John Doe v. Warden of the Golden State Annex Detention Facility, et al.

• Court: District Court, E.D. California
• Decided: April 20, 2026
• Docket: 1:25-cv-01283
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN DOE, Case No. 1:25-cv-01283-CDB (HC) 12 Petitioner, ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS (A- 13 v. Number 245 519 793)

14 WARDEN OF THE GOLDEN STATE (Doc. 28) ANNEX DETENTION FACILITY, et al., 15 Clerk of the Court to Serve Order on Facility Respondents. 16 17 Petitioner John Doe, a federal immigration detainee proceeding under pseudonym (see Doc. 18 29), initiated this action on September 29, 2025, with the filing of a petition for writ of habeas 19 corpus under 28 U.S.C. § 2241. (Doc. 1). Petitioner is in custody the of U.S. Immigration and 20 Customs Enforcement (“ICE”) at the Golden State Annex facility. Id. ¶ 1. On October 3, 2025, 21 the Court issued its order setting a briefing schedule and directed Respondents to file a response to 22 the petition. (Doc. 5). Respondents filed their opposition on November 17, 2025. (Doc. 9). On 23 December 10, 2025, Petitioner filed a motion for extension of time to file his traverse wherein he 24 represented he had not received a copy of Respondents’ opposition. (Doc. 10). The Court granted 25 Petitioner’s motion. (Doc. 12). Over the course of the ensuing weeks, the Court entered orders 26 attempting to gain assurance from Respondents that their opposition was served on Petitioner. See 27 (Docs. 12, 17, 19). On January 28, 2026, the Court appointed counsel for Petitioner. (Docs. 20, 28 24). 1 On February 18, 2026, Petitioner, through counsel, filed a motion to proceed under 2 pseudonym (Doc. 26) and, on February 20, 2026, Petitioner filed a first amended petition (Doc. 3 28). That same day, the Court granted Petitioner’s motion to proceed under pseudonym and found 4 that, in light of the record being unclear whether Respondents had in fact effected service of their 5 opposition and even if the date of service in Respondents’ “amended certificate” (Doc. 22) was 6 correct, Petitioner was entitled to file the first amended petition as a matter of course without leave 7 of court. (Doc. 29). Respondents filed an opposition to the first amended petition (Doc. 30) and 8 Petitioner filed a traverse (Doc. 32).1 9 I. Relevant Background 10 i. Release and Re-detainment 11 The relevant facts are drawn from the operative first amended petition and the parties’ 12 respective filings (see Docs. 9, 13, 28, 30, 32, including the declaration of Petitioner’s counsel, 13 Sarah Kate Heilbrun (Doc. 28-1 at 25) and the declaration of Alejandro Parra Jaimes, deportation 14 officer for U.S. Department of Homeland Security (“DHS”). (Doc. 9-1). 15 Petitioner is a native of Chechnya and citizen of Russia. (Doc. 28 at ¶ 21; Doc. 9-2). He 16 entered the United States on November 27, 2023, and was apprehended by U.S. Border Patrol on 17 that same day. (Doc. 28 ¶ 22); id., Ex. A. On November 29, 2023, Petitioner was released on his 18 own recognizance pending his immigration hearing. Id. ¶ 23; (Doc. 9-1 ¶ 8). He was placed into 19 removal proceedings and issued a Notice to Appear. (Doc. 9-1 ¶ 9). On January 4, 2024, DHS 20 initiated removal proceedings with the Sacramento Immigration Court. (Doc. 28 ¶ 24); id., Ex. B. 21 While released, Petitioner attended all his required appointments with ICE and attended his 22 scheduled hearings before the immigration court. Id. ¶ 25; (Doc. 28-1 at 26 ¶¶ 4-5). 23 On May 21, 2024, Petitioner appeared at his initial master calendar hearing and requested a 24 continuance to seek counsel, which was granted. (Doc. 9-1 ¶ 10). On October 17, 2024, the date 25 of the continued hearing, Petitioner requested a continuance to file any applications for relief from 26

27 1 On April 20, 2026, following all parties’ expression of consent to the jurisdiction of a U.S. magistrate judge for all purposes, including for trial and entry of judgment, pursuant to 28 U.S.C. 28 636(c)(1), this action was reassigned to the undersigned as the presiding judge. See (Doc. 36). 1 removal. ICE detained Petitioner after the calendar hearing; no hearing before a neutral arbiter was 2 provided prior to Petitioner’s re-detention. Id. ¶ 11; (Doc. 28 ¶ 26). On November 4, 2024, at 3 Petitioner’s first detained calendar hearing, he requested a continuance to seek counsel and file 4 applications for relief from removal. His request was granted. (Doc. 9-1 ¶ 12). On November 20, 5 2024, Petitioner filed an application for asylum, withholding of removal, and relief under the 6 Convention Against Torture, based on past persecution by Chechen security officials due to his 7 political views; no calendar hearing has been set on the asylum application. (Doc. 28 ¶ 27). 8 On December 1, 2025 (possibly, 2024), pro bono counsel entered an appearance before the 9 immigration court on behalf of Petitioner. Id. ¶ 28. On December 30, 2024, the date of the 10 continued calendar hearing, Petitioner asked to schedule his individual merits hearing; DHS asked 11 to schedule another calendar hearing for Petitioner to plead to the allegations and charge in the 12 Notice to Appear. The immigration judge agreed to DHS’s request. (Doc. 9-1 ¶ 13). On January 13 8, 2025, the immigration judge sustained the removal charges with Russia as the country of 14 removal, and scheduled the merits hearing for February 27, 2025. Id. ¶ 16. On February 20, 2025, 15 Petitioner filed a bond redetermination request and, on February 27, 2025, the immigration judge 16 denied Petitioner’s request for bond, finding he had not met his burden to demonstrate that he was 17 not a flight risk; Petitioner also asked for and was granted a continuance so the immigration court 18 could receive evidence that was mailed to it. Id. ¶¶ 17-18. 19 On March 26, 2025, the immigration court advanced the merits hearing from April 24 to 20 April 15, 2025. On April 15, 2025, the immigration judge granted Petitioner another continuance 21 because the evidence he had attempted to submit was rejected by the court for lack of proof of 22 service; the merits hearing was rescheduled to May 14, 2025. Id. ¶¶ 19-20. On May 14, 2025, the 23 immigration judge continued the hearing due to incomplete background checks and to allow 24 Petitioner to file evidence regarding his criminal history in the United States. Id. ¶ 21. On June 25 27, 2025, the immigration judge continued the hearing for lack of a Chechen interpreter, upon being 26 informed that Chechen was Petitioner’s best language, not Russian. Id. ¶ 22. 