1 2 3 4
5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 NOEL GELER, CASE NO. 2:26-cv-00481-LK 11 Petitioner, ORDER GRANTING IN PART 12 v. AND DENYING IN PART PETITION FOR WRIT OF HABEAS 13 TODD BLANCHE et al.,1 CORPUS 14 Respondents. 15
16 This matter comes before the Court on Petitioner Noel Geler’s petition for a writ of habeas 17 corpus. Dkt. No. 3. For the reasons described below, the Court grants the petition in part and denies 18 it in part.2 19 I. BACKGROUND 20 Geler is a native and citizen of Haiti who is currently detained at the Northwest ICE 21 Processing Center (“NWIPC”) in Tacoma, Washington. Dkt. No. 3 at 1; Dkt. No. 8 at 1. In April 22
23 1 Acting Attorney General Todd Blanche is substituted in his official capacity for Pamela Bondi. Fed. R. Civ. P. 25(d). 2 The Court declines to hold an evidentiary hearing because the record is sufficient for adjudication of the petition. 24 See Owino v. Napolitano, 575 F.3d 952, 954 (9th Cir. 2009) (holding that “the district court must hold an evidentiary hearing” where “the record is insufficient to decide whether [the petitioner’s] detention is authorized[.]”). 1 2022, U.S. Customs and Border Protection (“CBP”) encountered Geler in Arizona near the border, 2 “determined he had unlawfully entered the United States as a member of a family unit, and 3 apprehended him for further processing.” Dkt. No. 8 at 2. CBP issued Geler a Notice to Appear 4 (“NTA”), charging him as removable under Section 212(a)(6)(A)(i) of the Immigration and
5 Nationality Act (“INA”) and scheduling him to appear before an immigration judge in removal 6 proceedings. Id.; see also Dkt. No. 9-1 at 2 (the NTA stating that he is “an alien present in the 7 United States who has not been admitted or paroled”). 8 On April 18, 2022, Geler was released on an Order of Release on Recognizance (“OREC”), 9 which imposed reporting requirements and other conditions of release, including that he “not 10 violate any local, State, or Federal laws or ordinances.” Dkt. No. 8 at 2; Dkt. No. 9-3 at 2 (the 11 OREC); see also Dkt. No. 9-5 at 3 (notice of custody determination). Geler subsequently filed for 12 asylum and withholding of removal, Dkt. No. 9-2 at 4, and for temporary protected status (“TPS”), 13 Dkt. No. 8 at 2. His TPS status expired on August 3, 2024. Id. He has applied again for TPS status, 14 and his application remains pending. Id. In June 2025, the Department of Homeland Security
15 announced the termination of TPS for Haitians with an intended termination date of February 3, 16 2026. Id. That termination decision has been stayed by court order. Miot v. Trump, No. 25-cv- 17 02471 (ACR), 2026 WL 266413 (D.D.C. Feb. 2, 2026), cert. granted before judgment, No. 25- 18 1084, 2026 WL 731087 (U.S. Mar. 16, 2026). 19 On June 20, 2024, the Des Moines Police Department arrested Geler for assault, domestic 20 violence, and exposing a minor to domestic violence. Dkt. No. 8 at 2. He was subsequently 21 convicted, sentenced to 364 days incarceration, received a suspended sentence of 356 days, and a 22 protection order was issued against him. Id.; Dkt. No. 9-2 at 4. 23 On June 5, 2025, Geler’s partner notified the Seattle Office of United States Immigration
24 and Customs Enforcement (“ICE”), Office of Enforcement and Removal Operations (“ERO”) of 1 the protection order against Geler. Dkt. No. 8 at 2; Dkt. No. 9-2 at 5. On June 18, 2025, when 2 Geler reported to Seattle ERO, “ERO determined [he] would be taken into custody based on [his] 3 criminal history which ERO deemed a violation of his OREC.” Dkt. No. 8 at 2. Geler was then 4 transported to the NWIPC. Id.
