 9 C. Parole Revocation hearing 10 Mr. Garcia requests an order enjoining his re-detention without a pre-deprivation hearing 11 where the government bears the burden of proof. (See Doc. 4-1 at 19.) In Rodriguez Diaz v. 12 Garland, 53 F.4th 1189 (9th Cir. 2022), the Ninth Circuit considered whether a noncitizen 13 detained under § 1226(a) pending removal proceedings had a right to a second bond hearing 14 where the government would have the burden to establish by clear and convincing evidence that 15 his continued detention was justified. Rodriguez Diaz concluded that due process did not require 16 that procedure, reasoning in part that:
17 Nothing in this record suggests that placing the burden of proof on the government was constitutionally necessary to minimize the risk 18 of error, much less that such burden shifting would be constitutionally necessary in all, most, or many cases. There is no 19 reason to believe that, as a general proposition, the government will invariably have more evidence than the alien on most issues bearing 20 on alleged lack of future dangerousness or flight risk. 21 Id. at 1212. 22 However, as the Pinchi court explained, Rodriguez Diaz did not address the question 23 presented here:
24 The Ninth Circuit did not hold in Rodriguez Diaz that noncitizens facing removal under section 1226(a) have no due process right to a 25 pre-detention hearing. It held only that a noncitizen detained under section 1226(a) does not have a right to a second bond hearing 26 when the only changed material condition since their first bond hearing is the duration of their detention. Because the question 27 presented here was not presented in Rodriguez Diaz, the court had no opportunity to address it. 28 1 Pinchi, 2025 WL 2084921, at *4. Pinchi went on to discuss why the calculus changes for an 2 individual who had been paroled from immigration custody after their initial detention:
3 Even assuming arguendo that the post-detention bond hearing provided under section 1226(a) provides constitutionally sufficient 4 process for those noncitizens who have never previously been detained and released by DHS, [Petitioner’s] circumstance is 5 different. Her release from ICE custody after her initial apprehension reflected a determination by the government that she 6 was neither a flight risk nor a danger to the community, and [she] has a strong interest in remaining at liberty unless she no longer 7 meets those criteria. The regulations authorizing ICE to release a noncitizen from custody require that the noncitizen “demonstrate to 8 the satisfaction of the officer that such release would not pose a danger to property or persons” and that the noncitizen is “likely to 9 appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). “Release [therefore] reflects a determination by the government that 10 the noncitizen is not a danger to the community or a flight risk.” Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017), 11 aff'd sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). [Petitioner] was apprehended by ICE officers when she 12 crossed the border into the United States [ ]. ICE then released her on her own recognizance. As ICE was not authorized to release 13 [her] if she was a danger to the community or a flight risk, the Court must infer from [her] release that ICE determined she was 14 neither. [her] release from ICE custody constituted an “implied promise” that her liberty would not be revoked unless she “failed to 15 live up to the conditions of her release.” Morrissey, 408 U.S. at 482. The regulatory framework makes clear that those conditions were 16 that she remain neither a danger to the community nor a flight risk. [She] justifiably relied on the government's implied promise in 17 obtaining employment, taking on financial responsibility for her family members, and developing community relationships. The 18 more than two years that she has spent out of custody since ICE initially released her have only heightened her liberty interest in 19 remaining out of detention. Accordingly, [her] private interest in retaining her liberty is significant. 20 21 Pinchi, 2025 WL 2084921, at *4 22 This reasoning contributed to the conclusion in Pinchi that a pre-deprivation hearing was 23 required under Mathews. The court in Pinchi also placed the burden at any such hearing on the 24 government to demonstrate to a neutral decisionmaker by clear and convincing evidence that re- 25 detention is necessary to prevent danger to the community or flight. Id. at *7. Doing so is logical 26 under the circumstances for the reasons articulated in Pinchi – namely that the immigrant’s initial 27 release reflected a determination by the government that the noncitizen is not a danger to the 28 community or a flight risk. Since it is the government that initiated re-detention, it follows that 1 | the government should be required to bear the burden of providing a justification for the re- 2 | detention. 3 CONCLUSION AND ORDER 4 For the foregoing reasons, the Court ORDERS: 5 1. Petitioner’s Motion for Temporary Restraining Order (Doc. 2) is converted to a 6 | Motion for Preliminary Injunction, and it is GRANTED. 7 2. Mr. Garcia SHALL be released immediately from Respondents’ custody. DHS 8 | SHALL NOT impose any additional restrictions on her, such as electronic monitoring, unless 9 | that is determined to be necessary at a future pre-deprivation/custody hearing. 10 3. Respondents are PERMANENTLY ENJOINED AND RESTRAINED from re- 11 | arresting or re-detaining Mr. Garcia absent compliance with constitutional protections, which 12 | include at a minimum, pre-deprivation notice—describing the change of circumstances 13 || necessitating his arrest—and detention, and a timely hearing. At any such hearing, the 14 | Government SHALL bear the burden of establishing, by clear and convincing evidence, that Mr. 15 | Garcia poses a danger to the community or a risk of flight, and Mr. Garcia SHALL be allowed to 16 | have counsel present. 17 4. The petitioner may file a brief on the merits within 60 days. The government may 18 | file an additional brief related to the merits of the petition within 60 days thereafter and the 19 | petitioner may file a reply brief within 15 days of the government’s brief. 20 IT IS SO ORDERED. > | Dated: _ August 21, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 23 24 25 26 27 28