1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JORGE ROMERO JIMENEZ, Case No. 1:25-cv-02052-JLT-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT IN PART PETITION FOR WRIT OF 13 v. HABEAS CORPUS
14 TODD LYONS, et al., (Doc. 1)
15 Respondents. 7-Day Objection Period 16 17 Petitioner Jorge Romero Jimenez (“Petitioner”), a federal immigration detainee proceeding 18 by counsel, initiated this action by filing a complaint and petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2241. (Doc. 1). The presiding district judge converted Petitioner’s application for 20 temporary restraining order to a preliminary injunction and granted the preliminary injunction in 21 part on January 20, 2026, ordering Petitioner be provided a substantive bond hearing no later than 22 February 3, 2026, at which the government bears the burden of establishing, by clear and 23 convincing evidence, that Petitioner poses a risk of flight or a danger to the community if he is 24 released. (Doc. 11 at 9). 25 On the merits of the petition, the parties elected to submit no additional briefing following 26 the issuance of the preliminary injunction. See id. at 10; see generally Dkt. For the reasons set 27 forth herein, the undersigned recommends that Petitioner’s petition for writ of habeas corpus be 28 granted in part as to Petitioner’s procedural due process claims. 1 I. Relevant Background 2 On December 29, 2025, Petitioner filed the instant petition while in custody of the 3 Immigration and Customs Enforcement (“ICE”) at the California City Detention Facility in 4 California City, alleging that his re-detention by immigration authorities on December 8, 2025, 5 following his initial encounter with and release by immigration authorities, violates federal 6 statutory and constitutional law. See (Doc. 1 ¶¶ 7, 9, 12, 26, 91, 95-98). Respondents are Todd 7 Lyons (Acting ICE Director), Sergio Albarran (Field Office Director of Enforcement and Removal 8 Operations, San Francisco ICE Field Office), Kristi Noem (Secretary of United States Department 9 of Homeland Security), Pamela Bondi (Attorney General of the United States), Christopher 10 Chestnut (Warden, California City Detention Facility), Danielle Lehman (in her official capacity 11 as Director of the San Francisco Asylum Office of USCIS), Ted H. Kim (USCIS Associate Director 12 for Refugee, Asylum and International Operations), U.S. Department of Homeland Security 13 (“DHS”), and Executive Office for Immigration Review (“EOIR”) (collectively, “Respondents”). 14 Id. ¶¶ 22-28. 15 In granting a preliminary injunction, the Court ordered the parties to meet and confer no 16 later than 14 days from the date of entry of the order and if possible, submit a joint proposed briefing 17 schedule discussing the abeyance of further proceedings on the merits pending the Ninth Circuit 18 appeal of Rodriguez Vasquez v. Bostock, 779 F. Supp. 3d 1239 (W.D. Wash. 2025). Although the 19 parties were permitted also to file additional briefing, the parties failed to file a joint report as 20 directed and no party filed additional briefing. Accordingly, the petition is deemed fully briefed 21 and submitted for decision before the undersigned. See Local Rule 230(g). 22 II. Governing Authority 23 A. The Writ of Habeas Corpus 24 Writ of habeas corpus relief extends to a person in custody under the authority of the United 25 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 26 shall “award the writ or issue an order directing the respondent to show cause why the writ should 27 not be granted, unless it appears from the application that the applicant or person detained is not 28 entitled thereto.” 28 U.S.C. § 2243. 1 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 2 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 3 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 4 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 5 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 6 detention” in ICE custody). 7 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 8 Two statutes govern the detention and removal of inadmissible noncitizens from the United 9 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 10 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 11 Sept 12, 2025), which the undersigned adopts herein: 12 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 13 The “usual removal process” involves an evidentiary hearing before 14 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 15 § 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. 16 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 17 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 18 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 19 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 20 (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 21 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. 22 § 236.1(c)(8)).
