Jimmy Thelusma v. Warden of the Golden State Annex Detention Facility, et al.

• Court: District Court, E.D. California
• Decided: April 29, 2026
• Docket: 1:26-cv-01443
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 JIMMY THELUSMA, Case No. 1:26-cv-01443-JLT-EPG-HC

10 Petitioners, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 11 v. HABEAS CORPUS, DENY MOTION FOR PRELIMINARY INJUNCTION, AND 12 WARDEN OF THE GOLDEN STATE DIRECT RESPONDENT TO PROVIDE ANNEX DETENTION FACILITY, et al., PETITIONER WITH BOND HEARING 13 BEFORE IMMIGRATION JUDGE Respondents. 14 (ECF Nos. 1, 16)

15 ORDER DENYING PETITIONER’S MOTION FOR APPOINTMENT OF 16 COUNSEL

17 (ECF No. 15) 18 Petitioner is a federal immigration detainee proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2241. 20 For the reasons set forth herein, the undersigned recommends granting the petition for 21 writ of habeas corpus, denying Petitioner’s motion for preliminary injunction, and ordering that 22 Respondents provide Petitioner with an individualized bond hearing before an immigration judge 23 at which the government must justify Petitioner’s continued detention by clear and convincing 24 evidence. 25 I. 26 BACKGROUND 27 Petitioner is a citizen of Haiti who was paroled into the United States at the Miami International Airport through the Haitian Humanitarian Program on April 30, 2024. Petitioner’s 1 parole was valid until June 12, 2025. On August 24, 2024, Petitioner was granted Temporary 2 Protected Status (“TPS”), which was to be valid until February 3, 2026. (ECF No. 1 at 6; ECF 3 No. 10-1 at 12.1) 4 On August 31, 2025, Petitioner was arrested and charged with attempted aggravated 5 assault, terroristic threats, unlawful possession of a weapon, and possession of a weapon for 6 unlawful purposes. On September 15, 2025, Petitioner was arrested and charged with contempt 7 of court and criminal trespass. On November 6, 2025, Petitioner was arrested and charged with 8 simple assault, criminal mischief, obstructing the administration of the law, and resisting 9 arrest/eluding police. All charges are currently pending. (ECF No. 10-1 at 2–3, 12–13, 15–19.) A 10 detainer was lodged with the Monmouth County Correctional Institution, and on November 7, 11 2025, Petitioner was placed into U.S. Immigration and Customs Enforcement (“ICE”) custody. 12 Petitioner’s TPS was withdrawn based on his criminal history. (Id. at 3, 12, 13.) 13 On February 19, 2026, Petitioner filed the instant petition for writ of habeas corpus 14 raising a prolonged detention due process claim. (ECF No. 1 at 12–22.) The Court “construe[d] 15 the Petition as also raising a due process claim regarding Petitioner’s re-detention and 16 challenging the statutory authority for Petitioner’s detention.” (ECF No. 8 at 1.) On March 6, 17 2026, Respondent filed an answer. (ECF No. 10.) Subsequently, Petitioner filed a motion for 18 temporary restraining order, which the Court denied as untimely. (ECF Nos. 12, 13.) On April 19 17, 2026, Petitioner filed a motion for preliminary injunction, which was referred to the 20 undersigned. (ECF Nos. 16, 17.) To date, no traverse has been filed, and the time for doing so 21 has passed. 22 II. 23 DISCUSSION 24 A. Applicability of 8 U.S.C. § 1226(c)(1)(E) 25 Congress has enacted a complex statutory scheme governing the detention of noncitizens 26 during removal proceedings and following the issuance of a final order of removal. “Where an 27 alien falls within this statutory scheme can affect whether his detention is mandatory or 1 discretionary, as well as the kind of review process available to him if he wishes to contest the 2 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 3 “Four statutes grant the Government authority to detain noncitizens who have been 4 placed in removal proceedings”: 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a). Avilez v. 5 Garland, 69 F.4th 525, 529 (9th Cir. 2023). Here, Respondents assert that Petitioner is detained 6 pursuant to 8 U.S.C. § 1226(c)(1)(E), which provides that the “Attorney General shall take into 7 custody any alien who… (i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 8 1182(a) of this title; and (ii) is charged with, is arrested for, is convicted of, admits having 9 committed, or admits committing acts which constitute the essential elements of any burglary, 10 theft, larceny, shoplifting, or assault of a law enforcement officer offense, or any crime that 11 results in death or serious bodily injury to another person.” 