1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 K.J. R.D., Case No. 1:26-cv-00610-JLT-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT IN PART PETITION FOR WRIT OF 13 v. HABEAS CORPUS (A-Number 246-549-267)
14 MINGA WOFFORD, et al., (Doc. 1)
15 Respondents. 7-Day Objection Period 16 17 Petitioner K.J. R.D.1 (“Petitioner”), a federal immigration detainee proceeding by counsel, 18 initiated this action on January 24, 2026, with the filing of a petition for writ of habeas corpus under 19 28 U.S.C. § 2241 and a related request for emergency injunctive relief (“TRO”) while in the custody 20 of Immigration and Customs Enforcement (“ICE”) at the Mesa Verde ICE Processing Center in 21 Bakersfield, California. (Doc. 1). Respondents are Minga Wofford (Mesa Verde ICE Field Office 22 Director), Sergio Albarran (Acting San Francisco ICE Field Office Director), Todd M. Lyons 23 (Acting ICE Director), Kristi Noem (Secretary of Homeland Security), and Pam Bondi (United 24 States Attorney General) (collectively, “Respondents”). See id. 25 The presiding district judge denied Petitioner’s TRO motion as untimely and referred the 26 matter to the assigned magistrate judge for a determination on the merits of the petition. (Doc. 6). 27 1 On February 9, 2026, the Court granted Petitioner’s unopposed request to proceed via 28 pseudonym as “K.J. R.D.” in this action. (Doc. 10). 1 The parties filed briefing, which was completed on March 13, 2026. (Docs. 13, 14). 2 For the reasons set forth herein, the undersigned recommends that Petitioner’s petition for 3 writ of habeas corpus be granted in part as to Petitioner’s claim for violation of his procedural due 4 process rights under the Fifth Amendment to the U.S. Constitution (“Count I”). (Doc. 1 at 22-23). 5 I. Relevant Background 6 The relevant facts are derived from the parties’ respective filings. See (Docs. 1, 2, 13, 14). 7 Petitioner is a 25-year-old citizen and native of Nicaragua who unlawfully entered the United States 8 on December 8, 2022, near El Paso, Texas. (Doc. 1 ¶¶ 14, 25); (Doc. 1-3, “Ex. 1” at 5) (December 9 14, 2023, Notice to Appear). Petitioner was arrested by ICE and placed into removal proceedings 10 pursuant to Section 240 of the Immigration and Naturalization Act (“INA”). See id.; Ex. 1. The 11 next day, petitioner was released pursuant to an ICE “Order of Release on Recognizance” (“OR”). 12 Ex. 1 at 2-4. 13 Petitioner alleges that upon his release, he established a life in Bakersfield, California, was 14 granted employment authorization by DHS, worked diligently to provide for his family, and never 15 committed any crimes nor was arrested for any reason. (Doc. 1 ¶ 26). He alleges that he diligently 16 complied with all requirements imposed by his ICE’s order of supervision and by DHS through the 17 Intensive Supervision Appearance Program (“ISAP”) as he initially attended in-person 18 appointments in Bakersfield to present documents and sign paperwork to enroll in the program 19 before he transitioned to different ISAP requirements, including the installation of a monitoring 20 application on a cell phone for weekly reporting and periodic in-person reporting at ISAP and ICE 21 offices. Id. ¶ 27. Petitioner alleges he was never informed of any violations or issues with his 22 reporting. Id. 23 On October 21, 2025, Petitioner appeared at an appointment at the Bakersfield ICE office 24 wherein ICE officers told him that he missed three check-ins, which Petitioner denied, stating that 25 he did not miss any check-ins and had not been advised about any missed check-in. Id. ¶ 28. 26 Petitioner requested the ICE officers show him the missed check-ins to which they replied that they 27 did not have it. Id. Petitioner was thereafter arrested by ICE and detained. Id. 28 Petitioner’s next individual hearing before the immigration court was scheduled for 1 February 20, 2026. See id. ¶ 31; (Doc. 1-6. “Ex. 4” at 2). That day, an immigration judge ordered 2 Petitioner removed from the United States. (Doc. 13 at 2); (Doc. 13-1 at 6) (February 2, 2026, 3 Decision and Orders of the Immigration Judge). Petitioner’s deadline to appeal the decision is 4 March 23, 2026. See id.; (Doc. 13-1 at 6) (“Any appeal is due at the [BIA] on or before 30 calendar 5 days from the date of service of this Order.”). 6 On February 26, 2026, Petitioner’s immigration attorney, Vanessa Munzi, filed a case 7 appeal with the BIA, which remains pending on appeal. See (Doc. 14 at 8); (Doc. 14-1 at 2) 8 (February 26, 2026, case appeal filed at the BIA). 9 II. Governing Authority 10 A. The Writ of Habeas Corpus 11 Writ of habeas corpus relief extends to a person in custody under the authority of the United 12 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 13 shall “award the writ or issue an order directing the respondent to show cause why the writ should 14 not be granted, unless it appears from the application that the applicant or person detained is not 15 entitled thereto.” 28 U.S.C. § 2243. 16 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 17 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 18 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 19 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 20 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 21 detention” in ICE custody). 22 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 23 Two statutes govern the detention and removal of inadmissible noncitizens from the United 24 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 25 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 26 Sept 12, 2025), which the undersigned adopts herein: 27 /// 28 /// 1 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 2 The “usual removal process” involves an evidentiary hearing before 3 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 4 § 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. 5 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 6 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 7 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 8 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 9 (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 10 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. 11 § 236.1(c)(8)).
