(HC) Paz Hernandez v. Wofford

Opinion

RODRIGO A. PAZ HERNANDEZ, No. 1:25-cv-00986-KES-CDB (HC) Petitioner, ORDER GRANTING MOTION FOR v. TEMPORARY RESTRAINING ORDER MINGA WOFFORD, Field Office Director, Doc. 4 Mesa Verde, Office of Detention and Removal, POLLY KAISER, Acting Field Office Director of the San Francisco Immigration and Customs Enforcement Office, TODD M. LYONS, Acting Director of United States Immigration and Customs Enforcement, KRISTI NOEM, Secretary of the United States Department of Homeland Security, and PAMELA BONDI, Attorney General of the United States, Respondents. Petitioner Rodrigo A. Paz Hernandez is a noncitizen who has been in immigration removal proceedings since May 2024. Petitioner presents evidence that, after being briefly detained upon his entry into the United States, he was released in May 2024 and thereafter complied with his release requirements and appeared at all immigration court proceedings as required. On July 8, 2025, after petitioner appeared at the San Francisco Immigration Court for a scheduled hearing, Immigrations and Customs Enforcement (“ICE”) agents arrested him in the court hallway. ICE transported petitioner to a facility in Bakersfield, California, where he remains detained. On August 1, 2025, petitioner filed a petition for writ of habeas corpus, Doc. 1, and a motion for temporary restraining order, Doc. 2. For the reasons set forth below, the Court grants petitioner’s motion for temporary restraining order and orders that the government release petitioner immediately and not re-detain him unless it proves by clear and convincing evidence at a bond hearing before a neutral arbiter that petitioner is a flight risk or danger to the community. I. Background Petitioner is a citizen of El Salvador. Doc. 4-1 at ¶ 6; Doc. 10-1 at ¶ 6. He fled El Salvador in 2024 due to its ongoing state of exception. Doc. 4-1 at ¶ 6. El Salvador’s state of exception suspends certain constitutional guarantees for El Salvador’s citizens, permitting law enforcement there to arrest and detain citizens without cause. Id.; El Salvador 2023 Human Rights Report, U.S. Dep’t of State, https://www.state.gov/wp- content/uploads/2024/02/528267_EL-SALVADOR-2023-HUMAN-RIGHTS-REPORT.pdf. Petitioner arrived in the United States on May 6, 2024. Doc. 4-1 at ¶¶ 7, 9; Doc. 1-3 at 1; Doc. 10-1 at ¶ 6. After he crossed the border, he was arrested on a warrant and detained by DHS agents. Doc. 4-1 at ¶ 9; Doc. 1-3 at 1; Doc. 10-1 at ¶ 6. Petitioner explained to the agents that he feared returning to El Salvador. Doc. 4-1 at ¶ 9. The agents provided him with a notice to appear for removal proceedings. Doc. 10-1, Ex. 2. The agents released petitioner on May 6, 2024, pending his immigration proceedings. Doc. 4-1 at ¶ 9; Doc. 1-3 at 2; see Doc. 10-1 at 2, ¶ 6. He was not required to post bond or wear an ankle monitor. Doc. 4-1 at ¶ 9. The regulations that authorize immigration authorities to release a noncitizen require that the noncitizen “demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons” and that the noncitizen is “likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). “Release [therefore] reflects a determination by the government that 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), aff'd sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). Petitioner’s evidence indicates that following his release he lived in San Francisco, found employment, paid taxes, obtained a driver’s license, and began a relationship with a U.S. citizen. Id. ¶¶ 10–11. He is a devout Jehovah’s Witness and is heavily involved with his church. Doc. 4- 1 at ¶¶ 11, 28; see Doc. 1-4 (letters of support from friends, family, church, and community members). Petitioner has no criminal record. Id.; Doc. 10-1, Ex. 1 at 6. On June 26, 2024, petitioner appeared before the San Francisco Immigration Court for an advisal of right, and the court granted his request for a continuance to find an attorney. Doc. 10-1 at ¶ 7. Prior to the next hearing, petitioner filed an application for asylum and withholding of removal. Doc. 4-1 at ¶¶ 13–15. He next appeared for a master calendar hearing at the San Francisco Immigration Court on May 6, 2025, and the court granted another continuance. Id. ¶ 15; Doc. 10-1 at ¶ 8. On July 8, 2025, petitioner appeared for a further hearing before the San Francisco Immigration Court, at which the immigration judge sustained the charge of