5 Geler agrees that he was arrested in June 2024 “on D.V. charges” and imprisoned for eight 6 days. Dkt. No. 3 at 3. According to Geler, after he was released from prison, “he continued to 7 comply with ICE probation until he was arrested by DHS/ICE on June 2025 during his usual ICE- 8 appointments.” Id. He contends that the government unlawfully revoked his “immigration 9 probation” in June 2025, and he has been detained since that time. Id. at 1–2. 10 On October 15, 2025, Geler’s application for relief was denied by an immigration judge, 11 and he was ordered removed to Haiti. Dkt. No. 8 at 3. Geler appealed his case to the Board of 12 Immigration Appeals (“BIA”), and the BIA accepted but dismissed his appeal. Id. 13 Geler subsequently filed a Petition For Review (“PFR”) with a motion for a stay with the 14 Ninth Circuit Court of Appeals. Id. An automatic stay of removal is in effect. Id.; see also Geler
15 v. Bondi, No. 26-832, Dkt. No. 6 (9th Cir. Feb. 11, 2026). Geler has not had a bond hearing and is 16 not currently scheduled for one. Dkt. No. 8 at 3. 17 II. DISCUSSION 18 In this habeas petition, Geler contends that Respondents violated his rights to procedural 19 and substantive due process “when they failed to provide him a pre-deprivation hearing by an 20 impartial decision-maker before OSUP revocation.” Dkt. No. 3 at 3. As relief, he seeks 21 (1) immediate release, (2) an injunction preventing the government from re-detaining him “unless 22 they provide him a pre-deprivation hearing before an impartial decision-maker,” and (3) any other 23 relief the Court finds just and equitable. Id. at 5. The Government responds that the petition should
24 1 be denied because Geler is subject to mandatory detention under Section 1225(b), and he was not 2 entitled to a pre-deprivation hearing. Dkt. No. 7 at 1–2. 3 A. Legal Standard 4 The Constitution guarantees the availability of the writ of habeas corpus “to every
5 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing 6 U.S. Const., Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in custody 7 upon the legality of that custody, and . . . the traditional function of the writ is to secure release 8 from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus 9 may be granted to a petitioner who demonstrates that he is in custody in violation of the 10 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has 11 served as a means of reviewing the legality of Executive detention, and it is in that context that its 12 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, a district 13 court’s habeas jurisdiction includes challenges to immigration detention. See Zadvydas v. Davis, 14 533 U.S. 678, 687 (2001). “Once a [constitutional] right and a violation have been shown, the
15 scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and 16 flexibility are inherent in equitable remedies.” Roman v. Wolf, 977 F.3d 935, 942 (9th Cir. 2020) 17 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). 18 Under the Due Process Clause of the Fifth Amendment to the United States Constitution, 19 no person shall be “deprived of life, liberty, or property, without due process of law[.]” U.S. Const. 20 amend. V. “The Fifth Amendment guarantees due process in deportation proceedings.” Torres- 21 Aguilar v. I.N.S., 246 F.3d 1267, 1270 (9th Cir. 2001). “[T]he Due Process Clause applies to all 22 ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, 23 unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693; see also Demore v. Kim, 538 U.S.
24 510, 523 (2003) (recognizing that Fifth Amendment due process protections extend to deportation 1 proceedings, but noting that “detention during deportation proceedings [is] a constitutionally valid 2 aspect of the deportation process”). 3 B. Geler Has Established a Due Process Violation 4 Like many petitions before the Court, Geler does not set forth what statutory provision
5 governs his detention, and instead argues that due process entitles him to the relief he requests. See 6 generally Dkt. No. 3. However, the Ninth Circuit has rejected the proposition that due process 7 demands the same procedures no matter which detention statute applies to a non-citizen. Rodriguez 8 Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022). The applicable statute matters because the 9 constitutional process required is not necessarily the same for “different statutory provision[s] with 10 [their] own procedural safeguards in place.” Id.; see also id. at 1203 (explaining that because “§ 11 1226(a) provides substantially different procedures than the provisions [the court had] examined 12 in the past,” the court could not accept petitioner’s “suggestion that [the court’s decisions regarding 13 other detention provisions] mandate[d] the same procedural relief in this case”). Accordingly, the 14 Court first addresses the applicable statutory process and then addresses due process.