12 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 13 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 14 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 15 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)). 16 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 17 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. 18 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 19 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 20 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 21 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 22 2. Expedited Removal and Mandatory Detention (§ 1225) 23 While “§ 1226 applies to aliens already present in the United States,” 24 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 25 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 26 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 27 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 28 1 that:
2 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 3 who is arriving in the United States or is described in clause (iii) is inadmissible under section 4 212(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 5 removed from the United States without further hearing or review unless the alien indicates either an 6 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 7 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 8 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 9 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 10 designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 11 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 12 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 13 § 1225(b)(1)(A)(iii)(II).
14 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 15 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 16 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 17 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 18 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 19 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 20 among those whom the Secretary of Homeland Security has designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 21 1225(b)(1).
22 “Initially, DHS’s predecessor agency did not make any designation [under (3)], thereby limiting expedited removal only to ‘arriving 23 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 24 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS extended by designation expedited removal to noncitizens who arrive 25 by sea and who have been present for fewer than two years, and to noncitizens apprehended within 100 air miles of any U.S. 26 international land border who entered within the last 14 days. Id. This was the status quo until January 2025, when the Department of 27 Homeland Security revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” 28 Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 1 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 2 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 3 short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United 4 States.
5 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 6 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 7 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 8 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order 9 the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may 10 be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable within 24 11 hours, but in no case later than 7 days after the date of the determination.” Id. Detention under § 1225(b)(1) is “mandatory” 12 “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing 13 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible 14 fear of persecution and, if found not to have such a fear, until removed.”) 15 [Section] 1225 also contains a provision that applies to applicants for 16 admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory 17 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking 18 admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full 19 removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited 20 removal but are subject to mandatory detention while their full removal proceedings are pending. This is in contrast to the default 21 detention regime under § 1226(a), which allows for discretionary release and review of detention through a bond hearing. 22 3. The Government’s Recent Change in Position 23 Until this year, the DHS has applied § 1226(a) and its discretionary 24 release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice 25 was codified by regulation. The regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 26 (“IIRIRA”) state that “Despite being applicants for admission, aliens who are present without having been admitted or paroled (formerly 27 referred to as aliens who entered without inspection) will be eligible for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 28 (Mar. 6, 1997). In fact, the government has conceded in other 1 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 2 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 3 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . . 4 In 2025, however, the Government’s policy changed dramatically. 