1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HECTOR MANUEL ESTRADA Case No. 1:26-cv-00640-KES-CDB (HC) CERVANTES, 12 FINDINGS AND RECOMMENDATIONS TO Petitioner, GRANT IN PART PETITION FOR WRIT OF 13 HABEAS CORPUS (A-Number 089-956-863) v. 14 (Docs. 1, 8) WARDEN OF THE GOLDEN STATE 15 ANNEX DETENTION FACILITY, et al., 7-Day Objection Period 16 Respondents. 17 Petitioner Hector Manuel Estrada Cervantes (“Petitioner”), a federal immigration detainee 18 proceeding pro se and in forma pauperis, initiated this action on January 26, 2026, with the filing 19 of a petition for writ of habeas corpus under 28 U.S.C. § 2241 and a supplemental petition thereto 20 while in the custody of Immigration and Customs Enforcement (“ICE”) at the Golden State Annex 21 Detention Facility in McFarland, California.1 (Docs. 1, 8). Respondents are Warden of the Golden 22 State Annex Detention Facility, Todd Lyons (ICE Director), Kristi Noem (Secretary of Homeland 23 Security), Pamela Bondi (United States Attorney General), and the current or acting San Francisco 24 ICE Field Office Director (collectively, “Respondents”). See id. 25 Respondents timely responded to the petition (see Doc. 9) and Petitioner made no further 26 27 1 Petitioner’s supplemental petition was filed on this date and entered on the docket on 28 February 3, 2026. (Doc. 8) (see Dkt. Text). 1 filings of a traverse, reply, or otherwise. See (Doc. 7). Having reviewed and considered the full 2 record, for the reasons set forth herein, the undersigned recommends that Petitioner’s petition for 3 writ of habeas corpus be granted in part as to Petitioner’s claim for violation of his procedural due 4 process rights under the Fifth Amendment to the U.S. Constitution (“Count I”). See (Doc. 1 at 16- 5 17); (Doc. 8 at 13-14). 6 I. Relevant Background 7 The relevant facts are taken from the parties’ respective briefings. See (Docs. 1, 8, 9). 8 Petitioner is a citizen and native of Mexico who unlawfully entered the United States at an unknown 9 location on an unknown date. See (Doc. 9 at 2); (Doc. 9-1, Declaration of Deportation Officer 10 Sellenia A. Olson (“DO Olson Decl.”) ¶ 6); see (Doc. 9-2 at 3, Ex. 1) (February 17, 2025, Form I- 11 213 Record of Deportable/Inadmissible Alien) (“There is no record of legal entry into the U.S.”). 12 Petitioner does not allege, and the record does not reflect that he was initially arrested and placed 13 in immigration custody at or near the time he entered the United States; Respondents confirm that 14 Petitioner entered the United States without inspection. See id.; (Doc. 9 at 2) (“He entered the 15 United States at an unknown time and place and was net [sic] apprehended by immigration 16 authorities when he entered illegally.”). Petitioner alleges that he has been in the country for over 17 23 years supporting his family of four U.S. citizen children and niece. (Doc. 1 at 5). 18 On November 9, 2008, Petitioner was arrested in Oregon for various misdemeanor 19 offenses. DO Olson Decl. ¶ 7; see (Doc. 9-19, Ex. 18). On March 5, 2020, Petitioner was arrested 20 on a criminal complaint issued in the Northern District of California with offenses under the 21 Controlled Substances Act. (Doc. 9-17, Ex. 16). He was arraigned the day of his arrest and later 22 ordered detained following a detention hearing. Id. On June 24, 2021, Petitioner was ordered 23 released on conditions, including an unsecured bond. Id. On September 23, 2021, an indictment 24 was returned charging Petitioner and another with the same Controlled Substances Act offenses 25 charged in the underlying criminal complaint. See (Doc. 9-17, Ex. 16). On December 12, 2022, 26 Petitioner pleaded guilty to conspiracy to distribute and possess with intent to distribute 50 grams 27 and more of a mixture and substance containing methamphetamine, and for possession with intent 28 to distribute 50 grams and more of a mixture and substance containing methamphetamine, in 1 violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(B)(viii). On September 13, 2023, Petitioner was 2 sentenced to time-served and placed on a three-year term of supervised release. Id. The judgment 3 imposed other special conditions of supervision, including to not commit another crime, to pay any 4 special assessment imposed by the judgment, to submit to searches by a United States probation 5 officer, to participate in a program of testing and treatment for drug and alcohol abuse, and to 6 abstain from the use of all alcoholic beverages. See id. at 6. 7 More than one year following his sentencing and commitment to federal supervised release, 8 on December 26, 2024, Petitioner came to the attention of immigration authorities at the 9 Sacramento ICE Enforcement and Removal Operations (“ERO”) pursuant to a referral from the 10 U.S. Probation Office. DO Olson Decl. ¶ 9; see (Doc. 9-2 at 2, Ex. 1) (“Sacramento Fugitive 11 Operations conducted DHS/ICE databases check ins … and determined that [Petitioner] had no 12 history of previously filing for any immigration benefits.”). On February 17, 2025, Sacramento 13 ICE ERO encountered, arrested, and detained Petitioner in ICE custody. Id. ¶ 10; Ex. 1. That same 14 date, ICE issued a Form I-851 Intent to Issue Final Administrative Order which indicated a charge 15 against Petitioner as being deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been 16 convicted of an aggravated felony. Id. Ex. 3. 