7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 WALTER A.T.,1 Case No. 1:24-cv-01513-EPG-HC
11 Petitioner, FINDINGS AND RECOMMENDATION TO DENY RESPONDENT’S MOTION TO 12 v. DISMISS AND GRANT PETITION FOR WRIT OF HABEAS CORPUS 13 FACILITY ADMINISTRATOR, GOLDEN STATE ANNEX,2 (ECF No. 16) 14 Respondent. ORDER DIRECTING CLERK OF COURT 15 TO ASSIGN DISTRICT JUDGE AND SUBSTITUTE RESPONDENT 16 17 Petitioner is a federal immigration detainee proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth herein, the undersigned 19 recommends that Respondent’s motion to dismiss be denied, the petition for writ of habeas 20 corpus be granted, and Respondent be ordered to provide Petitioner with an individualized bond 21 hearing before an immigration judge at which the government must justify Petitioner’s continued 22 detention by clear and convincing evidence.
23 1 The Court partially redacts Petitioner’s name to mitigate privacy concerns, as requested by Petitioner and suggested by the Committee on Court Administration and Case Management of the Judicial 24 Conference of the United States. See Memorandum Re: Privacy Concern Regarding Social Security & Immigration Opinions (May 1, 2018), https://www.uscourts.gov/sites/default/files/18-cv-l- 25 suggestion_cacm_0.pdf. 2 “[L]ongstanding practice confirms that in habeas challenges to present physical confinement—‘core 26 challenges’—the default rule is that the proper respondent is the warden of the facility where the prisoner is being held . . . .” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Ninth Circuit has “affirm[ed] the application of the immediate custodian and district of confinement rules to core habeas petitions filed 27 pursuant to 28 U.S.C. § 2241, including those filed by immigrant detainees.” Doe v. Garland, 109 F.4th 1188, 1199 (9th Cir. 2024). Thus, the proper respondent is Petitioner’s immediate custodian, the Facility 1 I. 2 BACKGROUND 3 Petitioner is a native of Guatemala. (ECF No. 16 at 2; ECF No. 16-1 at 7, 12.3) In 2012 4 and in 2017, Petitioner was removed from the United States to Guatemala. (ECF No. 16 at 2; 5 ECF No. 16-1 at 3.) Most recently, on February 2, 2024, the Department of Homeland Security 6 (“DHS”) detained Petitioner and began administratively processing him for expedited removal 7 after Petitioner entered the United States without inspection, admission, or parole. (ECF No. 16 8 at 2; ECF No. 16-1 at 3, 19.) On April 23, 2024, DHS transferred Petitioner from expedited 9 removal proceedings to full removal proceedings, charging Petitioner with removability under 10 sections 212(a)(7)(A)(i)(I) and 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”) 11 as an alien without valid entry documents and present in the United States without admission or 12 parole. (ECF N. 16-1 at 3, 29.) On October 22, 2024, an immigration judge (“IJ”) denied 13 Petitioner’s applications for relief from removal and ordered Petitioner removed. (ECF No. 1 at 14 2; ECF No. 16-1 at 4, 40–43.) Petitioner appealed the decision to the Board of Immigration 15 Appeals (“BIA”), and that appeal is pending. (ECF No. 1 at 2; ECF No. 16-1 at 5.) 16 Meanwhile, on April 3, 2024, DHS’s Enforcement and Removal Operations (“ERO”) 17 Bakersfield sub-office’s Detained Unit denied Petitioner’s first request for release on parole, 18 finding that Petitioner had “not established to ICE [Immigration and Customs Enforcement]’s 19 satisfaction that you are not a danger to the community or U.S. security.” (ECF No. 16-1 at 27.) 20 On or about July 10, 2024, Petitioner filed his second request for release on parole, which was 21 denied. On or about August 1, 2024, Petitioner filed his third request for release on parole, which 22 was denied.4 (ECF No. 16-1 at 11.) 23 On or about August 6, 2024, Petitioner requested a custody redetermination hearing with 24 an IJ. (ECF No. 16-1 at 11.) On August 22, 2024, an IJ held a hearing and concluded that the 25 immigration court “lacked jurisdiction to consider [Petitioner]’s request for custody 26 redetermination” and “lack[ed] jurisdiction to issue a bond.” (Id. at 36, 37.) Thus, the IJ did not
27 3 Page numbers refer to ECF page numbers stamped at the top of the page. 4 Respondent does not provide documentation regarding, nor the basis for, the denials of Petitioner’s 1 make any determination as to Petitioner’s flight risk or dangerousness. Petitioner appealed the 2 custody redetermination decision to the BIA, which affirmed, without opinion, the decision 3 below. (ECF No. 16-1 at 50.) 4 On November 27, 2024, Petitioner filed the instant petition for writ of habeas corpus, 5 asserting that his prolonged detention without a hearing on danger and flight risk violates the 6 Due Process Clause of the Fifth Amendment. (ECF No. 1 at 2.) On March 12, 2025, Respondent 7 filed a motion to dismiss and response to the petition. (ECF No. 16.) On April 14, 2025, 8 Petitioner filed a letter, (ECF No. 17), but to date, no opposition to the motion to dismiss has 9 been filed, and the time for doing so has passed. 