Nirmal Singh v. Kristi Noem, et al.

Opinion

NIRMAL SINGH, Case No. 1:26-cv-00722-KES-CDB (HC) Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT PETITION FOR WRIT OF HABEAS v. CORPUS (A-Number 240 614 324)

KRISTI NOEM, et al., (Doc. 1)

Respondents. 7-Day Objection Period Petitioner Nirmal Singh, a federal immigration detainee proceeding by counsel, initiated this action on January 28, 2026, with the filing of a petition for writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 1). Petitioner is in custody the of Immigration and Customs Enforcement (“ICE”) at the Golden State Annex facility, located in McFarland, California. Id. ¶ 5. Respondents are: the unnamed Warden of the Golden State Annex Detention Center; Kristi Noem, Secretary of Homeland Security; Sergio Albarran, Acting Field Office Director for the San Francisco ICE Field Office; Todd Lyons, Acting Director of ICE; and Pamela Bondi, United States Attorney General. See id. At the Court’s direction, Respondents timely filed a response to the petition on February 10, 2026. (Doc. 7). Petitioner filed a status report indicating his intent to proceed without further briefing. (Doc. 8). For the reasons set forth herein, the undersigned recommends that Petitioner’s petition for writ of habeas corpus be granted. I. Relevant Background The relevant facts are undisputed. See (Doc. 7). Petitioner is a citizen of India who entered the United States without inspection on April 11, 2022. (Doc. 1 ¶¶ 1, 14; Doc. 7 at 6 ¶ 6). He was detained by the Department of Homeland Security (“DHS”) and released on his own recognizance subject to ICE’s imposition of a $3,000 immigration bond; DHS issued a Notice to Appear in immigration court. (Doc. 1 ¶¶ 1, 15-16; Doc. 7 at 6 ¶¶ 6-7 & Exhibit 4). On June 29, 2022, Petitioner filed an application for asylum. DHS issued Petitioner a Form I-766, Employment Authorization Document. (Doc. 1 ¶¶ 17-18). On October 14, 2025, Petitioner attended his immigration court hearing and was detained by Respondents immediately after the hearing. (Doc. 1 ¶¶ 19-20; Doc. 7 at 6 ¶¶ 8-10). The Court also takes judicial notice that Petitioner has been in removal proceedings since April 18, 2022, Petitioner was ordered removed on October 14, 2025, and the order was appealed on October 20, 2025.1 II. Governing Authority A. The Writ of Habeas Corpus Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 1 See https://acis.eoir.justice.gov/en/caseInformation (last visited Mar. 12, 2026, using Petitioner’s A-Number and nationality); Daniels-Hall v. National Edu. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by government entities ... and neither party disputes the authenticity of the web sites or the accuracy of the information displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F. Supp. 3d 1028, 1034 (E.D. Cal. 2024) (taking judicial notice of information on federal government agency’s website). detention” in ICE custody). B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) Two statutes govern the detention and removal of inadmissible noncitizens from the United States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. Sept 12, 2025), which the undersigned adopts herein: 1. Full Removal Proceedings and Discretionary Detention (§ 1226) The “usual removal process” involves an evidentiary hearing before an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. § 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. Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (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 officer that such release 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. § 236.1(c)(8)).

“Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 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 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 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)). 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 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. Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that noncitizen absent a change in circumstance. 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 immigration judge, the Government’s practice has been to require a showing of changed circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). /// 2. Expedited Removal and Mandatory Detention (§ 1225)

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

“If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is 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 order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.”

Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” § 1225(b)(1)(A)(iii)(II). To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are among those whom the Secretary of Homeland Security has designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 1225(b)(1). “Initially, DHS’s predecessor agency did not make any designation [under (3)], thereby limiting expedited removal only to ‘arriving 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 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS extended by designation expedited removal to noncitizens who arrive by sea and who have been present for fewer than two years, and to noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. Id. This was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United States. Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable 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” “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”)

[Section] 1225 also contains a provision that applies to applicants for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited removal but are subject to mandatory detention while their full removal proceedings are pending. This is in contrast to the default detention regime under § 1226(a), which allows for discretionary release and review of detention through a bond hearing. 3. The Government’s Recent Change in Position Until this year, the DHS has applied § 1226(a) and its discretionary release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice was codified by regulation. The regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . .

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

Since mid-May of 2025, the Department of Homeland Security has made a practice of appearing at regular removal proceedings in immigration court, moving to dismiss the proceedings, and then re- arresting the individual in order to place them in expedited removal proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does not dismiss the full removal proceedings, ICE still makes an arrest, apparently in reliance on § 1225(b)(2)’s detention provision.

Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). C. Parole Revocation In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole process in immigration cases and noted that before parole may be revoked, the parolee must be given written notice of the impending revocation, which must include a cogent description of the reasons supporting the revocation decision. The court held: Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required detention, to be “paroled” into the United States. This provision, at issue in this case, states: The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States. 8 U.S.C. § 1182(d)(5)(A). Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, immigration parolees are entitled to determinations related to their parole revocations that are not arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where the immigrant has departed or when the specified period of parole has expired. Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision to revoke humanitarian parole:

This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] continued presence...in the United States.” See 8 C.F.R. § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s parole violated his rights under the statute and regulations. See Y-Z- L-H, 2025 WL 1898025, at *13. Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached a similar conclusion relying on the Due Process Clause:

. . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual is released from custody she has a protected liberty interest in 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 Court joins other courts of this district facing facts similar to the present 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 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. 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 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a liberty interest in remaining out of custody on bond.”). Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that non-punitive detention violates the Constitution unless it is strictly limited, and, typically, accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the imprisonment serves the government’s legitimate goals.”). III. Exhaustion A. Governing Authority “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although courts have discretion to waive the exhaustion requirement when it is prudentially required, this discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly to be disregarded.”). B. Analysis Neither Petitioner nor Respondents address exhaustion in their filings. See (Docs. 1, 7). The Court finds that the prudential exhaustion requirement should be waived as it would be futile to seek release by administrative means given Respondents’ position that Petitioner is subject to mandatory detention under § 1225(b). See (Doc. 7); Jennings v. Rodriguez, 583 U.S. 281, 282 (2018) (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings during the course of their detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). Further, the BIA has held that all noncitizens present within the country without admission are seeking admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 2025) (“In addition, pursuit of administrative remedies would almost certainly be futile given the BIA’s recent holding that all noncitizens present in the United States without admission are ‘seeking admission’ for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)). For these reasons and because Respondents do not argue Petitioner should be required to exhaust administrative remedies, the undersigned recommends that the prudential exhaustion requirement be waived for Petitioner’s claim for habeas corpus relief. See, e.g., Chavez v. Noem, No. 3:25-cv-02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving prudential exhaustion requirement because the BIA “already applied its expertise in deciding and designating” Hurtado as precedential, pursuant to which detainees are subject to mandatory detention without bond under § 1225(b)(2)); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1253 (W.D. Wash. 2025) (“The Ninth Circuit has recognized ‘the irreparable harms imposed on anyone subject to immigration detention.’”) (citing Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)); J.A.C.P., 2025 WL 3013328, at *7 n.9. IV. Discussion Petitioner asserts two causes of action in his petition: violation of the Immigration and Nationality Act (“INA”) and violation of procedural due process under the Fifth Amendment to the U.S. Constitution. (Doc. 1 at 13-14). A. Statutory Scheme: 8 U.S.C. § 1226(a) Applies Petitioner contends that he remains in custody in violation of the INA, specifically that the “mandatory detention provision at 8 U.S.C. § 1225(b)(2) does not apply to all noncitizens residing in the United States who are subject to the