17 On March 28, 2025, Petitioner was issued a Form I-863 Notice of Referral to Immigration 18 Judge and placed into withholding-only proceedings as an alien who has been ordered removed. 19 Id. ¶ 12; (Doc. 9-3, Ex. 2). On May 14, 2025, Petitioner received from ICE a decision to continue 20 detention based on his criminal convictions. Id. ¶ 11; (Doc. 9-8, Ex. 7). In that decision, Petitioner 21 was informed that if he has “not been released or removed from the United States at the expiration 22 of the three-month period after this 90-day review, jurisdiction of the custody decision in [his] case 23 will be transferred to ICE Headquarters[.]”). See id. 24 On August 27, 2025, at a custody redetermination hearing before an immigration judge, 25 Petitioner represented that he wished to withdraw any bond request, and the immigration judge 26 issued an order allowing Petitioner to withdraw his bond request. Id. ¶¶ 16, 17; (Doc. 9-12, Ex. 27 11); (Doc. 9-13, Ex. 12) (Petitioner’s request for a custody redetermination is “[w]ithdrawn without 28 prejudice by [Petitioner].”). 1 On July 11, 2025, an immigration judge issued a decision denying Petitioner’s applications 2 for protection, which Petitioner appealed on July 23, 2025. Id. ¶¶ 13, 14; (Doc. 9-9, Ex. 8) (July 3 11, 2025, order of the immigration judge denying Petitioner’s requests for withholding and deferral 4 of removal); (Doc. 9-10, Ex. 9). On January 23, 2026, the Board of Immigration Appeals (“BIA”) 5 dismissed Petitioner’s appeal of his immigration case. Id. ¶¶ 18-20; (Doc. 9-16, Ex. 15). 6 On February 2, 2026, Petitioner filed a petition for review and a motion to stay removal 7 with the Ninth Circuit Court of Appeals, which remains pending. Id. ¶ 21; (Doc. 9-18, Ex. 17). 8 II. Governing Authority 9 A. The Writ of Habeas Corpus 10 Writ of habeas corpus relief extends to a person in custody under the authority of the United 11 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 12 shall “award the writ or issue an order directing the respondent to show cause why the writ should 13 not be granted, unless it appears from the application that the applicant or person detained is not 14 entitled thereto.” 28 U.S.C. § 2243. 15 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 16 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 17 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 18 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 19 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 20 detention” in ICE custody). 21 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 22 Two statutes govern the detention and removal of inadmissible noncitizens from the United 23 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 24 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 25 Sept 12, 2025), which the undersigned adopts herein: 26 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 27 The “usual removal process” involves an evidentiary hearing before 28 1 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 2 § 1229(a), also known as “full removal,” by filing a Notice to Appear with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N. 3 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 4 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 5 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 6 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 7 (citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be released if he or she “demonstrate[s] to the satisfaction of the officer that such release 8 would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” Id. (citing 8 C.F.R. 9 § 236.1(c)(8)).
10 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 11 Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)). If, at this hearing, the detainee demonstrates by the preponderance of 12 the evidence that he or she is not “a threat to national security, a danger to the community at large, likely to abscond, or otherwise a 13 poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)). 14 Once released, the noncitizen’s bond is subject to revocation. Under 8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s 15 bond or parole ‘at any time,’ even if that individual has previously been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D. 16 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 17 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 18 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 19 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 20 2. Expedited Removal and Mandatory Detention (§ 1225) 21 While “§ 1226 applies to aliens already present in the United States,” 22 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 23 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 24 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 25 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 26 that:
27 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 28 who is arriving in the United States or is described in 1 clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C) 2 or 1182(a)(7)], the officer shall order the alien removed from the United States without further 3 hearing or review unless the alien indicates either an intention to apply for asylum under section 208 [8 4 USCS § 1158] or a fear of persecution.”