15 1. Process Required by Statute 16 (a) 8 U.S.C. § 1226(a) is the Applicable Statutory Authority 17 Respondents aver that Geler is subject to mandatory detention 8 U.S.C. § 1225(b) 18 regardless of whether subsection (b)(1) or (b)(2) applies. Dkt. No. 7 at 2–5, 10. Section 1225 19 applies to “applicants for admission” to the United States, defined as a noncitizen “present in the 20 United States who has not been admitted or who arrives in the United States[.]” 8 U.S.C. 21 § 1225(a)(1). Applicants for admission face mandatory detention and may only be released on 22 parole “for urgent humanitarian reasons or significant public benefit,” § 1182(d)(5)(A). Jennings 23 v. Rodriguez, 583 U.S. 281, 287 (2018). “That express exception to detention implies that there
24 1 are no other circumstances under which aliens detained under §1225(b) may be released.” Id. at 2 300. 3 Respondents acknowledge that courts in this District have rejected their argument that 4 noncitizens in Geler’s position are detained pursuant to Section 1225(b). Dkt. No. 7 at 7 (citing
5 Aslan v. Wamsley, No. 2:25-cv-02698-JNW, 2026 WL 238675, at *2 (W.D. Wash. Jan. 29, 2026)). 6 This Court agrees with the reasoning of Rodriguez Vazquez and countless other courts across the 7 country: “The plain text of section 1226(a)” implies that the “default discretionary bond procedures 8 in section 1226(a)”—rather than mandatory detention procedures under 8 U.S.C. § 1225(b)— 9 apply to noncitizens who are “‘present in the United States without being admitted or paroled’ 10 under section 1182(a)(6)(A) but have not been implicated in any crimes as set forth in section 11 1226(c).” Rodriguez Vazquez v. Bostock, 802 F. Supp. 3d 1297, 1322–23 (W.D. Wash. 2025). “[I]f 12 the Court were to adopt the reading of section 1225 advanced by the [Respondents], it would render 13 significant portions of section 1226(c) meaningless,” including the recently enacted Laken Riley 14 Act, which “carved out an additional category of noncitizens from section 1226(a)’s discretionary
15 detention scheme who now fall under section 1226(c)’s mandatory detention authority.” Id. at 16 1324–25; see also Cunha v. Freden, No. 25-3141-PR, 2026 WL 1146044, at *3–9 (2d Cir. Apr. 17 28, 2026); Avila v. Bondi, 170 F.4th 1128, 1138–41 (8th Cir. 2026) (Erickson , J., dissenting). 18 Furthermore, had Congress had wanted Section 1225(b) to have the effect urged by the 19 government, “it could have said so in words far simpler than those that it wrote.” Buenrostro- 20 Mendez v. Bondi, 166 F.4th 494, 510–11 (5th Cir. 2026) (Douglas, J., dissenting (quoting Biden v. 21 Texas, 597 U.S. 785, 798 (2022)); see also Castanon-Nava v. U.S. Dep't of Homeland Sec., 161 22 F.4th 1048, 1061 (7th Cir. 2025). 23 Additionally, “where a petitioner has been ‘treated by Respondents as subject to
24 discretionary detention under section 1226, rather than mandatory detention under section 1225,’ 1 the former is more likely to apply.” Del Valle Castillo v. Wamsley, No. 2:25-CV-02054-TMC, 2 2025 WL 3524932, at *5 (W.D. Wash. Nov. 26, 2025) (quoting Romero v. Hyde, No. CV 25- 3 11631-BEM, 2025 WL 2403827, at *8 (D. Mass. Aug. 19, 2025)). The government has treated 4 Geler as subject to discretionary detention under 8 U.S.C. § 1226 from his arrival in the United
5 States until his June 2025 detention. Specifically, after Geler entered the United States in April 6 2022, he was released on an OREC pursuant to “section 236 of the Immigration and Nationality 7 Act,” Dkt. No. 9-3 at 2, which is codified at 8 U.S.C. § 1226, see Diouf v. Mukasey, 542 F.3d 1222, 8 1227 (9th Cir. 2008). His notice of custody determination also stated that he was released 9 “[p]ursuant to the authority contained in section 236 of the Immigration and Nationality Act [(8 10 U.S.C. § 1226)],” Dkt. No. 9-5 at 3. Nothing in the record suggests that Geler’s release was 11 pursuant to Section 1225(b). These facts demonstrate that his detention is governed by 8 U.S.C. 12 § 1226 rather than 8 U.S.C. § 1225. 13 (b) Procedures Required under 8 U.S.C. § 1226(a) 14 Section 1226 authorizes the government to detain a noncitizen “pending a decision on
