8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 LEONEL FLORES, Case No. 1:26-cv-00761-KES-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 13 v. HABEAS CORPUS AND DIRECT RESPONDENT TO PROVIDE PETITIONER 14 WARDEN OF CALIFORNIA CITY WITH BOND HEARING BEFORE DETENTION FACILITY, et al., IMMIGRATION JUDGE 15 Respondents. 16 17 Petitioner is a federal immigration detainee proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. 19 For the reasons set forth herein, the undersigned recommends granting the petition for 20 writ of habeas corpus and ordering that Respondents provide Petitioner with an individualized 21 bond hearing before an immigration judge at which the government must justify Petitioner’s 22 continued detention by clear and convincing evidence. 23 I. 24 BACKGROUND 25 Petitioner is a citizen of Mexico who entered the United States without inspection in 26 1988. (ECF No. 15-1 at 3.1) Petitioner has been arrested and convicted of multiple crimes. (ECF 27 No. 15 at 1–2.) On August 16, 2025, Immigration and Customs Enforcement (“ICE”) detained 1 Petitioner pursuant to an administrative warrant as Petitioner was leaving the Santa Clara County 2 jail. (ECF No. 15-1 at 2.) 3 On December 30, 2025, an immigration judge (“IJ”) ordered Petitioner removed to 4 Mexico. (ECF No. 15-2 at 1–4.) On January 13, 2026, the Board of Immigration Appeals 5 (“BIA”) received Petitioner’s appeal. (Id. at 5.) 6 On January 29, 2026, Petitioner filed the instant petition for writ of habeas corpus, 7 asserting that his prolonged detention without a bond hearing violates due process. (ECF No. 1.) 8 On February 20, 2026, Respondent filed an answer. (ECF No. 15.) To date, no traverse has been 9 filed, and the time for doing so has passed. 10 II. 11 DISCUSSION 12 A. Immigration Detention Statutes and Bond Hearings 13 Congress has enacted a complex statutory scheme governing the detention of noncitizens 14 during removal proceedings and following the issuance of a final order of removal. “Where an 15 alien falls within this statutory scheme can affect whether his detention is mandatory or 16 discretionary, as well as the kind of review process available to him if he wishes to contest the 17 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 18 Here, Petitioner is detained pursuant to 8 U.S.C. § 1226(c),2 which provides in pertinent 19 part that the “Attorney General shall take into custody any alien who . . . is deportable by reason 20 of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of 21 this title[.]” 8 U.S.C. § 1226 (c)(1)(B). Section 1226(c) “specif[ies] that the Attorney General 22 ‘may release’ one of those aliens ‘only if the Attorney General decides’ both that doing so is 23 necessary for witness-protection purposes and that the alien will not pose a danger or flight risk.” 24 Jennings v. Rodriguez, 583 U.S. 281, 303 (2018) (emphasis in original). 25 In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court addressed a challenge to 26 prolonged detention under § 1231(a)(6) by noncitizens who “had been ordered removed by the 27 2 The Ninth Circuit has “conclude[d] that Subsection C applies throughout the administrative and judicial 1 government and all administrative and judicial review was exhausted, but their removal could 2 not be effectuated because their designated countries either refused to accept them or the United 3 States lacked a repatriation treaty with the receiving country.” Prieto–Romero, 534 F.3d at 1062 4 (citing Zadvydas, 533 U.S. at 684–86). The Supreme Court held that § 1231(a)(6) does not 5 authorize indefinite detention and “limits an alien’s post-removal-period detention to a period 6 reasonably necessary to bring about that alien’s removal from the United States.” Zadvydas, 533 7 U.S. at 689. Thus, after a presumptively reasonable detention period of six months, a noncitizen 8 was entitled to release if “it has been determined that there is no significant likelihood of removal 9 in the reasonably foreseeable future.” Id. at 701. 10 In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a facial challenge to 11 mandatory detention under 8 U.S.C. § 1226(c). The Supreme Court upheld its “longstanding 12 view that the Government may constitutionally detain deportable aliens during the limited period 13 necessary for their removal proceedings.” Id. at 526. The Supreme Court distinguished Zadvydas 14 by emphasizing that mandatory detention under § 1226(c) has “a definite termination point” and 15 “in the majority of cases it lasts for less than the 90 days . . . considered presumptively valid in 16 Zadvydas.” Id. at 529. However, Justice Kennedy specifically noted that “a lawful permanent 17 resident alien such as respondent could be entitled to an individualized determination as to his 18 risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” 19 Demore, 538 U.S. at 532 (Kennedy, J., concurring). 