removability. Doc. 4-1 at ¶ 16. At the hearing, the government also moved to dismiss petitioner’s case, which the immigration judge denied. Id.; Doc. 10-1, Ex. 1 at 8. The government apparently moved to dismiss petitioner’s immigration case with the intention of placing petitioner into expedited removal proceedings. In addition to denying the government’s motion to dismiss, the immigration judge set a final merits hearing in 2026 on petitioner’s applications for asylum and withholding of removal. Doc. 4-1 at ¶ 16; Doc. 10-1, Ex. 1 at 8. Notwithstanding the immigration judge’s denial of the motion to dismiss, ICE agents arrested petitioner when he exited the courtroom. Doc. 4-1 at ¶ 18; Doc. 10-1, Ex. 1 at 8. Agents took petitioner to a facility located in Bakersfield, in the Eastern District of California, where petitioner remains detained. Id. ¶ 22; Pet. ¶ 22. Petitioner’s removal proceedings were subsequently transferred to the Adelanto Immigration Court. Doc. 4-1 at ¶ 17. The government then filed a renewed motion to dismiss petitioner’s immigration case, which was granted. Id. Petitioner states that he intends to appeal that order and indicates that he is currently awaiting a credible fear interview. Id. Petitioner sought a custody redetermination, which the Adelanto immigration judge denied on July 25, 2025, finding that under Matter of Q. Li., 29 I&N Dec. 66 (BIA 2025), the immigration court lacked jurisdiction to consider that request. See Doc. 1-3 at 26–27. On August 8, 2025, petitioner filed a petition for writ of habeas corpus, Doc. 1, and a motion for temporary restraining order, Doc. 4. The Court ordered the government to file an opposition and petitioner to file a reply. Docs. 6, 11. On August 14, 2025, the government filed its opposition.1 Doc. 10. Petitioner filed a reply on August 18, 2025. Doc. 12. II. Legal Standard The standards for issuing a temporary restraining order and a preliminary injunction are “substantially identical.” See Stuhlbarg Int’l Sales Co. v. John D. Bush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (citing Munaf, 553 U.S. at 689–90; Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–12 (1982)). “Likelihood of success on the merits is a threshold inquiry and is the most important factor.” Simon v. City & Cnty. of San Francisco, 135 F.4th 784, 797 (9th Cir. 2025) (quoting Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020)). “[I]f a plaintiff can only show that there are serious questions going to the merits—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (internal quotation marks and citations omitted). ///

1 In their opposition, respondents move “to strike and dismiss all unlawfully named officials under § 2241.” Doc. 10 at 1, n.1. Where an individual brings a “core” habeas petition challenging present physical confinement, the proper respondent is typically the immediate custodian. Doe v. Garland, 109 F.4th 1188, 1197 (9th Cir. 2024). If respondents seek to dismiss other respondents from this action, they must do so in a properly noticed motion. Ortega v. Kaiser, No. 25-CV-05259-JST, 2025 WL 2243616, at *4 (N.D. Cal. Aug. 6, 2025) (“[A] request for court order must be made by motion. As a result, a request for affirmative relief is not proper when raised for the first time in an opposition.”). III. Discussion a. Likelihood of Success on the Merits Petitioner asserts that he possesses a protected liberty interest under the Due Process Clause and that, under the factors outlined in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), he is entitled to a pre-deprivation bond hearing.2 Doc. 4 at 10–21. The government argues that petitioner is not entitled to the protections of the Due Process Clause, asserting that petitioner is an applicant for admission to the United States and “has only those rights regarding admission that Congress has provided by statute.” Doc. 10 at 6 (quoting DHS v. Thuraissigiam, 591 U.S. 103, 139–40 (2020)). Noting that Congress possesses “plenary power to make rules for the admission of” noncitizens, id. (quoting Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), the government argues that petitioner’s “rights are limited to whatever statutory rights Congress provides.” Id. This argument is unpersuasive. First, it fails to appreciate the distinction between persons already located inside the United States, like petitioner, and individuals attempting to enter the United States, like