23 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 24 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 25 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 26 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)). 27 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 28 1 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. 2 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 3 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 4 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 5 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 6 2. Expedited Removal and Mandatory Detention (§ 1225) 7 While “§ 1226 applies to aliens already present in the United States,” 8 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 9 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 10 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 11 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 12 that:
13 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 14 who is arriving in the United States or is described in clause (iii) is inadmissible under section 15 212(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 16 removed from the United States without further hearing or review unless the alien indicates either an 17 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 18 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 19 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 20 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 21 designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 22 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 23 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 24 § 1225(b)(1)(A)(iii)(II).
25 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 26 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 27 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 28 1 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 2 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 3 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 4 among those whom the Secretary of Homeland Security has designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 5 1225(b)(1).
6 “Initially, DHS’s predecessor agency did not make any designation [under (3)], thereby limiting expedited removal only to ‘arriving 7 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 8 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS extended by designation expedited removal to noncitizens who arrive 9 by sea and who have been present for fewer than two years, and to noncitizens apprehended within 100 air miles of any U.S. 10 international land border who entered within the last 14 days. Id. This was the status quo until January 2025, when the Department of 11 Homeland Security revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” 12 Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025). Under this designation, expedited removal applies to 13 noncitizens encountered anywhere within the United States, who have been in the United States for less than two years and are 14 inadmissible for lack of valid documentation or misrepresentation. In short, expedited removal was expanded to apply for the first time to 15 vast numbers of noncitizens present in the interior of the United States. 16 Under the expedited removal statute § 1225(b)(1), if an applicant 17 “indicates either an intention to apply for asylum” or “a fear of persecution,” the immigration officer “shall refer the alien for an 18 interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the asylum officer determines that the applicant has a “credible fear,” the 19 applicant “receive[s] ‘full consideration’ of his asylum claim in a standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the 20 officer determines there is no “credible fear,” the officer “shall order the alien removed from the United States without further hearing or 21 review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may be appealed by the applicant to an immigration judge, who must 22 conduct the review “to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the 23 determination.” Id. Detention under § 1225(b)(1) is “mandatory” “pending a final determination of credible fear of persecution and if 24 found not to have such a fear, until removed.” Id. (citing § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under 25 this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until 26 removed.”)
27 [Section] 1225 also contains a provision that applies to applicants for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. 28 This provision, 1225(b)(2), states that, subject to statutory 1 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking 2 admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full 3 removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited 4 removal but are subject to mandatory detention while their full removal proceedings are pending. This is in contrast to the default 5 detention regime under § 1226(a), which allows for discretionary release and review of detention through a bond hearing. 6 3. The Government’s Recent Change in Position 7 Until this year, the DHS has applied § 1226(a) and its discretionary 8 release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice 9 was codified by regulation. The regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 10 (“IIRIRA”) state that “Despite being applicants for admission, aliens who are present without having been admitted or paroled (formerly 11 referred to as aliens who entered without inspection) will be eligible for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 12 (Mar. 6, 1997). In fact, the government has conceded in other contexts that “DHS’s long-standing interpretation has been that 13 1226(a) [discretionary detention] applies to those who have crossed the border between ports of entry and are shortly thereafter 14 apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 15 (2022) (No. 21-954)) . . .
16 In 2025, however, the Government’s policy changed dramatically. The DHS revised its § 1225 designation to “apply expedited removal 17 to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis 18 added). The Secretary of Homeland Security memorandum directed federal immigration officers to “consider ... whether to apply 19 expedited removal” to “any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been 20 applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps to terminate any ongoing removal proceeding and/or any active 21 parole status.” Id. The memorandum states that DHS shall take the actions contemplated by the memorandum “in a manner that takes 22 account of legitimate reliance interests,” but states that “the expedited removal process includes asylum screening, which is 23 sufficient to protect the reliance interests of any alien who has applied for asylum or planned to do so in a timely manner.” Huffman 24 Memorandum (Jan. 23, 2025).