10 II. 11 DISCUSSION 12 A. Motion to Dismiss 13 Respondent contends that “Petitioner’s mandatory detention continues to serve legitimate 14 congressionally mandated goals with a definite end in sight.” (ECF No 16 at 6.) As Petitioner’s 15 mandatory detention “is not punitive,” “is not extraordinary,” and “does not violate procedural 16 due process,” Respondent moves to dismiss the petition. (ECF No 16 at 6.) 17 Congress has enacted a complex statutory scheme governing the detention of noncitizens 18 during removal proceedings and following the issuance of a final order of removal. “Where an 19 alien falls within this statutory scheme can affect whether his detention is mandatory or 20 discretionary, as well as the kind of review process available to him if he wishes to contest the 21 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 22 Here, Respondent asserts that Petitioner is subject to mandatory detention pursuant to 8 23 U.S.C. § 1225(b).5 The Supreme Court has described 8 U.S.C. § 1225 as follows: 24 Under § 302, 110 Stat. 3009–579, 8 U.S.C. § 1225, an alien who “arrives in the United States,” or “is present” in this country but 25 “has not been admitted,” is treated as “an applicant for admission.” § 1225(a)(1). Applicants for admission must “be inspected by 26 5 “The Attorney General [has] interpreted 8 U.S.C. § 1225(b)(1)(B)(ii) to require mandatory detention without bond 27 hearings for asylum seekers who were initially subject to expedited removal but later transferred to full removal proceedings after establishing a credible fear.” Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1 immigration officers” to ensure that they may be admitted into the country consistent with U.S. immigration law. § 1225(a)(3). 2 As relevant here, applicants for admission fall into one of two 3 categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2). Section 1225(b)(1) applies to aliens initially 4 determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See § 1225(b)(1)(A)(i) (citing 5 §§ 1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. 6 See § 1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not 7 covered by § 1225(b)(1) (with specific exceptions not relevant here). See §§ 1225(b)(2)(A), (B). 8 Both § 1225(b)(1) and § 1225(b)(2) authorize the detention of 9 certain aliens. Aliens covered by § 1225(b)(1) are normally ordered removed “without further hearing or review” pursuant to 10 an expedited removal process. § 1225(b)(1)(A)(i). But if a § 1225(b)(1) alien “indicates either an intention to apply for 11 asylum ... or a fear of persecution,” then that alien is referred for an asylum interview. § 1225(b)(1)(A)(ii). If an immigration officer 12 determines after that interview that the alien has a credible fear of persecution, “the alien shall be detained for further consideration 13 of the application for asylum.” § 1225(b)(1)(B)(ii). Aliens who are instead covered by § 1225(b)(2) are detained pursuant to a 14 different process. Those aliens “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] 15 not clearly and beyond a doubt entitled to be admitted” into the country. § 1225(b)(2)(A). 16 Regardless of which of those two sections authorizes their 17 detention, applicants for admission may be temporarily released on parole “for urgent humanitarian reasons or significant public 18 benefit.” § 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3 (2017). Such parole, however, “shall not be regarded as an 19 admission of the alien.” 8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall forthwith 20 return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same 21 manner as that of any other applicant for admission to the United States.” Ibid. 22 23 Jennings v. Rodriguez, 583 U.S. 281, 287–88 (2018). 24 In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court addressed a challenge to 25 prolonged detention under § 1231(a)(6) by noncitizens who “had been ordered removed by the 26 government and all administrative and judicial review was exhausted, but their removal could 27 not be effectuated because their designated countries either refused to accept them or the United States lacked a repatriation treaty with the receiving country.” Prieto–Romero, 534 F.3d at 1062 1 (citing Zadvydas, 533 U.S. at 684–86). The Supreme Court held that § 1231(a)(6) does not 2 authorize indefinite detention and “limits an alien’s post-removal-period detention to a period 3 reasonably necessary to bring about that alien’s removal from the United States.” Zadvydas, 533 4 U.S. at 689. Thus, after a presumptively reasonable detention period of six months, a noncitizen 5 was entitled to release if “it has been determined that there is no significant likelihood of removal 6 in the reasonably foreseeable future.” Id. at 701. 