the petitioner in Thuraissigiam. “It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citing United States v. Verdugo–Urquidez, 494 U.S. 259, 269 (1990); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)). “But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Id. Second, the government’s argument misconstrues the nature of the challenge that petitioner brings in this case, which is a challenge to his present detention. Thuraissigiam held that a petitioner who was stopped at the border did not have any due process rights regarding admission into the United States. Thuraissigiam, 591 U.S. at 107. However, petitioner’s 2 In the conclusion section of his motion, petitioner also requests an order prohibiting respondents “from sending [petitioner] to any place outside of the United States.” Doc. 4 at 23. As petitioner’s motion does not address the basis for such relief, this Order does not further address that request. challenges his re-detention, without a hearing, when petitioner had been in full compliance with his release conditions for over a year and had appeared as required in his immigration court proceedings, including immediately prior to ICE’s arrest of him. See Padilla v. ICE, 704 F. Supp. 3d 1163, 1170–72 (W.D. Wash. 2023) (discussing Thuraissigiam and explaining the distinction between a challenge to admission and a challenge to detention). “Although the Supreme Court has described Congress’s power over the ‘policies and rules for exclusion of aliens’ as ‘plenary,’ and held that this court must generally ‘defer to Executive and Legislative Branch decisionmaking in that area,’ it is well-established that the Due Process Clause stands as a significant constraint on the manner in which the political branches may exercise their plenary authority”—through detention or otherwise. Hernandez, 872 F.3d at 990 n.17 (citing Kleindienst, 408 U.S. at 769; Zadvydas, 533 U.S. at 695). The Due Process Clause protects petitioner, a person inside the United States, from unlawful detention. See Zadvydas, 533 U.S. at 693. Next, the government asserts that petitioner is mandatorily detained pursuant to 8 U.S.C. § 1225(b)(1), and argues that, in other contexts, the Supreme Court has upheld mandatory detention schemes.3 Doc. 10 at 4–5. In Demore v. Kim, the Supreme Court upheld the constitutionality of § 1226(c), a mandatory detention provision, on a facial challenge. Demore v. Kim, 538 U.S. 510, 513 (2003). A facial challenge requires a plaintiff to show that a statute is “unconstitutional in every conceivable application.” Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998). In contrast, an as-applied challenge requires a plaintiff to show only that “the application of the statute to a specific factual circumstance” is unconstitutional. Hoye v. City

3 Petitioner disputes that he is detained under § 1225(b)(1), as ICE agents arrested him while he was still pending immigration proceedings before the Immigration Court under § 1229a. Doc. 12 at 6. The Court need not decide this issue for purposes of this motion. See Maklad v. Murray, No. 1:25-cv-00946 JLT SAB, 2025 WL 2299376, at *5 (E.D. Cal. Aug. 8, 2025). Following petitioner’s detention, the Adelanto immigration judge found that petitioner’s re-detention was subject to § 1225(b), and that, under Matter of Q. Li, 9 I&N Dec. 66 (B.I.A. 2025), the immigration court lacked statutory jurisdiction to provide petitioner with a bond hearing. Doc. 1- 3 at 26. Thus, whether or not the immigration judge was correct, petitioner will not receive a bond hearing in the immigration court unless the Court grants relief on his as-applied constitutional due process claim. of Oakland, 653 F.3d 835, 857 (9th Cir. 2011). As other courts have explained in considering Demore, its conclusion that § 1226(c)’s mandatory detention scheme is constitutional in some of its applications “does not mean that the Court does not have the power to grant petitions for habeas corpus raising as-applied constitutional challenges to [] detention without a bond hearing.” Perera v. Jennings, 598 F. Supp. 3d 736, 744 (N.D. Cal. 2022). Here, petitioner presses an as-applied constitutional challenge: he argues that the Due Process Clause bars the government from re-detaining him without first providing a bond hearing. Doc. 4 at 7–23. As the government acknowledges, “the constitutionality of mandatory detention under § 1225(b)(1) is an open question in the