15 whether the [noncitizen] is to be removed from the United States.” 8 U.S.C. § 1226(a); see also 16 Jennings, 583 U.S. at 288 (“Section 1226 generally governs the process of arresting and detaining 17 . . . [noncitizens] pending their removal.”). As the Supreme Court instructed in Jennings, “[s]ection 18 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and 19 detention of a[] [noncitizen]” pending a removal decision, and “‘may release’ a[] [noncitizen] 20 detained under § 1226(a) ‘on bond . . . or conditional parole.’” 583 U.S. at 288 (ellipses in original) 21 (quoting 8 U.S.C. § 1226(a)). 22 “Federal regulations provide that [noncitizens] detained under § 1226(a) receive bond 23 hearings at the outset of detention.” Id. at 306 (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)). In
24 the first instance, the arresting officer makes the initial determination whether to release a 1 noncitizen detained under § 1226(a) on bond or parole. 8 C.F.R. § 236.1(c)(8). Following this 2 initial custody determination, the noncitizen may request a bond hearing before an immigration 3 judge. See 8 C.F.R. §§ 236.1(d)(1), 1003.19. 4 Under DHS regulations, a noncitizen detained under Section 1226(a) bears the burden of
5 showing, by a preponderance of the evidence, that he does not pose a danger to the community 6 and he is not a flight risk. 8 C.F.R. § 1236.1(c)(8); see also Rodriguez Diaz, 53 F.4th at 1197. In 7 assessing whether to release a noncitizen on bond, the immigration judge considers, among other 8 factors, “the individual’s ties to the United States as well as his employment history, criminal 9 record, history of immigration violations, and manner of entry into this country.” Rodriguez Diaz, 10 53 F.4th at 1197; see also Matter of E-Y-F-G, 29 I&N Dec. 103, 104 (2025). The detainee may be 11 represented by counsel and can submit evidence in support of his claims. See 8 C.F.R. 12 § 1003.19(b); Matter of Fatahi, 26 I. & N. Dec. 791, 792 (B.I.A. 2016). He can also appeal an 13 adverse decision to the Board of Immigration Appeals (“BIA”). 8 C.F.R. § 236.1(d)(3). The 14 detainee may also request an additional bond hearing based on a material change in circumstances.
15 8 C.F.R. § 1003.19(e). 16 If bond is granted, the noncitizen’s bond can be revoked at any time, even if the noncitizen 17 was previously released; however, if an immigration judge has determined that the noncitizen 18 should be released, DHS may not re-arrest that noncitizen absent a change in circumstance. Saravia 19 for A.H. v. Sessions, 905 F.3d 1137, 1145 n.10 (9th Cir. 2018) (citing Matter of Sugay, 17 I. & N. 20 Dec. 637, 640 (B.I.A. 1981)). “DHS has incorporated this holding into its practice, requiring a 21 showing of changed circumstances both where the prior bond determination was made by an 22 immigration judge and where the previous release decision was made by a DHS officer.” Saravia 23 v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017); see also Y.M.M. v. Wamsley, No. 2:25-
24 cv-02075-TMC, Dkt. No. 10 at 2 (W.D. Wash. Nov. 4, 2025) (Respondents’ brief stating that it 1 has “long been recognized by the Board of Immigration Appeals [that] a senior immigration 2 official’s exercise of discretion to revoke an individual’s release under 8 C.F.R. § 236.1(c)(9) is 3 limited to situations in which there has been a ‘change in circumstance’ since the non-citizen was 4 initially released.”). Only specific officials may revoke a noncitizen’s OREC under 8 C.F.R.