8 U.S.C. § 1226(c)(1)(E). Section 12 1226(c) “specif[ies] that the Attorney General ‘may release’ one of those aliens ‘only if the 13 Attorney General decides’ both that doing so is necessary for witness-protection purposes and 14 that the alien will not pose a danger or flight risk.” Jennings v. Rodriguez, 583 U.S. 281, 303 15 (2018) (emphasis in original). 16 Respondents argue: 17 Petitioner is charged with inadmissibility under 8 U.S.C. 1182(a)(7)(A)(i)(I), which satisfies the requirement of subsection 18 (i). Exh. 1. Petitioner’s arrest for violation of section 2C:12-1(b)(1) of the New Jersey Revised Statutes satisfies the requirements of 19 subsection (ii). Specifically, the statutory language for this offense applies when a person “[a]ttempts to cause serious bodily injury to 20 another, or causes injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of 21 human life recklessly causes such injury.” N.J. Stat. § 2C:12- 1(b)(1) (emphasis added). This is a match for the language in § 22 1226(c)(1)(E), which prescribes mandatory detention when a noncitizen “is charged with, is arrested for . . . acts which 23 constitute the essential elements of . . . any crime that results in death or serious bodily injury to another person.” 8 U.S.C. § 24 1226(c)(1)(E)(ii) (emphasis added). 25 (ECF No. 10 at 3.) 26 “For purposes of paragraph (1)(E), . . . ‘serious bodily injury’ ha[s] the meanings given 27 such terms in the jurisdiction in which the acts occurred.” 8 U.S.C. § 1226(c)(2). Here, Petitioner 1 § 2C:12–1(b)(1). A “person is guilty of aggravated assault if he ‘[a]ttempts to cause serious 2 bodily injury to another,’” but “[a]ctual serious bodily injury need not occur.” State v. Beeput, 3 No. A-4241-10T2, 2012 WL 5896549, at *3 (N.J. Super. Ct. App. Div. Nov. 26, 2012) (quoting 4 N.J. Stat. Ann. § 2C:12–1(b)(1)). Accord State v. Mukherjee, No. A-2450-23, 2025 WL 5 1341718, at *3 (N.J. Super. Ct. App. Div. May 8, 2025) (The “State must only prove ‘the 6 defendant[ ] purposely attempted to cause serious bodily injury to another.’ If ‘the defendant[ ] 7 attempted to cause serious bodily injury, it does not matter whether such injury actually 8 resulted.’” (alterations in original) (internal citations omitted) (quoting New Jersey Model 9 Criminal Jury Charges, Aggravated Assault – Serious Bodily Injury (rev. Jan. 9, 2012))). As 10 “[a]ctual serious bodily injury need not occur,” Beeput, 2012 WL 5896549, at *3, Petitioner’s 11 arrest for attempted aggravated assault in violation of N.J. Stat. Ann. § 2C:12–1(b)(1) does not 12 satisfy the requirement of 8 U.S.C. § 1226(c)(1)(E)(ii), which applies when a noncitizen “is 13 charged with, is arrested for . . . acts which constitute the essential elements of . . . any crime that 14 results in death or serious bodily injury to another person.” 8 U.S.C. § 1226(c)(1)(E)(ii) 15 (emphasis added). Accordingly, the undersigned recommends finding that Petitioner is not 16 subject to mandatory detention pursuant to 8 U.S.C. § 1226(c)(1)(E). 17 B. Procedural Due Process 18 This Court previously “construe[d] the Petition as also raising a [procedural] due process 19 claim regarding Petitioner’s re-detention[.]” (ECF No. 8 at 1.) “We examine procedural due 20 process questions in two steps: the first asks whether there exists a liberty or property interest 21 which has been interfered with by the State; the second examines whether the procedures 22 attendant upon that deprivation were constitutionally sufficient.” Kentucky Dep’t of Corr. v. 23 Thompson, 490 U.S. 454, 460 (1989) (internal citations omitted). 24 1. Liberty Interest 25 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 26 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. 27 Davis, 533 U.S. 678, 693 (2001). “Freedom from imprisonment—from government custody, 1 protects.” Zadvydas at 690. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court 2 addressed whether due process requires a parolee be afforded some opportunity to be heard prior 3 to revocation of parole. 408 U.S. at 472. In examining “the nature of the interest of the parolee in 4 his continued liberty,” the Supreme Court stated: 5 The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The 6 parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and 7 function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free 8 to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him 9 to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. . . . The 10 parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. 