27 On July 22, 2025, Petitioner filed a second request for bond hearing and submitted evidence 28 in support, including a letter from a sponsor as well as financial documents showing the sponsor’s 1 residency in Sacramento and the sponsor’s sufficiency of income. (Doc. 28 ¶ 30). The immigration 2 judge denied bond. Id.; (Doc. 9-1 ¶ 23). On August 7, 2025, the immigration judge continued 3 Petitioner’ case due to lack of available Chechen interpreters; Petitioner did not attend due to being 4 held in isolation. (Doc. 9-1 ¶ 24). On September 15, 2025, the immigration judge held a calendar 5 hearing and continued the case to October 3, 2025, to allow for DHS to submit supplemental 6 documents, including medical and disciplinary records. Id. ¶ 25. On October 3, 2025, during the 7 calendar hearing, the immigration judge scheduled the merits hearing for December 3, 2025, and 8 found Petitioner competent. Id. ¶ 26. 9 ii. Relevant Exhibits 10 Respondents’ attach to their opposition to the initial petition a form I-213 Record of 11 Deportable/Inadmissible Alien, dated October 17, 2024, that details the circumstances of 12 Petitioner’s re-detainment. (Doc. 9-2 at 18). Under “Previous Criminal History,” the form states 13 that no crimes were “selected for inclusion on the I-213.” Id. at 19. In a different section of the 14 form, titled “Criminal History,” two arrests are noted: on August 3, 2024, for misdemeanor 15 shoplifting (with charges pending), and on October 9, 2024, for felony use of access account 16 information without consent (with charges pending) and misdemeanor possession of a narcotic 17 controlled substance (with charges pending). Id. at 20. Additionally, no discussion of criminal 18 history or other circumstances regarding flight risk or danger to community is included in the 19 “Justification Narrative” section of the form, which provides only that “targeting of [Petitioner] is 20 an appropriate allocation of resources as [Petitioner] entered the United States without inspection 21 on November 27, 2023, at Tecate, California.” Id. at 19. Nor is there any related discussion in the 22 sections titled “Method of Location/Apprehension” (stating only that Petitioner was informed that 23 he was “going to be arrested for immigration violations”) or “Alienage and Removability.” Id. at 24 19-20. 25 The order of the immigration judge denying Petitioner’s bond, dated February 27, 2025, 26 states only that “Respondent has not met his burden to demonstrate that he is not a flight risk” 27 (Doc. 9-2 at 23; Doc. 28-1, Ex. C) without any discussion or reasoning by the immigration judge. 28 In his order denying Petitioner’s second request for bond, dated July 30, 2025, the immigration 1 judge states Petitioner’s earlier bond request was denied “based on flight risk during a custody 2 redetermination proceeding on 02/27/2025. [Petitioner] has not established materially changed 3 circumstances.” (Doc. 9-2 at 54; Doc. 28-1, Ex. E). The order also states that the immigration 4 court “takes administrative notice of the Department’s filing of Forms I-213, Report of 5 Deportable/Inadmissible Alien, which the Court previously admitted into the evidentiary record 6 during Respondent’s prior custody redetermination hearing on or about 02/27/2025.” The order 7 states that the form reflects “Respondent was encountered by border patrol agents at or near the 8 southern border on or about 11/27/2023, taken into custody pursuant to a warrantless arrest, 9 released [on] discretion, and then re-detained …” The order concludes that, “the Court does not 10 have jurisdiction over [Petitioner’s] request for custody determination. See Matter of Q. Li.” (Doc. 11 9-2 at 54; Doc. 28-1 at 20). 12 iii. Criminal History 13 Petitioner was named in misdemeanor complaints filed against him in Los Angeles Superior 14 Court on December 2, 2024, and June 11, 2025. The earlier of the two complaints charged 15 misdemeanor violations of California Health & Safety Code 11350(a) occurring on October 9, 16 2024. On November 26, 2025, the case was dismissed. (Doc. 28 ¶ 31); id., Ex. F. The latter 17 complaint charged violations of California Penal Code § 484(a) / 490.2(a) occurring on or about 18 August 3, 2024. Petitioner is represented in this matter by a public defender; as of the date of 19 Petitioner’s first amended petition, the next hearing in that matter was scheduled for March 5, 2026. 20 Id. ¶ 32. Petitioner asserts that these charges were not identified by immigration authorities as 21 reasons for Petitioner’s detention on October 17, 2024, nor did the immigration judge hold that they 22 were a basis for denial of bond. Id. ¶ 33. 23 According to a copy of Petitioner’s rap sheet proffered by Respondents, the August 3, 2024, 24 incident is recorded as misdemeanor shoplifting. (Doc. 9-2 at 11, 15). The October 9, 2024, 25 incident is recorded as misdemeanor possession of a narcotic controlled substance and felony use 26 of access account information without authorization. Id. 27 iv. Additional Information 28 Petitioner asserts that he has not received any medical treatment while in Respondents’ 1 custody other than pain medication regarding severe pain in his mouth from swollen gums and an 2 inflamed tooth, impacting his ability to eat or drink. (Doc. 28-1 ¶ 6). He asserts that he was recently 3 prescribed Prozac for his severe depression and is taking two other medications, the names of which 4 he is uncertain of, to treat insomnia and anxiety. He states he is not sleeping well and is in state of 5 deep depression. Id. ¶ 7. 6 The Court also takes judicial notice that Petitioner has been in removal proceedings since 7 January 10, 2024, and has an upcoming hearing on June 1, 2026.2 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 2 See https://acis.eoir.justice.gov/en/caseInformation (last visited Apr. 16, 2026, using Petitioner’s 26 A-Number and nationality); Daniels-Hall v. National Edu. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by government 27 entities ... and neither party disputes the authenticity of the web sites or the accuracy of the information displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F. Supp. 3d 1028, 1034 (E.D. Cal. 2024) (taking 28 judicial notice of information on federal government agency’s website). 1 Sept 12, 2025), which the undersigned adopts herein: 2 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 3 The “usual removal process” involves an evidentiary hearing before 4 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 5 § 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. 6 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 7 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 8 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 9 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 10 (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 11 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. 12 § 236.1(c)(8)).