7 In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a facial challenge to 8 mandatory detention under 8 U.S.C. § 1226(c). The Supreme Court upheld its “longstanding 9 view that the Government may constitutionally detain deportable aliens during the limited period 10 necessary for their removal proceedings.” Id. at 526. The Supreme Court distinguished Zadvydas 11 by emphasizing that mandatory detention under § 1226(c) has “a definite termination point” and 12 “in the majority of cases it lasts for less than the 90 days . . . considered presumptively valid in 13 Zadvydas.” Id. at 529. However, Justice Kennedy specifically noted that “a lawful permanent 14 resident alien such as respondent could be entitled to an individualized determination as to his 15 risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 16 Demore, 538 U.S. at 532 (Kennedy, J., concurring). 17 “In a series of decisions, the [Ninth Circuit] . . . grappled in piece-meal fashion with 18 whether the various immigration detention statutes may authorize indefinite or prolonged 19 detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. 20 Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010). This culminated in Rodriguez v. 21 Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), in which the Ninth Circuit held that for 22 noncitizens detained under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), “the government must 23 provide periodic bond hearings every six months so that noncitizens may challenge their 24 continued detention as ‘the period of . . . confinement grows.’” 804 F.3d at 1089 (quoting Diouf 25 v. Napolitano (Diouf II), 634 F.3d 1081, 1091 (9th Cir. 2011)). Importantly, the Ninth Circuit 26 applied the canon of constitutional avoidance to interpret these immigration detention provisions 27 as providing a statutory right to a bond hearing once detention become prolonged. See Rodriguez 1 In Jennings v. Rodriguez, the Supreme Court found the Ninth Circuit’s interpretation that 2 § 1226(c) included “an implicit 6–month time limit on the length of mandatory detention” fell 3 “far short of a ‘plausible statutory construction,’” and held that the Ninth Circuit misapplied the 4 constitutional avoidance canon to find a statutory right under 8 U.S.C. § 1226(a) to “periodic 5 bond hearings every six months in which the Attorney General must prove by clear and 6 convincing evidence that the alien’s continued detention is necessary.” Jennings, 583 U.S. at 7 304, 296, 306. The case was remanded to the Ninth Circuit “to consider [the] constitutional 8 arguments on their merits.” Id. at 312. The Ninth Circuit likewise remanded the case to the 9 district court to consider the constitutional arguments in the first instance but observed that it had 10 “grave doubts that any statute that allows for arbitrary prolonged detention without any process 11 is constitutional or that those who founded our democracy precisely to protect against the 12 arbitrary deprivation of liberty would have thought so.” Rodriguez v. Marin, 909 F.3d 252, 255, 13 256 (9th Cir. 2018). 14 There has been a dearth of guidance regarding the point at which an immigration 15 detainee’s continued mandatory detention becomes unconstitutional. See Rodriguez Diaz, 53 16 F.4th at 1203 (noting that both the Ninth Circuit “and the Supreme Court have repeatedly 17 declined to decide constitutional challenges to bond hearing procedures in the immigration 18 detention context”). The Ninth Circuit has yet to take a position on whether due process requires 19 a bond hearing for noncitizens detained under 8 U.S.C. § 1225(b), but it has recognized that 20 “district courts throughout this circuit have ordered immigration courts to conduct bond hearings 21 for noncitizens held for prolonged periods under § 1226(c)” based on due process and noted that 22 “[a]ccording to one such court order, the ‘prolonged mandatory detention pending removal 23 proceedings, without a bond hearing, will—at some point—violate the right to due process.’” 24 Martinez v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (citation omitted), vacated on other 25 grounds, 144 S. Ct. 1339 (2024). 26 Here, Respondent contends that Demore forecloses relief and warrants dismissal. The 27 Court notes that in upholding mandatory detention under 8 U.S.C. § 1226(c) in Demore, the 1 Demore, 538 U.S. at 513 (“brief period”); id. at 523 ((“brief period”); id. at 526 (“limited 2 period”); id. at 529 n.12 (“[t]he very limited time of the detention at stake under § 1226(c)”); id. 3 at 531 (“limited period”). Demore specifically noted that “the detention at stake under § 1226(c) 4 lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about 5 five months in the minority of cases in which the alien chooses to appeal,” relying on statistics 6 from the Executive Office for Immigration Review (“EOIR”). 