grounds of inadmissibility,” and “it does not apply to those who previously entered the country and have been residing in the United States prior to being apprehended and placed in removal proceedings by Respondents,” with such detainment being “under § 1226(a), unless they are subject to § 1225(b)(1), § 1226(c), or § 1231.” (Doc. 1 ¶ 46). Respondents assert that Petitioner is an “applicant for admission” subject to mandatory detention under § 1225(b)(2), and that “Petitioner’s prior release in the discretion of DHS does not have the effect of having converted petitioner’s presence in the United States into an ‘admission.’” (Doc. 7 at 2-3). Respondents contend that this action is “factually distinct from the cases the Court cited in its minute order [Doc. 6] in that Petitioner has been ordered removed (even though the order of removal is not yet final) while it appears the aliens in those cases have not been ordered removed.” Id. at 3 (citing Bekler v. Noem, No. 1:25-cv-01974-CDB, 2026 WL 234949 (E.D. Cal. Jan. 29, 2026); Singh v. Albarran, No. 1:25-cv-01788-CDB, 2025 WL 3751819 (E.D. Cal. Dec. 29, 2025)). Section 1225 governs the detention of noncitizens “seeking admission” into the United States. See Jennings v. Rodriguez, 583 U.S. 281, 289 (2018); see id. at 282 (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings during the course of their detention.”). In contrast, § 1226 sets forth a “default rule” for noncitizens already present within the United States. Id. at 288. Relevant here, § 1225(b)(1) applies to aliens “arriving in the United States” or aliens who have “not been admitted or paroled into the United States” and have not “affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the [two]-year period immediately prior to the date of the determination of inadmissibility.” 8 U.S.C. § 1225(b)1)(A)(i), (iii)(II). Section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). For § 1225(b)(2)(A) to apply, an examining immigration officer must determine that the individual is (1) an “applicant for admission,” (2) “seeking admission,” and (3) “not clearly and beyond a doubt entitled to be admitted.” See Lepe v. Andrews, 801 F. Supp. 3d 1104, 1113 (E.D. Cal. 2025) (citing Martinez v. Hyde, 792 F. Supp. 3d 211, 214 (D. Mass. 2025)). Here, at the time of his re-arrest in October 2025, Petitioner already was present in the United States following his initial arrest and detention by DHS in 2022 and release under DHS supervision. Based on these facts, the plain language of § 1225(b) demonstrates that it is inapplicable to Petitioner because he is not “arriving” in the United States but rather arrived here more than three years prior to his recent re-arrest by ICE in October 2025. Further, Respondents have not shown that an examining immigration officer made any determination under § 1225(b)(2)(A) that Petitioner is “seeking admission” and “not clearly and beyond a doubt entitled to be admitted.” See Lepe, 801 F. Supp. 3d at 1113. Nor do Respondents argue that Petitioner properly is subject to mandatory detention under some other qualifying detention provision. Additionally, Respondents’ contention that the facts of this action are materially distinguishable from the Court’s prior rulings in Bekler v. Noem and Singh v. Albarran, because here Petitioner has been ordered removed, is unavailing. Under the INA, a removal order becomes final upon the earlier of either (1) a determination of the BIA affirming such order or (2) the expiration of the period in which a petitioner is permitted to seek review of the order by the BIA. 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 removed from the United States.” Id. at 830 (citing § 1226(a)). Respondents concede that Petitioner’s order of removal is not final given the pendency of an appeal to the BIA, which operates to stay the removal order. (Doc. 7 at 3; id. at 6 ¶ 11). Thus, the fact that Petitioner is the subject of a pending, nonfinal order of removal does not materially distinguish this action from the Court’s prior rulings in Bekler v. Noem and Singh v. Albarran. Under these circumstances, and having determined that the mandatory detention framework under § 1225(b) does not apply to Petitioner, the undersigned finds that § 1226(a) provides the proper framework for noncitizens already residing in the United States. See, e.g., Esquivel Pacheco v. LaRose, -- F. Supp. 3d --, No. 3:25-cv-2421-JO-AHG, 2026 WL 242300, at *1 (S.D. Cal. Jan. 29, 2026). In Esquivel Pacheco, the petitioner, a citizen of Mexico, presented at the San Ysidro Port of Entry in March 2019 and requested asylum. DHS determined the petitioner was inadmissible, initiated removal proceedings, and released him on parole. The petitioner subsequently filed an application for asylum and lived and worked in the United States for the next six years. An immigration judge ordered his removal to Mexico in September 2020 and the petitioner appealed to the BIA in October 2020. Almost five years later, ICE arrested the petitioner at work – while the petitioner’s appeal to the BIA remained pending and his parole status was unchanged. On his petition for writ of habeas corpus, the court rejected the respondents’ interpretation of § 1225(b)(2) and, noting that the petitioner was a longtime resident of this country at the time of his detention, he was not “seeking