Julie Marie Sabi Polo v. Christopher Chestnut, et al.

• Court: District Court, E.D. California
• Decided: October 17, 2025
• Docket: 1:25-cv-01342
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JULIE MARIE SABI POLO, Case No. 1:25-CV-01342 JLT HBK

12 Petitioner, ORDER GRANTING PRELIMINARY INJUNCTION1 13 v. (Doc. 2) 14 CHRISTOPHER CHESTNUT, ET AL.,

15 Respondents. 16 I. INTRODUCTION 17 Julie Marie Sabi Polo, a 42-year-old native of Colombia, (Doc. 2-1 at 2 (Ex. A)), left her 18 home country to escape domestic abuse, community violence that manifested in the killings of 19 family members, (Doc. 2-1 at 4–8 (Ex. B), ¶¶ 3-6), and threats and harassment she suffered 20 because of her sexual orientation. (Id. at ¶¶ 6–9.) Petitioner initially fled to Mexico, (id.), but, 21 after continuing to face harassment there, decided to enter the United States. (Id. at ¶ 10.) 22 Mrs. Sabi Polo crossed the border into the United States on or about December 10, 2021, 23 at or near Mexicali, California and turned herself in to U.S. immigration authorities, (Doc. 1, 24 ¶ 21), who released Petitioner after several days in detention “in accordance with Section 236 of 25 the Immigration and Nationality Act.” (Id.) In doing so, immigration officials necessarily 26 1 Upon the agreement of the parties, the Court converts the motion for temporary restraining order into one for 27 preliminary injunction. Respondents had notice, opportunity to respond and be heard. Additional briefing is not required and the standard for a TRO and a preliminary injunction is the same. As such, given the nature of the relief 28 granted by this order and to allow Respondents to appeal should they choose, the Court converts this to a Motion for 1 determined that Mrs. Sabi Polo did not present a risk of flight or danger to the community. See 8 2 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest may, in the officer’s 3 discretion, release an alien not described in section 236(c)(1) of the Act, under the conditions at 4 section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction 5 of the officer that such release would not pose a danger to property or persons, and that the alien 6 is likely to appear for any future proceeding.”). 7 In early 2022, Petitioner filed an asylum application and in June 2022 attended a required 8 biometrics appointment. (Doc. 1, ¶ 22.) 9 While on release, Ms. Sabi Polo obtained employment as a cook at a senior living facility 10 in Belmont, California, where she has been employed since mid-2024. (Doc. 2-1 at 36–39 (Ex. 11 K).) She also met and married her US citizen spouse in December 2023. (Doc. 1, ¶ 23; Doc. 2-1 12 at 16-18 (Ex. E).) On July 31, 2025, her spouse filed a family immigration petition under INA 13 Sec. 201(b) on Petitioner’s behalf. (Doc. 1, ¶ 22; Doc. 2-1 at 20 (Ex. F).) 14 The record contains positive letters of support submitted by co-workers, friends, and 15 acquaintances. (Id. at 51–59.) Petitioner’s spouse also submitted a letter of support, describing 16 Petitioner as a “woman of integrity, respectful of this country’s laws, hardworking, and with 17 strong moral, social, and cultural values.” (Doc. 2-1 at 47–48.) Petitioner provides financial 18 support for her aunt in Columbia who is undergoing treatment for breast cancer. (Id., at 5, ¶ 14.) 19 Ms. Sabi Polo’s spouse also struggles with psychological conditions for which she is under 20 treatment, and in which Ms. Sabi Polo actively participates. (Id., ¶ 16–17.) Her spouse also 21 struggles to pay rent and other expenses, obligations that Petitioner has been assisting with while 22 out of custody. (Id. at 6, ¶ 19–20.) 23 In late July or August 2025, Mrs. Sabi Polo received a letter (dated June 11, 2025) from 24 USCIS related to her asylum claim. (Doc. 1, ¶ 24.) The letter indicated her asylum claim had been 25 dismissed because she has been “apprehended by DHS officials, placed in expedited removal, and 26 issued a Form I-860, Notice and Order of Expedited Removal.” (Doc. 1, ¶ 24; Doc. 2-1 at 22 (Ex. 27 G).) Confused about the letter’s contents, Mrs. Sabi Polo traveled to the ICE office in San 28 Francisco, California, to inquire about the status of her asylum application. (Doc. 1, ¶ 24.) On or 1 about August 25, 2025, she was detained and taken into ICE custody. (Id.) After being taken into 2 custody, Mrs. Sabi Polo was provided with a Form I-860, Notice and Order of Expedited 3 Removal, dated August 25, 2025. (Doc. 1, ¶ 24; Doc. 2-1 at 24–5 (Ex. H).) 4 She was then transferred to the Mesa Verde ICE Processing Center in Bakersfield, 5 California, where, on September 5, 2025, she was given a credible fear interview without counsel 6 present. (Doc. 1, ¶ 25; Doc. 2-1 at 27–31 (Ex. I).) At the conclusion of interview, the asylum 7 officer found Petitioner had established a credible fear of persecution, (id.), and, as a result, 8 cancelled her expedited removal proceedings and issued her a Notice to Appear (NTA) for 9 immigration court that charged her with being present in the United States without inspection and 10 with having no valid immigration visa or other valid entry document. (Id.; Doc. 2-1 at 33 (Ex. J).) 11 The asylum officer who completed the NTA did not identify Petitioner as an arriving alien even 12 though a check box is available within the NTA form to do so. (Id.) 13 At an immigration hearing on September 24, 2025, the IJ explained to Petitioner and 14 counsel that the IJ had no jurisdiction to consider request for bond hearing and release pursuant to 15 BIA decision in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025). (Doc. 2-4, ¶¶ 4-5.) 16 Case reset for hearing October 28, 2025. (Doc. 1, ¶ 26.) 17 On October 8, 2025, Mrs. Sabi Polo filed a petition for a writ of habeas corpus pursuant to 18 28 U.S.C. § 2241, alleging that her detention violates her Fifth Amendment due process rights as 19 well as the INA. (Doc. 1.) She simultaneously filed an ex parte motion for a temporary restraining 20 order seeking immediate release if she is not provided a custody hearing under INA § 1226(a) 21 within seven days. (Doc. 2.) 22 On October 9, 2025, the Court issued a Minute Order expressing the preliminary belief 23 that Petitioner likely can demonstrate that her circumstances warrant immediate release. (Doc. 4.) 24 On October 10, the Court requested that the parties cooperate to file more legible copies of 25 documents attached to the petition. (Doc. 7.) 26 On October 13, 2025, Respondents filed a three-page opposition to Petitioner’s TRO 27 request. (Doc. 8) Therein, Respondents essentially advanced only one argument in favor of 28 Petitioner’s continued detention: that she “has not been admitted” to the United States and instead 1 is an “applicant for admission” subject to mandatory detention under 8 U.S.C. § 1225(b). (Id. at 2 2.) Respondents waived oral argument as to the TRO. (Id. at 1.) 3 For the reasons set forth below, the Court converts the matter to a motion for preliminary 4 injunction and GRANTS the motion. 5 II. LEGAL BACKGROUND 6 Two statutes govern the detention and removal of inadmissible noncitizens from the 7 United States: 8 U.S.C. § 1226 and § 1225. In the interest of expedience, the Court relies here, as 8 relevant, on the legal background accurately presented by the district court in Salcedo Aceros v. 9 Kaiser, No. 25-CV-06924-EMC, 2025 WL 2637503 (N.D. Cal. Sept 12, 2025): 10 A. Full Removal Proceedings and Discretionary Detention (§ 1226) 11 The “usual removal process” involves an evidentiary hearing before 12 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 13 § 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-, 14 25 I. & N. Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be 15 arrested and detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 16 591 U.S. at 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a 17 person is apprehended under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 18 (9th Cir. 2022) (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 19 officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future 20 proceeding.” Id. (citing 8 C.F.R. § 236.1(c)(8)).