25 Since mid-May of 2025, the Department of Homeland Security has made a practice of appearing at regular removal proceedings in 26 immigration court, moving to dismiss the proceedings, and then re- arresting the individual in order to place them in expedited removal 27 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does not dismiss the full removal proceedings, ICE still makes an arrest, 28 apparently in reliance on § 1225(b)(2)’s detention provision. 1 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 2 C. Parole Revocation 3 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 4 process in immigration cases and noted that before parole may be revoked, the parolee must be 5 given written notice of the impending revocation, which must include a cogent description of the 6 reasons supporting the revocation decision. The court held:
7 Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required 8 detention, to be “paroled” into the United States. This provision, at issue in this case, states: 9
The Secretary of Homeland Security may, except as 10 provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States 11 temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian 12 reasons or significant public benefit any alien applying for admission to the United States, but such parole of 13 such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in 14 the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or 15 be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with 16 in the same manner as that of any other applicant for admission to the United States. 17
8 U.S.C. § 1182(d)(5)(A). 18 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 19 immigration parolees are entitled to determinations related to their parole revocations that are not 20 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 21 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 22 a satisfactory explanation for its action including a rational connection between the facts found and 23 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 24 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 25 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 26 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 27 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 28 1 the immigrant has departed or when the specified period of parole has expired. 2 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 3 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 4 to revoke humanitarian parole:
5 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 6 basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no 7 indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received 8 merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required 9 by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for 10 which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] 11 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 12 parole violated his rights under the statute and regulations. See Y-Z- L-H, 2025 WL 1898025, at *13. 13 14 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 15 a similar conclusion relying on the Due Process Clause:
16 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 17 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 18 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 19 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 20 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. 21 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 22 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 23 liberty interest in remaining out of custody on bond.”). 24 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 25 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 26 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 27 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 28 1 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 2 imprisonment serves the government’s legitimate goals.”). 3 III. Exhaustion 4 A. Governing Authority 5 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 6 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 7 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 8 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 9 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 10 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 11 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 12 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 13 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 14 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 15 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 16 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 17 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 18 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 19 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 20 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 21 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 22 to be disregarded.”). 23 B. Analysis 24 Neither Petitioner nor Respondents address exhaustion in their filings. See (Docs. 1, 2, 9, 25 10). 26 The Court finds that the prudential exhaustion requirement should be waived as it would be 27 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 28 to mandatory detention under § 1225(b) and they do not address exhaustion of administrative 1 remedies in their opposition to the petition. See (Doc. 9); Jennings v. Rodriguez, 583 U.S. 281, 282 2 (2018) (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings during 3 the course of their detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). 