1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 OMER G. G., No. 1:25-cv-01471-KES-SAB (HC) 10 Petitioner, ORDER GRANTING PETITION FOR WRIT 11 v. OF HABEAS CORPUS IN PART 12 POLLY KAISER, Acting Field Office Docs. 1, 2 Director of the San Francisco Immigration 13 and Customs Enforcement Office; TODD M. LYONS, Acting Director of United 14 States Immigration and Customs Enforcement; KRISTI NOEM, Secretary of 15 the United States Department of Homeland Security; PAMELA BONDI, Attorney 16 General of the United States; and MINGA WOFFORD, Mesa Verde ICE Processing 17 Center Facility Administrator, 18 Respondents. 19 Petitioner Omer G. G. is a 47-year-old asylum-seeker from Ecuador who entered the 20 United States in August 2024 with his wife and young daughter.1 He was detained by 21 immigration officials for several days upon entry, but after immigration officials determined that 22 he was neither a danger nor a flight risk, they released him on humanitarian parole. On 23 October 15, 2025, Immigration and Customs Enforcement (“ICE”) agents re-detained petitioner 24
25 1 As recommended by the Committee on Court Administration and Case Management of the Judicial Conference of the United States, the Court omits petitioner’s full name, using only his 26 first name and last initials, to protect sensitive personal information. See Memorandum re: 27 Privacy Concern Regarding Social Security and Immigration Opinions, Committee on Court Administration and Case Management, Judicial Conference of the United States (May 1, 2018), 28 https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf. 1 when he reported for a check-in. 2 On November 3, 2025, petitioner filed a petition for writ of habeas corpus, Doc. 1, and a 3 motion for a temporary restraining order, Doc. 2, arguing that his re-detention without a pre- 4 deprivation hearing violates the Due Process Clause of the Fifth Amendment, that his re-arrest 5 violates the Fourth Amendment, and that ICE failed to follow its regulations governing the 6 termination of his humanitarian parole. For the reasons explained below, the petition for writ of 7 habeas corpus is granted in part. 8 I. Background2 9 Petitioner and his family fled Ecuador in 2024 to seek asylum in the United States. Doc. 1 10 at ¶ 8. Petitioner, his wife, and his minor child crossed the southern border on August 19, 2024, 11 and were detained by immigration officials shortly thereafter. Id. ¶ A2. Although petitioner was 12 initially processed for expedited removal, immigration officials referred him for a credible fear 13 interview with an asylum officer after he expressed a fear of returning to Ecuador. See id. ¶ A4; 14 Doc. 7-1, Jerome Decl. at ¶¶ 6, 8. The asylum officer found that he and his family demonstrated 15 a credible fear of persecution if they returned to Ecuador. Doc. 1 at ¶¶ A3–A4; Doc. 1 at 45–48 16 (credible fear interview checklist); Doc. 1 at 28 (notice to appear). Immigration officials 17 therefore placed petitioner in removal proceedings under 8 U.S.C. § 1229a so that he could 18 pursue his asylum claim, and they served him with a notice to appear in immigration court. 19 Doc. 1 at 28. 20 After being detained for nine days, petitioner and his family were released from detention 21 on humanitarian parole pursuant to 8 U.S.C. § 1182(d)(5)(A). Petitioner was given an interim 22 notice authorizing parole which stated: “You have been released pending a final decision in your 23 exclusion/deportation hearing.” Doc. 1 at 32. The notice also stated that his parole was “valid for 24 one year beginning from the date on this notice,” i.e., August 28, 2024, and was set to 25 “automatically terminate upon [his] departure or removal from the United States or at the end of 26 2 The facts articulated in this section come from petitioner’s verified petition and other evidence 27 in the record. A court “may treat the allegations of a verified . . . petition [for writ of habeas corpus] as an affidavit.” L. v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (citing McElyea v. 28 Babbitt, 833 F.2d 196, 197–98 (9th Cir. 1987)). 1 the one year period” unless otherwise extended. Id. at 33. His parole was “conditioned on [his] 2 compl[iance] with the terms and conditions of [his] release,” including reporting for “every 3 scheduled hearing before the immigration court and every appointment as directed by ICE.” Id. 4 One such condition of release was his enrollment for monitoring in the “Alternatives to 5 Detention” program. Id. at 34; Doc. 7-1, Jerome Decl. at ¶ 9. 6 By regulation, immigration officials may parole a noncitizen pursuant to 8 U.S.C. 7 § 1182(d)(5)(A) “for ‘urgent humanitarian reasons’ or ‘significant public benefit,’ provided the 8 [noncitizen] present[s] neither a security risk nor risk of absconding.” 8 C.F.R. § 212.5(b) 9 (quoting 8 U.S.C. § 1182(d)(5)(A)). “Release [therefore] reflects a determination by the 10 government that the noncitizen is not a danger to the community or a flight risk.” Saravia v. 11 Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. 