20 “In a series of decisions, the [Ninth Circuit] . . . grappled in piece-meal fashion with 21 whether the various immigration detention statutes may authorize indefinite or prolonged 22 detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. 23 Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010). This culminated in Rodriguez v. 24 Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), in which the Ninth Circuit held that for 25 noncitizens detained under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), “the government must 26 provide periodic bond hearings every six months so that noncitizens may challenge their 27 continued detention as ‘the period of . . . confinement grows.’” 804 F.3d at 1089 (quoting Diouf 1 applied the canon of constitutional avoidance to interpret these immigration detention provisions 2 as providing a statutory right to a bond hearing once detention become prolonged. See Rodriguez 3 Diaz v. Garland, 53 F.4th 1189, 1195 (9th Cir. 2022). 4 In Jennings v. Rodriguez, the Supreme held that the Ninth Circuit misapplied the 5 constitutional avoidance canon to find that “§§ 1225(b)(1) and (b)(2) contain an implicit 6– 6 month limit on the length of detention” and “[o]nce that 6–month period elapses, respondents 7 contend, aliens previously detained under those provisions must instead be detained under the 8 authority of § 1226(a), which allows for bond hearings in certain circumstances.” 583 U.S. at 9 297–98. Jennings also rejected the Ninth Circuit’s interpretation of a statutory right under 8 10 U.S.C. § 1226(a) to “periodic bond hearings every six months in which the Attorney General 11 must prove by clear and convincing evidence that the alien’s continued detention is necessary.” 12 Id. at 306. The case was remanded to the Ninth Circuit “to consider [the] constitutional 13 arguments on their merits.” Id. at 312. The Ninth Circuit likewise remanded the case to the 14 district court to consider the constitutional arguments in the first instance but observed that it had 15 “grave doubts that any statute that allows for arbitrary prolonged detention without any process 16 is constitutional or that those who founded our democracy precisely to protect against the 17 arbitrary deprivation of liberty would have thought so.” Rodriguez v. Marin, 909 F.3d 252, 255, 18 256 (9th Cir. 2018). 19 There has been a dearth of guidance regarding the point at which an immigration 20 detainee’s continued mandatory detention becomes unconstitutional. See Rodriguez Diaz, 53 21 F.4th at 1203 (noting that both the Ninth Circuit “and the Supreme Court have repeatedly 22 declined to decide constitutional challenges to bond hearing procedures in the immigration 23 detention context”). The Ninth Circuit has yet to take a position on whether due process requires 24 a bond hearing for noncitizens detained under 8 U.S.C. § 1226(c), but it has recognized that 25 “district courts throughout this circuit have ordered immigration courts to conduct bond hearings 26 for noncitizens held for prolonged periods under § 1226(c)” based on due process and noted that 27 “[a]ccording to one such court order, the ‘prolonged mandatory detention pending removal 1 Martinez v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (citation omitted), vacated on other 2 grounds, 144 S. Ct. 1339 (2024). 3 In upholding mandatory detention under 8 U.S.C. § 1226(c) in Demore, the Supreme 4 Court made repeated references to the “brief” and “limited” timeframe at issue. See Demore, 538 5 U.S. at 513 (“brief period”); id. at 523 ((“brief period”); id. at 526 (“limited period”); id. at 529 6 n.12 (“[t]he very limited time of the detention at stake under § 1226(c)”); id. at 531 (“limited 7 period”). Demore specifically noted that “the detention at stake under § 1226(c) lasts roughly a 8 month and a half in the vast majority of cases in which it is invoked, and about five months in 9 the minority of cases in which the alien chooses to appeal,” relying on statistics from the 10 Executive Office for Immigration Review (“EOIR”). 