11 12 Morrissey, 408 U.S. at 482. The Supreme Court found “that the liberty of a parolee, although 13 indeterminate, includes many of the core values of unqualified liberty and its termination inflicts 14 a ‘grievous loss’ on the parolee and often on others” and held that “the liberty is valuable and 15 must be seen as within the protection of” due process. Morrissey, 408 U.S. at 482. 16 Relying on Morrissey, courts in this district have consistently held that noncitizens who 17 have been released from immigration custody pending civil removal proceedings have a 18 protected liberty interest in remaining out of immigration custody. See, e.g., Doe v. Becerra, 787 19 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); J.A.E.M. v. Wofford, No. 1:25-cv-01380-KES-HBK 20 (HC), 2025 WL 3013377, at *3–6 (E.D. Cal. Oct. 27, 2025); J.C.L.A. v. Wofford, No. 1:25-cv- 21 01310-KES-EPG (HC), 2025 WL 2959250, at *3–5 (E.D. Cal. Oct. 17, 2025); Qazi v. Albarran, 22 No. 2:25-cv-02791-TLN-CSK, 2025 WL 3033713, at *4 (E.D. Cal. Oct. 10, 2025); Martinez 23 Hernandez v. Andrews, No. 1:25-cv-01035 JLT HBK, 2025 WL 2495767, at *10 (E.D. Cal. 24 Aug. 28, 2025); Yang v. Kaiser, No. 2:25-cv-02205-DAD-AC (HC), 2025 WL 2791778, at *8 25 (E.D. Cal. Aug. 20, 2025); Maklad v. Murray, No. 1:25-cv-00946 JLT SAB, 2025 WL 2299376, 26 at *7–8 (E.D. Cal. Aug. 8, 2025). “Many district courts in the Ninth Circuit have found that non- 27 citizens paroled into the United States . . . have a liberty interest in their continued release, 1 the test provided in Mathews v. Eldridge, 424 U.S. 319, 335 (1976).” Rocha Chavarria v. 2 Chestnut, No. 1:25-CV-01755-DAD-AC, 2025 WL 3533606, at *3 (E.D. Cal. Dec. 9, 2025). See 3 Anderson v. Chernut, No. 1:26-cv-01960-DAD-CKD, 2026 WL 809990, at *2 (E.D. Cal. Mar. 4 24, 2026) (“Even though petitioner’s parole authorization expired, petitioner maintains her 5 liberty interest in continued release”); D.L.C. v. Wofford, No. 1:25-cv-01996-DC-JDP, 2026 WL 6 145646, at *4 (E.D. Cal. Jan. 20, 2026) (“[N]umerous courts in the Ninth Circuit have found that 7 when a noncitizen is paroled under that section, his liberty interest does not expire along with his 8 parole.”) (collecting cases). Accordingly, the undersigned recommends finding that Petitioner 9 has a protected liberty interest in remaining out of immigration custody. 10 2. Mathews Test 11 In Mathews, the Supreme Court held that “identification of the specific dictates of due 12 process generally requires consideration of three distinct factors”: 13 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 14 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 15 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 16 requirements would entail. 17 Mathews, 424 U.S. at 334. 18 With respect to the first factor, the Court finds that the private interest at issue is 19 fundamental. The Ninth Circuit has recognized that it “is beyond dispute” an immigration 20 detainee’s “private interest at issue here is ‘fundamental’: freedom from imprisonment is at the 21 ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. Sessions, 872 F.3d 976, 22 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). 23 With respect to the second factor, “‘the risk of an erroneous deprivation [of liberty] is 24 high’ where, as here, ‘[the petitioner] has not received any bond or custody redetermination 25 hearing.’” J.A.E.M., 2025 WL 3013377, at *7 (alterations in original) (quoting A.E. v. Andrews, 26 No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 871334, at *5 (E.D. Cal. Mar. 19, 2025)). “[A]s 27 there have been no procedural safeguards to determine if petitioner’s re-detention is justified, 1 v. Chestnut, No. 1:25-cv-01427-KES-SKO (HC), 2025 WL 3167826, at *10 (E.D. Cal. Nov. 12, 2 2025) (quoting A.E., 2025 WL 1424382, at *5). 