5 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer to noncitizens who are inadmissible due to misrepresentation or 6 failure to meet document requirements. Clause (iii) of § 1225(b)(1) allows the Attorney General (who has since delegated the 7 responsibility to the Department of Homeland Security Secretary) to designate for expedited removal noncitizens “who ha[ve] not been 8 admitted or paroled into the United States, and who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, 9 that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of 10 the determination of inadmissibility under this subparagraph.” § 1225(b)(1)(A)(iii)(II). 11 To summarize, under § 1225(b)(1), two groups of noncitizens are 12 subject to expedited removal. First, there are “arriving” noncitizens who are inadmissible due to misrepresentation or failure to meet 13 document requirements. The implementing agency regulations define “arriving alien” as applicants for admission “coming or 14 attempting to come into the United States at a port-of-entry.” 8 C.F.R. § 1.2. The second group –designated noncitizens –includes 15 noncitizens who meet all of the following criteria: (1) they are inadmissible due to lack of a valid entry document or 16 misrepresentation; (2) they have not “been physically present in the United States continuously for the 2-year period immediately prior 17 to the date of the determination of inadmissibility”; and (3) they are among those whom the Secretary of Homeland Security has 18 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 1225(b)(1). 19 “Initially, DHS’s predecessor agency did not make any designation 20 [under (3)], thereby limiting expedited removal only to ‘arriving aliens,’” that is, noncitizens encountered at ports of entry. Make the 21 Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS 22 extended by designation expedited removal to noncitizens who arrive by sea and who have been present for fewer than two years, and to 23 noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. Id. This 24 was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to “apply 25 expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 26 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 27 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 28 short, expedited removal was expanded to apply for the first time to 1 vast numbers of noncitizens present in the interior of the United States. 2 Under the expedited removal statute § 1225(b)(1), if an applicant 3 “indicates either an intention to apply for asylum” or “a fear of persecution,” the immigration officer “shall refer the alien for an 4 interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the asylum officer determines that the applicant has a “credible fear,” the 5 applicant “receive[s] ‘full consideration’ of his asylum claim in a standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the 6 officer determines there is no “credible fear,” the officer “shall order the alien removed from the United States without further hearing or 7 review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may be appealed by the applicant to an immigration judge, who must 8 conduct the review “to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the 9 determination.” Id. Detention under § 1225(b)(1) is “mandatory” “pending a final determination of credible fear of persecution and if 10 found not to have such a fear, until removed.” Id. (citing § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under 11 this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until 12 removed.”)
13 [Section] 1225 also contains a provision that applies to applicants for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. 14 This provision, 1225(b)(2), states that, subject to statutory exceptions, “in the case of an alien who is an applicant for admission, 15 if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, 16 the alien shall be detained for a proceeding under section 1229a [full removal proceedings] of this title.” § 1225(b)(2). In other words, 17 noncitizens subject to 1225(b)(2) are not eligible for expedited removal but are subject to mandatory detention while their full 18 removal proceedings are pending. This is in contrast to the default detention regime under § 1226(a), which allows for discretionary 19 release and review of detention through a bond hearing.
20 3. The Government’s Recent Change in Position
21 Until this year, the DHS has applied § 1226(a) and its discretionary release and review of detention to the vast majority of noncitizens 22 allegedly in this country without valid documentation. This practice was codified by regulation. The regulations implementing the Illegal 23 Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens 24 who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible 25 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other 26 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 27 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 28 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 1 (2022) (No. 21-954)) . . .
2 In 2025, however, the Government’s policy changed dramatically. The DHS revised its § 1225 designation to “apply expedited removal 3 to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis 4 added). The Secretary of Homeland Security memorandum directed federal immigration officers to “consider ... whether to apply 5 expedited removal” to “any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been 6 applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps to terminate any ongoing removal proceeding and/or any active 7 parole status.” Id. The memorandum states that DHS shall take the actions contemplated by the memorandum “in a manner that takes 8 account of legitimate reliance interests,” but states that “the expedited removal process includes asylum screening, which is 9 sufficient to protect the reliance interests of any alien who has applied for asylum or planned to do so in a timely manner.” Huffman 10 Memorandum (Jan. 23, 2025).