538 U.S. at 530. However, “[t]hirteen years 11 after the decision in Demore, the government admitted that the figures it provided to the Court, 12 and which the Court relied on, contained ‘several significant errors,’” and for the years 1999– 13 2001, the “average length of detention in cases where the alien appealed [was] 382 days, or a 14 little more than a year.” Rodriguez v. Nielsen, No. 18-CV-04187-TSH, 2019 WL 7491555, at *5 15 (N.D. Cal. Jan. 7, 2019) (citing Letter from Acting Solicitor General Ian H. Gershengorn to Hon. 16 Scott S. Harris (Aug. 26, 2016), at 2, 3, Demore v. Kim, 538 U.S. 510 (2003) (No. 01-1491)). 17 “The data from the Jennings case show that 460 members of the respondent section 1226(c) 18 subclass were detained for an average of 427 days (over fourteen months) with some individual 19 detention periods exceeding four years.” Rodriguez, 2019 WL 7491555, at *5 (citing Joint 20 Appendix (Table 20) (Aug. 26, 2016), Jennings v. Rodriguez, 583 U.S. 281 (2018) (No. 15- 21 1204)). The Government Accountability Office conducted a study and “found that as of 2015, 22 the median length of time it takes the BIA to complete an appeal of a removal order exceeds 450 23 days.” Rodriguez, 2019 WL 7491555, at *5 (citing United States Government Accountability 24 Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long- 25 Standing Management and Operational Challenges 33 (2017), 26 https://www.gao.gov/assets/690/685022.pdf). 27 As noted above, the Supreme Court rejected a facial challenge to mandatory detention 1 habeas corpus action pursuant to 28 U.S.C. § 2241 . . . challenging the constitutionality of 2 § 1226(c) itself.” (emphasis added)); Black v. Decker, 103 F.4th 133, 149 n.22 (2d Cir. 2024) 3 (“Demore ruled on a due process challenge to the facial constitutionality of section 1226(c)[.]”). 4 In Nielsen v. Preap, 586 U.S. 392 (2019), the Supreme Court expressly preserved the right to 5 bring an as-applied challenge: “Our decision today on the meaning of that statutory provision 6 [§ 1226(c)] does not foreclose as-applied challenges—that is, constitutional challenges to 7 applications of the statute as we have now read it.” Preap, 586 U.S. at 420. See Black, 103 F.4th 8 at 149 (Demore “said nothing about whether due process may eventually require a hearing. If 9 Demore had, in fact, foreclosed the due process challenge now before us, the Jennings Court 10 would have had no reason to remand to the Ninth Circuit ‘to consider ... in the first instance’ the 11 detainees’ argument that ‘[a]bsent ... a bond-hearing requirement, ... [section 1226(c)] would 12 violate the Due Process Clause of the Fifth Amendment.’” (alterations in original) (quoting 13 Jennings, 583 U.S. at 291, 312)). 14 Based on the foregoing, the Court finds that Petitioner’s as-applied constitutional 15 challenge is not foreclosed. 16 B. Due Process Analysis 17 Courts in the Ninth Circuit have taken a variety of approaches to determine whether due 18 process requires a bond hearing in a particular immigration detention case. See, e.g., Rodriguez, 19 2019 WL 7491555, at *6 (applying bright-line rule that “detention becomes prolonged after six 20 months and entitles [the petitioner] to a bond hearing” in § 1226(c) context); Banda v. 21 McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (considering six factors, which 22 include: “(1) the total length of detention to date; (2) the likely duration of future detention; (3) 23 the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) 24 delays in the removal proceedings caused by the government; and (6) the likelihood that the 25 removal proceedings will result in a final order of removal” in § 1225(b) context); Juarez v. 26 Wolf, No. C20-1660-RJB-MLP, 2021 WL 2323436, at *4 (W.D. Wash. May 5, 2021) 27 (considering, in addition to six factors set forth above, “whether the detention will exceed the 1 nature of the crimes the petitioner committed” in § 1226(c) context), report and recommendation 2 adopted, 2021 WL 2322823 (W.D. Wash. June 7, 2021); Lopez v. Garland, 631 F. Supp. 3d 870, 3 879 (E.D. Cal. 2022) (considering “the total length of detention to date, the likely duration of 4 future detention, and the delays in the removal proceedings caused by the petitioner and the 5 government” in § 1226(c) context). 