3 With respect to the third and final factor, “although the government has a strong interest 4 in enforcing the immigration laws, the government’s interest in detaining petitioner without a 5 hearing is ‘low.’” J.A.E.M., 2025 WL 3013377, at *7 (citing Ortega v. Bonnar, 415 F. Supp. 3d 6 963, 970 (N.D. Cal. 2019); Doe, 787 F. Supp. 3d at 1094). See Henriquez v. Garland, No. 5:22- 7 cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) (“Although the Government 8 has a strong interest in enforcing the immigration laws and in ensuring that lawfully issued 9 removal orders are promptly executed, the Government’s interest in detaining Petitioner without 10 providing an individualized bond hearing is low.”). Courts generally have found that the cost of 11 providing a custody hearing is relatively minimal, and there is nothing in the record before this 12 Court demonstrating that providing Petitioner with a pre-deprivation hearing would be fiscally or 13 administratively burdensome. See J.A.E.M., 2025 WL 3013377, at *7 (“In immigration court, 14 custody hearings are routine and impose a ‘minimal’ cost.” (citing Doe, 787 F. Supp. 3d at 15 1094)). 16 On balance, the Mathews factors show that Petitioner is entitled to notice and a bond 17 hearing and “[t]hat hearing should have occurred before petitioner was re-detained.” Carmen 18 G.C. v. Robbins, No. 1:25-cv-01648-KES-HBK (HC), 2025 WL 3521304, at *7 (E.D. Cal. Dec. 19 8, 2025). 20 “‘[T]he root requirement’ of the Due Process Clause” is “‘that an individual be given an opportunity for a hearing before he is 21 deprived of any significant protected interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Boddie v. 22 Connecticut, 401 U.S. 371, 379 (1971)); see Zinermon, 494 U.S. at 127 (“Applying [the Mathews] test, the Court usually has held that 23 the Constitution requires some kind of a hearing before the State deprives a person of liberty ....”). Courts typically require evidence 24 of urgent concerns or an especially strong government interest to justify a post-deprivation hearing. See Guillermo M. R., 2025 WL 25 1983677, at *9; United States v. James Daniel Good Real Prop., 510 U.S. 43, 53, 59–61 (1993) (“We tolerate some exceptions to 26 the general rule requiring predeprivation notice and hearing, but only in extraordinary situations where some valid governmental 27 interest is at stake that justifies postponing the hearing until after 1 the event[,]” such as “executive urgency.” (internal quotations omitted)). 2 3 Carmen G.C., 2025 WL 3521304, at *7. 4 At such a pre-deprivation hearing, the government bears the burden of proving by clear 5 and convincing evidence that Petitioner is a danger to the community or a flight risk such that re- 6 detention is warranted. See Carmen G.C., 2025 WL 3521304, at *7 (“On balance, the Mathews 7 factors show that petitioner is entitled to a bond hearing where the government must prove that 8 she is a flight risk or danger to the community by clear and convincing evidence.”); J.E.H.G. v. 9 Chestnut, No. 1:25-cv-01673-JLT SKO, 2025 WL 3523108, at *14 (E.D. Cal. Dec. 9, 2025) 10 (“[T]he immigrant’s initial release reflected a determination by the government that the 11 noncitizen is not a danger to the community or a flight risk. Since it is the government that 12 initiated re-detention, it follows that the government should be required to bear the burden of 13 providing a justification for the re-detention.”). 14 Based on the foregoing, Petitioner has demonstrated that he has a strong liberty interest in 15 remaining out of custody, that the risk of erroneous deprivation will be meaningfully reduced by 16 requiring notice and a hearing before a neutral decisionmaker, and that the governmental burden 17 in providing such procedure is quite minimal. Accordingly, the undersigned recommends 18 granting the petition on the construed due process claim challenging Petitioner’s re-detention.2 19 C. Appropriate Relief 20 Courts in this district have taken differing approaches to the relief granted to petitioners 21 who have been released, subsequently re-detained, and denied bond hearings in violation of due 22 process. In some cases, the immediate release of the petitioner has been ordered. See, e.g., 23 Yurani Hortua v. Chestnut, No. 1:25-cv-01670-TLN-JDP, 2025 WL 3525916 (E.D. Cal. Dec. 9, 24 2025) (ordering immediate release of petitioner who had been released from immigration 25 detention on parole, was arrested for theft but the case was resolved with community service and 26 did not result in a conviction, and was re-detained at a routine six-month check-in); Carmen 27 G.C., 2025 WL 3521304 (ordering immediate release of petitioner who allegedly violated 1 reporting requirements four times); Rocha Chavarria, 2025 WL 3533606 (ordering immediate 2 release of petitioner who allegedly “incurred compliance violations” that were not identified and 3 where respondents did not suggest the alleged violations were the reason for petitioner’s re- 4 detention). 