4 Further, the BIA has recently held that all noncitizens present within the country without admission 5 are seeking admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. 6 v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 7 2025) (“In addition, pursuit of administrative remedies would almost certainly be futile given the 8 BIA’s recent holding that all noncitizens present in the United States without admission are 9 ‘seeking admission’ for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing 10 Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)). 11 For these reasons, the undersigned recommends that the prudential exhaustion requirement 12 be waived for Petitioner’s claim for habeas corpus relief. See, e.g, Chavez v. Noem, No. 3:25-cv- 13 02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving prudential 14 exhaustion requirement because the BIA “already applied its expertise in deciding and designating” 15 Hurtado as precedential, pursuant to which detainees are subject to mandatory detention without 16 bond under § 1225(b)(2)); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1253 (W.D. Wash. 2025) 17 (“The Ninth Circuit has recognized ‘the irreparable harms imposed on anyone subject to 18 immigration detention.’”) (citing Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)); 19 J.A.C.P., 2025 WL 3013328, at *7 n.9. 20 IV. Discussion 21 Petitioner asserts four causes of action in his petition: violation of procedural due process 22 under the Fifth Amendment to the U.S. Constitution (Claim 1); violation of substantive due process 23 under the Fifth Amendment to the U.S. Constitution (Claim 2); arbitrary and capricious agency 24 action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (Claim 3); and violation 25 of the Immigration and Nationality Act (“INA”) (Claim 4). (Doc. 1 at 22-25). As set forth below, 26 because the undersigned finds that Respondents have violated Petitioner’s constitutional rights to 27 procedural due process, and because Petitioner’s other claims seek the same or similar relief (i.e., 28 for a bond hearing), the undersigned declines to address Petitioner’s other claims. 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 4 The undersigned finds that, given Respondents stand solely on their arguments already 5 considered by the Court in granting Petitioner’s converted motion for a preliminary injunction in 6 part, and for the same reasons the Court found that Petitioner is likely to succeed on the merits of 7 his procedural due process claim, Petitioner’s petition for writ of habeas corpus as to his procedural 8 due process claim should be granted. 9 In granting a preliminary injunction in part, the Court rejected Respondents’ blanket 10 argument that Petitioner is an “applicant for admission” subject to mandatory detention under § 11 1225(b)(2)(A), noting that “[c]ourts nationwide, including this one, have overwhelmingly rejected 12 Respondents’ new legal position and found the DHS policy unlawful.” Id. at 5 (citing cases). As 13 to Petitioner’s arguments that his continued detention violates his procedural due process rights, 14 the Court reasoned that Respondents failed to contend with the liberty interest created by the fact 15 that Petitioner was released on recognizance by ICE in February 2023 pending completion of his 16 removal proceedings before the government adopted its recent interpretation of the governing 17 statutes (§ 1225(b)(2) and § 1226) such that the government’s new interpretation does not apply 18 here and Petitioner’s detention is not “mandatory” in this action. Id. at 5; see Pinchi, 792 F. Supp. 19 3d at 1032 (“…even when ICE has the initial discretion to detain or release a noncitizen pending 20 removal proceedings, after that individual is released from custody[,] she has a protected liberty 21 interest in remaining out of custody[.]”) (citations omitted); Doe, 2025 WL 691664, at *4; see also 22 Padilla, 704 F. Supp. 3d at 1172 (“The Supreme Court has consistently held that non-punitive 23 detention violates the Constitution unless it is strictly limited, and, typically, accompanied by a 24 prompt individualized hearing before a neutral decisionmaker to ensure that the imprisonment 25 serves the government’s legitimate goals.”). 26 In applying the three-part test articulated in Mathews v. Eldridge, 424 U.S. 319, 334-35 27 (1976)—which “requires consideration of three distinct factors: [(1)] the private interest that will 28 be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest through 1 the procedures used, and the probable value, if any, of additional or substitute procedural 2 safeguards; and [(3)] the Government’s interest, including the function involved and the fiscal and 3 administrative burdens that the additional or substitute procedural requirement would entail”—the 4 Court found that Petitioner has a substantial private interest in being out of custody. (Doc. 11 at 5- 5 6). The Court reasoned that during his more than two years on parole, Petitioner built a life outside 6 detention under terms of that parole such that he has a substantial private interest in being out of 7 custody and his detention denies him that liberty interest. Id. (citing Zadvydas, 533 U.S. at 690). 