11 Since mid-May of 2025, the Department of Homeland Security has made a practice of appearing at regular removal proceedings in 12 immigration court, moving to dismiss the proceedings, and then re- arresting the individual in order to place them in expedited removal 13 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does not dismiss the full removal proceedings, ICE still makes an arrest, 14 apparently in reliance on § 1225(b)(2)’s detention provision. 15 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 16 C. Parole Revocation 17 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 18 process in immigration cases and noted that before parole may be revoked, the parolee must be 19 given written notice of the impending revocation, which must include a cogent description of the 20 reasons supporting the revocation decision. The court held: Section 1182 . . . has a subsection titled “Temporary admission of 21 nonimmigrants,” which allows noncitizens, even those in required detention, to be “paroled” into the United States. This provision, at 22 issue in this case, states: 23 The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this 24 title, in his discretion parole into the United States temporarily under such conditions as he may prescribe 25 only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying 26 for admission to the United States, but such parole of such alien shall not be regarded as an admission of the 27 alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 28 have been served the alien shall forthwith return or 1 be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with 2 in the same manner as that of any other applicant for admission to the United States. 3 8 U.S.C. § 1182(d)(5)(A). 4 5 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 6 immigration parolees are entitled to determinations related to their parole revocations that are not 7 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 8 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 9 a satisfactory explanation for its action including a rational connection between the facts found and 10 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 11 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 12 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 13 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 14 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 15 the immigrant has departed or when the specified period of parole has expired. 16 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 17 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 18 to revoke humanitarian parole:
19 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 20 basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no 21 indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received 22 merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required 23 by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for 24 which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] 25 continued presence...in the United States.” See 8 C.F.R. § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s 26 parole violated his rights under the statute and regulations. See Y-Z- L-H, 2025 WL 1898025, at *13. 27 28 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 1 a similar conclusion relying on the Due Process Clause: 2 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 3 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 4 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court joins other courts of this district facing facts similar to the present 5 case and finds Petitioner raised serious questions going to the merits of his claim that due process requires a hearing before an IJ prior to 6 re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021 WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v. 7 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 people on 8 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 9 liberty interest in remaining out of custody on bond.”). 10 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 11 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 12 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 13 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 14 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 15 imprisonment serves the government’s legitimate goals.”). 16 III. Exhaustion 17 A. Governing Authority 18 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 19 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 20 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 21 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 22 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 23 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 24 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 25 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 26 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 27 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 28 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 1 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 2 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 3 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 4 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 5 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 6 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 7 to be disregarded.”). 8 B. Analysis 9 The Court finds that the prudential exhaustion requirement should be waived as it would be 10 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 11 to mandatory detention under 8 U.S.C. § 1226(c) as an alien deportable by reason of having 12 committed an aggravated felony under the INA. (Doc. 9 at 2). See Avilez v. Garland, 69 F.4th 525, 13 533-34 (9th Cir. 2023) (citing Jennings v. Rodriguez, 583 U.S. 281, 303, 305-06 (2018) (“We hold 14 that § 1226(c) mandates detention of any alien falling within its scope and that detention may end 15 prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness-protection 16 purposes” and “§ 1226(c) makes clear that detention of aliens within its scope must continue 17 ‘pending a decision on whether the alien is to be removed from the United States.’”)); Hernandez 18 v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017) (“[A] court may waive the prudential exhaustion 19 requirement if ‘administrative remedies are inadequate or not efficacious, pursuit of administrative 20 remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings 21 would be void.’”) (quoting Laing, 370 F.3d at 1000); Chavez v. Noem, -- F. Supp. 3d. --, 2025 WL 22 2730228, at *4 (S.D. Cal. Sept. 24, 2025) (“The Court therefore finds the prudential exhaustion 23 requirements waived for futility. Because Petitioners need to show only one of the Laing factors 24 applies, … the Court need not address the other factors.”) (internal citation omitted).2