Ninth Circuit.” Doc. 10 at 5 (citing Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV-00098-SAB-HC, 2025 WL 2099343, at *5 (E.D. Cal. July 25, 2025)).4 Petitioner’s as-applied constitutional challenge is analyzed “in two steps: the first asks whether there exists a protected liberty interest under the Due Process Clause, and the second examines the procedures necessary to ensure any deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 1. Liberty Interest A protected liberty interest may arise from a conditional release from physical restraint. Young v. Harper, 520 U.S. 143, 147–49 (1997). Even when a statute allows the government to arrest and detain an individual, a protected liberty interest under the Due Process Clause may

4 The government also argues that petitioner’s motion goes beyond a request to preserve the status quo and instead inappropriately seeks “the ultimate relief he demands in this case,” citing Senate of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992). Doc. 10 at 4. In Mosbacher, the trial court ordered as preliminary relief the release of data that the state sought to keep private, and once the data was released the state would “have lost the whole case for all practical purposes.” Mosbacher, 968 F.2d at 978. In that context, the Court held that “judgment on the merits in the guise of preliminary relief is a highly inappropriate result.” Id. But awarding temporary relief of the kind requested here does not constitute a final judgment on the merits in this case or foreclose further litigation of the issues raised in petitioner’s habeas petition. See Castellon v. Kaiser, No. 1:25-cv-00968-JLT-EPG, 2025 WL 2373425, at *7 n.7 (E.D. Cal. Aug. 14, 2025) (rejecting similar government argument). entitle the individual to procedural protections not found in the statute. See id. (Due Process requires pre-deprivation hearing before revocation of preparole); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (same, in probation context); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (same, in parole context). To determine whether a specific conditional release rises to the level of a protected liberty interest, “[c]ourts have resolved the issue by comparing the specific conditional release in the case before them with the liberty interest in parole as characterized by Morrissey.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 887 (1st Cir. 2010) (internal quotation marks and citation omitted). In Morrissey, the Supreme Court explained that parole “enables [the parolee] to do a wide range of things open to persons” who have never been in custody or convicted of any crime, including to live at home, work, and “be with family and friends and to form the other enduring attachments of normal life.” Morrissey, 408 U.S. at 482. “Though the [government] properly subjects [the parolee] to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison.” Id. “The parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions.” Id. The revocation of parole undoubtedly “inflicts a grievous loss on the parolee.” Id. (quotations omitted). Therefore, a parolee possesses a protected interest in his “continued liberty.” Id. at 481–84. Petitioner’s release is similar. It allowed him to live with his loved ones in the community, to participate in the activities of his church, and to earn a living. DHS’s release of petitioner in 2024 reflected a determination that petitioner did not pose a flight risk or danger to the community. See Saravia, 280 F. Supp. 3d at 1176; 8 C.F.R. § 1236.1(c)(8). Petitioner indicates that he has no criminal record, which the government does not challenge. Following his release in 2024, petitioner complied with his release terms and appeared at all immigration proceedings as required. The government rearrested petitioner without showing any changed circumstances, contradicting the “implicit promise that [petitioner’s freedom] will be revoked only if he fails to live up to the [release] conditions.” Morrissey, 408 U.S. at 482. The Court finds that petitioner has a protected liberty interest in his release. See Guillermo M. R. v. Kaiser, No. 25-CV-05436-RFL, 2025 WL 1983677, at *4 (N.D. Cal. July 17, 2025) (recognizing that “the liberty interest that arises upon release [from immigration detention] is inherent in the Due Process Clause”); Ortega v. Kaiser, No. 25-cv-05259-JST, 2025 WL 1771438, at *3 (N.D. Cal. June 26, 2025) (collecting cases finding that noncitizens who have been released have a strong liberty interest). The Court must therefore determine what process is due before the government may terminate his liberty. 