5 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 6 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 7 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 8 to expedited removal but to whom expedited removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps 9 to terminate any ongoing removal proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the 10 actions contemplated by the memorandum “in a manner that takes account of legitimate reliance interests,” but states that “the 11 expedited removal process includes asylum screening, which is sufficient to protect the reliance interests of any alien who has 12 applied for asylum or planned to do so in a timely manner.” Huffman Memorandum (Jan. 23, 2025). 13 Since mid-May of 2025, the Department of Homeland Security has 14 made a practice of appearing at regular removal proceedings in immigration court, moving to dismiss the proceedings, and then re- 15 arresting the individual in order to place them in expedited removal proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does 16 not dismiss the full removal proceedings, ICE still makes an arrest, apparently in reliance on § 1225(b)(2)’s detention provision. 17 18 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 19 C. Parole Revocation 20 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 21 process in immigration cases and noted that before parole may be revoked, the parolee must be 22 given written notice of the impending revocation, which must include a cogent description of the 23 reasons supporting the revocation decision. The court held: Section 1182 . . . has a subsection titled “Temporary admission of 24 nonimmigrants,” which allows noncitizens, even those in required detention, to be “paroled” into the United States. This provision, at 25 issue in this case, states: 26 The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this 27 title, in his discretion parole into the United States temporarily under such conditions as he may prescribe 28 only on a case-by-case basis for urgent humanitarian 1 reasons or significant public benefit any alien applying for admission to the United States, but such parole of 2 such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in 3 the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or 4 be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with 5 in the same manner as that of any other applicant for admission to the United States. 6 8 U.S.C. § 1182(d)(5)(A). 7 8 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 9 immigration parolees are entitled to determinations related to their parole revocations that are not 10 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 11 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 12 a satisfactory explanation for its action including a rational connection between the facts found and 13 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 14 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 15 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 16 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 17 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 18 the immigrant has departed or when the specified period of parole has expired. 19 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 20 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 21 to revoke humanitarian parole:
22 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 23 basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no 24 indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received 25 merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required 26 by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for 27 which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] 28 continued presence...in the United States.” See 8 C.F.R. 1 § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s parole violated his rights under the statute and regulations. See Y-Z- 2 L-H, 2025 WL 1898025, at *13. 3 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 4 a similar conclusion relying on the Due Process Clause: 5 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 6 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 7 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 8 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 9 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. 10 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 11 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 12 liberty interest in remaining out of custody on bond.”). 13 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 14 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 15 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 16 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 17 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 18 imprisonment serves the government’s legitimate goals.”). 19 III. Exhaustion 20 A. Governing Authority 21 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 22 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 23 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 24 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 25 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 26 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 27 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 28 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 1 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 2 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 3 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 4 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 5 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 6 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 7 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 8 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 9 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 10 to be disregarded.”). 