25 2 Although the record reflects that Petitioner requested but later withdrew his request for a bond hearing before an immigration judge (see Doc. 9-12, Ex. 11; Doc. 9-13, Ex. 12), the 26 undersigned is aware that other immigration judges at the same immigration court (Adelanto, CA) 27 have informed immigration detainees that they lack jurisdiction to consider a detainee’s bond request and thereafter invite the detainees to withdraw the bond requests. See, e.g., Daley v. 28 Andrews, No. 1:25-cv-00922-KES-CDB (E.D. Cal.), Docs. 17 & 19 (transcripts of bond 1 For these reasons and because Respondents do not argue Petitioner should be required to 2 exhaust administrative remedies, waiver of the prudential exhaustion requirement for Petitioner’s 3 claim for habeas corpus relief is appropriate. See, e.g., Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 4 1253 (W.D. Wash. 2025) (waiving exhaustion requirement; “The Ninth Circuit has recognized ‘the 5 irreparable harms imposed on anyone subject to immigration detention.’”) (citing Hernandez v. 6 Sessions, 872 F.3d 976, 995 (9th Cir. 2017)); Marroquin Ambriz v. Barr, 420 F. Supp. 3d 953, 962 7 (N.D. Cal. 2019) (same); Cortez v. Sessions, 318 F. Supp. 1134, 1138-39 (N.D. Cal. 2018) (same); 8 Carmelo Beltran v. Kristi Noem, No. 25cv2650-LL-DEB, 2025 WL 3078837, at *4 (S.D. Cal. Nov. 9 4, 2025) (same); J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at 10 *7, n.9 (E.D. Cal. Oct. 27, 2025) (same); Kuzmenko v. Phillips, No. 25-cv-00663-DJC-AC, 2025 11 WL 779743, at *4 (E.D. Cal. Mar. 10, 2025) (same)). 12 IV. Discussion 13 Petitioner asserts three causes of action in his original and supplemental petition: (1) 14 violation of procedural due process under the Fifth Amendment to the U.S. Constitution (“Count 15 I”), see (Doc. 1 at 16-17); (Doc. 8 at 13-14); (2) violations of the Fifth Amendment, 8 U.S.C. § 16 1231, the Convention Against Torture, Implementing Regulations, and the Administrative 17 Procedure Act based on potential removal to a third country; and (3) punitive third-country 18 banishment in violation of the Fifth and Eighth Amendments. See (Doc. 1 at 16-17); (Doc. 8 at 13- 19 18). 20 As set forth below, because the undersigned finds that Respondents have violated 21 Petitioner’s constitutional rights to procedural due process, and because Petitioner’s other claims 22 seek the same or similar relief (i.e., for immediate release and to enjoin Respondents from re- 23 detaining Petitioner unless his re-detention is justified at a custody hearing before a neutral arbiter 24 in which the government bears the burden of proof), the undersigned forbears from addressing 25 Petitioner’s other claims. 26 /// 27 hearings). Accordingly, Petitioner’s withdrawal of his bond request here does not undermine the 28 bases for waiving the prudential exhaustion requirement. 1 A. Procedural Due Process 2 1. Governing Authority 3 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 4 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 5 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 6 individuals against two types of government action’: violations of substantive due process and 7 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 8 “Procedural due process imposes constraints on governmental decisions which deprive 9 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 10 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 11 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 12 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 13 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 14 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 15 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 16 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 17 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 18 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 19 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 20 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 21 v. Brewer, 408 U.S. 471, 481 (1972). 22 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 23 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 24 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 25 Due Process Clause stands as a significant constraint on the manner in which the political branches 26 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 27 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 28 justification for physical confinement outweighs the individual's constitutionally protected interest 1 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 2 1196, 1203 (9th Cir. 2011)). 3 2. Analysis – Relevant Statutory Detention Authority 4 Respondents maintain that Petitioner is an aggravated felon that is subject to mandatory 5 detention under 8 U.S.C. § 1226(c). (Doc. 9 at 2). 6 Another judge of this Court has addressed and applied the holdings of the key Supreme 7 Court and Ninth Circuit rulings applicable here, and the undersigned adopts that analysis herein 8 (see Kakkar v. Chestnut, No. 1:25-CV-1627 JLT SAB, 2025 WL 3638298, at *4-5 (E.D. Cal. Dec. 9 15, 2025)):
10 Under 8 U.S.C. § 1226(a)(2), DHS “may continue to detain” or “may release the 11 alien” on bond or conditional parole, “pending a decision on whether the alien is to be removed from the United States.” Such conditional release, however, may be 12 revoked by DHS “at any time.” 8 U.S.C. § 1226(b). The Board of Immigration Appeals (“BIA”) has placed the following limitation on this authority: “where a 13 previous bond determination has been made by an immigration judge, no change should be made by [the DHS] absent a change of circumstance.” Matter of Sugay, 14 17 I&N Dec. 637, 640 (BIA 1981). 15 Alternatively, under Section 1226(c), DHS “shall take into custody any alien who 16 is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(iii) of this title.” 8 U.S.C. § 1226(c). This includes any “alien who 17 is convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). Under this provision, non-citizens may be released “only if the Attorney General decides ... 18 that release ... is necessary to provide protection to a witness, a potential witness, a 19 person cooperating with an investigation ... and the alien will not pose a danger to the safety of other[s] ... and is likely to appear for any scheduled proceeding.” Id. 20 at § 1226(c)(4). Thus, noncitizens detained under this category are not entitled to bond hearings as those detained under § 1226(a) are. See Jennings v. Rodriguez, 21 583 U.S. 281, 303–304 (2018) (“By expressly stating that the covered aliens may be released ‘only if’ certain conditions are met, § 1226(c)(2), the statute expressly 22 and unequivocally imposes an affirmative prohibition on releasing detained aliens 23 under any other conditions.”) (emphasis in original).