2. Due Process Requirements Due process “is a flexible concept that varies with the particular situation.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). The procedural protections required in a given situation are evaluated using the Mathews v. Eldridge factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)); see Hernandez, 872 F.3d 976, 993 (9th Cir. 2017) (applying Mathews factors in immigration detention context). Turning to the first Mathews factor, petitioner has a substantial private interest in remaining free from detention. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Petitioner has been out of custody for over thirteen months, and during that time, established extensive ties and life in the community. His detention denies him that freedom. Second, “the risk of an erroneous deprivation [of liberty] is high” where, as here, “[the petitioner] has not received any bond or custody redetermination hearing.” A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025). Civil immigration detention, which is “nonpunitive in purpose and effect[,]” is justified when a noncitizen presents a risk of flight or danger to the community. See Zadvydas, 533 U.S. at 690; Padilla, 704 F. Supp. 3d at 1172. Petitioner has no criminal history and indicates that he has attended every court hearing since he arrived in the United States. Doc. 4-1 at ¶¶ 13–17. The government does not dispute this and did not present evidence that petitioner was a flight risk or danger to community. Nonetheless, ICE detained him, id. ¶¶ 7–9, and the government has not given any reason why it did so, other than arguing that he is subject to mandatory detention based on the government’s decision to pursue expedited removal, see Doc. 10. Petitioner has not been provided any procedural safeguards to determine whether his detention is justified, and his request for a custody redetermination was denied because the immigration judge found that she lacked jurisdiction. See Doc. 1-3 at 26–27. Given the absence of any procedural safeguards, “the probable value of additional procedural safeguards, i.e., a bond hearing, is high.” A.E., 2025 WL 1424382, at *5. Third, the government’s interest in detaining petitioner without a hearing is “low.” Ortega, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019); Doe, 2025 WL 691664, at *6. In immigration court, custody hearings are routine and impose a “minimal” cost. Doe, 2025 WL 691664, at *6. The government’s interest is further diminished where a person “has consistently appeared for [his] immigration hearings . . . and [] does not have a criminal record,” Pinchi, 2025 WL 1853763, at *2, as is the case here. On balance, the Mathews factors show that petitioner is entitled to a bond hearing, which should have been provided before petitioner was detained. “‘[T]he root requirement’ of the Due Process Clause” is “‘that an individual be given an opportunity for a hearing before he is deprived of any significant protected interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); see Zinermon, 494 U.S. at 127 (“Applying [the Mathews] test, the Court usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty . . . .”). The Supreme Court has held that Due Process requires a pre-deprivation hearing before those released on parole from a criminal conviction can have their bond finally revoked. See Morrissey, 408 U.S. at 480–86. The same is true for those subject to revocation of probation. Gagnon v. Scarpelli, 411 U.S. at 782. Given the absence of “evidence of urgent concerns,” the Court concludes that “a pre- deprivation hearing [was] required to satisfy due process.” Guillermo M. R., 2025 WL 1983677, at *9. Numerous district courts have reached a similar conclusion. See, e.g., id.; Garcia, 2025 WL 1927596, at *5; Pinchi, 2025 WL 1853763, at *3–4; Ortega, 415 F. Supp. 3d at 970; Singh, 2025 WL 1918679, at *8–9; Doe, 2025 WL 691664, at *6; Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at *2 (N.D. Cal. June 14, 2025); Romero v. Kaiser, No. 22-cv-02508-TSH, 2022 WL 1443250, at *4 (N.D. Cal. May 6, 2022); Vargas v. Jennings, No. 20-cv-5785-PJH, 2020 WL 5074312, at *4 (N.D. Cal. Aug. 23, 2020). With these considerations in mind, petitioner is likely to