11 B. Analysis 12 Petitioner asserts that exhaustion should be waived because administrative remedies are 13 futile and his continued detention results in irreparable harm. (Doc. 1 ¶ 11). He asserts that it 14 would be futile to seek a bond hearing from an immigration judge as his request would be 15 summarily denied based on the current interpretation of the BIA’s recent decisions. Id. ¶ 12 (citing 16 Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025), & Matter of Qu-Li, 29 I&N Dec. 66 17 (B.I.A. 2025)). Respondents neither respond to nor refute this allegation. See (Doc. 13). 18 The Court finds that the prudential exhaustion requirement should be waived as it would be 19 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 20 to mandatory detention under § 1225(b). See id.; Jennings v. Rodriguez, 583 U.S. 281, 282 (2018) 21 (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings during the course 22 of their detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). Further, the 23 BIA has held that all noncitizens present within the country without admission are seeking 24 admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. v. Wofford, 25 No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 2025) (“In 26 addition, pursuit of administrative remedies would almost certainly be futile given the BIA’s recent 27 holding that all noncitizens present in the United States without admission are ‘seeking admission’ 28 for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing Hurtado, 29 I&N Dec. 1 216). 2 For these reasons and because Respondents do not argue Petitioner should be required to 3 exhaust administrative remedies, the undersigned recommends that the prudential exhaustion 4 requirement be waived for Petitioner’s claim for habeas corpus relief. See, e.g., Chavez v. Noem, 5 No. 3:25-cv-02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving 6 prudential exhaustion requirement because the BIA “already applied its expertise in deciding and 7 designating” Hurtado as precedential, pursuant to which detainees are subject to mandatory 8 detention without bond under § 1225(b)(2)); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1253 9 (W.D. Wash. 2025) (“The Ninth Circuit has recognized ‘the irreparable harms imposed on anyone 10 subject to immigration detention.’”) (citing Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 11 2017)); J.A.C.P., 2025 WL 3013328, at *7 n.9. 12 IV. Discussion 13 Petitioner asserts two causes of action in his petition: (1) violation of procedural due process 14 (“Count I”) and (2) violation of substantive due process (“Count II”) under the Fifth Amendment 15 to the U.S. Constitution. (Doc. 1 at 23-24). 16 As set forth below, because the undersigned finds that Respondents have violated 17 Petitioner’s constitutional rights to procedural due process, and because Petitioner’s other claims 18 seek the same or similar relief (i.e., for immediate release and to enjoin Respondents from re- 19 detaining Petitioner unless his re-detention is justified at a custody hearing before a neutral arbiter 20 in which the government bears the burden of proof), the undersigned forbears from addressing 21 Petitioner’s other claims. 22 A. Procedural Due Process 23 1. Governing Authority 24 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 25 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 26 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 27 individuals against two types of government action’: violations of substantive due process and 28 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 1 “Procedural due process imposes constraints on governmental decisions which deprive 2 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 3 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 4 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 5 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 6 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 7 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 8 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 9 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 10 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 11 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 12 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 13 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 14 v. Brewer, 408 U.S. 471, 481 (1972). 15 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 16 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 17 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 18 Due Process Clause stands as a significant constraint on the manner in which the political branches 19 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 20 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 21 justification for physical confinement outweighs the individual's constitutionally protected interest 22 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 23 1196, 1203 (9th Cir. 2011)). 24 2. Analysis 25 On Petitioner’s as-applied procedural due process challenge to his continuing detention by 26 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 27 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any 28 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 1 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 2 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 3 Petitioner has an underlying, continuing liberty interest in being free from re-detention. 