13 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 14 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 15 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 16 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)). 17 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 18 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. 19 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 20 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 21 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 22 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 23

2. Expedited Removal and Mandatory Detention (§ 1225) 24

25 While “§ 1226 applies to aliens already present in the United States,” U.S. immigration law also “authorizes the Government to detain 26 certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2),” a process that provides for expedited 27 removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a noncitizen “who has not been admitted or who arrives in the United 28 States” is considered “an applicant for admission.” 8 U.S.C. 1 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 2 that:

3 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 4 who is arriving in the United States or is described in clause (iii) is inadmissible under section 5 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C) or 1182(a)(7)], the officer shall order the alien 6 removed from the United States without further hearing or review unless the alien indicates either an 7 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 8 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 9 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 10 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 11 designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 12 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 13 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 14 § 1225(b)(1)(A)(iii)(II).

15 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 16 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 17 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 18 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 19 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 20 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 21 among those whom the Secretary of Homeland Security has designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 22 1225(b)(1).

23 “Initially, DHS’s predecessor agency did not make any designation [under (3)], thereby limiting expedited removal only to ‘arriving 24 aliens,’” that is, noncitizens encountered at ports of entry. Make the Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS 25 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS extended by designation expedited removal to noncitizens who arrive 26 by sea and who have been present for fewer than two years, and to noncitizens apprehended within 100 air miles of any U.S. 27 international land border who entered within the last 14 days. Id. This was the status quo until January 2025, when the Department of 28 Homeland Security revised its § 1225 designation to “apply 1 expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 2 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 3 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 4 short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United 5 States.

6 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 7 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 8 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 9 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order 10 the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may 11 be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable within 24 12 hours, but in no case later than 7 days after the date of the determination.” Id. Detention under § 1225(b)(1) is “mandatory” 13 “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing 14 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible 15 fear of persecution and, if found not to have such a fear, until removed.”) 16 [Section] 1225 also contains a provision that applies to applicants for 17 admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory 18 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking 19 admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full 20 removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited 21 removal but are subject to mandatory detention while their full removal proceedings are pending. This is in contrast to the default 22 detention regime under § 1226(a), which allows for discretionary release and review of detention through a bond hearing. 23 3. The Government’s Recent Change in Position 24 Until this year, the DHS has applied § 1226(a) and its discretionary 25 release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice 26 was codified by regulation. The regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 27 (“IIRIRA”) state that “Despite being applicants for admission, aliens who are present without having been admitted or paroled (formerly 28 referred to as aliens who entered without inspection) will be eligible 1 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other 2 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 3 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 4 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . . 5 In 2025, however, the Government’s policy changed dramatically. 6 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 7 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 8 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 9 to expedited removal but to whom expedited removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps 10 to terminate any ongoing removal proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the 11 actions contemplated by the memorandum “in a manner that takes account of legitimate reliance interests,” but states that “the 12 expedited removal process includes asylum screening, which is sufficient to protect the reliance interests of any alien who has 13 applied for asylum or planned to do so in a timely manner.” Huffman Memorandum (Jan. 23, 2025). 14 Since mid-May of 2025, the Department of Homeland Security has 15 made a practice of appearing at regular removal proceedings in immigration court, moving to dismiss the proceedings, and then re- 16 arresting the individual in order to place them in expedited removal proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does 17 not dismiss the full removal proceedings, ICE still makes an arrest, apparently in reliance on § 1225(b)(2)’s detention provision. 