21 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 22 Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)). If, at this hearing, the detainee demonstrates by the preponderance 23 of 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 24 poor bail risk,” the IJ will order his or her release. Diaz, 53 F.4th at 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 25 2006)). Once released, the noncitizen’s bond is subject to revocation. Under 8 U.S.C. § 1226(b), “the DHS has authority to 26 revoke a noncitizen’s bond or parole ‘at any time,’ even if that individual has previously been released.” Ortega v. Bonnar, 415 F. 27 Supp. 3d 963, 968 (N.D. Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS 28 may not re-arrest that noncitizen absent a change in circumstance. 1 See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release decision was made by a DHS officer, not an 2 immigration judge, the Government’s practice has been to require a showing of changed circumstances before re-arrest. See Saravia v. 3 Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017).

4 B. Expedited Removal and Mandatory Detention (§ 1225)

5 While “§ 1226 applies to aliens already present in the United States,” U.S. immigration law also “authorizes the Government to 6 detain certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2),” a process that provides for expedited 7 removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a noncitizen “who has not been admitted or who arrives in the United 8 States” is considered “an applicant for admission.” 8 U.S.C. § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 9 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides that: 10 “If an immigration officer determines that an alien (other 11 than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is 12 inadmissible under section 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C) or 1182(a)(7)], the officer shall 13 order the alien removed from the United States without further hearing or review unless the alien indicates either an 14 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 15 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 16 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 17 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) 18 to designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 19 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 20 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 21 § 1225(b)(1)(A)(iii)(II).

22 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 23 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 24 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 25 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 26 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 27 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 28 among those whom the Secretary of Homeland Security has 1 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 1225(b)(1). 2 “Initially, DHS’s predecessor agency did not make any designation 3 [under (3)], thereby limiting expedited removal only to ‘arriving aliens,’ ” that is, noncitizens encountered at ports of entry. Make the 4 Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, 5 DHS extended by designation expedited removal to noncitizens who arrive by sea and who have been present for fewer than two 6 years, and to noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. 7 Id. This was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to 8 “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 9 8139 (Jan. 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United 10 States, who have been in the United States for less than two years and are inadmissible for lack of valid documentation or 11 misrepresentation. In short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the 12 interior of the United States.

13 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 14 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 15 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in 16 a standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall 17 order the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s 18 decision may be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable 19 within 24 hours, but in no case later than 7 days after the date of the determination.” Id. Detention under § 1225(b)(1) is “mandatory” 20 “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing 21 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of 22 credible fear of persecution and, if found not to have such a fear, until removed.”) 23 [Section] 1225 also contains a provision that applies to applicants 24 for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory 25 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an 26 alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under 27 section 1229a [full removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for 28 expedited removal but are subject to mandatory detention while 1 their full removal proceedings are pending. This is in contrast to the default detention regime under § 1226(a), which allows for 2 discretionary release and review of detention through a bond hearing. 3 C. The Government’s Recent Change in Position 4 Until this year, the DHS has applied § 1226(a) and its discretionary 5 release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice 6 was codified by regulation. The regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 7 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens who are present without having been admitted or paroled 8 (formerly referred to as aliens who entered without inspection) will be eligible for bond and bond redetermination.” 62 Fed. Reg. 9 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other contexts that “DHS’s long-standing interpretation has been 10 that 1226(a) [discretionary detention] applies to those who have crossed the border between ports of entry and are shortly thereafter 11 apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 12 (2022) (No. 21-954)). . . .