538 U.S. at 530. However, 7 “[t]hirteen years after the decision in Demore, the government admitted that the figures it 8 provided to the Court, and which the Court relied on, contained ‘several significant errors,’” and 9 for the years 1999–2001, the “average length of detention in cases where the alien appealed 10 [was] 382 days, or a little more than a year.” Rodriguez v. Nielsen, No. 18-CV-04187-TSH, 11 2019 WL 7491555, at *5 (N.D. Cal. Jan. 7, 2019) (citing Letter from Acting Solicitor General 12 Ian H. Gershengorn to Hon. Scott S. Harris (Aug. 26, 2016), at 2, 3, Demore v. Kim, 538 U.S. 13 510 (2003) (No. 01-1491)). “The data from the Jennings case show that 460 members of the 14 respondent section 1226(c) subclass were detained for an average of 427 days (over fourteen 15 months) with some individual detention periods exceeding four years.” Rodriguez, 2019 WL 16 7491555, at *5 (citing Joint Appendix (Table 20) (Aug. 26, 2016), Jennings v. Rodriguez, 583 17 U.S. 281 (2018) (No. 15-1204)). The Government Accountability Office conducted a study and 18 “found that as of 2015, the median length of time it takes the BIA to complete an appeal of a 19 removal order exceeds 450 days.” Rodriguez, 2019 WL 7491555, at *5 (citing United States 20 Government Accountability Office, Immigration Courts: Actions Needed to Reduce Case 21 Backlog and Address Long-Standing Management and Operational Challenges 33 (2017), 22 https://www.gao.gov/assets/690/685022.pdf). 23 As noted above, the Supreme Court rejected a facial challenge to mandatory detention 24 under 8 U.S.C. § 1226(c) in Demore. See Demore, 538 U.S. at 514 (“Respondent . . . filed a 25 habeas corpus action pursuant to 28 U.S.C. § 2241 . . . challenging the constitutionality of 26 § 1226(c) itself.” (emphasis added)); Black v. Decker, 103 F.4th 133, 149 n.22 (2d Cir. 2024) 27 (“Demore ruled on a due process challenge to the facial constitutionality of section 1226(c)[.]”). 1 bring an as-applied challenge: “Our decision today on the meaning of that statutory provision 2 [§ 1226(c)] does not foreclose as-applied challenges—that is, constitutional challenges to 3 applications of the statute as we have now read it.” Preap, 586 U.S. at 420. See Black, 103 F.4th 4 at 149 (Demore “said nothing about whether due process may eventually require a hearing. If 5 Demore had, in fact, foreclosed the due process challenge now before us, the Jennings Court 6 would have had no reason to remand to the Ninth Circuit ‘to consider ... in the first instance’ the 7 detainees’ argument that ‘[a]bsent ... a bond-hearing requirement, ... [section 1226(c)] would 8 violate the Due Process Clause of the Fifth Amendment.’” (alterations in original) (quoting 9 Jennings, 583 U.S. at 291, 312)). Moreover, Demore does not directly address the issue 10 presented here: whether § 1225(b) as applied to Petitioner is unconstitutional. 11 Based on the foregoing, the Court finds that Demore does not necessarily preclude relief 12 or foreclose Petitioner’s as-applied challenge. Therefore, dismissal based on Demore is not 13 warranted and the motion to dismiss should be denied. 14 B. Due Process Analysis 15 Petitioner contends that “[d]etention without a bond hearing is unconstitutional when it 16 exceeds six months,” and even absent a bright-line six-month standard, his “detention, without 17 any individualized review, is unreasonable under the Mathews v. Eldridge due process test” or 18 alternatively, “under the multi-factor reasonableness test the Third Circuit adopted in German 19 Santos v. Warden Pike Correctional Facility, 965 F.3d 203, 211 (3d Cir. 2020).” (ECF No. 1 at 20 9, 10.) Respondent notes that “the Ninth Circuit declined to adopt either a 6-month rule or a 21 periodic detention review rule in § 1226(c) cases” in Martinez v. Clark, 36 F.4th 1219, 1223 (9th 22 Cir. 2022), and argues that “multi-factor balancing to analyze Petitioner’s §1225(b)(1)(B)(ii) 23 statutorily compelled detention . . . is unsupported by Supreme Court authority” and “barred 24 where, as here, Petitioner enjoyed repeated detention (parole and bond) review,” citing to 25 Navarrete-Leiva v. Current or Acting U.S. Attorney General, No. 1:24-cv-00938-SKO (HC), 26 2024 WL 5111780 (E.D. Cal. Dec. 13, 2024). (ECF No. 16 at 4, 5.) 27 Courts in the Ninth circuit have taken a variety of approaches to determine whether due 1 v. Nielsen, No. 18-cv-04187-TSH, 2019 WL 7491555, at *6 (N.D. Cal. Jan. 7, 2019) (applying 2 bright-line rule that “detention becomes prolonged after six months and entitles [the petitioner] 3 to a bond hearing” in § 1226(c) context); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 4 (W.D. Wash. 2019) (considering six factors, which include: “(1) the total length of detention to 5 date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the 6 removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the 7 government; and (6) the likelihood that the removal proceedings will result in a final order of 8 removal” in § 1225(b) context); Juarez v. Wolf, No. C20-1660-RJB-MLP, 2021 WL 2323436, at 9 *4 (W.D. Wash. May 5, 2021) (considering, in addition to six factors set forth above, “whether 10 the detention will exceed the time the petitioner spent in prison for the crime that made him [or 11 her] removable” and “the nature of the crimes the petitioner committed” in § 1226(c) context), 12 report and recommendation adopted, 2021 WL 2322823 (W.D. Wash. June 7, 2021); Lopez v. 13 Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022) (considering “the total length of detention to 14 date, the likely duration of future detention, and the delays in the removal proceedings caused by 15 the petitioner and the government” in § 1226(c) context). 