succeed on the merits. b. Irreparable Harm Turning to the second Winters factor, the Court notes that “[i]t is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.” Hernandez, 872 F.3d at 994 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). “When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”5 Warsoldier v. Woodford, 418 F.3d 989, 1001–02 (9th Cir. 2005) (quoting Wright, Miller, & Kane, Federal Practice and Procedure, § 2948.1 (2d ed. 2004)). As the Supreme Court has recognized, incarceration “has a detrimental impact on the individual” because “it often means loss of a job” and “disrupts family life.” Barker v. Wingo, 407 U.S. 514, 532–33 (1972). Thus, petitioner faces irreparable harm absent a temporary restraining order. c. Balance of Equities and Public Interest When the government is the nonmoving party, “the last two Winter factors merge.” Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (internal citations omitted). Faced with a choice “between [minimally costly procedures] and preventable human suffering,” as discussed above, the Court concludes “that the balance of hardships tips decidedly in [petitioner’s] favor.” Hernandez, 872 F.3d at 996 (quoting Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)). The public interest also weighs in petitioner’s favor. “The public has a strong interest in 5 The government points out that this presumption does not apply when a party fails to show a likelihood of success on the merits. See Associated Gen. Contractors of California, Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991). However, as explained in the previous section, petitioner has made that showing. upholding procedural protections against unlawful detention, and the Ninth Circuit has recognized that the costs to the public of immigration detention are staggering.” Diaz, 2025 WL 1676854, at *3 (citing Jorge M.F. v. Wilkinson, No. 21-CV-01434-JST, 2021 WL 783561, at *3) (N.D. Cal. Mar. 1, 2021); see also Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 838 (9th Cir. 2020) (“It is always in the public interest to prevent the violation of a party’s constitutional rights.”) (citing Padilla, 953 F.3d at 1147–48). In conclusion, the Court finds that the requirements for issuing a temporary restraining order are met. d. Burden of Proof The parties dispute whether the burden of proof should fall on petitioner or the government at the bond hearing. The Court finds that in this context the burden is more appropriately placed on the government. See Banda v. McAleenan, 385 F. Supp. 3d 1099, 1107 (W.D. Wash. 2019); Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV- 00098-SAB-HC, 2025 WL 2099343, at *8 (E.D. Cal. July 25, 2025). In Singh v. Holder, the Ninth Circuit held, in the context of hearings provided for those detained under § 1226(c), that “the substantial liberty interest at stake” warranted placing the burden on the government to “prove by clear and convincing evidence that an alien is a flight risk or a danger to the community to justify denial of bond.” Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011), abrogated on other grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); see also Rodriguez Diaz v. Garland, 53 F.4th 1189, 1199 (9th Cir. 2022) (explaining that Singh was based on general principles of due process). “Because it is improper to ask the individual to ‘share equally with society the risk of error when the possible injury to the individual’— deprivation of liberty—is so significant, a clear and convincing evidence standard of proof provides the appropriate level of procedural protection.” Id. at 1203–04 (quoting Addington v. Texas, 441 U.S. 418, 427 (1979)). These same concerns are present here. The Ninth Circuit later extended these principles to bond hearings for those detained under § 1225(b) and § 1231(a). See Diouf v. Napolitano, 634 F.3d 1081, 1082 (9th Cir. 2011); Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) (“Rodriguez”). Although the Supreme Court subsequently held in Jennings that the constitutional avoidance canon could not be used to read a bond hearing requirement into the statute, it did not address an as-applied constitutional due process challenge. Jennings, 583 U.S. at 304–06, 312 (“Because the Court of Appeals . . . had no occasion to consider respondents’ constitutional arguments on their merits[,] . . . we do not reach those arguments.”). Singh and Rodriguez “relied on the