5 § 236.1(c)(9). 6 2. Due Process Requirements 7 Geler contends that Respondents violated his due process rights by failing to “provide him 8 a pre-deprivation hearing by an impartial decision-maker before OSUP revocation.” Dkt. No. 3 at 9 3. Respondents counter that Geler was not entitled to a pre-deprivation hearing under the Mathews 10 factors. Dkt. No. 7 at 10–13. 11 “Procedural due process imposes constraints on governmental decisions which deprive 12 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 13 Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “The 14 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and
15 in a meaningful manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). In 16 analyzing a procedural due process claim, the court engages in a two-step analysis: First, the court 17 determines whether the detainee “was deprived of a constitutionally protected liberty or property 18 interest.” Johnson v. Ryan, 55 F.4th 1167, 1179 (9th Cir. 2022). Second, the court examines 19 “whether that deprivation was accompanied by sufficient procedural protections” using the test 20 enunciated in Mathews v. Eldridge. Id. at 1179–80. 21 (a) Constitutionally Protected Liberty Interest 22 “Freedom from imprisonment—from government custody, detention, or other forms of 23 physical restraint—lies at the heart of the liberty th[e] [Due] Clause protects.” Zadvydas, 533 U.S.
24 at 690. Noncitizens “who have once passed through our gates, even illegally,” are entitled to 1 “proceedings conforming to traditional standards of fairness encompassed in due process of law.” 2 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)); see also Zadvydas, 533 3 U.S. at 693. Although merely “set[ting] foot on U.S. soil” may not be sufficient to “effect[ ] an 4 entry” and trigger due-process protections for admissions decisions if a noncitizen is detained
5 shortly thereafter, Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 139–40 (2020), if a 6 noncitizen “gain[s a] foothold in the United States,” Kaplan v. Tod, 267 U.S. 228, 230 (1925), or 7 “begins to develop . . . ties” in this country, “his constitutional status changes accordingly,” and 8 he “has a right to due process,” Landon v. Plasencia, 459 U.S. 21, 32–33 (1982); see also 9 Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903) (distinguishing noncitizens entitled to due process 10 from those “who ha[ve] been here for too brief a period to have become, in any real sense, a part 11 of our population”). Put another way, “[noncitizens] who have established connections in this 12 country have due process rights in deportation proceedings[.]” Thuraissigiam, 591 U.S. at 107. 13 Here, after briefly detaining Geler in 2022, DHS released him on his own recognizance 14 “pending a final administrative determination in [his] case[.]” Dkt. No. 9-5 at 3. Geler has spent
15 the vast majority of his years in the United States released on the OREC. He has two children who 16 are present in the United States, including one who is a U.S. citizen. Dkt. No. 9-2 at 5. He is entitled 17 to at least those protections described above with respect to his protected liberty interest in 18 remaining out of immigration custody. 19 Respondents argue that Geler’s liberty interest “was always conditional both on the 20 progression of his removal proceedings, compliance with certain conditions, and adherence to 21 state, local, and federal laws.” Dkt. No. 7 at 11. On this front, they argue that his “liberty interest 22 was lessened due to his criminal conviction[].” Id. The Court agrees that, given the OREC’s 23 requirement that Geler “must not violate” any laws, Dkt. No. 9-3 at 2, and his post-OREC criminal
24 conviction, Dkt. No. 9-2 at 4, Geler’s liberty interest in being free from custody “is not as strong 1 as it would be for an individual without any showing of material changed circumstance[.]” 2 Quinonez Torres v. Hermosillo, No. 2:26-cv-00076-TLF, 2026 WL 547591, at *9 (W.D. Wash. 3 Feb. 23, 2026) (evaluating a charge for assault against a family or household member); see also 4 Tabares Reyes v. Hernandez, No. 2:26-cv-00633-GJL, 2026 WL 820481, at *3 (W.D. Wash. Mar.