24 Section 1226(c)’s mandatory detention requirement applies even if the government does not immediately detain a criminal non-citizen upon immediate release from a 25 correctional facility. See Nielsen v. Preap, 586 U.S. 392, 396 (2019) (finding that the Ninth Circuit's interpretation—namely, that criminal aliens not arrested 26 immediately upon release from criminal custody are exempt from § 1226(c)’s 27 mandatory detention and thus entitled to a bond hearing—is wrong). However, the Supreme Court expressly noted that its decision, “on the meaning of that statutory 28 provision[,] does not foreclose as-applied challenges—that is, constitutional 1 challenges to applications of the statute.” Id. at 420. Courts routinely review as- applied constitutional challenges to § 1226(c) detention. See e.g., Perera v. 2 Jennings, No. 21-cv-04136-BLF, 2021 WL 2400981, at *4 (N.D. Cal. June 11, 2021); Pham v. Becerra, No. 23-cv-01288-CRB, 2023 WL 2744397, at *5 (N.D. 3 Cal. March 31, 2023); Carballo v. Andrews, No. 1:25-cv-00978-KES-EPG, 2025 4 WL 2381464, at *4 (E.D. Cal. Aug. 15, 2025). 5 As Respondents correctly note, Petitioner has been convicted of an aggravated felony—for 6 violations of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(B)(viii)—such that he is subject to mandatory 7 detention under § 1226(c). See (Doc. 9 at 3); (Doc. 9-17, Ex. 16) (N.D. Cal. Sept. 21, 2023, 8 amended judgment in criminal case CR-21-00376-002 VC). Section 1226(c) authorizes 9 immigration authorities to take into custody noncitizens deportable by reason of having committed 10 any offense covered in § 1227(a)(2)(B). 8 U.S.C. § 1226(c)(1)(B). This includes any noncitizen 11 who (1) is convicted at “any time after admission of a violation of (or a conspiracy or attempt to 12 violate) any law or regulation of a State, the United States, or a foreign country relating to a 13 controlled substance …, other than a single offense involving possession for one’s own use of 30 14 grams or less of marijuana[,]” or (2) any noncitizen “who is, or at any time after admission has 15 been, a drug user or addict[.]” 8 U.S.C. § 1227(a)(2)(B)(i)&(ii). Because Respondents show that 16 Petitioner is subject to mandatory detention under § 1226(c) based on his conviction for violations 17 of § 21 U.S.C. §§ 846 and 841(a)(1) & (b)(1)(B)(viii), under the statutory framework above, 18 Petitioner is subject to § 1226(c)(4)’s release provision and therefore is not entitled to bond hearings 19 in the same fashion as those detained under § 1226(a). 20 Notwithstanding the undersigned’s finding that Petitioner is subject to mandatory detention 21 under § 1226(c), here, Petitioner raises a due process argument that his “ongoing prolonged 22 detention without a [bond] hearing violates due process.” (Doc. 1 ¶ 49). As explained in the 23 statutory scheme above, Preap “does not foreclose as-applied challenges … to applications of [§ 24 1226(c)].” Preap, 586 U.S. at 420; Kakkar, 2025 WL 3638298 at *5. 25 Therefore, the undersigned considers Petitioner’s as-applied challenge to his re-detention 26 raised in his due process claim. 27 3. Analysis – Procedural Due Process 28 On Petitioner’s as-applied procedural due process challenge to his continuing detention by 1 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 2 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any 3 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 4 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 5 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 6 Petitioner has an underlying, continuing liberty interest in being free from detention. 7 Specifically, although initially detained following his arrest on controlled substance-related 8 offenses in the Northern District of California, Petitioner ultimately was released from custody and 9 remained on pretrial release for more than two years prior to pleading guilty to charges contained 10 in the indictment. The docket does not reflect, and Respondents do not argue, that Petitioner ever 11 violated his terms of pretrial release. Ultimately, Petitioner was sentenced to time served and a 12 three-year term of supervised release on conditions including to not commit crimes, to submit to 13 searches by a United States probation officer, and to participate in a program of testing and 14 treatment for drug and alcohol abuse. See (Doc. 9-17 at 4, 6, Ex. 16); see id. at 4 (“The court 15 imposes a three-year term of supervised release. However, upon release from imprisonment, 16 [Petitioner] will likely be deported and will not be in the United States to be supervised. … “If the 17 [Petitioner] is not deported and remains in this country, [he] shall be subject to the conditions of 18 supervised release[.]”). In sum, Petitioner remained out of custody under a federal court’s 19 supervised pretrial release and post-conviction supervised release for more than three-and-one half 20 years, without incident, while supporting his family. Indeed, Respondents do not show any material 21 change in circumstances as to flight risk or danger to the community to justify Petitioner’s detention 22 now. See, e.g., Kakkar, 2025 WL 3638298, at *6 (finding petitioner who completed three-year 23 term of supervised release without incident held a liberty interest in freedom from detention under 24 the Due Process clause); id. at *5 (“in these cases, ICE did not immediately detain the petitioners 25 upon their release from prison. … Instead, the petitioners successfully reintegrated into their 26 communities for several years before being detained pursuant to § 1226(c).”); accord Carballo, 27 2025 WL 2381464, at *6 (“The courts in [Perera and Pham] found that the petitioners possessed a 28 protected liberty interest arising from their several years of post-conviction freedom[.]”). 