4 Specifically, Petitioner was released on his own recognizance by ICE close to three years prior to 5 his re-arrest. (Doc. 1 ¶¶ 14, 25-26); Ex. 1 at 2-4. By releasing Petitioner in their discretion, 6 immigration officials necessarily determined that Petitioner did not present a risk of flight or danger 7 to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest 8 may, in the officer’s discretion, release an alien not described in section 236(c)(1) of the Act, under 9 the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to 10 the satisfaction of the officer that such release would not pose a danger to property or persons, and 11 that the alien is likely to appear for any future proceeding.”). Accord Rodriguez Diaz, 53 F.4th at 12 1196. 13 The undersigned agrees with other courts and other judges of this Court that noncitizens 14 released from immigration custody on general orders of supervision or on their own recognizance 15 have a liberty interest in their freedom that implicates protections under principles of procedural 16 due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The 17 fact that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks 18 a protectable liberty interest and can be re-detained without process.”); see id. (“[E]ven if 19 immigration detainees must wait months before a periodic re-review of their detention, those 20 already released on immigration bond possess an interest in their continued liberty, which grows 21 over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun v. 22 Marin, 442 F. Supp. 3d 1233, 1245-47 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1094 23 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy 24 duration of his conditional release as well as the meaningful connections Petitioner seems to have 25 made with his community during that time create a powerful interest for Petitioner in his continued 26 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5- 27 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an 28 individual, a protected liberty interest under the Due Process Clause may entitle the individual to 1 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES- 2 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily 3 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained 4 in continuous custody and never released on supervision). 5 Respondents assert that Petitioner is an “applicant for admission” and is subject to 6 mandatory detention by ICE under 8 U.S.C. § 1225(b). (Doc. 13 at 4-5). However, other judges 7 of this Court, as well as many other courts, have considered and rejected the government’s 8 arguments, finding that Section 1226(a), not Section 1225(b)(2), provides the appropriate 9 framework for noncitizens released following their initial encounter with immigration authorities 10 and have resided in the United States for a significant period, like Petitioner here.2 See, e.g., 11 H.J.G.G. v. Wofford, No. 1:25-cv-01718-JLT-EPG-HC, 2025 WL 3761803, at *4 (E.D. Cal. Dec. 12 30, 2025) (citing Castillo v. Wofford, No. 1:25-cv-01586-JLT-HBK, 2025 WL 3466064, at *8 (E.D. 13 Cal. Dec. 2, 2025)); accord Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 935-37 (N.D. Cal. 14 2025), appeal filed, No. 25-7472 (9th Cir. Nov. 26, 2025). Under the circumstances present here, 15 “the government cannot switch tracks” and subject Petitioner to mandatory detention now under 16 section 1225(b)(2) “after it previously released him on his own recognizance under section 17 1226(a).” Valencia Zapata, 801 F. Supp. 3d at 936; accord Souza v. Robbins, No. 1:25-cv-01597- 18 DJC-JDP, 2025 WL 3263897, at *2 (E.D. Cal. Nov. 23, 2025). See (Doc. 1-3 at 5) (noting 19 Petitioner’s placement in removal proceedings pursuant to section 240 of the INA). 20 Because Petitioner has shown he has a protected liberty interest to remain free from re- 21 detention based on his discretionary release by immigration authorities in December 2022, the 22 undersigned must determine what process is due before the government may terminate that liberty 23 interest. To determine this, the undersigned considers the following factors articulated in Mathews: 24 “[(1)] the private interest that will be affected by the official action; [(2)] the risk of an erroneous 25
2 Although Respondents note that Petitioner was ordered removed on February 20, 2026, 26 that order of removal is not yet final in light of Petitioner’s appeal of that decision with the BIA on 27 February 26, 2026. See (Doc. 14 at 8); (Doc. 14-1 at 2). See Padilla-Ramirez v. Bible, 882 F.3d 826, 831 (9th Cir. 2017). Section 1226 applies “pending a decision on whether the alien is to be 28 removed from the United States.” Id. at 830 (citing § 1226(a)). 1 deprivation of such interest through the procedures used, and the probable value, if any, of 2 additional or substitute procedural safeguards; and [(3)] the Government’s interest, including the 3 function involved and the fiscal and administrative burdens that the additional or substitute 4 procedural requirement would entail.” Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993- 5 94 (applying Mathews test in immigration detention context); id. at 993 (“The appropriateness of 6 the requirement that ICE and IJs consider financial circumstances and alternative conditions of 7 release is confirmed by the balance of factors under Mathews[.]”). 8 As to the first factor, Petitioner has shown he has a significant private interest in remaining 9 on release from detention. He had been released from immigration custody for close to three years 10 prior to his re-detention. He alleges, and Respondents do not dispute, that he has established a life 11 in Bakersfield, was granted employment authorization by DHS, has worked diligently to support 12 his family, and has no criminal record while awaiting his removal proceedings. (Doc. 1 ¶ 26). 