8 The Court acknowledged that although the attached exhibits to Respondents’ opposition 9 regarding Petitioner’s admitted failure to make timely check-ins “constitute sufficient … 10 documentation regarding the quantity, nature, and substance of Petitioner’s alleged ISAP/ATD 11 violations[,]” the Court found there is at least some risk of erroneous deprivation under the present 12 circumstances which suggest “several reasons why Petitioner’s detention may not be justified.” Id. 13 at 6. The Court reasoned that in releasing Petitioner on parole in 2022, “DHS necessarily concluded 14 that Petitioner was not a flight risk or danger to the community.” Id. at 7 (citations omitted). The 15 Court recognized that “there may be situations that urgently require arrest, in which a prompt post- 16 deprivation hearing is appropriate.” Id. (citations omitted). The Court noted in Martinez 17 Hernandez v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767 (E.D. Cal. Aug. 28, 18 2025), it held that prompt, post-deprivation process is required where the petitioner’s records 19 indicated numerous violations and “ICE’s reliance upon those violations was ‘not obviously 20 pretextual.’” Id. at 8 (citing Hernandez, 2025 WL 2495767 at *12). 21 And in consideration of the last Mathews factor, the Court concluded that the government’s 22 interest in detaining Petitioner without proper process is slight. Id. Therefore, under Mathews, 23 because Petitioner has shown the procedures or lack thereof as applied to Petitioner are not 24 sufficient to protect his liberty interest, and Respondents “did not engage with Petitioner’s due 25 process arguments” such that “they have not provided the court regarding the burden on the 26 government[,]” the Court concluded that Petitioner has demonstrated a likelihood of success on the 27 merits of his procedural due process claim. Id. (citing Rocha Chavarria v. Chestnut, No. 1:25-cv- 28 1755-DAD-AC, 2025 WL 3533606, at *4 (E.D. Cal. Dec. 9, 2025)). 1 Because Respondents do not raise any new argument in response to the Court’s findings on 2 Petitioner’s procedural due process claim and, thus, do not refute the merits of Petitioner’s 3 procedural due process claim, the undersigned will recommend that the Court grant Petitioner’s 4 petition as to his procedural due process claim. 5 B. Petitioner’s Other Claims and Respondents’ Request to Hold in Abeyance 6 Because the undersigned finds that the Court may grant the relief Petitioner seeks—for a 7 bond hearing—in recommending that the writ should issue as to Petitioner’s claim for violation of 8 procedural due process, the undersigned elects to refrain from resolving Petitioner’s other claims 9 which seek the same or similar relief. 10 Separately, Respondents ask that “any further briefing deadlines be held in abeyance” in 11 this case pending conclusion of appellate proceedings in Rodriguez v. Bostock, 779 F. Supp. 3d 12 1239 (W.D. Wash. 2025), which Respondents assert considers issues that are likely dispositive in 13 this case. (Doc. 9 at 2). Having found that Petitioner’s re-arrest and re-detention without a bond 14 determination violates federal law and the U.S. Constitution, the undersigned will recommend the 15 Court decline to stay proceedings. See Zadvydas, 533 U.S. at 690 (reaffirming that “freedom from 16 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 17 the heart of the liberty that [the Due Process] Clause protects.”). 18 V. Conclusion and Recommendation 19 Accordingly, IT IS HEREBY RECOMMENDED that: 20 1. The petition for writ of habeas corpus (Doc. 1) be GRANTED in part as to Petitioner’s 21 procedural due process claim arising under the Fifth Amendment to the U.S. 22 Constitution (Claim 1). 23 2. Respondents’ request to hold in abeyance this case and any further briefing deadlines 24 herein pending the outcome of appellate proceedings in Rodriguez Vasquez v. Bostock, 25 779 F. Supp. 3d 1239 (W.D. Wash. 2025) (Doc. 9 at 2) be DENIED. 26 3. Respondents be ORDERED to release Petitioner immediately. 27 4. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless the 28 government provides notice to Petitioner a minimum of seven (7) days in advance and ] holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and applicable 2 regulations, at which Petitioner’s eligibility for bond must be considered, and where the 3 government must demonstrate by clear and convincing evidence that Petitioner is a 4 flight risk or danger to the community, such that physical custody is legally justified. 5 5. The Clerk of the Court be DIRECTED to enter judgment and to close this case. 6 These findings and recommendations will be submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 8 | after being served with these findings and recommendations, the parties may file written objections 9 | with the Court. Although this objection period is shorter than provided by Local Rule, such an 10 | adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 11 | Constitution by Respondents, and the fact that the parties have extensively briefed the issues 12 | involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 13 || may require a response within a shorter period if exigencies of the calendar require.”). Any 14 | objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 15 || Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 16 | The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 17 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 18 | and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 19 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 20 | these findings and recommendations under 28 U.S.C. § 636(b)(I)(C). The parties are advised that 21 | failure to file objections within the specified time may result in the waiver of rights on appeal. 22 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 23 | 1394 (9th Cir. 1991)). IT IS SO ORDERED. Dated: _ March 2, 2026 26 UNITED STATES MAGISTRATE JUDGE 27 28 15