13 In 2025, however, the Government’s policy changed dramatically. The DHS revised its § 1225 designation to “apply expedited 14 removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) 15 (emphasis added). The Secretary of Homeland Security memorandum directed federal immigration officers to “consider ... 16 whether to apply expedited removal” to “any alien DHS is aware of who is amenable to expedited removal but to whom expedited 17 removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps to terminate any ongoing removal 18 proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the actions contemplated by the 19 memorandum “in a manner that takes account of legitimate reliance interests,” but states that “the expedited removal process includes 20 asylum screening, which is sufficient to protect the reliance interests of any alien who has applied for asylum or planned to do 21 so in a timely manner.” Huffman Memorandum (Jan. 23, 2025)

22 Since mid-May of 2025, the Department of Homeland Security has made a practice of appearing at regular removal proceedings in 23 immigration court, moving to dismiss the proceedings, and then re- arresting the individual in order to place them in expedited removal 24 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does not dismiss the full removal proceedings, ICE still makes an arrest, 25 apparently in reliance on § 1225(b)(2)’s detention provision. 26 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 27 /// 28 /// 1 III. ANALYSYS 2 A. Jurisdiction 3 1. Habeas Corpus 4 Under 28 U.S.C. § 2241, the Court has the authority to determine a petition for writ of 5 habeas corpus in which the petitioner asserts they are being held in custody “in violation of the 6 Constitution or laws or treaties of the United States.” “The essence of habeas corpus is an attack 7 by a person in custody upon the legality of that custody, and that the traditional function of the 8 writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 9 Petitioner seeks immediate release from custody, which she contends violates the 10 Constitution of the United States. (See Doc. 1.) Thus, Petitioner properly invokes the Court’s 11 habeas jurisdiction. 12 2. Judicial Review Under the INA 13 The INA limits judicial review in many instances. Though 8 U.S.C § 1252(g) precludes 14 this Court from exercising jurisdiction over the executive’s decision to “commence proceedings, 15 adjudicate cases, or execute removal orders against any alien,” there are no final removal orders 16 at issue here. The Court is also not reviewing the executive’s decision to conduct removal 17 proceedings against Petitioner. Thus, the Court has jurisdiction to review the authority under 18 which Respondents claim to detain Petitioner as well as whether that detention comports with 19 constitutional and statutory requirements. See Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) 20 (holding that § 1252(g) precludes judicial review only as to the three areas specifically outlined in 21 the subsection); see also Reno v. American–Arab Anti–Discrimination Committee, 525 U.S. 471, 22 482 (1999). 23 A. Injunctive Relief 24 The standard for issuing a TRO is the same as the standard for issuing a preliminary 25 injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 26 2001) (explaining that the analysis for temporary restraining orders and preliminary injunctions is 27 “substantially identical”). When seeking a TRO or PI, plaintiffs must establish: (1) they are 28 “likely to succeed on the merits” of their claims, (2) they are “likely to suffer irreparable harm in 1 the absence of a preliminary injunction,” (3) “the balance of equities tips in [their] favor” and (4) 2 “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 3 (2008). The moving party has the burden to “make a showing on all four prongs” of the Winter 4 test to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 5 1135 (9th Cir. 2011). Thus, the moving party has “the burden of persuasion.” Mazurek v. 6 Armstrong, 520 U.S. 968, 972 (1997); Hecox v. Little, 104 F.4th 1061, 1073 (9th Cir. 2023). The 7 Court may weigh the request for a preliminary injunction with a sliding-scale approach. Alliance, 8 at 1135 (9th Cir. 2011). Accordingly, a stronger showing on the balance of hardships may support 9 the issuance of a preliminary injunction where there are “serious questions on the merits … so 10 long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 11 injunction is in the public interest.” Id. “A preliminary injunction is an extraordinary remedy 12 never awarded as of right.” Winter, 555 U.S. at 24. Preliminary injunctions are intended to 13 “merely to preserve the relative positions of the parties until a trial on the merits can be held, and 14 to balance the equities at the litigation moves forward.” Lackey v. Stinnie, 604 U.S. ___, 145 S. 15 Ct. 659, 667 (2025) (citations omitted). 16 The status quo refers to “the last uncontested status which preceded the pending 17 controversy.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963) (quoting 18 Westinghouse Elec. Corp. v. Free Sewing Mach. Co., 256 F.2d 806, 808 (7th Cir. 1958)). In the 19 Court’s view, that is the status before Petitioner was arrested. See Kuzmenko v. Phillips, No. 25- 20 CV-00663, 2025 WL 779743, at *3 (E.D. Cal. Mar. 10, 2025) (granting a temporary restraining 21 order requiring immediate release of the petitioner back to home confinement from custody, as a 22 restoration of the status quo). 23 Even if the Court’s action here constitutes a mandatory injunction,2 the evidence supports 24 2 “A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination 25 of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (internal citations omitted). In other words, a prohibitory injunction “freezes the positions of the parties until 26 the court can hear the case on the merits.” Heckler v. Lopez, 463 U.S. 1328, 1333 (1983). A mandatory injunction, on the other hand, “orders a responsible party to ‘take action.’” Marlyn Nutraceuticals, 571 F.3d at 879 (quoting 27 Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996)). Although subject to a higher standard, a mandatory injunction is permissible when “extreme or very serious damage will result” that is “not capable of compensation in damages,” 28 and the merits of the case are not “doubtful.” Id. (internal citations and quotation marks omitted). 1 that action. Petitioner alleges she has suffered and is suffering violations of her substantive and 2 procedural due process rights and that his continued unlawful detention will impose on her and 3 his family serious injury if the injunction does not issue. The injunction issued here is on firm 4 legal footing. As discussed below, due process requires that Petitioner be given pre-deprivation 5 process. Because DHS failed to do so and there have been no changed circumstances, immediate 6 release is appropriate. These injuries are not capable of redress through monetary compensation. 7 Accordingly, injunctive relief is appropriate even under the higher standard for mandatory 8 injunctions. 9 1. Likelihood of Success on the Merits 10 This first factor “is the most important” under Winter, and “is especially important when a 11 plaintiff alleges a constitutional violation and injury.” Baird v. Bonta, 81 F.4th 1036, 1041 (9th 12 Cir. 2023). 13 a. Respondents Rely on an Incorrect Interpretation of § 1225 for the 14 Authority to Detain Petitioner 15 Respondents’ central argument is that Mrs. Sabi Polo is subject to mandatory detention 16 pending removal proceedings under 8 U.S.C. § 1225(a)(1), 1225(b)(2)(A). (Doc. 8 at 1.) 17 Respondents admit that the legal arguments relied upon by DHS to support this assertion are well 18 known to and have been rejected by this Court in other proceedings. (Id. (citing Ortiz Donis v. 19 Chestnut, 1:25-CV-01228-JLT, 2025 WL 2879514 at *3–6 (E.D. Cal. Oct. 9, 2025).) In Ortiz 20 Donis, and other cases, Respondents have relied on the BIA’s recent decision in Yajure Hurtado 21 affirming the government’s new interpretation of § 1225. This Court has reviewed and considered 22 the government’s interpretation adopted by Yajure Hurtado. Again in the interest of expedience, 23 the Court relies on the analysis set forth in detail in Salcedo:

24 Ms. Salcedo Aceros argues that § 1225(b)(2) does not apply to noncitizens like her, who have been released by DHS on their own 25 recognizance into the interior of the country. Dkt. No. 17 at 4. A number of district courts that have examined this issue in recent 26 months have so held. These courts have rejected the Government’s expansive construction of § 1225(b)(2), which would allow it to 27 detain without a hearing virtually any noncitizen not lawfully admitted. These courts examined the text, structure, agency 28 application, and legislative history of 1225(b)(2) and concluded that 1 it applies only to noncitizens “seeking admission,” a category that does not include noncitizens like Ms. Salcedo Aceros, living in the 2 interior of the country. See Gomes v. Hyde, No. 1:25-CV-11571- JEK, 2025 WL 1869299, at *7 (D. Mass. July 7, 2025) (“[T]he 3 plain text of Sections 1225 and 1226, together with the structure of the larger statutory scheme, indicates that Section 1225(b)(2) does 4 not apply to noncitizens who are arrested on a warrant issued by the Attorney General while residing in the United States.”); Lopez 5 Benitez v. Francis, No. 25 CIV. 5937 (DEH), 2025 WL 2371588, at *5 (S.D.N.Y. Aug. 13, 2025) (holding 1225(b)(2) “clearly” not 6 applicable to noncitizens who have resided in the country for years); Rosado v. Figueroa, No. CV 25-02157 PHX DLR (CDB), 7 2025 U.S. Dist. LEXIS 156344, at *29 (D. Ariz. Aug. 11, 2025) (finding that the Government’s “selective reading” of 1225(b)(2) 8 “violates the rule against surplusage and negates the plain meaning of the text”); Martinez v. Hyde, No. CV 25-11613-BEM, 2025 WL 9 2084238, at *8 (D. Mass. July 24, 2025) (rejecting the Government’s “novel interpretation” that 1225(b) applies to 10 noncitizens detained while present in the United States); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1261 (W.D. Wash. 2025) 11 (holding that Section 1226, not 1225(b)(2), governed inadmissible noncitizens residing in the country). 12 The Government has not pointed to a single district court that has 13 agreed with its construction of 1225(b)(2). Instead, the Government points to a recent BIA decision agreeing with its interpretation. Dkt. 14 No. 22 (citing Matter of Jonathan Javier Yajure Hurtado, 29I & N Dec. 216 (BIA 2025)). There, the BIA held that Section 1225(b)(2) 15 prescribes mandatory detention for all inadmissible noncitizens living in the United States. For the reasons discussed below, the 16 Court finds the conclusion of the district courts more persuasive than the BIA’s new ruling. 17 First, the BIA decision is entitled to little deference. Loper Bright 18 Enters. v. Raimondo, 603 U.S. 369, 400 (2024) (observing that while “agencies have no special competence in resolving statutory 19 ambiguities,” “[c]ourts do”). Under Skidmore, the “weight of such a judgment in a particular case will depend upon the thoroughness 20 evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those 21 factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). In this 22 regard, the BIA’s current position is inconsistent with its earlier pronouncements. Prior to its September 5 decision, the BIA issued 23 three non-precedential decisions taking the opposite position. See Martinez, 2025 WL 2084238, at *8 (D. Mass. July 24, 2025). In 24 one decision, the Board even stated that it was “unaware of any precedent” that would support the Government’s position. Id. 25 Under Loper, the Court has no obligation to defer to the BIA’s view, particularly when that view has not “remained consistent over 26 time.” Loper, 603 U.S. at 386; see also Skidmore, 323 U.S. at 140. Moreover, the BIA’s reasoning lacks persuasive power for several 27 reasons.