13 Petitioner’s continued liberty interest in remaining on release is undermined by his re-detention 14 without a bond hearing. Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from imprisonment is at the 15 core of the Due Process Clause…. The lengthy duration of his conditional release as well as the 16 meaningful connections [he] seems to have made with his community during that time create a 17 powerful interest for [him] in his continued liberty.”). 18 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest 19 is considerable here where he has not received any bond or custody redetermination. Id. at 1094; 20 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 21 2025). Because there were no procedural safeguards to determine if Petitioner’s re-detention was 22 justified, the probable value of the additional procedural safeguard of a bond hearing to determine 23 whether Petitioner is a flight risk or a danger to the community is high such that this factor weighs 24 in favor of granting a bond hearing. See Doe, 787 F. Supp. at 1094 (“[G]iven that Petitioner was 25 previously found to not be a danger or risk of flight and the unresolved questions about the timing 26 and reliability of the new information, the risk of erroneous deprivation remains high.”); A.E., 2025 27 WL 1424382 at *5; Ramazan, 2025 WL 3145562, at *6. Therefore, this factor weighs in favor of 28 granting a bond hearing. 1 Third, the government’s interest in detaining Petitioner without a bond hearing is low. Doe, 2 787 F. Supp. 3d at 1094 (citation omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 3 2019)); Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) 4 (“And, like other Courts in this district, the Court concludes that the government’s interest in re- 5 detaining Petitioner-[] without a hearing is ‘low,’ particularly in light of the fact that Petitioner[] 6 has long complied with his reporting requirements.”). “The effort and cost to provide Petitioner 7 with [a bond hearing] is minimal[.]” Doe, 787 F. Supp. 3d at 1094. 8 Respondents assert that after Petitioner was released, he violated the conditions of his 9 release by missing three check-ins such that ICE was justified in re-detaining him. (Doc. 13 at 1- 10 2). 11 Upon review of the record, the undersigned does not find Respondents’ assertions regarding 12 Petitioner’s purported lack of compliance with any conditions of supervised release meritorious. 13 The government does not proffer any evidence, nor does any appear in the record, regarding the 14 purported three missed check-ins to justify ICE’s re-arrest and re-detention of Petitioner. As noted 15 above, Petitioner requested the ICE officers to show him the missed check-ins to which they 16 responded that they did not have it. (Doc. 1 ¶ 28). Therefore, Respondents’ have not shown that 17 Petitioner failed to comply with any conditions of his supervised release nor any changed 18 circumstances to justify Petitioner’s re-arrest and re-detention. And even if Respondents’ 19 assertions regarding Petitioner’s purported lack of compliance were credited, they are not relevant 20 to the issue of whether Petitioner is entitled to a custody redetermination by an immigration judge 21 given Respondents do not argue, and the record does not show, that Petitioner was ever determined 22 to be a danger to the community or a flight risk to justify his re-detention. See (Doc. 13). 23 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 24 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest 25 in October 2025 and continuous and continuing detention thereafter. 26 B. Petitioner’s Other Claims 27 Because the undersigned finds that the Court may grant the full relief Petitioner seeks—for 28 immediate release and to enjoin Respondents from re-detaining Petitioner unless his re-detention 1 is justified at a custody hearing before a neutral arbiter—in recommending that the writ should 2 issue as to Petitioner’s claim for violation of procedural due process (Count I), the undersigned 3 declines to address Petitioner’s other claim which seek the same or similar relief. 4 C. Relief 5 The undersigned considers whether Petitioner is entitled to a pre-deprivation or post- 6 deprivation bond hearing, and further, addresses what standards should apply at that hearing. 7 First, the undersigned concludes that Petitioner is entitled to a pre-deprivation bond hearing. 8 As summarized above, although Respondents assert that Petitioner’s purported lack of compliance 9 by missing three check-ins are violations of his terms of release (see Doc. 13 at 1-2), Respondents 10 offer no credible basis to find that Petitioner may have violated such conditions as Respondents 11 have not proffered any evidence, nor does the record show, that Petitioner indeed missed any check- 12 ins. Although a petitioner may be entitled only to a post-deprivation hearing where the 13 government’s assertion that the petitioner violated conditions of supervision is “not obviously 14 pretex[t]ual” (Martinez Hernandez v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767, 15 at *12 (E.D. Cal. Aug. 28, 2025)), here, because Respondents’ asserted basis for arresting Petitioner 16 is not supported by the record, the undersigned finds the weight of the evidence “favors a finding 17 that Petitioner was likely in compliance with the conditions of [] release, preserving the full force 18 of [the] liberty interest” implicated. See Kaur v. U.S. Dep’t of Homeland Sec., -- F. Supp. 3d. --, 19 2025 WL 3706724, at *4 (E.D. Cal. Dec. 22, 2025) (granting petition and imposing pre-deprivation 20 hearing requirement; “the Court cannot credit unverified statements which contradict evidence in 21 the record”). 