5 25, 2026) (evaluating a misdemeanor conviction for assault); Orozco Valle v. Scott, No. 2:25-cv- 6 02429-JNW-TLF, Dkt. No. 15 at 11–12 (W.D. Wash. Jan. 5, 2026) (evaluating a post-release 7 conviction for violating a no-contact order). 8 (b) Procedural Protections 9 To determine what procedures are constitutionally sufficient to protect petitioners’ liberty 10 interest, courts analyze the three Mathews factors: 11 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the 12 probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and 13 administrative burdens that the additional or substitute procedural requirement would entail. 14 424 U.S. at 335. In Rodriguez Diaz v. Garland, the Ninth Circuit assumed without deciding that 15 Mathews’ three-part test applies in “the immigration detention context,” 53 F.4th at 1206–07, and 16 district courts have applied the Mathews test in that context, see, e.g., Pinchi v. Noem, 792 F. Supp. 17 3d 1025, 1033 (N.D. Cal. 2025). 18 With respect to the first factor, as discussed above, Geler has an interest in remaining out 19 of immigration detention. See Morrissey, 408 U.S. at 482. Despite his liberty interest being 20 “indeterminate” under an OREC, that interest “includes many of the core values of unqualified 21 liberty and its termination inflicts a ‘grievous loss’ on the [noncitizen] and often on others.” Id. 22 Relatedly, Geler has an interest in the government adhering to the requirement not to re-detain him 23 absent (1) a revocation made by an appropriate official and (2) a material change in circumstances. 24 1 This factor favors Geler, though as set forth above, it does not weigh strongly given the materially 2 changed circumstances (i.e., his criminal conviction) and his release condition requiring 3 compliance with all laws. 4 Turning to the second factor, Geler argues that “he was never given a pre-deprivation
5 hearing before an impartial decision-maker as required by due process.” Dkt. No. 3 at 3. Indeed, 6 because Respondents purported to detain Geler under 8 U.S.C. § 1225(b), he effectively had no 7 opportunity to demonstrate why he should be released on bond. Again, the government’s stated 8 view is that noncitizens previously subject to discretionary detention under 1226(a) are now 9 subject to mandatory detention with no right to a hearing under section 1225(b), Dkt. No. 7 at 7, 10 and this erroneous position undergirds any decision to detain a noncitizen like Geler who was 11 previously subject to 1226(a). “The risk of erroneous deprivation is extraordinarily high where 12 ICE and DHS agency officials have sole, unguided, and unreviewable discretion to detain 13 Petitioners without any individualized showing of why their detention is warranted, nor any 14 process for Petitioners to challenge the exercise of that discretion.” Escobar Salgado v. Mattos,
15 No. 2:25-CV-01872-RFB-EJY, 2025 WL 3205356, at *24 (D. Nev. Nov. 17, 2025). 16 The additional procedures afforded under Section 1226(a), including an individualized 17 custody redetermination by an immigration judge, would substantially mitigate the risk of 18 erroneous deprivation of Geler’s liberty, because those procedures allow detention only where the 19 petitioner presents a flight risk or danger to the community. See Dkt. No. 7 at 6 (Respondents’ 20 brief acknowledging that the regulations implementing Section 1226(a) permit a noncitizen to 21 request a bond hearing “at any time” before a final order of removal is issued). An adverse decision 22 by an immigration judge in a bond hearing can further be appealed, and Geler could seek additional 23 custody redeterminations based on changed circumstances, such that the outcome of a bond
24 hearing would be subject to “numerous levels of review, each offering [him] the opportunity to be 1 heard by a neutral decisionmaker.” Rodriguez Diaz, 53 F.4th at 1210 (finding the bond hearing 2 procedures available through the implementing regulations of Section 1226(a) would render “the 3 risk of erroneous deprivation . . . relatively small”) (citation omitted). Respondents argue that in 4 light of Geler’s conviction, “requiring advance notice and a hearing would have been impracticable