16 There are also some courts that apply the three-part test set forth in Mathews v. Eldridge, 17 424 U.S. 319 (1976). See Zagal-Alcaraz v. ICE Field Off., No. 3:19-cv-01358-SB, 2020 WL 18 1862254, at *3–4 (D. Or. Mar. 25, 2020) (collecting cases), report and recommendation adopted, 19 2020 WL 1855189 (D. Or. Apr. 13, 2020). In Rodriguez Diaz, which concerned a noncitizen 20 detained pursuant to 8 U.S.C. § 1226(a) and whether “continued detention was unconstitutional 21 because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond 22 hearing at which the government bears the burden of proof by clear and convincing evidence,” 23 the panel majority “assume[d] without deciding” that the Mathews test applied, noting that the 24 Ninth Circuit has “regularly applied Mathews to due process challenges to removal 25 proceedings,” and finding “Mathews remains a flexible test that can and must account for the 26 heightened governmental interest in the immigration detention context.” Rodriguez Diaz, 53 27 F.4th at 1193, 1206. Similarly, the dissent “agree[d] that the test developed in Mathews v. 1 to determine whether there was a due process violation.” Rodriguez Diaz, 53 F.4th at 1219 2 (Wardlaw, J., dissenting). See also Black v. Decker, 103 F.4th 133, 147 (2d Cir. 2024) 3 (“conclud[ing] that due process challenges to prolonged detention under section 1226(c) should 4 also be reviewed under Mathews”); A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO (HC), 2025 5 WL 1424382 (E.D. Cal. May 16, 2025) (applying Mathews test to determine whether due 6 process entitled petitioner to a bond hearing in § 1225(b) context). 7 Given that Petitioner applied the Mathews test in the petition, the Ninth Circuit has 8 “regularly applied Mathews to due process challenges to removal proceedings,” Rodriguez Diaz, 9 53 F.4th at 1193, and Respondent does not suggest application of an alternative test, the Court 10 will apply the Mathews test in addition to addressing the bright-line rule.6 11 1. Bright-Line Rule 12 The First, Second, and Third Circuits have “reject[ed] a bright-line constitutional rule 13 requiring a bond hearing after six months of detention—or after any fixed period of detention— 14 in the context of a Congressional mandate, in the immigration context, to detain.” Black, 103 15 F.4th at 150 (citing Reid v. Donelan, 17 F.4th 1, 7–9 (1st Cir. 2021); German Santos v. Warden 16 Pike Cnty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020)). The Court finds such authority 17 persuasive and declines to adopt a bright-line rule that detention without a bond hearing is 18 presumptively unconstitutional when it exceeds six months. 19 2. Mathews Test 20 In Mathews, the Supreme Court held that “identification of the specific dictates of due 21 process generally requires consideration of three distinct factors”: 22 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 23
24 6 Respondent argues that “multi-factor balancing is barred where, as here, Petitioner enjoyed repeated detention (parole and bond) review,” citing to Navarrete-Leiva v. Current or Acting U.S. Attorney 25 General, No. 1:24-cv-00938-SKO (HC), 2024 WL 5111780 (E.D. Cal. Dec. 13, 2024). (ECF No. 16 at 5.) “A decision of a federal district court judge is not binding precedent in either a different judicial district, 26 the same judicial district, or even upon the same judge in a different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et al., Moore’s Federal Practice § 134.02[1] [d], p. 134–26 (3d ed. 2011)). Navarrete-Leiva is not binding in this matter, and the Court notes that the judge in Navarrete- 27 Leiva subsequently applied Mathews in a different case to determine that due process entitled a petitioner detained under § 1225(b) to a bond hearing. A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO (HC), 2025 1 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 2 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 3 requirements would entail. 4 Mathews, 424 U.S. at 334. 5 a. Private Interest 6 With respect to the first factor, the Court finds that the private interest at issue here is 7 fundamental. “Freedom from imprisonment—from government custody, detention, or other 8 forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause 9 protects.” Zadvydas, 533 U.S. at 690. The Ninth Circuit has held that it “is beyond dispute” an 10 immigration detainee’s “private interest at issue here is ‘fundamental’: freedom from 11 imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. 12 Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 13 (1992)). See Rodriguez Diaz, 53 F.4th at 1207 (“We have also held, more generally, that an 14 individual’s private interest in ‘freedom from prolonged detention’ is ‘unquestionably 15 substantial.’ . . . Rodriguez Diaz has a legitimate and reasonably strong private liberty interest 16 under Mathews.” (quoting Singh, 638 F.3d at 1208)). 17 Accordingly, the first Mathews factor weighs in favor of Petitioner. The Court is 18 cognizant that “it is important not to overstate the strength of [Petitioner]’s showing under the 19 first Mathews factor,” and that “under the first prong of the Mathews analysis, we cannot simply 20 count his months of detention and leave it at that.” Rodriguez Diaz, 53 F.4th at 1207, 1208. The 21 Court acknowledges Petitioner’s “private interests are further diminished by the fact that he is 22 subject to an order of removal from the United States.” Id. at 1208. 23 b. Risk of Erroneous Deprivation 24 With respect to the second factor, the Court considers the risk of erroneous deprivation of 25 Petitioner’s liberty interest and the probable value of additional procedural safeguards. “In 26 evaluating the risk of erroneous deprivation in the context of noncitizen detention, the Ninth 27 Circuit has looked to whether the detainee has a statutory right to procedural protections, such as individualized custody determinations and the right to seek additional bond hearings throughout 1 detention.” Jensen v. Garland, No. 5:21-cv-01195-CAS (AFM), 2023 WL 3246522, at *6 (C.D. 2 Cal. May 3, 2023) (citing Rodriguez Diaz, 53 F.4th at 1209–10 (finding a small risk of erroneous 3 deprivation where petitioner was detained under § 1226(a) and thus received numerous 4 procedural protections, including individualized custody determinations and right to seek 5 additional bond hearings)). 6 Respondent asserts that “multi-factor balancing is barred where, as here, Petitioner 7 enjoyed repeated detention (parole and bond) review.” (ECF No. 16 at 5.) Respondent notes that 8 “Petitioner was granted bond review and a formal custody redetermination hearing (i.e., a bond 9 hearing) before an Immigration Judge,” referencing an August7 22, 2024 hearing. (ECF No. 16 at 10 3.) Respondent’s apparent suggestion that this hearing constitutes an individualized custody 11 determination is not well taken. The IJ found that the “Court lacks jurisdiction over [Petitioner]’s 12 custody redetermination request” and “lacks jurisdiction to issue a bond,” and did not make any 13 determination regarding Petitioner’s flight risk or dangerousness. (ECF 16-1 at 33, 37.) 14 Petitioner has had three parole reviews by DHS’s Enforcement and Removal Operations 15 (“ERO”) during his time in custody. (ECF No. 16 at 2; ECF No. 16-1 at 3–4). Although the 16 Supreme Court has rejected the Ninth Circuit’s application of the constitutional avoidance canon 17 and its statutory interpretation of § 1225(b), the Court finds Rodriguez v. Robbins (Rodriguez 18 II), 715 F.3d 1127 (9th Cir. 2013), informative regarding the constitutional issues before this 19 Court. The Ninth Circuit “note[d] that the discretionary parole system available to § 1225(b) 20 detainees is not sufficient to overcome the constitutional concerns raised by prolonged 21 mandatory detention” because the “parole process is purely discretionary and its results are 22 unreviewable by IJs” and “release decisions are based on humanitarian considerations and the 23 public interest.” Rodriguez II, 715 F.3d at 1144. See Padilla v. U.S. Immigr. & Customs Enf’t, 24 704 F. Supp. 3d 1163, 1174 (W.D. Wash. 2023) (finding Plaintiffs “allege[d] a viable due 25 process claim” because “the parole process available to them under 8 U.S.C. § 1182(d)(5)(A) is 26 not a constitutionally adequate substitute for a bond hearing particularly since it does not test the 27 7 The motion refers to an October 22, 2024 hearing and denial of bond, (ECF No. 16 at 3), but the exhibits 1 necessity of detention,” “does not afford the noncitizen an in-person adversarial hearing before a 2 neutral decisionmaker where he or she may present witness testimony or evidence,” does not 3 require “the ICE detention officer [to] make any factual findings or provide their reasoning, and 4 there is no apparent right to an administrative appeal”). 5 Petitioner has been detained since February 2, 2024, (ECF No. 1 at 6; ECF No. 16-1 at 3), 6 a period of almost seventeen months, and has not received any bond hearing before a neutral 7 decisionmaker with authority to grant bond. Accordingly, the Court finds that the risk of 8 erroneous deprivation of Petitioner’s liberty interest and the probable value of additional 9 procedural safeguards is high. See Jimenez v. Wolf, No. 19-cv-07996-NC, 2020 WL 510347, at 10 *3 (N.D. Cal. Jan. 30, 2020) (“[T]he risk of an erroneous deprivation of Landeros Jimenez’s 11 liberty interest is high. He has not received any bond or custody redetermination hearing during 12 his one-year detention. Thus, the probable value of additional procedural safeguards—a bond 13 hearing—is high, because Respondents have provided virtually no procedural safeguards at 14 all.”). Therefore, the second Mathews factor weighs in favor of Petitioner. 