18 19 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 20 C. Parole Revocation 21 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 22 process in immigration cases and noted that before parole may be revoked, the parolee must be 23 given written notice of the impending revocation, which must include a cogent description of the 24 reasons supporting the revocation decision. The court held: 25 Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required 26 detention, to be “paroled” into the United States. This provision, at issue in this case, states: 27 The Secretary of Homeland Security may, except as 28 provided in subparagraph (B) or in section 1184(f) of this 1 title, in his discretion parole into the United States temporarily under such conditions as he may prescribe 2 only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying 3 for admission to the United States, but such parole of such alien shall not be regarded as an admission of the 4 alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 5 have been served the alien shall forthwith return or be returned to the custody from which he was paroled 6 and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for 7 admission to the United States. 8 U.S.C. § 1182(d)(5)(A). 8 9 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 10 immigration parolees are entitled to determinations related to their parole revocations that are not 11 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 12 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 13 a satisfactory explanation for its action including a rational connection between the facts found and 14 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 15 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 16 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 17 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 18 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 19 the immigrant has departed or when the specified period of parole has expired. 20 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 21 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 22 to revoke humanitarian parole: 23 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 24 basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no 25 indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received 26 merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required 27 by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for 28 1 which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] 2 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 3 parole violated his rights under the statute and regulations. See Y-Z- L-H, 2025 WL 1898025, at *13. 4 5 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 6 a similar conclusion relying on the Due Process Clause: 7 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 8 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 9 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 10 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 11 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. 12 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 13 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 14 liberty interest in remaining out of custody on bond.”). 15 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 16 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 17 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 18 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 19 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 20 imprisonment serves the government’s legitimate goals.”). 21 III. Exhaustion 22 A. Governing Authority 23 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 24 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 25 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 26 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 27 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 28 1 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 2 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 3 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 4 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 5 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 6 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 7 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 8 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 9 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 10 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 11 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 12 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 13 to be disregarded.”). 14 B. Analysis 15 Petitioner asserts that exhaustion is not required, would be futile, and would result in 16 irreparable harm due to prolonged loss of liberty. (Doc. 28 at 8-9). Respondents assert that 17 Petitioner had two prior bond hearings and chose not to appeal either decision, and failed to 18 “exhaust all legal and administrative remedies in Immigration Court” prior to filing this action. 19 (Doc. 30 at 3, 8, 14). 20 The Court finds that the prudential exhaustion requirement should be waived as it would be 21 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 22 to mandatory detention under § 1225(b). (Doc. 30 at 1). Additionally, the order of the immigration 23 judge on Petitioner’s second bond hearing explicitly states that the court “does not have jurisdiction 24 over [Petitioner’s] request for custody redetermination.” (Doc. 9-2 at 54; citing Matter of Q. Li, 29 25 I&N Dec. 66 (B.I.A. 2025)); see Jennings v. Rodriguez, 583 U.S. 281, 282 (2018) (“§§ 1225(b) … 26 do[e]s not give detained aliens the right to periodic bond hearings during the course of their 27 detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). Further, the BIA 28 has held that all noncitizens present within the country without admission are seeking admission 1 pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. v. Wofford, No. 1:25- 2 cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 2025) (“In addition, 3 pursuit of administrative remedies would almost certainly be futile given the BIA’s recent holding 4 that all noncitizens present in the United States without admission are ‘seeking admission’ for 5 purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing Matter of Yajure Hurtado, 29 6 I&N Dec. 216 (B.I.A. 2025)). 7 For these reasons, the prudential exhaustion requirement for Petitioner’s claim for habeas 8 corpus relief will be waived. See, e.g., Chavez v. Noem, No. 3:25-cv-02325-CAB-SBC, 2025 WL 9 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving prudential exhaustion requirement because the 10 BIA “already applied its expertise in deciding and designating” Hurtado as precedential, pursuant 11 to which detainees are subject to mandatory detention without bond under § 1225(b)(2)); Rodriguez 12 v. Bostock, 779 F. Supp. 3d 1239, 1253 (W.D. Wash. 2025) (“The Ninth Circuit has recognized 13 ‘the irreparable harms imposed on anyone subject to immigration detention.’”) (citing Hernandez 14 v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)); J.A.C.P., 2025 WL 3013328, at *7 n.9. 15 IV. Discussion 16 Petitioner asserts two causes of action in his petition, for violation of the Due Process Clause 17 of the Fifth Amendment and for violation of the Immigration and Nationality Act. (Doc. 28 at 21- 18 25). 