5 and would have undermined the government’s ability to respond to those changed conditions.” 6 Dkt. No. 7 at 11. However, Respondents cite nothing to support that contention. And although 7 Geler’s form I-213 notes the criminal conviction, it does not specifically state that the conviction 8 prompted his re-detention or necessitated doing so immediately. See generally Dkt. No. 9-2. This 9 factor weighs in favor of Geler. 10 The third and final Mathews factor considers the “Government’s interest, including the 11 function involved and the fiscal and administrative burdens that the additional or substitute 12 procedural requirement would entail.” 424 U.S. at 335. The Court acknowledges that the 13 government’s interests in enforcing immigration laws, including “protecting the public from 14 dangerous criminal [noncitizens]” and “securing [a noncitizen’s] ultimate removal,” are “interests
15 of the highest order.” Rodriguez Diaz, 53 F.4th at 1208. “These interests are in fact served by the 16 individualized determination by an immigration judge, based on a review of evidence presented 17 by the government and the noncitizen, as to whether an individual is dangerous or at risk of fleeing 18 removal proceedings, under existing, well-established procedures.” Escobar Salgado, 2025 WL 19 3205356, at *25. The Court can identify no reason that an individualized hearing would interfere 20 with the government’s interests. Therefore, the Court finds that this factor too weighs in favor of 21 Geler. As a result, Geler is entitled to habeas relief for his due process claim. 22 23
24 1 C. Remedy 2 Respondents argue that in light of Geler’s criminal conviction, the appropriate remedy for 3 any due process violation is a post-deprivation bond hearing. Dkt. No. 7 at 11–12. The Court 4 agrees; Geler’s criminal conviction constitutes materially changed circumstances.
5 The specific harm faced by Geler is his detention for months without a bond hearing 6 pursuant to Section 1226(a). “The Court finds that harm is remedied by ordering a bond hearing 7 within seven days,” and “[g]iven the due process rights at stake, if a bond hearing is not provided 8 promptly within that time frame, Petitioner[] shall be immediately released” on the terms of his 9 most recent OREC. Escobar Salgado, 2025 WL 3205356, at *26; see also Martinez Flores v. 10 Kaiser, No. 1:26-CV-00582-KES-CDB (HC), 2026 WL 482739, at *9 (E.D. Cal. Feb. 20, 2026) 11 (ordering same); Solano Gallardo v. Warden, No. 5:26-CV-00485-SSS-BFM, 2026 WL 483207, 12 at *1 (C.D. Cal. Feb. 20, 2026) (ordering same); Araiza v. Hermosillo, No. 2:25-CV-02139-TL, 13 2025 WL 3516103, at *2 (W.D. Wash. Dec. 8, 2025) (ordering same); see also Cardozo v. Bostock, 14 No. 2:25-cv-00871-TMC, 2025 WL 2592275, at *2 (W.D. Wash. Sept. 8, 2025) (“In modern
15 habeas practice, courts often ‘employ a conditional order of release,’ which orders the government 16 to release the petitioner unless it ‘takes some remedial action’ that corrects” the government’s 17 violation of the law. (quoting Harvest v. Castro, 531 F.3d 737, 741–42 (9th Cir. 2008))). 18 Geler has not requested that the Court order a specific burden of proof at a bond hearing. 19 See generally Dkt. No. 3. Section 1226(a) is silent as to which party bears the burden of proof or 20 by what standard at a bond hearing. The implementing regulations likewise do not identify who 21 shoulders what burden, simply stating that both parties may present evidence. See 8 C.F.R. 22 § 1003.19(d) (2025) (“The determination of the Immigration Judge as to custody status or bond 23 may be based upon any information . . . that is presented to him or her by the [noncitizen] or the
24 Service.”). The Supreme Court also has not clarified the burden. See Sharon Shaji, Note, The Due 1 Process Owed to Noncitizens, 44 Cardozo L.R. 1635, 1638 (2023) (“In the absence of guidance 2 from the Supreme Court, federal circuit courts of appeals have produced a variety of approaches 3 to burden of proof allocation in § 1226(a) bond hearings.”). 4 As the Court discussed in Balwan v. Bondi, “[t]he federal appellate courts that have the