6 There are also some courts that apply the three-part test set forth in Mathews v. Eldridge, 7 424 U.S. 319 (1976). See Zagal-Alcaraz v. ICE Field Off., No. 3:19-cv-01358-SB, 2020 WL 8 1862254, at *3–4 (D. Or. Mar. 25, 2020) (collecting cases), report and recommendation adopted, 9 2020 WL 1855189 (D. Or. Apr. 13, 2020). In Rodriguez Diaz, which concerned a noncitizen 10 detained pursuant to 8 U.S.C. § 1226(a) and whether “continued detention was unconstitutional 11 because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond 12 hearing at which the government bears the burden of proof by clear and convincing evidence,” 13 the panel majority “assume[d] without deciding” that the Mathews test applied, noting that the 14 Ninth Circuit has “regularly applied Mathews to due process challenges to removal 15 proceedings,” and finding “Mathews remains a flexible test that can and must account for the 16 heightened governmental interest in the immigration detention context.” Rodriguez Diaz, 53 17 F.4th at 1193, 1206. Similarly, the dissent “agree[d] that the test developed in Mathews v. 18 Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is the appropriate legal framework 19 to determine whether there was a due process violation.” Rodriguez Diaz, 53 F.4th at 1219 20 (Wardlaw, J., dissenting). See also Black, 103 F.4th at 147 (“conclud[ing] that due process 21 challenges to prolonged detention under section 1226(c) should also be reviewed under 22 Mathews”); A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 1424382 (E.D. Cal. 23 May 16, 2025) (applying Mathews test to determine whether due process entitled petitioner to a 24 bond hearing in § 1225(b) context), findings and recommendations adopted, 2025 WL 1808676 25 (E.D. Cal. July 1, 2025). 26 Petitioner applies the six-month bright-line rule and the Mathews test in the petition. 27 (ECF No. 1 at 8–12.) Given that the Ninth Circuit has “regularly applied Mathews to due process 1 Mathews test in addition to addressing the bright-line rule. 2 1. Bright-Line Rule 3 The First, Second, and Third Circuits have “reject[ed] a bright-line constitutional rule 4 requiring a bond hearing after six months of detention—or after any fixed period of detention— 5 in the context of a Congressional mandate, in the immigration context, to detain.” Black, 103 6 F.4th at 150 (citing Reid v. Donelan, 17 F.4th 1, 7–9 (1st Cir. 2021); German Santos v. Warden 7 Pike Cnty. Corr. Facility, 965 F.3d 203, 211 (3d Cir. 2020)). The Court finds such authority 8 persuasive and declines to adopt a bright-line rule that detention without a bond hearing is 9 presumptively unconstitutional when it exceeds six months. 10 2. Mathews Test 11 In Mathews, the Supreme Court held that “identification of the specific dictates of due 12 process generally requires consideration of three distinct factors”: 13 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 14 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 15 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 16 requirements would entail. 17 Mathews, 424 U.S. at 334. 18 a. Private Interest 19 With respect to the first factor, the Court finds that the private interest at issue here is 20 fundamental. “Freedom from imprisonment—from government custody, detention, or other 21 forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause 22 protects.” Zadvydas, 533 U.S. at 690. The Ninth Circuit has held that it “is beyond dispute” an 23 immigration detainee’s “private interest at issue here is ‘fundamental’: freedom from 24 imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. 25 Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 26 (1992)). See Rodriguez Diaz, 53 F.4th at 1207 (“We have also held, more generally, that an 27 individual’s private interest in ‘freedom from prolonged detention’ is ‘unquestionably 1 under Mathews.” (quoting Singh, 638 F.3d at 1208)). Accordingly, the first Mathews factor 2 weighs in favor of Petitioner. 3 b. Risk of Erroneous Deprivation 4 With respect to the second factor, the Court considers the risk of erroneous deprivation of 5 Petitioner’s liberty interest and the probable value of additional procedural safeguards. “In 6 evaluating the risk of erroneous deprivation in the context of noncitizen detention, the Ninth 7 Circuit has looked to whether the detainee has a statutory right to procedural protections, such as 8 individualized custody determinations and the right to seek additional bond hearings throughout 9 detention.” Jensen v. Garland, No. 5:21-cv-01195-CAS (AFM), 2023 WL 3246522, at *6 (C.D. 10 Cal. May 3, 2023) (citing Rodriguez Diaz, 53 F.4th at 1209–10 (finding a small risk of erroneous 11 deprivation where petitioner was detained under § 1226(a) and thus received numerous 12 procedural protections, including individualized custody determinations and right to seek 13 additional bond hearings)). 