28 i. 1 As with any question of statutory interpretation, the Court begins 2 with the relevant statutory provisions. § 1225(a) defines an applicant for admission as: 3 “[a]n alien present in the United States who has not been 4 admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is 5 brought to the United States after having been interdicted in international or United States waters) ...” 6 § 1225(b)(2)(A) states: 7 “[I]n the case of an alien who is an applicant for admission, 8 if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt 9 entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” 10 The Government argues and the BIA agreed that every noncitizen 11 who has not been lawfully admitted to the United States continues to be a noncitizen “seeking admission” and thus subject to 12 § 1225(b)(2). In other words, it treats the phrases “applicant for admission” and “seeking admission” as synonymous. 13 But this reading would render the phrase “seeking admission” in 14 § 1225(b) superfluous. To qualify for § 1225(b)(2), a noncitizen must (1) be an applicant for admission, (2) be “seeking admission”, 15 and (3) be “not clearly and beyond a doubt entitled to be admitted.” If, as the Government argues, all applicants for admission are 16 deemed to be “seeking admission” for as long as they remain applicants, then the phrase “seeking admission” would add nothing 17 to the provision. This “violates the rule against surplusage.” Lopez Benitez v. Francis, No. 25 CIV. 5937 (DEH), 2025 WL 2371588, at 18 *6 (S.D.N.Y. Aug. 13, 2025); see also United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023) 19 (“[E]very clause and word of a statute should have meaning.”); TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“[N]o clause, 20 sentence, or word shall be superfluous, void, or insignificant.”) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). 21 Moreover, the Government’s and the BIA’s reading of “seeking 22 admission” is unnatural and ignores the tense of the term. As one district court observed: 23 “[S]omeone who enters a movie theater without purchasing 24 a ticket and then proceeds to sit through the first few minutes of a film would not ordinarily then be described as 25 “seeking admission” to the theater. Rather, that person would be described as already present there. Even if that 26 person, after being detected, offered to pay for a ticket, one would not ordinarily describe them as “seeking admission” 27 (or “seeking” “lawful entry”) at that point—one would say that they had entered unlawfully but now seek a lawful 28 means of remaining there.” 1 Lopez Benitez, 2025 WL 2371588, at *7. 2 ii. 3 Indeed, the Government’s and BIA’s position conflicts with the 4 implementing regulation for § 1225(b). Loper Bright Enters. v. Raimondo, 603 U.S. 369, 385-86 (2024) (implementing regulations 5 may provide a “useful reference point for understanding a statutory scheme” when issued “contemporaneously”). 8 C.F.R. § 235.3 6 describes Section 1225(b)(2) as applying to “any arriving alien who appears to the inspecting officer to be inadmissible.” (Emphasis 7 added.) The regulation thus contemplates that “applicants seeking admission” are a subset of applicants “roughly interchangeable” 8 with “arriving aliens.” Martinez v. Hyde, No. CV 25-11613-BEM, 2025 WL 2084238, at *6 (D. Mass. July 24, 2025). “Arriving 9 aliens” are specifically defined by regulation as applicants for admission “coming or attempting to come into the United States at 10 a port-of-entry.” 8 C.F.R. § 1.2. This plainly does not describe Ms. Salcedo Aceros. Indeed, the DHS’s Notice to Appear form similarly 11 distinguishes between “arriving alien” and “alien present in the United States who has not been admitted or paroled.” Dkt. No. 16- 12 2.

13 You are an arriving alien. ☒ You are an alien present in the United States who has not 14 been admitted or paroled. You have been admitted to the United States, but are 15 removable for the reasons stated below.

16 These regulations and forms presume that the term alien “seeking admission” has limited application, not the sweeping construction 17 given to it by the BIA.

18 iii.

19 Another “fundamental canon of statutory construction” is that “the words of a statute must be read in their context and with a view to 20 their place in the overall statutory scheme.” Gundy v. United States, 588 U.S. 128, 140–41 (2019). Here, the Government’s 21 interpretation would “nullify” a recent amendment to the immigration statutes. See Gomes v. Hyde, No. 1:25-CV-11571-JEK, 22 2025 WL 1869299, at *7 (D. Mass. July 7, 2025). Section 1226 generally establishes a discretionary detention framework, but 23 provides that for certain noncitizens, detention is mandatory. Section 1226(c). In January of this year, Congress amended Section 24 1226 to add an additional category of citizens subject to mandatory detention. Laken Riley Act, Pub. L. No. 119-1, 139 Stat. 3 (2025). 25 This category includes noncitizens who are (1) inadmissible under 1182(6)(A) [present without admission or parole], (6)(C) 26 [misrepresentation], or (7)(A) [lack of proper documentation] and (2) have been charged with one of certain enumerated crimes. Id. If 27 the Government’s view is correct, however, all noncitizens who are inadmissible are already subject to mandatory detention under § 28 1225(b)(2), whether or not they have been charged with a 1 qualifying crime and thus are subject to § 1226(c). This view would render the Laken Riley Act a meaningless amendment, since it 2 would have prescribed mandatory detention for noncitizens already subject to it. But “[w]hen Congress acts to amend a statute, we 3 presume it intends its amendment to have real and substantial effect.” Stone v. I.N.S., 514 U.S. 386, 397 (1995); see also Marx v. 4 Gen. Revenue Corp., 568 U.S. 371, 386 (2013) (“[T]he canon against surplusage is strongest when an interpretation would render 5 superfluous another part of the same statutory scheme.”). If Congress amended Section 1226 to create mandatory detention for 6 certain inadmissible noncitizens, it follows that those noncitizens were not already subject to mandatory detention. Thus, the scope of 7 Section 1225(b)(2) cannot be as broad as the government argues.

8 iv.