admission” when apprehended which was six years after he had entered the country. Thus, the court found that petitioner was subject to the discretionary detention framework of § 1226 and that the respondents’ detention of him violated his procedural due process rights under the Fifth Amendment to the U.S. Constitution. See id. at *1, 5. Other courts likewise have found that the text of sections 1225 and 1226, coupled with application of commonly used canons of statutory interpretation, legislative history, and ICE’s historical practices predating DHS’s recent shift in policy, weigh in favor of finding that section 1226(a)’s discretionary framework governs the detention of noncitizens who, like Petitioner, are already in the country when encountered by immigration authorities. See Rodriguez v. Bostock, 802 F. Supp. 3d 1297, 1336 (W.D. Wash. 2025); Otero v. Robbins, et al., No. 1:25-cv-1790 CSK, 2025 WL 3704453, at *5 (E.D. Cal. Dec. 22, 2025) (collecting cases, adopting the reasoning of the Lepe court, and finding that “[t]his Court agrees with and joins the majority of courts nationwide, including the Eastern District of California, in rejecting respondents’ interpretation of Sections 1225 and 1226”); Morales-Flores v. Lyons, No. 1:25-cv-01640-TLN-EFB, 2025 WL 3552841, at *3 (E.D. Cal. Dec. 11, 2025) (collecting cases and noting “Courts nationwide, including this one, have overwhelmingly rejected respondents’ arguments and found DHS’s new policy unlawful”); J.Y.L.C. v. Bostock, No. 3:25-cv-02083-AB, 2025 WL 3169865, at *2 (D. Or. Nov. 12, 2025) (citing cases and noting that this conclusion is “consistent with the holdings of dozens of district courts across the country”); Barco Mercado v. Francis, -- F. Supp. 3d --, 2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 2025) (noting that this statutory interpretation “has been challenged in at least 362 cases in federal district courts,” with the challengers having prevailed “either on a preliminary or final basis, in 350 of those cases decided by over 160 different judges sitting in about fifty different courts”). Next, the Court will address Petitioner’s claims regarding violation of procedural due process under the Fifth Amendment. B. Procedural Due Process 1. Governing Authority “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects individuals against two types of government action’: violations of substantive due process and procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “Procedural due process requires that, even where a deprivation of liberty survives substantive due process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the Due Process Clause stands as a significant constraint on the manner in which the political branches may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled that ‘due process requires adequate procedural protections to ensure that the government’s asserted justification for physical confinement outweighs the individual's constitutionally protected interest in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011)). 2. Analysis On Petitioner’s as-applied procedural due process challenge to his continuing detention by immigration authorities, the undersigned considers (1) “whether there exists a protected liberty interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). Petitioner has an underlying, continuing liberty interest in being free from re-detention. Specifically, Petitioner was released on discretion of DHS more than, at least, three years prior to his re-arrest. (Doc. 1 ¶¶ 14-16, 19-20). By releasing Petitioner in their discretion, immigration officials necessarily determined that Petitioner did not present a risk of flight or danger to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest may, in the officer’s discretion, release an alien not described in section 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.”). Accord Rodriguez Diaz, 53 F.4th at 1196. Petitioner remained released from immigration detention for a significant amount of time. (Doc. 1 ¶¶ 14-16, 19-20). Respondents do not assert that Petitioner failed to comply with the conditions of his release, nor do they proffer facts to suggest Petitioner is a danger to the public or a flight risk. See (Doc. 7). The undersigned agrees with other courts and other judges of this Court that noncitizens released from immigration custody on general orders of supervision or on their own recognizance have a liberty interest in their freedom that implicates protections under principles of procedural due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The fact that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks a protectable liberty interest and can be re-detained without process.”); see id. (“[E]ven if immigration detainees must wait months before a periodic re-review of their detention, those already released on immigration bond possess an interest in their continued liberty, which grows over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun v. Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1099 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy duration of his conditional release as well as the meaningful connections Petitioner seems to have made with his community during that time create a powerful interest for Petitioner in his continued liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5- 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an individual, a protected liberty interest under the Due Process Clause may entitle the individual to procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES- CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained in continuous custody and never released on supervision). Respondents assert that Petitioner is an “applicant for admission” and is “subject to mandatory detention by ICE under 8 U.S.C. § 1225(b)(2).” (Doc. 7 at 2; citing Alonzo v. Noem, No. 1:25-cv-01519 WBS SCR, 2025 WL 3208284 (E.D. Cal. Nov. 17, 2025)). The petitioners’ circumstances in Alonzo are factually dissimilar from those presented here, as another judge of this Court has explained: Petitioner here was detained by DHS and released, and immigration proceedings have remained pending for a significant period of time with an order of removal pending appeal. See Garcia v. Chesnut, No. 1:25-cv-01907-JLT-CDB, 2025 WL 3771348, at *8 (E.D. Cal. Dec. 31, 2025) (“However, unlike here, the petitioners in Valencia and Alonzo had never been encountered, let alone processed, by immigration officials, and had not been released on recognizance pending completion of Section 240 removal proceedings.”). Additionally, other judges of this Court, as well as many other courts, have considered and rejected the government’s arguments, finding that Section 1226(a), not Section 1225(b)(2), provides the appropriate framework for noncitizens released following their initial encounter with immigration authorities and have resided in the United States for a significant period, like Petitioner here. See, e.g., H.J.G.G. v. Wofford, No. 1:25-cv-01718-JLT-EPG-HC, 2025 WL 3761803, at *4 (E.D. Cal. Dec. 30, 2025) (citing Castillo v. Wofford, No. 1:25-cv-01586-JLT-HBK, 2025 WL 3466064, at *8 (E.D. Cal. Dec. 2, 2025)); accord Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 935-37 (N.D. Cal. 2025), appeal filed, No. 25-7472 (9th Cir. Nov. 26, 2025). Under such circumstances, “the government cannot switch tracks” and subject Petitioner to mandatory detention now under section 1225(b)(2) “after it previously released him on his own recognizance under section 1226(a).” Valencia Zapata, 801 F. Supp. 3d at 936; accord Souza v. Robbins, No. 1:25-cv-01597-DJC-JDP, 2025 WL 3263897, at *2 (E.D. Cal. Nov. 23, 2025). Because Petitioner has shown he has a protected liberty interest to remain free from re- detention based on his discretionary release in April 2022, the undersigned must determine what process is due before the government may terminate that liberty interest. To determine this, the undersigned considers the following factors articulated in Mathews: “[(1)] the private interest that will be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and [(3)] the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 (applying Mathews test in immigration detention context); id. at 993 (“The appropriateness of the requirement that ICE and IJs consider financial circumstances and alternative conditions of release is confirmed by the balance of factors under Mathews[.]”). As to the first factor, Petitioner has shown he has a significant private interest in remaining on release from detention. He had been released from immigration custody for approximately three-and-a-half years prior to his re-detention. Respondents do not assert that he failed to comply with the conditions of his release nor that he committed any crimes. See (Doc. 7). Petitioner’s continued liberty interest in remaining on release is undermined by his re-detention without a bond hearing. Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from imprisonment is at the core of the Due Process Clause…. The lengthy duration of his conditional release as well as the meaningful connections [he] seems to have made with his community during that time create a powerful interest for [him] in his continued liberty.”). As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest is considerable here where he has not received any bond or custody redetermination. Id. at 1094; A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025). Because there were no procedural safeguards to determine if Petitioner’s re-detention was justified, and Respondents present no facts indicating any change in circumstances while Petitioner was on release sufficient to justify Petitioner’s re-detention, the probable value of the additional procedural safeguard of a bond hearing to determine whether Petitioner is a flight risk or a danger to the community is high such that this factor weighs in favor of granting a bond hearing. See Doe, 787 F. Supp. at 1094 (“[G]iven that Petitioner was previously found to not be a danger or risk of flight and the unresolved questions about the timing and reliability of the new information, the risk of erroneous deprivation remains high.”); A.E., 2025 WL 1424382 at *5; Ramazan, 2025 WL 3145562, at *6. Therefore, this factor weighs in favor of granting a bond hearing. Third, the government’s interest in detaining Petitioner without a bond hearing is low, particularly given that Petitioner remained out of custody and was successfully supervised by immigration authorities prior to his re-arrest and detention. Doe, 787 F. Supp. 3d at 1094 (citation omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019)); Diaz