15 c. Government’s Interest 16 With respect to the third and final factor, the Court recognizes that “the government 17 clearly has a strong interest in preventing aliens from ‘remain[ing] in the United States in 18 violation of our law’” and “has an obvious interest in ‘protecting the public from dangerous 19 criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 538 U.S. at 518, 515). The 20 Ninth Circuit has stated that “[t]hese are interests of the highest order that only increase with the 21 passage of time,” noting that “[t]he longer detention lasts and the longer the challenges to an IJ’s 22 order of removal take, the more resources the government devotes to securing an alien’s ultimate 23 removal” and “[t]he risk of a detainee absconding also inevitably escalates as the time for 24 removal becomes more imminent.” Rodriguez Diaz, 53 F.4th at 1208. 25 However, it is important to stress that the “government interest at stake here is not the 26 continued detention of Petitioner, but the government’s ability to detain him without a bond 27 hearing.” Zagal-Alcaraz, 2020 WL 1862254, at *7. See Zerezghi v. U.S. Citizenship & Immigr. 1 factor] is not the government’s interest in immigration enforcement” “in general” (emphasis 2 added)); Henriquez v. Garland, No. 5:22-cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. 3 June 14, 2022) (“Although the Government has a strong interest in enforcing the immigration 4 laws and in ensuring that lawfully issued removal orders are promptly executed, the 5 Government’s interest in detaining Petitioner without providing an individualized bond hearing 6 is low.”). 7 Courts generally have found that the cost of providing a bond hearing is relatively 8 minimal, and there is nothing in the record before this Court demonstrating that providing 9 Petitioner with a bond hearing would be fiscally or administratively burdensome. See Marroquin 10 Ambriz v. Barr, 420 F. Supp. 3d 953, 964 (N.D. Cal. 2019) (noting in context of a § 1226(a) 11 detention, the parties did not contest “that the cost of conducting a bond hearing, to determine 12 whether the continued detention of Petitioner is justified, is minimal”); Singh v. Barr, 400 F. 13 Supp. 3d 1005, 1021 (S.D. Cal. 2019) (noting in the context of § 1226(a) detention that “[t]he 14 government has not offered any indication that a [ ] bond hearing would have outside effects on 15 its coffers”). Accordingly, the third Mathews factor weighs in favor of Petitioner. 16 d. Conclusion 17 Based on the foregoing, the Court finds that each of the Mathews factors weighs in favor 18 of Petitioner, and therefore Petitioner is entitled to a bond hearing. 19 C. Remedy 20 Petitioner requests that this Court “determine that Petitioner’s detention is not justified 21 because the government has not established by clear and convincing evidence that Petitioner 22 presents a risk of flight or danger in light of available alternatives to detention, and order 23 Petitioner’s release, with appropriate conditions of supervision if necessary, taking into account 24 Petitioner’s ability to pay a bond.” (ECF No. 1 at 2.) “Alternatively, Petitioner requests that the 25 Court issue a writ of habeas corpus and order Petitioner’s release within 30 days unless 26 Respondents schedule a hearing before an IJ[.]” (Id.) 27 “The Court finds, consistent with other post-Jennings cases, that the appropriate remedy 1 Leiva v. Becerra, No. 23-cv-02027-CRB, 2023 WL 3688097, at *9 (N.D. Cal. May 26, 2023) 2 (“The Court further concludes that the appropriate remedy here is a bond hearing, and that an IJ, 3 not the Court, should conduct it[.]” (footnote omitted)); Mansoor v. Figueroa, No. 3:17-cv- 4 01695-GPC (NLS), 2018 WL 840253, at *4 (S.D. Cal. Feb. 13, 2018) (“The Court finds the IJ is 5 uniquely qualified and situated to make neutral administrative determinations about Petitioner’s 6 eligibility for release on bond and/or placement in a supervised release program such as ISAP.”). 7 The Court now turns to the burden of proof at the bond hearing and which party should 8 bear such burden. Petitioner argues that the government must bear the burden of proof by clear 9 and convincing evidence that Petitioner poses a danger or flight risk, citing to citing to Singh v. 10 Holder, 638 F.3d 1196, 1203 (9th Cir. 2011). (ECF No. 1 at 15.) Having “previously applied the 11 canon of constitutional avoidance to interpret . . . immigration provisions—8 U.S.C. §§ 1225(b), 12 1226(c), and 1231(a)(6)—as providing a statutory right to a bond hearing once detention 13 becomes prolonged,” the Ninth Circuit in Singh “concluded that for these hearings to comply 14 with due process, the government had to bear the burden of proving by clear and convincing 15 evidence that the alien poses a flight risk or a danger to the community.” Rodriguez Diaz, 53 16 F.4th at 1196 (citing Singh, 638 F.3d at 1203–05). Although Rodriguez Diaz may have declined 17 to impose the standard articulated in Singh, the panel majority specifically stated that it was not 18 “decid[ing] whether Singh remains good law in any respect following Jennings” and even 19 recognized that Singh was based “on general principles of procedural due process, reasoning that 20 a detained person’s liberty interest is substantial.” Rodriguez Diaz, 53 F.4th at 1202 n.4, 1199. 