5 In other cases, bond hearings have been ordered rather than immediate release. See, e.g., 6 J.E.H.G., 2025 WL 3523108 (ordering bond hearing for petitioner who allegedly violated 7 reporting requirements numerous times and was re-detained based on said violations); Paz 8 Aguilera v. Albarran, No. 1:25-cv-01619 JLT SAB, 2025 WL 3485016 (E.D. Cal. Dec. 4, 2025) 9 (ordering bond hearing for petitioner who allegedly violated reporting requirements one time and 10 was re-detained based on said violation); Sharan S., 2025 WL 3167826 (ordering bond hearing 11 for petitioner who allegedly violated reporting requirements eight times). 12 Here, Petitioner was detained after he was arrested and charged with attempted 13 aggravated assault, terroristic threats, unlawful possession of a weapon, possession of a weapon 14 for unlawful purposes, contempt of court, criminal trespass, simple assault, criminal mischief, 15 obstructing the administration of the law, and resisting arrest/eluding police. Accordingly, the 16 Court recommends finding that a post-deprivation hearing is the appropriate remedy. 17 D. Motion for Preliminary Injunction 18 In the motion for preliminary injunction, Petitioner asserts that he is entitled to relief 19 under Zadvydas v. Davis, 533 U.S. 678 (2001). (ECF No. 16.) As Petitioner is not subject to a 20 final order of removal, (ECF No. 16 at 3), release under Zadvydas is not warranted. See Yan- 21 Ling X. v. Lyons, No. 1:25-CV-01412-KES-CDB (HC), 2025 WL 3123793, at *3 (E.D. Cal. 22 Nov. 7, 2025) (“Zadvydas dealt with a noncitizen who had been detained and never released 23 following a final order of removal.”). 24 E. Motion to Appoint Counsel 25 Petitioner has moved for appointment of counsel. (ECF No. 15.) There currently exists no 26 absolute right to appointment of counsel in habeas proceedings. See, e.g., Chaney v. Lewis, 801 27 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958). 1 proceeding for financially eligible persons if “the interests of justice so require.” To determine 2 whether to appoint counsel, the “court must evaluate the likelihood of success on the merits as 3 well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the 4 legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In light of the 5 Court’s conclusion that Petitioner is entitled to habeas relief, the undersigned will deny 6 Petitioner’s motion for appointment of counsel. 7 III. 8 RECOMMENDATION 9 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 10 1. The petition for writ of habeas corpus be GRANTED on the construed procedural due 11 process claim challenging Petitioner’s detention; 12 2. Petitioner’s motion for preliminary injunction (ECF No. 16) be DENIED; 13 3. Respondents be directed to provide Petitioner with a bond hearing before an immigration 14 judge that complies with the requirements set forth in Singh v. Holder, 638 F.3d 1196 15 (9th Cir. 2011), at which 16 a. “the government must prove by clear and convincing evidence that [Petitioner] is 17 a flight risk or a danger to the community to justify denial of bond,” Singh, 638 18 F.3d at 1203, and 19 b. the immigration judge should consider Petitioner’s financial circumstances or 20 alternative conditions of release in the event Petitioner is determined not to be a 21 danger to the community and not to be so great a flight risk as to require detention 22 without bond. 23 This Findings and Recommendation is submitted to the assigned United States District 24 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 25 Rules of Practice for the United States District Court, Eastern District of California. Within 26 FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 27 written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 1 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 2 | within fourteen (14) days after service of the objections. The assigned United States District 3 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 4 | The parties are advised that failure to file objections within the specified time may waive the 5 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 6 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 g IT IS SO ORDERED.

9] Dated: _ April 29, 2026 [Jee hey 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28