1 The undersigned agrees with other courts and other judges of this Court that a noncitizen 2 who sustains a conviction for an aggravated felony and who successfully serves their sentence, 3 including terms of court-imposed supervised release without incident, maintains a liberty interest 4 in their freedom that implicates protections under principles of procedural due process. See Kakkar, 5 2025 WL 3638298, at *5 (discussing, inter alia, Perera, which “involv[ed] a legal permanent 6 resident, convicted of possession with intent to distribute controlled substances, released from 7 prison in 2015, and detained by ICE for the first time in April 2021” but “successfully reintegrated 8 into their communities for several years before being detained pursuant to § 1226(c)” and succeeded 9 in “raising [an] as-applied due process challenge[] to [his] detention without a bond hearing[.]”); 10 Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The fact that Petitioner 11 is subject to discretionary conditions of release likewise does not mean he lacks a protectable liberty 12 interest and can be re-detained without process.”); Pham, 2023 WL 2744397 at *6 (finding liberty 13 interest for petitioner who was released from prison in 2015 and detained by ICE for the first time 14 in 2023); Perera, 2021 WL 2400981, at *2, 5 (finding petitioner, who was convicted of possession 15 with intent to distribute controlled substances, released from prison in 2015, and detained by ICE 16 for the first time in April 2021, has a “grave” liberty interest). Cf. Daley v. Andrews, No. 1:25-cv- 17 00922-KES-CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner 18 mandatorily detained pursuant to § 1226(c) did not have a protectible liberty interest because he 19 had remained in continuous custody and never released on supervision). 20 Because Petitioner has shown he has a protected liberty interest to remain free from 21 detention based on his release under a federal court’s supervised pretrial release and post-conviction 22 supervised release for more than three-and-one half years, without incident, the undersigned must 23 determine what process is due before the government may terminate that liberty interest. To 24 determine this, the undersigned considers the following factors articulated in Mathews: “[(1)] the 25 private interest that will be affected by the official action; [(2)] the risk of an erroneous deprivation 26 of such interest through the procedures used, and the probable value, if any, of additional or 27 substitute procedural safeguards; and [(3)] the Government’s interest, including the function 28 involved and the fiscal and administrative burdens that the additional or substitute procedural 1 requirement would entail.” Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 2 (applying Mathews test in immigration detention context); id. at 993 (“The appropriateness of the 3 requirement that ICE and IJs consider financial circumstances and alternative conditions of release 4 is confirmed by the balance of factors under Mathews[.]”). 5 As to the first factor, Petitioner has shown he has a significant private interest in remaining 6 on release from detention. He had been released from custody under federal court supervision for 7 more than three-and-one half years without incident prior to his immigration detention. He alleges 8 that he has lived in the country supporting his family of four U.S. citizen children and niece, and 9 Respondents do not assert or otherwise show that Petitioner violated any conditions of his 10 supervision or committed any additional crimes while on release. (Doc. 1 at 5); see (Doc. 9). 11 Petitioner’s continued liberty interest in remaining on release is undermined by his immigration 12 detention without a bond hearing. Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from imprisonment 13 is at the core of the Due Process Clause…. The lengthy duration of his conditional release as well 14 as the meaningful connections [he] seems to have made with his community during that time create 15 a powerful interest for [him] in his continued liberty.”). 16 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest 17 is considerable here where he has not received any bond or custody redetermination. Id. at 1094; 18 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 19 2025). Because there were no procedural safeguards to determine if Petitioner’s detention was 20 justified, ICE has already conducted the initial 90-day post-order custody review and informed 21 Petitioner that his detention would continue, see (Doc. 9-8, Ex. 7), and Respondents proffer no facts 22 indicating any change in circumstances while Petitioner was out of custody on supervised release 23 sufficient to justify Petitioner’s re-detention, the probable value of the additional procedural 24 safeguard of a bond hearing to determine whether Petitioner is a flight risk or a danger to the 25 community is high such that this factor weighs in favor of granting a bond hearing. See Doe, 787 26 F. Supp. at 1094 (“[G]iven that Petitioner was previously found to not be a danger or risk of flight 27 and the unresolved questions about the timing and reliability of the new information, the risk of 28 erroneous deprivation remains high.”); A.E., 2025 WL 1424382 at *5; Ramazan, 2025 WL 1 3145562, at *6. Therefore, this factor weighs in favor of granting a bond hearing. 