14 Petitioner is detained under § 1226(c) and thus, does not have a statutory right to a bond 15 hearing. Petitioner has been detained since August 16, 2025, (ECF No. 1 at 5), a period of almost 16 eight months, and has not received any bond hearing before a neutral decisionmaker with 17 authority to grant bond. Accordingly, the Court finds that the risk of erroneous deprivation of 18 Petitioner’s liberty interest and the probable value of additional procedural safeguards is high. 19 See Jimenez v. Wolf, No. 19-cv-07996-NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020) 20 (“[T]he risk of an erroneous deprivation of Landeros Jimenez’s liberty interest is high. He has 21 not received any bond or custody redetermination hearing during his one-year detention. Thus, 22 the probable value of additional procedural safeguards—a bond hearing—is high, because 23 Respondents have provided virtually no procedural safeguards at all.”). Therefore, the second 24 Mathews factor weighs in favor of Petitioner. 25 c. Government’s Interest 26 With respect to the third and final factor, the Court recognizes that “the government 27 clearly has a strong interest in preventing aliens from ‘remain[ing] in the United States in 1 criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 538 U.S. at 518, 515). The 2 Ninth Circuit has stated that “[t]hese are interests of the highest order that only increase with the 3 passage of time,” noting that “[t]he longer detention lasts and the longer the challenges to an IJ’s 4 order of removal take, the more resources the government devotes to securing an alien’s ultimate 5 removal” and “[t]he risk of a detainee absconding also inevitably escalates as the time for 6 removal becomes more imminent.” Rodriguez Diaz, 53 F.4th at 1208. 7 However, it is important to stress that the “government interest at stake here is not the 8 continued detention of Petitioner, but the government’s ability to detain him without a bond 9 hearing.” Zagal-Alcaraz, 2020 WL 1862254, at *7. See Zerezghi v. U.S. Citizenship & Immigr. 10 Servs., 955 F.3d 802, 810 (9th Cir. 2020) (noting that “the question [under the third Mathews 11 factor] is not the government’s interest in immigration enforcement” “in general” (emphasis 12 added)); Henriquez v. Garland, No. 5:22-cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. 13 June 14, 2022) (“Although the Government has a strong interest in enforcing the immigration 14 laws and in ensuring that lawfully issued removal orders are promptly executed, the 15 Government’s interest in detaining Petitioner without providing an individualized bond hearing 16 is low.”). 17 Courts generally have found that the cost of providing a bond hearing is relatively 18 minimal, and there is nothing in the record before this Court demonstrating that providing 19 Petitioner with a bond hearing would be fiscally or administratively burdensome. See Marroquin 20 Ambriz v. Barr, 420 F. Supp. 3d 953, 964 (N.D. Cal. 2019) (noting in context of a § 1226(a) 21 detention, the parties did not contest “that the cost of conducting a bond hearing, to determine 22 whether the continued detention of Petitioner is justified, is minimal”); Singh v. Barr, 400 F. 23 Supp. 3d 1005, 1021 (S.D. Cal. 2019) (noting in the context of § 1226(a) detention that “[t]he 24 government has not offered any indication that a [ ] bond hearing would have outside effects on 25 its coffers”). Accordingly, the third Mathews factor weighs in favor of Petitioner. 26 In sum, each of the Mathews factors weighs in favor of Petitioner. Accordingly, the Court 27 recommends finding that Petitioner is entitled to a bond hearing. 1 C. Remedy 2 Petitioner requests this Court to hold a hearing to determine whether Petitioner’s 3 detention is warranted. (ECF No. 1 at 17.) Respondents argue that “if the Court grants Petitioner 4 a bond hearing, he should bear the burden of proof at the hearing.” (ECF No. 15 at 8.) 5 “The Court finds, consistent with other post-Jennings cases, that the appropriate remedy 6 is a bond hearing before an immigration judge[.]” Lopez, 631 F. Supp. 3d at 882. The Court now 7 turns to the burden of proof at the bond hearing and which party should bear such burden. 8 Having “previously applied the canon of constitutional avoidance to interpret . . . 9 immigration provisions—8 U.S.C. §§ 1225(b), 1226(c), and 1231(a)(6)—as providing a statutory 10 right to a bond hearing once detention becomes prolonged,” the Ninth Circuit in Singh 11 “concluded that for these hearings to comply with due process, the government had to bear the 12 burden of proving by clear and convincing evidence that the alien poses a flight risk or a danger 13 to the community.” Rodriguez Diaz, 53 F.4th at 1196 (citing Singh, 638 F.3d at 1203–05). 