19 As set forth below, because the undersigned finds that Respondents have violated 20 Petitioner’s constitutional rights to procedural due process, and because Petitioner’s other claim 21 seeks the same or similar relief (i.e., for immediate release and to enjoin Respondents from re- 22 detaining Petitioner unless his re-detention is justified at a custody hearing before a neutral arbiter 23 in which the government bears the burden of proof), the undersigned forbears from addressing 24 Petitioner’s other claims. 25 A. Subject Matter Jurisdiction 26 First, Respondents argue that “dismissal is appropriate because there is nothing for this 27 Court to remedy” because Petitioner has had two bond hearings and five continuances, and the 28 proceedings “have moved forward with minimal delay” on the part of the Respondents. (Doc. 30 1 at 8). 2 Pursuant to 8 U.S.C. § 1226(e), the “Attorney General’s discretionary judgment regarding 3 the application of this section shall not be subject to review,” and a court may not “set aside any 4 action or decision by the Attorney General under this section regarding the detention of any alien 5 or the revocation or denial of bond or parole.” Section 1226(e) “does not, however, preclude habeas 6 jurisdiction over constitutional claims or questions of law.” Hernandez, 872 F.3d at 987 (citation 7 and quotation omitted). Courts have “jurisdiction to review [an immigration judge’s] discretionary 8 bond denial only where that bond denial is challenged as legally erroneous or unconstitutional.” 9 Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 772–73 (N.D. Cal. 2019) (citation and quotation 10 omitted). “[A] district court has jurisdiction to review mixed questions of law and fact, but it must 11 be careful not to encroach upon the [immigration judge’s] discretionary weighing of the 12 evidence … Nevertheless, courts are not barred from concluding that the evidence before the 13 [immigration judge] failed, as a matter of law, to prove the requisite showing.” Id. (citations and 14 quotations omitted). 15 As Petitioner raises constitutional claims regarding his bond denial, the Court has subject 16 matter jurisdiction to rule on the petition. 17 B. Procedural Due Process 18 1. Governing Authority 19 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 20 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 21 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 22 individuals against two types of government action’: violations of substantive due process and 23 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 24 “Procedural due process imposes constraints on governmental decisions which deprive 25 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 26 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 27 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 28 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 1 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 2 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 3 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 4 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 5 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 6 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 7 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 8 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 9 v. Brewer, 408 U.S. 471, 481 (1972). 10 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 11 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 12 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 13 Due Process Clause stands as a significant constraint on the manner in which the political branches 14 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 15 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 16 justification for physical confinement outweighs the individual's constitutionally protected interest 17 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 18 1196, 1203 (9th Cir. 2011)). 19 2. Whether Petitioner Has a Liberty Interest 20 On Petitioner’s as-applied procedural due process challenge to his continuing detention by 21 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 22 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any 23 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 24 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 25 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 26 Petitioner has an underlying, continuing liberty interest in being free from re-detention. By 27 releasing Petitioner in their discretion following his initial encounter, immigration officials 28 necessarily determined that Petitioner did not present a risk of flight or danger to the community. 1 Specifically, in Petitioner’s form I-213, dated November 29, 2023, immigration authorities 2 recorded that Petitioner was released on order of recognizance, approximately 11 months prior to 3 his most recent re-detainment, and that Petitioner “does not appear to be a threat to national security, 4 border security, or public safety.” (Doc. 9-2 at 9); see 8 C.F.R. § 1236.1(c)(8) (“Any officer 5 authorized to issue a warrant of arrest may, in the officer’s discretion, release an alien not described 6 in section 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided 7 that the alien must demonstrate to the satisfaction of the officer that such release would not pose a 8 danger to property or persons, and that the alien is likely to appear for any future proceeding.”). 9 Accord Rodriguez Diaz, 53 F.4th at 1196. Petitioner remained released from immigration detention 10 for a significant amount of time. 11 The undersigned agrees with other courts and other judges of this Court that noncitizens 12 released from immigration custody on general orders of supervision or on their own recognizance 13 have a liberty interest in their freedom that implicates protections under principles of procedural 14 due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The 15 fact that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks 16 a protectable liberty interest and can be re-detained without process.”); see id. (“[E]ven if 17 immigration detainees must wait months before a periodic re-review of their detention, those 18 already released on immigration bond possess an interest in their continued liberty, which grows 19 over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun v. 20 Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1094 21 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy 22 duration of his conditional release as well as the meaningful connections Petitioner seems to have 23 made with his community during that time create a powerful interest for Petitioner in his continued 24 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5- 25 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an 26 individual, a protected liberty interest under the Due Process Clause may entitle the individual to 27 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES- 28 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily 1 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained 2 in continuous custody and never released on supervision). 