2 Third, the government’s interest in detaining Petitioner without a bond hearing is low. Doe, 3 787 F. Supp. 3d at 1094 (citation omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 4 2019)); Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) 5 (“And, like other Courts in this district, the Court concludes that the government’s interest in re- 6 detaining Petitioner-[] without a hearing is ‘low,’ particularly in light of the fact that Petitioner[] 7 has long complied with his reporting requirements.”); see Carballo, 2025 WL 2381464, at *8 (“The 8 government has thus far not argued or identified any new factual circumstances in the past five 9 years that would affect such a determination.”); Kakkar, 2025 WL 3638298, at *7 (“The 10 government may have a significant interest in protecting the public from dangerous criminal aliens. 11 However, such argument is undermined somewhat by the fact that Respondents waited four years 12 to arrest the Petitioner and have not identified changed circumstances that now justify his arrest.”). 13 “The effort and cost to provide Petitioner with [a bond hearing] is minimal[.]” Doe, 787 F. Supp. 14 3d at 1094. Therefore, any additional burden from requiring the government to seek a bond hearing 15 before it may re-detain Petitioner does not outweigh his liberty interest and the risk of erroneous 16 deprivation. Accordingly, this factor weighs in favor of granting a bond hearing. 17 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 18 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest 19 in February 2025 and continuous and continuing detention thereafter. 20 B. Petitioner’s Other Claims 21 Because the undersigned finds that the Court may grant the full relief to which Petitioner is 22 entitled in recommending that the writ should issue as to Petitioner’s claim for violation of 23 procedural due process (Count I), the undersigned declines to address Petitioner’s other claims. 24 C. Relief 25 Respondents do not assert that Petitioner is a flight risk or a danger to the community and 26 have not identified any material changed circumstances since Petitioner was released under 27 supervision. Accordingly, the undersigned finds and will recommend that Respondents be ordered 28 to afford a bond hearing to Petitioner consistent with the holdings in the decisions noted above 1 (Kakkar, Perera, and Pham). See Prior v. Andrews, No. 1:25-cv-01131-JLT-EPG (HC), 2026 WL 2 698801, at *2 (E.D. Cal. Mar. 12, 2026) (adopting in part findings and recommendations to grant 3 petition for writ of habeas corpus but declining to order the petitioner’s immediate release) (citing 4 Kakkar, 2025 WL 3638298, at *6-7, Perera, 2021 WL 2400981, at *4, and Pham, 2023 WL 5 2744397, at *1-2). Immediate release is not warranted because immigration authorities never 6 previously detained and released Petitioner on any finding that he was neither a flight risk nor 7 danger to the community. See id. 8 Further, the undersigned will recommend the government bear the burden at a bond hearing 9 of establishing, by clear and convincing evidence, that Petitioner poses a danger to the community 10 or a risk of flight or that there is a material change in his removal situation that would justify his 11 re-detention. See id. at *3; Carballo, 2025 WL 2381464, at *9; Kakkar, 2025 WL 3638298, at *6; 12 Pham, 2023 WL 2744397, at *7. 13 V. Conclusion and Recommendation 14 Accordingly, IT IS HEREBY RECOMMENDED that: 15 1. The petition for writ of habeas corpus (Docs. 1, 8) be GRANTED in part as to 16 Petitioner’s procedural due process claim arising under the Fifth Amendment to the U.S. 17 Constitution (Count I). See (Doc. 1 at 16-17); (Doc. 8 at 13-14). 18 2. Respondents be ORDERED to hold a bond hearing before a neutral arbiter pursuant to 19 section 1226(a) and applicable regulations, at which Petitioner’s eligibility for bond 20 must be considered, and where the government must demonstrate by clear and 21 convincing evidence that Petitioner is a flight risk or danger to the community or that 22 there is a material change in his removal situation such that physical custody is legally 23 justified.3 24 3 The undersigned also recommends the following: 25
If legally sufficient circumstances justify arrest without notice in advance, a post- 26 deprivation hearing consistent with the requirements set forth here, SHALL be provided 27 within seven days of the arrest. Alternatively, if Petitioner becomes subject to a final order of removal and Petitioner receives notice of such order, Respondents may detain Petitioner 28 for the sole and limited purpose of executing removal. In this event, Respondents SHALL 1 3. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this 2 case. 3 These findings and recommendations will be submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 5 | after being served with these findings and recommendations, the parties may file written objections 6 | with the Court. Although this objection period is shorter than provided by Local Rule, such an 7 || adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 8 | Constitution by Respondents, and the fact that the parties have extensively briefed the issues 9 | involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 10 || may require a response within a shorter period if exigencies of the calendar require.”). Any 11 || objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 12 || Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 13 | The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 14 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 15 | and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 16 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 17 | these findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 18 The parties are advised that failure to file objections within the specified time may result in 19 | the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 20 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 | ITISSO ORDERED. *2 | Dated: _ April 1, 2026 | Wr bY 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 provide a bond hearing in the timeframe required by law. 21