14 Although Rodriguez Diaz may have declined to impose the standard articulated in Singh, the 15 panel majority specifically stated that it was not “decid[ing] whether Singh remains good law in 16 any respect following Jennings” and even recognized that Singh was based “on general 17 principles of procedural due process, reasoning that a detained person’s liberty interest is 18 substantial.” Rodriguez Diaz, 53 F.4th at 1202 n.4, 1199. Additionally, the Ninth Circuit has 19 suggested post-Jennings that Singh remains good law in Martinez v. Clark, which took “no 20 position” on “[w]hether due process requires a bond hearing for aliens detained under 21 § 1226(c),” but did address “the scope of federal court review of those bond determinations” and 22 found with respect to a bond hearing for a noncitizen detained under § 1226(c) that “the BIA 23 properly noted that the government bore the burden to establish by clear and convincing 24 evidence that Martinez is a danger to the community.” Martinez, 36 F.4th at 1223, 1231. On 25 remand, and after Rodriguez Diaz was decided, the Martinez panel reconfirmed “that the 26 government bore the burden to establish by clear and convincing evidence that Martinez is a 27 danger to the community” and “that the BIA applied the correct burden of proof.” Martinez v. 1 The Court will follow the “overwhelming majority of courts that have held that the 2 government must justify the continued confinement of a non-citizen detainee under § 1226(c) by 3 clear and convincing evidence that the non-citizen is a flight risk or a danger to the community,” 4 Sanchez-Rivera, 2023 WL 139801, at *7, even post-Rodriguez Diaz. See, e.g., Black, 103 F.4th 5 at 138 (“[T]he district court properly required the government to show at such a bond hearing, by 6 clear and convincing evidence, the necessity of his continued detention. It further correctly 7 directed the immigration judge (“IJ”), in setting his bond and establishing appropriate terms for 8 his potential release, to consider his ability to pay and alternative means of assuring 9 appearance.”); Pham v. Becerra, 717 F. Supp. 3d 877, 888 (N.D. Cal. 2024); J.P. v. Garland, 685 10 F. Supp. 3d 943, 949 (N.D. Cal. 2023). 11 Further, in the event Petitioner is determined not to be a danger to the community and not 12 to be so great a flight risk as to require detention without bond, the IJ should consider 13 Petitioner’s financial circumstances or alternative conditions of release. See Hernandez v. 14 Sessions, 872 F.3d 976, 1000 (9th Cir. 2017) (“Plaintiffs are likely to succeed on their challenge 15 under the Due Process Clause to the government’s policy of allowing ICE and IJs to set 16 immigration bond amounts without considering the detainees’ financial circumstances or 17 alternative conditions of release.”); Black, 103 F.4th at 138 (The district court “correctly directed 18 the immigration judge (‘IJ’), in setting his bond and establishing appropriate terms for his 19 potential release, to consider his ability to pay and alternative means of assuring appearance.”). 20 III. 21 RECOMMENDATION 22 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 23 1. The petition for writ of habeas corpus be GRANTED; 24 2. Respondent be directed to provide Petitioner with a bond hearing before an immigration 25 judge to be held within THIRTY (30) days that complies with the requirements set forth 26 in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), at which 27 a. “the government must prove by clear and convincing evidence that [Petitioner] is 1 F.3d at 1203, and 2 b. the IJ should consider Petitioner’s financial circumstances or alternative 3 conditions of release in the event Petitioner is determined not to be a danger to the 4 community and not to be so great a flight risk as to require detention without 5 bond. 6 This Findings and Recommendation is submitted to the assigned United States District 7 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 8 | Rules of Practice for the United States District Court, Eastern District of California. Within 9 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 10 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 11 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 12 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 13 | within fourteen (14) days after service of the objections. The assigned United States District 14 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 15 | The parties are advised that failure to file objections within the specified time may waive the 16 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 17 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 IT IS SO ORDERED.
20| Dated: _ April 6, 2026 [spe Fey — 1 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28