3 Respondents argue that Petitioner is an “applicant for admission” and is “subject to 4 mandatory detention by ICE under 8 U.S.C. § 1225(b)(2).” (Doc. 30 at 1-2; citing, inter alia, 5 Alonzo v. Noem, No. 1:25-cv-01519 WBS SCR, 2025 WL 3208284 (E.D. Cal. Nov. 17, 2025)). 6 The petitioners’ circumstances in Alonzo are factually dissimilar from those presented here, as 7 another judge of this Court has explained: in contrast to the circumstances at issue in Alonzo, 8 Petitioner here was detained by ICE and released, and immigration proceedings have remained 9 pending for a significant period of time. See Garcia v. Chesnut, No. 1:25-cv-01907-JLT-CDB, 10 2025 WL 3771348, at *8 (E.D. Cal. Dec. 31, 2025) (“However, unlike here, the petitioners in 11 Valencia and Alonzo had never been encountered, let alone processed, by immigration officials, 12 and had not been released on recognizance pending completion of Section 240 removal 13 proceedings.”). 14 Additionally, other judges of this Court, as well as many other courts, have considered and 15 rejected the government’s arguments, finding that Section 1226(a), not Section 1225(b)(2), 16 provides the appropriate framework for noncitizens released following their initial encounter with 17 immigration authorities and have resided in the United States for a significant period, like Petitioner 18 here. See, e.g., H.J.G.G. v. Wofford, No. 1:25-cv-01718-JLT-EPG-HC, 2025 WL 3761803, at *4 19 (E.D. Cal. Dec. 30, 2025) (citing Castillo v. Wofford, No. 1:25-cv-01586-JLT-HBK, 2025 WL 20 3466064, at *8 (E.D. Cal. Dec. 2, 2025)); accord Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 21 935-37 (N.D. Cal. 2025), appeal filed, No. 25-7472 (9th Cir. Nov. 26, 2025). Under such 22 circumstances, “the government cannot switch tracks” and subject Petitioner to mandatory 23 detention now under section 1225(b)(2) “after it previously released him on his own recognizance 24 under section 1226(a).” Valencia Zapata, 801 F. Supp. 3d at 936; accord Souza v. Robbins, No. 25 1:25-cv-01597-DJC-JDP, 2025 WL 3263897, at *2 (E.D. Cal. Nov. 23, 2025). 26 3. Whether Due Process Requires a New Bond Hearing Where the Government 27 Bears the Burden of Proof 28 Because Petitioner has shown he has a protected liberty interest to remain free from re- 1 detention based on his discretionary release by immigration authorities in November 2023, the 2 undersigned must determine what process is due before the government may terminate that liberty 3 interest. The following factors articulated in Mathews govern the Court’s consideration: “[(1)] the 4 private interest that will be affected by the official action; [(2)] the risk of an erroneous deprivation 5 of such interest through the procedures used, and the probable value, if any, of additional or 6 substitute procedural safeguards; and [(3)] the Government’s interest, including the function 7 involved and the fiscal and administrative burdens that the additional or substitute procedural 8 requirement would entail.” Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 9 (applying Mathews test in immigration detention context); id. at 993 (“The appropriateness of the 10 requirement that ICE and IJs consider financial circumstances and alternative conditions of release 11 is confirmed by the balance of factors under Mathews[.]”). 12 Respondents rely on, inter alia, Abdul-Samed v. Warden (No. 1:25-cv-00098, 2025 WL 13 2099343 (E.D. Cal. July 25, 2025)) in arguing that the Mathews test does not apply because 14 Petitioner is detained under section 1225(b)(2). (Doc. 30 at 11-14). As noted above, section 15 1226(a) provides the appropriate framework here and Abdul-Samed is readily distinguishable as 16 the petitioner in that action was not released on recognizance following his initial encounter with 17 immigration authorities. 18 As to the first Mathews factor, Petitioner has shown he has a significant private interest in 19 remaining on release from detention. He had been released from immigration custody for over 10 20 months prior to his re-detention. During his release, Petitioner was charged in two criminal 21 complaints, one in December 2024 concerning events that occurred two months prior, and one in 22 June 2025, concerning events which occurred in August 2024. The former complaint was 23 dismissed and the latter, charging a misdemeanor shoplifting offense, has remained pending for 24 more than nine months. (Doc. 28 ¶¶ 31-32; Doc. 9-2 at 15). Respondents do not assert Petitioner 25 was convicted of, nor pled guilty to, any crime. See Munoz-Flores v. Chestnut, No. 1:26-cv-01301- 26 KES-HBK (HC), 2026 WL 457124, at *1 (E.D. Cal. Feb. 18, 2026) (noting that the “contention 27 that an arrest, without more, constitutes evidence of criminal activity is without merit” and that 28 respondents failed to show petitioner violated any of his release conditions where he was charged, 1 but not convicted, of driving under the influence after his release on recognizance) (citation 2 omitted); Singh v. Bondi, No. C26-0598-SKV, 2026 WL 747104, at *3 (W.D. Wash. Mar. 17, 2026) 3 (“An arrest, standing alone, is not evidence of criminal activity in breach of Petitioner's release 4 conditions.”). 5 Furthermore, the I-213 form dated the day of Petitioner’s re-detainment (October 17, 2024), 6 notes that no crimes were “selected for inclusion on the I-213.” The form also references 7 Petitioner’s two aforementioned arrests (August 3, 2024, and October 9, 2024) but provides no 8 discussion of these arrests in regards to any flight risk or danger to community within the 9 “Justification Narrative” section of the form, where it is noted only that “targeting of [Petitioner] is 10 an appropriate allocation of resources as [Petitioner] entered the United States without inspection 11 on November 27, 2023, at Tecate, California.” (Doc. 9-2 at 18-19). Nor is there any such 12 discussion regarding these arrests anywhere else in the form. The form states that Petitioner was 13 informed only that he was “going to be arrested for immigration violations,” with no further 14 elaboration. Id. at 19-20. 15 Thus, Respondents fail to show that Petitioner was subjected to any pre-deprivation 16 determination of violation of release conditions. See Reyes v. Hermosillo, No. 2:26-cv-00270-TLF, 17 2026 WL 507678, at *5 (W.D. Wash. Feb. 24, 2026) (“The first Mathews factor weighs in 18 [petitioner’s] favor, but not as strongly as it would for an individual without any indication of 19 materially changed circumstances as may be relevant to the assessment of dangerousness or flight 20 risk … petitioner does not dispute she was arrested and charged with a criminal offense [for theft] 21 in March 2024, and that these charges are still pending … Even so, as petitioner’s prior release 22 lasted from February 2022 to December 2025, she was deprived of an established liberty interest.”). 