Due Process Clause in determining” who should bear the burden of proof at those bond hearings. Rodriguez Diaz, 53 F.4th at 1202; see Singh, 638 F.3d at 1203–06. The issue of the burden of proof at a hearing required by due process therefore appears to remain governed by Rodriguez and its extension of Singh’s requirements to bond hearings for § 1225(b) detainees. See Maliwat v. Scott, No. 2:25- CV-00788-TMC, 2025 WL 2256711, at *10 (W.D. Wash. Aug. 7, 2025) (applying Singh in § 1225(b) case); Banda, 385 F. Supp. 3d at 1107 (same); Abdul-Samed, No. 1:25-CV-00098- SAB-HC, 2025 WL 2099343, at *8 (same). The government points to Rodriguez Diaz, which held that § 1226(a), which places the burden of proof on the detainee at a bond hearing, was constitutionally adequate. Rodriguez Diaz, 53 F.4th at 1210. But “[s]ection 1226(a) offers substantial procedural protections to detained persons,” id. at 1194, which cannot be said of § 1225(b)(1). In that regard, § 1225(b)(1) is more like § 1226(c), as both mandate detention. The government also argues that Zadvydas placed the burden on the petitioner to “provide[] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future” before making “the government respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at 701. But the cited portion of Zadvydas outlined the appropriate procedure to be used at a preliminary showing on a challenge to prolonged detention, not whether the burden of proof should fall on the detainee or the government at any bond hearing to determine whether the detainee was a flight risk or danger to the community. See id. Petitioner’s immediate release is required to return him to the status quo ante—“the last uncontested status which preceded the pending controversy.” Pinchi, 2025 WL 1853763, at *3; Kuzmenko v. Phillips, No. 2:25-cv-00663-DJC-AC, 2025 WL 779743, at *2 (E.D. Cal. Mar. 10, 2025); see also Valdez v. Joyce, 25 Civ. 4627, 2025 WL 1707737, at *5 (S.D.N.Y. June 18, 2025) (ordering immediate release of unlawfully detained noncitizen); Ercelik v. Hyde, No. 1:25-CV- 11007-AK, 2025 WL 1361543, at *15–16 (D. Mass. May 8, 2025) (same); Günaydın v. Trump, No. 25-CV-01151, 2025 WL 1459154, at *10–11 (D. Minn. May 21, 2025) (same). Respondents are ordered to release petitioner immediately. They may not re-detain petitioner unless the government proves by clear and convincing evidence at a bond hearing before the San Francisco Immigration Court that petitioner is a flight risk or danger to the community. The bond requirement of Federal Rule of Civil Procedure 65(c) is waived. “[T]he party affected by the injunction [has the] obligation of presenting evidence that a bond is needed, so that the district court is afforded an opportunity to exercise its discretion in setting the amount of the bond.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878, 883 (9th Cir. 2003). The government asks the Court to require petitioner to post security but does not explain how it risks harm without such a security bond. Doc. 10 at 8. Courts regularly waive security in cases like this one, and the government has not established a need to impose a security bond in this case. See, e.g., Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011); Garcia, 2025 WL 1676855, at *3; Pinchi, 2025 WL 1853763, at *4; Singh, 2025 WL 1918679, at *9. /// /// /// /// /// /// /// /// /// /// /// /// /// IV. Conclusion and Order Accordingly, petitioner’s motion for temporary restraining order, Doc. 4, is GRANTED. Respondents are ordered to immediately release petitioner from custody. Respondents may not re-detain petitioner without a pre-deprivation bond hearing before a neutral arbiter at which the government must prove by clear and convincing evidence that petitioner is a flight risk or danger to the community such that his physical custody is required. Respondents are ORDERED TO SHOW CAUSE before this Court why a preliminary injunction should not issue pending a final disposition of this matter. Respondents shall file any further response to petitioner’s motion by August 28, 2025. Petitioner may file a reply by September 2, 2025. The parties may stipulate to extend this briefing schedule. This temporary restraining order, which is issued following briefing by both parties, shall remain in effect pending the Court’s ruling on the motion for preliminary injunction. IIS SO ORDERED. _ : Dated: _ August 21, 2025 4h UNITED STATES DISTRICT JUDGE