9 In addressing whether a noncitizen who has lived for years within the United States can be considered “seeking admission,” the BIA 10 expressed concern that if a noncitizen is not “admitted” to the United States but is not deemed “seeking admission,” then the 11 noncitizen’s legal status would present a “legal conundrum.” Id. at 221. The BIA did not further elaborate, but presumably its concern 12 was that such an individual would have no legal status under the immigration code. This concern is misplaced. The statute explicitly 13 provides a term of art for someone who is not “admitted” but is not necessarily “seeking admission”: such noncitizens fall into the 14 broader category of “applicants for admission.” As noted, otherwise the language in 1225(b)(2), which treats noncitizens “seeking 15 admission” as a subset of “applicants for admission” would be superfluous. All “applicants for admission” have some legal status 16 whether they belong to the subset of those seeking admissions or not. 17 The BIA also reasoned that petitioner’s argument for a narrower 18 construction of Section 1225(b)(2) left unanswered which applicants for admission would be covered by that section if 19 applicants for admission who have lived within the United States for years are excluded from its reach. Id. In other words, the BIA 20 believed that an interpretation of § 1225(b)(2) that does not cover all applicants for admission would render § 1225(b)(2) an empty 21 set. Not so. Most obviously, § 1225(b)(2) applies to arriving noncitizens who are inadmissible on grounds other than 8 U.S.C. 22 § 1182(a)(6)(C) or 1182(a)(7) (which are the grounds that put an arriving noncitizen on the track for expedited removal). The statute 23 governing inadmissibility lists ten grounds for inadmissibility, many of which have distinct sub-grounds. See 8 U.S.C. 24 § 1182(a)(1)-(10). There are thus arriving noncitizens inadmissible on these other bases who would fall under Section 1225(b)(2), as 25 opposed to Section 1225(b)(1). Section 1225(b)(2) would not be a null set even if narrowly construed. 26 v. 27 The BIA acknowledged that the Government’s interpretation of 28 § 1225(b)(2) makes it redundant with § 1226(c)’s mandatory 1 detention provisions, and renders superfluous Congress’ recent amendment, but nevertheless maintained that this redundant 2 interpretation is not problematic. But as noted above, this conclusion is inconsistent with conventional rules of statutory 3 interpretation. Further, the BIA failed to recognize that interpreting § 1225(b)(2) as district courts have done would not render any 4 section of the immigration code superfluous. Under the district courts’ interpretation, Section 1225(b)(2) has a role within the 5 statutory framework, applying to arriving aliens inadmissible on grounds other than the two that allow for expedited removal, as 6 noted above.

7 vi.

8 The BIA’s consideration of the legislative history of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 is 9 also unpersuasive. Prior to 1996, the immigration laws distinguished individuals based on “entry” rather than admission. 10 Hing Sum v. Holder, 602 F.3d 1092, 1099 (9th Cir. 2010). Noncitizens who had effected an “entry” into the United States 11 were subject to deportation proceedings, while those who had not made an “entry” were subject to “more summary” exclusion 12 proceedings. Id. at 1099–100 (9th Cir. 2010). To remedy this, the IIRIRA substituted “admission for entry” and replaced deportation 13 and exclusion proceedings with a general “removal” proceeding. Id. In the BIA’s view, this indicates that in enacting IIRIRA Congress 14 sought to create completely level treatment for noncitizens in removal proceedings, regardless of whether they are living in the 15 United States or encountered at the border. It would therefore follow that a provision like § 1225(b)(2) would not differentiate 16 between noncitizens based on their presence in the United States, or the length of that presence. 17 But the BIA erred in its analysis by identifying one of Congress’ 18 concerns in enacting IIRIRA and then treating it as Congress’s sole concern driving the statute. Congress was indeed focused on 19 ensuring that there was “no reward for illegal immigrants or visa overstayers.” H.R. REP. 104-469, 12. But Congress addressed this 20 concern: the IIRIRA consolidated exclusion and deportation procedures into a single procedure and provided that noncitizens 21 “who enter illegally or who overstay the period of authorized admission will have a greater burden of proof in removal 22 proceedings and will face tougher standards for most discretionary immigration benefits, such as suspension of removal and work 23 authorization.” Id.