v. Kaiser, No. 3:25- cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) (“And, like other Courts in this district, the Court concludes that the government’s interest in re-detaining Petitioner-[] without a hearing is ‘low,’ particularly in light of the fact that Petitioner[] has long complied with his reporting requirements.”). “The effort and cost to provide Petitioner with [a bond hearing] is minimal[.]” Doe, 787 F. Supp. 3d at 1094. Therefore, any additional burden from requiring the government to seek a bond hearing before it may re-detain Petitioner does not outweigh his liberty interest and the risk of erroneous deprivation. Accordingly, this factor weighs in favor of granting a bond hearing. In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest in October 2025 and continuing detention thereafter. C. Remedy Respondents do not assert that Petitioner is a flight risk or a danger to the community. As § 1225(b) does not apply to Petitioner, the government may not detain him pursuant to § 1225(b)(1) and his detention violates his procedural due process rights. And because Respondents do not provide any other basis to detain Petitioner and do not assert any risk of flight or danger to the community, the appropriate remedy is Petitioner’s immediate release. Further, the undersigned will recommend that in the event the government seeks to re-detain Petitioner, the government must provide notice to Petitioner a minimum of seven (7) days in advance and must hold a bond hearing before a neutral arbiter pursuant to § 1226(a) and applicable regulations, at which Petitioner’s eligibility for bond must be considered. Ordinarily, the Petitioner bears the burden of demonstrating by a preponderance of the evidence at a bond hearing that he is neither a flight risk nor a danger to the community. Rodriguez Diaz, 53 F.4th at 1197. But as set forth above, the BIA has held that all noncitizens within the country without admission are subject to mandatory detention under § 1225(b)(1). See J.A.C.P., 2025 WL 3013328, at *7 (citing Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)). Accordingly, the undersigned will recommend adopting the prevailing view endorsed by judges of this Court that, under the circumstances presented here, if Respondents seek to re-detain Petitioner, Respondents be compelled to provide Petitioner a bond redetermination hearing at which the government will bear the burden of establishing, by clear and convincing evidence, that Petitioner poses a danger to the community or a risk of flight. “Doing so is logical” because “the immigrant’s initial release reflected a determination by the government that the noncitizen is not a danger to the community or a flight risk. Since it is the government that initiated re-detention, it follows that the government should be required to bear the burden of providing a justification for the re-detention.” M.R.R. v. Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 3265446, at *14 (E.D. Cal. Nov. 24, 2025) (relying on Pinchi, 792 F. Supp. 3d at 1034, 1038); accord Omer G. G. v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025). D. Respondents’ Reference to Ninth Circuit Appeals Separately, Respondents assert that there are matters pending appeal before the Ninth Circuit that bear on the issues presented in this case. (Doc. 7 at 2 n.3, 4; citing, inter alia, Rodriguez v. Bostock, No. 25-6842). Having found that Petitioner’s re-arrest without a bond determination and continuous detention for a considerable length of time violates the U.S. Constitution, the undersigned will not recommend holding the matter in abeyance pending said appeals. See Zadvydas, 533 U.S. at 690 (reaffirming that “freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”) V. Conclusion and Recommendation Accordingly, IT IS HEREBY RECOMMENDED that: 1. The petition for writ of habeas corpus (Doc. 1) be GRANTED. 2. Respondents be ORDERED to release Petitioner immediately. 3. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless the government provides notice to Petitioner a minimum of seven (7) days in advance and holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and applicable regulations, at which Petitioner’s eligibility for bond must be considered, and where the government must demonstrate by clear and convincing evidence that Petitioner is a flight risk or danger to the community, such that physical custody is legally justified. 4. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this case. These findings and recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days after being served with these findings and recommendations, the parties may file written objections with the Court. Although this objection period is shorter than provided by Local Rule, such an adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. Constitution by Respondents, and the fact that the parties have extensively briefed the issues involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court may require a response within a shorter period if exigencies of the calendar require.”). Any objections filed should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing these findings and recommendations under 28 U.S.C. § 636(b)(I)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). ITISSO ORDERED. Dated: _ March 13, 2026 | bo UNITED STATES MAGISTRATE JUDGE 1] 21