23 As to the second factor, the risk of an erroneous deprivation of a petitioner’s liberty interest 24 is considerable where he has not received any bond or custody redetermination. Hernandez, 872 25 F.3d at 1094; see A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. 26 Cal. May 16, 2025). The Court acknowledges that, after Petitioner filed a request for bond 27 redetermination, he received a bond hearing on February 27, 2025, where the immigration judge 28 denied bond, finding that Petitioner had not met his burden to demonstrate that he was not a flight 1 risk. (Doc. 9-1 ¶¶ 17-18; Doc. 9-2 at 23; Doc. 28-1, Ex. C). This hearing was held approximately 2 four months after his re-detainment. After Petitioner filed a second request for bond hearing, on 3 July 30, 2025, the immigration judge issued an order noting that “[Petitioner] has not established 4 materially changed circumstances” and that the court lacked jurisdiction over the request. (Doc. 9- 5 2 at 54; Doc. 28-1 at 20; Doc. 28 ¶ 30). This hearing was approximately nine months after 6 Petitioner’s re-detainment. 7 It is clear from the language of the immigration judge’s orders that, for both bond hearings, 8 the immigration judge placed the burden of proof upon the Petitioner to show he was not a flight 9 risk. The order following the first bond hearing provides essentially no discussion to support the 10 immigration judge’s conclusion. Additionally, in the order on the second hearing, the immigration 11 judge notes that the court did not have jurisdiction to rule on the request. However, Petitioner was 12 necessarily found to not be a flight risk or a danger to the community due to his release on 13 recognizance following his initial encounter with immigration authorities. The DHS form Record 14 of Deportable/Inadmissible Alien, dated the day of Petitioner’s release (November 29, 2023), 15 expressly records that Petitioner “does not appear to be a threat to national security, border security, 16 or public safety,” immediately before noting he was released from DHS custody on order of 17 recognizance. (Doc. 28-1 at 6). 18 Thus, Petitioner was previously found to not be a flight risk or present a danger to the 19 community. That the government made a custody determination after being apprised of Petitioner’s 20 arrests—on charges which were either dismissed or remain to be disposed and have not resulted in 21 any conviction—without any such determination made by a neutral arbiter, is insufficient to address 22 the risk of erroneous deprivation of Petitioner’s liberty interest. As no individualized 23 determination was then ever made by the government, the risk of Petitioner’s erroneous deprivation 24 is high. See Doe, 787 F. Supp. at 1094 (“[G]iven that Petitioner was previously found to not be a 25 danger or risk of flight and the unresolved questions about the timing and reliability of the new 26 information, the risk of erroneous deprivation remains high.”); Reyes, 2026 WL 507678, *5 (“The 27 second Mathews factor still weighs in petitioner’s favor even if, as discussed above, petitioner’s 28 arrest and pending charges for a crime potentially constitute a change in material circumstances 1 after her initial release. This is because respondents have not rebutted petitioner’s argument that at 2 the time of re-detention, she was not provided an opportunity to respond to the allegations that she 3 violated her conditions of release.”). 4 Third, the government’s interest in detaining Petitioner without a compliant bond hearing 5 is low. Doe, 787 F. Supp. 3d at 1094 (citation omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 6 970 (N.D. Cal. 2019)); Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. 7 June 14, 2025) (“And, like other Courts in this district, the Court concludes that the government’s 8 interest in re-detaining Petitioner-[] without a hearing is ‘low,’ particularly in light of the fact that 9 Petitioner[] has long complied with his reporting requirements.”). “The effort and cost to provide 10 Petitioner with [a bond hearing] is minimal[.]” Doe, 787 F. Supp. 3d at 1094. As noted infra in 11 subpart (C), the Petitioner’s prior bond hearings did not comport with applicable due process. 12 Therefore, any additional burden from requiring the government to seek a third bond hearing does 13 not outweigh Petitioner’s liberty interest and the risk of erroneous deprivation. 14 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 15 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest 16 in October 2024 and continuing detention thereafter. 17 C. Remedy 18 The undersigned considers whether Petitioner is entitled to a pre-deprivation or post- 19 deprivation bond hearing, and further, addresses what standards should apply at that hearing. 20 First, the undersigned concludes that Petitioner is entitled to a post-deprivation bond 21 hearing. As summarized above, although Respondents assert Petitioner’s two arrests purportedly 22 violated his conditions of release, Respondents offer no credible basis to find that Petitioner may 23 have violated such conditions as Respondents have not proffered any particulars as to any 24 convictions. Indeed, Petitioner was arrested by ICE on October 17, 2024, only after he complied 25 with directions to report to the ICE office. However, Petitioner’s arrests occurred prior to ICE’s 26 re-detainment, including an arrest on October 9, 2024, which was approximately eight days prior 27 to his revocation of release by ICE after Petitioner attended his hearing. (Doc. 28-1 at 13). Thus, 28 the revocation of release based on immigration violations was “not obviously pretex[t]ual.” 1 Martinez Hernandez v. Andrews, No. 1:25-cv-01035 JLT HBK, 2025 WL 2495767, at *12 (E.D. 2 Cal. Aug. 28, 2025) (“If Respondent’s view of the facts is correct, it is at least arguable that 3 providing Petitioner with notice and a pre-deprivation hearing would have been impracticable 4 and/or would have motivated his flight.”) (citing cases); accord O.A.C.C. v. Wofford, No. 1:25-cv- 5 01652-DAD-CSK (HC), 2025 WL 3485221, at *4-5 (E.D. Cal. Dec. 4, 2025). 