24 In making these changes, Congress did not fully disrupt the old system, including the system of detention and release. In fact, 25 according to the legislative record, “Section 236(a) [1226(a)] restates the current provisions in section 242(a)(1) regarding the 26 authority of the Attorney General to arrest, detain, and release on bond an alien who is not lawfully in the United States.” H.R. REP. 27 104-469, 229. Congress’ concern about adjusting the law in some respects to reduce inequities in the removal process did not mean 28 Congress intended to entirely up-end the existing detention regime 1 by subjecting all inadmissible noncitizens to mandatory detention, a seismic shift in the established policy and practice of allowing 2 discretionary release under Section 1226(a) –the scope of which Congress did not alter. See Vazquez v. Bostock, 779 F. Supp. 3d 3 1239 (W.D. Wash. 2025) (citing H.R. Rep. No. 104-469, pt. 1, at 229). 4 Accordingly, the Court finds the well-reasoned decisions of the 5 many district courts that have rejected the Government's expansive view of 1225(b)(2) far more persuasive than the new BIA ruling, a 6 ruling at odds with its prior decisions and DHS's actions over the past thirty years. 7 Salcedo Aceros, 2025 WL 2637503 at *8–12. This Court agrees with the reasoning of Salcedo 8 and joins the numerous other district courts that have rejected the government’s recent 9 interpretation of the relationship between § 1225 and § 1226. 10 b. Due Process Clause Protections 11 Mrs. Sabi Polo contends that her continued detention violates due process. (See Doc. 2 at 12 17–19.) In Pinchi v. Noem, No. 5:25-CV-05632-PCP, ___ F. Supp. 3d ___, 2025 WL 2084921, at 13 *3 (N.D. Cal. July 24, 2025), the court held, 14 . . . even when ICE has the initial discretion to detain or release 15 a noncitizen pending removal proceedings, after that individual is released from custody she has a protected liberty interest in 16 remaining out of custody. See Romero v. Kaiser, No. 22-cv- 02508, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his 17 Court joins other courts of this district facing facts similar to the present case and finds Petitioner raised serious questions going to 18 the merits of his claim that due process requires a hearing before an IJ prior to re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv- 19 01434, 2021 WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v. Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 20 (N.D. Cal. Aug. 23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on preparole, parole, and probation status have a liberty 21 interest, so too does [a noncitizen released from immigration detention] have a liberty interest in remaining out of custody on 22 bond.”). 23 Id. (emphasis added). Other courts, including this Court, have held similarly. Doe v. Becerra, No. 24 2:25-CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); see also Padilla v. 25 U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme 26 Court has consistently held that non-punitive detention violates the Constitution unless it is 27 strictly limited, and, typically, accompanied by a prompt individualized hearing before a neutral 28 decisionmaker to ensure that the imprisonment serves the government’s legitimate goals.”). 1 Even assuming Respondents are correct that § 1225(b) is the applicable detention authority for all 2 “applicants for admission,” Respondents fail to contend with the liberty interest created by the 3 fact that the Petitioner in this case was released on recognizance in 2021, prior to the 4 manifestation of this interpretation. 5 Thus, the Court must evaluate the three-part test set forth in Mathews v. Eldridge, 424 6 U.S. 319, 334-335 (1976), to determine whether the procedures (or lack thereof) that have been 7 applied to Petitioner are sufficient to protect the liberty interest at issue. Pinchi, 2025 WL 8 2084921at *3. In Mathews, the Court determined the following: 9 [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three 10 distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such 11 interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the 12 Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute 13 procedural requirement would entail. 14 During her time on recognizance, Petitioner built a life outside detention, has been gainfully 15 employed, and has supported family members, including her U.S. citizen spouse. Petitioner has a 16 substantial private interest in being out of custody, which would allow him to continue in these 17 life activities. As other courts have done, the Court concludes that Respondents’ interest in 18 continuing to detain Petitioner is slight. Moreover, there has been no change in any of Petitioner’s 19 circumstances that would warrant a finding that she is a flight risk or a danger to the community. 20 There is no dispute that Petitioner does not have a criminal record. 21 Finally, as Mrs. Sabi Polo points out and as evidenced by the result of her September 25, 22 2025 hearing, under current BIA interpretations, there is no administrative mechanism for her to 23 request a bond hearing from an IJ because such a request will necessarily be denied. Thus, the 24 Court concludes that Mrs. Sabi Polo has demonstrated a likelihood of success on the merits on her 25 Due Process claim. 26 2. Irreparable Harm 27 “It is well established that the deprivation of constitutional rights ‘unquestionably 28 constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting 1 Elrod v. Burns, 427 U.S. 247, 272 (1976)). Moreover, “[t]he Ninth Circuit has recognized 2 ‘irreparable harms imposed on anyone subject to immigration detention’ including ‘the economic 3 burdens imposed on detainees and their families as a result of detention.’” Hernandez v. Sessions, 4 872 F.3d 976, 995 (9th Cir. 2017); Leiva-Perez v. Holder, 640 F.3d 962, 969-970 (9th Cir. 2011) 5 (the inability to pursue a petition for review may constitute irreparable harm). The Petitioner has 6 established irreparable harm. 7 3. Balance of the Harms/Public Interest 8 Because the interest of the government is the interest of the public, the final two factors 9 merge when the government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). The 10 Court agrees with the analysis of Pinchi, and finds it correctly addresses the situation here: 11 “[T]he public has a strong interest in upholding procedural protections against unlawful detention, and the Ninth Circuit has 12 recognized that the costs to the public of immigration detention are staggering.” Jorge M. F., 2021 WL 783561, at *3 (cleaned up) 13 (quoting Ortiz Vargas, 2020 WL 5074312, at *4, and then quoting Hernandez, 872 F.3d at 996); see also Preminger v. Principi, 422 14 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns are implicated when a constitutional right has been violated, 15 because all citizens have a stake in upholding the Constitution.”). Without the requested injunctive relief, Petitioner-Plaintiff faces the 16 danger of significant health consequences and deprivation of her liberty. Yet the comparative harm potentially imposed on 17 Respondents-Defendants is minimal—a mere short delay in detaining Petitioner-Plaintiff, should the government ultimately 18 show that detention is intended and warranted. Moreover, a party “cannot reasonably assert that it is harmed in any legally cognizable 19 sense by being enjoined from constitutional violations.” Zepeda v. U.S. Immigr. & Nat. Serv., 753 F.2d 719, 727 (9th Cir. 1983). 20 This Court therefore joins a series of other district courts that have 21 recently granted temporary restraining orders barring the government from detaining noncitizens who have been on 22 longstanding release in their immigration proceedings, without first holding a pre-deprivation hearing before a neutral decisionmaker. 23 See, e.g., Diaz v. Kaiser, No. 25-cv-05071, 2025 WL 1676854, at *2 (N.D. Cal. June 14, 2025); Garcia v. Bondi, No. 25-cv-05070, 24 2025 WL 1676855, at *3 (N.D. Cal. June 14, 2025). Although Petitioner filed her motion shortly after being detained, rather than 25 immediately beforehand, the same reasoning applies to her situation. Her liberty interest is equally serious, the risk of 26 erroneous deprivation is likewise high, and the government’s interest in continuing to detain her without the required hearing is 27 low. See Doe v. Becerra, No. 2:25-cv-00647-DJC-DMC, 2025 WL 691664, at *6 (E.D. Cal. Mar. 3, 2025) (granting a TRO as to an 28 individual who had been detained over a month earlier). 1 2 Pinchi, at *3. In addition, as mentioned, there appears to be no dispute that there is no evidence 3 that Petitioner poses a risk of flight or a danger to the community. For these reasons and those set 4 forth in Pinchi, the Court concludes that the balance of the equities and public interest weigh in 5 favor of Petitioner. 6 4. Bond 7 “The court may issue a preliminary injunction or a temporary restraining order only if the 8 movant gives security in an amount that the court considers proper to pay the costs and damages 9 sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 10 65(c). The Court has “discretion as to the amount of security required, if any,” and it “may 11 dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the 12 defendant from enjoining his or her conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 13 2003) (citation modified). Because “the [Government] cannot reasonably assert that it is harmed 14 in any legally cognizable sense by being enjoined from constitutional violations,” Zepeda, 753 15 F.2d at 727, the Court finds that no security is required here. 16 5. Burden of Proof for Redetention 17 Petitioner requests any further relief the Court deems just and proper. (Doc. 1 at 28.) In 18 related cases, the Court has addressed the burden of proof required to re-detain individuals like 19 Petitioner. In Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022), the Ninth Circuit 20 considered whether a noncitizen detained under § 1226(a) pending removal proceedings had a 21 right to a second bond hearing where the government would have the burden to establish by clear 22 and convincing evidence that his continued detention was justified. Rodriguez Diaz concluded 23 that due process did not require that procedure, reasoning in part that:

24 Nothing in this record suggests that placing the burden of proof on the government was constitutionally necessary to minimize the risk 25 of error, much less that such burden shifting would be constitutionally necessary in all, most, or many cases. There is no 26 reason to believe that, as a general proposition, the government will invariably have more evidence than the alien on most issues bearing 27 on alleged lack of future dangerousness or flight risk. 28 Id. at 1212. However, Rodriguez Diaz “held only that a noncitizen detained under section 1226(a) 1 does not have a right to a second bond hearing when the only changed material condition since 2 their first bond hearing is the duration of their detention.” Pinchi, 2025 WL 2084921, at *4. It did 3 not address the burden of proof applicable under the present circumstances. 4 Pinchi went on to discuss why the calculus changes for an individual who had been 5 paroled from immigration custody after their initial detention:

6 Even assuming arguendo that the post-detention bond hearing provided under section 1226(a) provides constitutionally sufficient 7 process for those noncitizens who have never previously been detained and released by DHS, [Petitioner’s] circumstance is 8 different. Her release from ICE custody after her initial apprehension reflected a determination by the government that she 9 was neither a flight risk nor a danger to the community, and [she] has a strong interest in remaining at liberty unless she no longer 10 meets those criteria. The regulations authorizing ICE to release a noncitizen from custody require that the noncitizen “demonstrate to 11 the satisfaction of the officer that such release would not pose a danger to property or persons” and that the noncitizen is “likely to 12 appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). “Release [therefore] reflects a determination by the government that 13 the noncitizen is not a danger to the community or a flight risk.” Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017), 14 aff’d sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). [Petitioner] was apprehended by ICE officers when she 15 crossed the border into the United States [ ]. ICE then released her on her own recognizance. As ICE was not authorized to release 16 [her] if she was a danger to the community or a flight risk, the Court must infer from [her] release that ICE determined she was 17 neither. [Her] release from ICE custody constituted an “implied promise” that her liberty would not be revoked unless she “failed to 18 live up to the conditions of her release.” Morrissey, 408 U.S. at 482. The regulatory framework makes clear that those conditions were 19 that she remain neither a danger to the community nor a flight risk. [She] justifiably relied on the government’s implied promise in 20 obtaining employment, taking on financial responsibility for her family members, and developing community relationships. The 21 more than two years that she has spent out of custody since ICE initially released her have only heightened her liberty interest in 22 remaining out of detention. Accordingly, [her] private interest in retaining her liberty is significant. 23 24 Pinchi, 2025 WL 2084921, at *4. 25 This reasoning contributed to the conclusion in Pinchi that a pre-deprivation hearing was 26 required under Mathews. The court in Pinchi also placed the burden at any such hearing on the 27 government to demonstrate to a neutral decisionmaker by clear and convincing evidence that re- 28 detention is necessary to prevent danger to the community or flight. Id. at *7. Doing so is logical 1 | even for a post-detention custody hearing for the reasons articulated in Pinchi-namely that the 2 | immigrant’s initial release reflected a determination by the government that the noncitizen is not a 3 | danger to the community or a flight risk. Since it is the government that initiated re-detention, it 4 | follows that the government should be required to bear the burden of providing a justification for 5 | the re-detention. 6 CONCLUSION AND ORDER 7 For the foregoing reasons, the Court ORDERS: 8 1. Petitioner’s Motion for Temporary Restraining Order (Doc. 2) is converted to a 9 | Motion for Preliminary Injunction, and it is GRANTED. 10 2. Because the government has no evidence that Petitioner poses a risk of flight or 11 | poses a danger to the community, Petitioner SHALL be released IMMEDIATELY from DHS 12 | custody. DHS SHALL NOT impose any additional restrictions on Petitioner, such as electronic 13 | monitoring, unless that is determined to be necessary at a later custody hearing. 14 3. Respondents are PERMANENTLY ENJOINED AND RESTRAINED from re- 15 || arresting or re-detaining Petitioner absent compliance with constitutional protections, which 16 include at a minimum, predeprivation notice of at least seven days before a predeprivation 17 | hearing at which the government will bear the burden of demonstrating by clear and convincing 18 | evidence that she is likely to flee or pose a danger to the community if not arrested and at which 19 | Petitioner may be represented by her counsel. 20 4. The parties waive further briefing on the merits of the petition. 21 IT IS SO ORDERED. 23 Dated: _ October 17, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 24 25 26 27 28