22 Second, Petitioner was released by ICE on recognizance following his initial encounter and 23 arrest on December 8, 2022, close to three years prior to his re-detention in October 2025. In 24 releasing Petitioner, immigration officials necessarily determined that he did not present a risk of 25 flight or danger to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a 26 warrant of arrest may, in the officer’s discretion, release an alien not described in section 236(c)(1) 27 of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must 28 demonstrate to the satisfaction of the officer that such release would not pose a danger to property 1 or persons, and that the alien is likely to appear for any future proceeding.”). Nevertheless, 2 Petitioner has not been afforded a bond hearing before an immigration judge. 3 “Under § 1226(a) and its implementing regulations, a detainee may request a bond hearing 4 before an IJ at any time before a removal order becomes final.” Rodriguez Diaz, 53 F.4th at 1197 5 (citing 8 C.F.R. §§ 236.1(d)(1), 1003.19). “If at this hearing the detainee demonstrates by the 6 preponderance of the evidence that he is not a threat to national security, a danger to the community 7 at large, likely to abscond, or otherwise a poor bail risk, the IJ will order his release.” Id. (internal 8 quotation and citations omitted). 9 Given the undersigned’s finding that Respondents proffered basis for re-arresting Petitioner 10 (a purported violation of the terms of his supervised release by missing three check-ins that is not 11 supported by record evidence), the undersigned will recommend that the government bear the 12 burden of establishing at the bond hearing, by clear and convincing evidence, that Petitioner poses 13 a danger to the community or a risk of flight. E.g., Singh v. Andrews, No. 1:25-cv-01543-DCJ- 14 SCR, 2025 WL 3248059, at *6 (E.D. Cal. Nov. 19, 2025) (requiring government to carry burden 15 by clear and convincing evidence, notwithstanding disputed issues of facts involving the 16 petitioner’s alleged violation of release conditions); M.V.I. v. Andrews, No. 1:25-cv-01440-JLT- 17 SKO, 2025 WL 3154403, at *13-14 (E.D. Cal. Nov. 112, 2025) (same). “Doing so is logical” 18 because “the immigrant’s initial release reflected a determination by the government that the 19 noncitizen is not a danger to the community or a flight risk. Since it is the government that initiated 20 re-detention, it follows that the government should be required to bear the burden of providing a 21 justification for the re-detention.” M.R.R. v. Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 22 3265446, at *14 (E.D. Cal. Nov. 24, 2025) (relying on Pinchi v. Noem, 792 F. Supp. 3d 1025, at 23 1034, 1038 (N.D. Cal. 2025)); accord Omer G. G. v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 24 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025). 25 V. Conclusion and Recommendation 26 Accordingly, IT IS HEREBY RECOMMENDED that: 27 1. The petition for writ of habeas corpus (Doc. 1) be GRANTED in part as to Petitioner’s 28 procedural due process claim arising under the Fifth Amendment to the U.S. 1 Constitution (Count I). 2 2. Respondents be ORDERED to release Petitioner immediately. 3 3. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless 4 the government provides notice to Petitioner a minimum of seven (7) days in advance 5 and holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and 6 applicable regulations, at which Petitioner’s eligibility for bond must be considered, 7 and where the government must demonstrate by clear and convincing evidence that 8 Petitioner is a flight risk or danger to the community, such that physical custody is 9 legally justified.3 10 4. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this 11 case. 12 These findings and recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 14 after being served with these findings and recommendations, the parties may file written objections 15 with the Court. Although this objection period is shorter than provided by Local Rule, such an 16 adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 17 Constitution by Respondents, and the fact that the parties have extensively briefed the issues 18 involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 19 may require a response within a shorter period if exigencies of the calendar require.”). Any 20 objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 21 Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 22 The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 23
24 3 The undersigned also recommends the following:
25 If legally sufficient circumstances justify arrest without notice in advance, a post- deprivation hearing consistent with the requirements set forth here, SHALL be provided 26 within seven days of the arrest. Alternatively, if Petitioner becomes subject to a final order 27 of removal and Petitioner receives notice of such order, Respondents may detain Petitioner for the sole and limited purpose of executing removal. In this event, Respondent’s SHALL 28 provide a bond hearing in the timeframe required by law. 1 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 2 | and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 3 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 4 | these findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 5 The parties are advised that failure to file objections within the specified time may result in 6 | the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 7 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 | ITISSO ORDERED. 7 | Dated: _ Mareh 25, 2026 | bo 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20