6 Second, Petitioner was released by ICE on order of recognizance following his initial 7 encounter and arrest in November 2023 and remained at liberty for approximately 11 months prior 8 to his re-detention in October 2024. (Doc. 28 at 4). In releasing Petitioner, immigration officials 9 necessarily determined that he did not present a risk of flight or danger to the community. See 8 10 C.F.R. § 1236.1(c)(8). Petitioner was afforded a bond hearing where the burden was placed on him 11 to show he was not a flight risk, and a second bond hearing where the immigration judge again 12 found that Petitioner had not established changed circumstances, and concluded the immigration 13 court had no jurisdiction to consider the merits of Petitioner’s request. But, as noted above, the 14 government had already determined that Petitioner was not a flight risk or a danger to the 15 community in releasing him on his release on recognizance. As such, it is incumbent on the 16 government to demonstrate re-detention is warranted due to changed circumstances that result in a 17 risk of flight or a danger to the community. Instead, in his prior bond hearings, Petitioner was 18 essentially tasked with “proving a negative,” namely that he is still not a flight risk or a danger to 19 the community. See Ayobi v. Castro, No. SA-19-cv-01311-OLG, 2020 WL 13411861, at *6 (W.D. 20 Tex. Feb. 25, 2020) (“Additionally, it is self-evident that allocating the burden of proof to the 21 government to affirmatively justify Petitioner’s continued detention—as opposed to forcing 22 Petitioner to again prove a negative—is a reasonable approach to mitigate the risk of erroneous 23 deprivation of his due process rights.”). 24 Further, during the second bond hearing, the immigration judge noted that Petitioner had 25 been released as a “favorable exercise of [DHS] discretion, and then re-detained by [DHS].” (Doc. 26 9-1 para. 23; id., Ex. 7). However, as noted supra, release from detention yields to Petitioner a 27 protected liberty interest in being free from re-detention under the Due Process Clause of the Fifth 28 Amendment. See, e.g., Pinchi v, 792 F. Supp. 3d at 1032. Thus, DHS may not simply revoke its 1 “favorable exercise of discretion” and re-detain Petitioner. Rather, having previously released 2 Petitioner on recognizance, DHS must provide due process sufficient to mitigate the risk of 3 erroneous deprivation of Petitioner’s due process rights. The record before the Court does not 4 evidence Respondents’ provision to Petitioner of sufficient due process in light of the 5 circumstances. 6 In short, Petitioner’s prior bond hearings by an immigration judge failed to comport with 7 due process requirements. First, they took place following the passage of a significant amount of 8 time after Petitioner’s re-detention. Second, the immigration judge erroneously shifted the burden 9 to Petitioner to establish changed circumstances. See Shilu v. Warden, Otay Mesa Det. Ctr., No. 10 3:26-cv-01275-RBM-BJW, 2026 WL 926900, at *2 (S.D. Cal. Apr. 3, 2026) (granting release and 11 a bond hearing with respondents bearing burden, by clear and convincing evidence, that petitioner 12 poses a danger or risk of flight, and noting “Respondents do not dispute that Petitioner was not 13 provided with an individualized determination or an opportunity to be heard before being re- 14 detained. Instead, Respondents acknowledge that Petitioner was denied bond at a bond hearing 15 because the Immigration Judge determined that the court lacked jurisdiction pursuant to Matter of 16 Q. Li …”). 17 Under these circumstances, notwithstanding that Petitioner incurred two arrests during his 18 period of release, because arrest neither has resulted in any criminal conviction, the Courts finds 19 that the government should bear the burden of establishing at a new bond hearing, by clear and 20 convincing evidence, that Petitioner poses a risk of flight or danger to the community. E.g., Singh 21 v. Andrews, No. 1:25-cv-01543-DCJ-SCR, 2025 WL 3248059, at *6 (E.D. Cal. Nov. 19, 2025) 22 (requiring government to carry burden by clear and convincing evidence, notwithstanding disputed 23 issues of facts involving the petitioner’s alleged violation of release conditions); M.V.I. v. Andrews, 24 No. 1:25-cv-01440-JLT-SKO, 2025 WL 3154403, at *13-14 (E.D. Cal. Nov. 112, 2025) (same). 25 “Doing so is logical” because “the immigrant’s initial release reflected a determination by the 26 government that the noncitizen is not a danger to the community or a flight risk. Since it is the 27 government that initiated re-detention, it follows that the government should be required to bear 28 the burden of providing a justification for the re-detention.” M.R.R. v. Chestnut, No. 1:25-cv- 1 01517-JLT-SKO, 2025 WL 3265446, at *14 (E.D. Cal. Nov. 24, 2025) (relying on Pinchi, 792 F. 2 Supp. 3d at 1034, 1038); accord Omer G. G. v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 WL 3 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025). 4 D. Respondents’ Reference to Ninth Circuit Appeals 5 Respondents assert that there are matters pending appeal before the Ninth Circuit that bear 6 on the issues presented in this case. (Doc. 30 at 1 n.1; citing, inter alia, Rodriguez v. Bostock, No. 7 25-6842). Having found that Petitioner’s re-arrest without a constitutionally compliant bond 8 hearing and continuous detention for a considerable length of time violates the U.S. Constitution, 9 the undersigned will not hold the matter in abeyance pending said appeals. See Zadvydas, 533 U.S. 10 at 690 (reaffirming that “freedom from imprisonment—from government custody, detention, or 11 other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause 12 protects.”) 13 V. Conclusion and Order 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The petition for writ of habeas corpus (Doc. 1) is GRANTED in part. 16 1. Respondents are ORDERED to provide Petitioner (A-Number 245 519 793) with a bond 17 hearing in accordance with 8 U.S.C. § 1226(a) within 14 days of the date of this Order, 18 at which Petitioner’s eligibility for bond must be considered, and where the government 19 must demonstrate by clear and convincing evidence that Petitioner is a flight risk or 20 danger to the community, such that physical custody is legally justified. 21 2. If Respondents do not provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) 22 as required herein, Respondents SHALL release Petitioner from custody immediately 23 and forbear from re-detaining Petitioner unless the government provides notice to 24 Petitioner a minimum of seven (7) days in advance and holds a bond hearing consistent 25 with this order; 26 3. Respondents SHALL file a status report within 21 days of the date of this Order setting 27 forth either the results of the bond hearing ordered herein or the status of Petitioner’s 28 custody; and ] 4. The Clerk of the Court is DIRECTED to serve a copy of this order at the following 2 address, and to then enter judgment for Petitioner and close this case: 3 Golden State Annex (A-Number 245 519 793) 611 Frontage Road 4 McFarland, CA 93250 > | IT IS SO ORDERED. ° Dated: _ April 20, 2026 | Wr bY 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26