5 addressed this question are split” and the Ninth Circuit has not provided an answer directly on 6 point. No. 2:26-cv-00248-LK, 2026 WL 497098, at *9 (W.D. Wash. Feb. 23, 2026). The Court 7 need not address whether as a general matter, a noncitizen detained under Section 1226(a) is 8 entitled to a hearing at which the government is required to prove by clear and convincing evidence 9 that the noncitizen is a danger to the community or a flight risk, because it determines that under 10 the particular and unique circumstances here, Mathews requires such a hearing. See Singh v. Noem, 11 No. 2:26-cv-00246-BAT, 2026 WL 592265, at *3 (W.D. Wash. Mar. 3, 2026) (noting circuit split 12 on evidentiary standard for post-deprivation bond hearings and concluding it was “reasonable” to 13 impose clear and convincing evidence standard to remedy due process violation). 14 D. Geler’s Request for a Permanent Injunction is Denied
15 Finally, Geler requests an order “enjoin[ing] respondents from re-detaining him unless they 16 provide him a pre-deprivation hearing before an impartial decision-maker.” Dkt. No. 3 at 5. Where, 17 as here, habeas petitioners raise Due Process claims and have also invoked the Court’s jurisdiction 18 under 28 U.S.C. § 1331, the Court has “the authority both to entertain [the petitioner’s] 19 constitutional challenges and to grant injunctive relief in response to them,” “irrespective of the 20 accompanying habeas petition.” Roman, 977 F.3d at 941-42. Importantly, though, “[i]n seeking a 21 permanent injunction, the moving party must convince the court that relief is needed: ‘The 22 necessary determination is that there exists some cognizable danger of recurrent violation, 23 something more than the mere possibility which serves to keep the case alive.’” Cummings v.
24 Connell, 316 F.3d 886, 897 (9th Cir. 2003) (quoting United States v. W.T. Grant Co., 345 U.S. 1 629, 633 (1953)). Nowhere in Geler’s petition does he allege that re-detention is likely if he were 2 to be released or that such detention is likely to occur without compliance with the government’s 3 regulations or policies. Without argument or evidence that those outcomes are likely to occur, 4 Geler’s request constitutes nothing more than a “mere possibility” of harm that do not entitle him
5 to relief. Id. For these reasons, the Court denies his request for injunctive relief regarding potential 6 future re-detention. 7 III. CONCLUSION 8 For the foregoing reasons, the petition for writ of habeas corpus, Dkt. No. 3, is GRANTED 9 IN PART and DENIED IN PART, and the Court ORDERS as follows: 10 1. Respondents must provide Geler with a bond hearing under Section 1226(a) before 11 an immigration judge within seven days of the date of this Order. At the hearing, 12 the government bears the burden of proving by clear and convincing evidence that 13 Geler is a danger to the community or a flight risk. Respondents must ensure that 14 the hearing is recorded. Respondents are enjoined from denying bond to Geler on
15 the basis that he is detained pursuant to 8 U.S.C. § 1225(b). 16 2. If a bond hearing is not provided within seven days of the date of this Order, Geler 17 shall be released from ICE custody immediately on the terms of his most recent 18 OREC or other terms consistent with Section 1226(a). Respondents must file a 19 Status Report with the Court either confirming that Geler received a bond hearing— 20 and the results of that hearing—or otherwise confirming his release by May 18, 21 2026. 22 3. If the immigration judge does not order Geler released, Respondents are prohibited 23 from transferring Geler from this jurisdiction—i.e., the Western District of
24 Washington—for seven days following the immigration judge’s decision, unless 1 such transfer is necessary for medical evaluation, medical treatment, release, or 2 extenuating circumstances; 3 In addition, the Court denies Geler’s motion to defer payment of the filing fee, Dkt. No. 4, 4 as moot because he has paid the filing fee, see March 3, 2026 Docket Entry.
5 Dated this 7th day of May, 2026. 6 A 7 Lauren King United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23