21 Additionally, the Ninth Circuit has suggested post-Jennings that Singh remains good law in 22 Martinez v. Clark, which took “no position” on “[w]hether due process requires a bond hearing 23 for aliens detained under § 1226(c),” but did address “the scope of federal court review of those 24 bond determinations” and found with respect to a bond hearing for a noncitizen detained under 25 § 1226(c) that “the BIA properly noted that the government bore the burden to establish by clear 26 and convincing evidence that Martinez is a danger to the community.” Martinez, 36 F.4th at 27 1223, 1231. On remand, and after Rodriguez Diaz was decided, the Martinez panel reconfirmed 1 is a danger to the community” and “that the BIA applied the correct burden of proof.” Martinez 2 v. Clark, 124 F.4th 775, 785, 786 (9th Cir. 2024). 3 The undersigned recommends that the government must justify Petitioner’s continued 4 confinement under § 1225(b) by clear and convincing evidence that Petitioner is a flight risk or a 5 danger to the community. See A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 6 1424382, at *5 (E.D. Cal. May 16, 2025) (recommending that “Respondent be ordered to 7 provide Petitioner with a bond hearing before an immigration judge at which Respondent must 8 justify Petitioner’s continued detention by clear and convincing evidence” in § 1225(b) context); 9 Sanchez-Rivera v. Matuszewski, No. 22-cv-1357-MMA (JLB), 2023 WL 139801, at *7 n.5 (S.D. 10 Cal. Jan. 9, 2023) (following “an overwhelming majority of courts that have held that the 11 government must justify the continued confinement of a non-citizen detainee under § 1226(c) by 12 clear and convincing evidence that the non-citizen is a flight risk or a danger to the community”). 13 In the event Petitioner is determined not to be a danger to the community and not to be so great a 14 flight risk as to require detention without bond, the IJ should consider Petitioner’s financial 15 circumstances or alternative conditions of release. See Hernandez, 872 F.3d at 1000 (“Plaintiffs 16 are likely to succeed on their challenge under the Due Process Clause to the government’s policy 17 of allowing ICE and IJs to set immigration bond amounts without considering the detainees’ 18 financial circumstances or alternative conditions of release.”); Black, 103 F.4th at 138 (The 19 district court “correctly directed the immigration judge (“IJ”), in setting his bond and 20 establishing appropriate terms for his potential release, to consider his ability to pay and 21 alternative means of assuring appearance.”). 22 III. 23 RECOMMENDATION & ORDER 24 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 25 1. Respondent’s motion to dismiss (ECF No. 16) be DENIED; 26 2. The petition for writ of habeas corpus be GRANTED; and 27 3. Respondent be ordered to provide Petitioner, within thirty days of the date of the order 1 individualized bond hearing before an immigration judge that complies with the 2 requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), at which 3 a. “the government must prove by clear and convincing evidence that [Petitioner] is 4 a flight risk or a danger to the community to justify denial of bond,” Singh, 638 5 F.3d at 1203; and 6 b. the IJ should consider Petitioner’s financial circumstances or alternative 7 conditions of release in the event Petitioner is determined not to be a danger to the 8 community and not to be so great a flight risk as to require detention without 9 bond. 10 Further, the Clerk of Court is DIRECTED to: 11 1. Randomly ASSIGN a District Court Judge to the present matter; and 12 2. SUBSTITUTE Facility Administrator, Golden State Annex as Respondent in this matter. 13 This Findings and Recommendation is submitted to the assigned United States District 14 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 15 | Rules of Practice for the United States District Court, Eastern District of California. Within 16 | fourteen (14) days after service of the Findings and Recommendation, any party may file 17 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 18 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 19 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 20 | within fourteen (14) days after service of the objections. The assigned United States District 21 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 22 | The parties are advised that failure to file objections within the specified time may waive the 23 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 24 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 95 IT IS SO ORDERED. 26| Dated: _ June 23, 2025 [Je heey — 07 UNITED STATES MAGISTRATE JUDGE 28