12 Sessions, 905 F.3d 1137 (9th Cir. 2018). Immigration officials released petitioner on an ankle 13 monitor with instructions to report to the ICE office in Stockton, California. Doc. 1 at ¶ A5, A8. 14 Petitioner followed immigration officials’ instructions, and ICE agents removed his ankle monitor 15 at the Stockton ICE office. Id. Petitioner was then placed in a different monitoring program 16 where he was required to report for check-ins on a phone application by taking a photo of himself 17 and verifying his location. Id. 18 Petitioner and his family resettled in Modesto, California. Id. ¶ A9. His wife filed an 19 application for asylum shortly after their arrival and included petitioner as a derivative individual 20 on the application. Id. ¶ A9. Petitioner’s first master calendar hearing in immigration court was 21 scheduled for July 30, 2026. Id. ¶ 10. Petitioner was approved for work authorization for a 22 period of five years beginning on May 25, 2025. Doc. 1 at 82. He became employed with a 23 landscaping company and a poultry company and financially supported his family. Doc. 1 at 24 ¶ B26. He and his family attended church regularly. Id. ¶ A40. 25 During his time on release, petitioner maintained a clean criminal record, appeared for all 26 in-person check-ins, and kept ICE updated on his address. Id. ¶ B25. Respondents assert that 27 petitioner missed eight virtual check-ins via the phone application. Doc. 7-1, Jerome Decl. at 28 ¶ 11. Petitioner maintains that he completed all his check-ins via the phone application, but that 1 on two occasions, he checked in after the allotted time. Doc. 1 at ¶ A11. Petitioner disputes that 2 he missed any check-in entirely and disputes that he failed to comply in any manner with respect 3 to the remaining six check-ins identified by respondents. Id.; Doc. 9 at 7–8. On October 14, 4 2025, an ICE agent instructed petitioner to appear at the Stockton ICE office; petitioner indicates 5 that the ICE agent told him that the purpose of the visit was to transition him into another check- 6 in program. Doc. 1 at ¶ A12. 7 On October 15, 2025, petitioner reported to the Stockton ICE office as instructed, and ICE 8 agents arrested him. Id. ¶ A13; Doc. 7-1, Jerome Decl. at ¶ 12. Petitioner was then transported to 9 Mesa Verde ICE Processing Center, where he remains detained. Doc. 1 at ¶ A19. His first 10 master calendar hearing, originally scheduled for July 30, 2026, was vacated after he was 11 detained. Id. ¶ A14. He appeared for an initial hearing on November 5, 2025 and requested 12 additional time to seek counsel, which the immigration judge allowed. Doc. 7-1, Jerome Decl. at 13 ¶ 14. 14 II. Procedural History 15 On November 3, 2025, petitioner filed a petition for writ of habeas corpus, Doc. 1, and a 16 motion for temporary restraining order, Doc. 2. He argues in both of those filings that that the 17 Due Process Clause required that he be provided a hearing prior to any re-detention, that his re- 18 arrest violates the Fourth Amendment, and that his re-arrest was contrary to the Immigration and 19 Nationality Act and its implementing regulations. See Docs. 1, 2. The Court set a briefing 20 schedule and provided notice to the parties that it intended to rule directly on the petition for writ 21 of habeas corpus. Doc. 4; see Fed. R. Civ. P. 65(a)(2) (“Before or after beginning the hearing on 22 a motion for a preliminary injunction, the court may advance the trial on the merits and 23 consolidate it with the hearing.”); see also 28 U.S.C. § 2243 (“The court shall summarily hear and 24 determine the facts, and dispose of [a petitioner’s habeas petition] as law and justice require.”); 25 Dzhabrailov v. Decker, No. 20-CV-3118 (PMH), 2020 WL 2731966, at *4 (S.D.N.Y. May 26, 26 2020) (considering preliminary injunction and merits of habeas petition simultaneously). 27 28 1 Respondents filed an opposition to the petition on November 10, 2025.3 Doc. 7. Petitioner filed a 2 reply on November 13, 2025. Docs. 8, 9.4 On November 20, 2025, respondents filed a notice of 3 supplemental authority.5 See Doc. 10. 4 III. Legal Standard 5 The Constitution guarantees the availability of the writ of habeas corpus “to every 6 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) 7 (citing U.S. Const., Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in 8 custody upon the legality of that custody, and . . . the traditional function of the writ is to secure 9 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas 10 corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the 11 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has 12 served as a means of reviewing the legality of Executive detention, and it is in that context that its 13 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, a 14 district court’s habeas jurisdiction includes challenges to immigration detention. See Zadvydas v. 15 Davis, 533 U.S. 678, 687 (2001). 16 /// 17 /// 18 /// 19 /// 20 ///
21 3 In their opposition, respondents request that the Court “strike and [] dismiss all unlawfully named officials under § 2241.” Doc. 11 at 1, n.1. Such a “request for court order must be made 22 by motion.” Ortega v. Kaiser, No. 25-CV-05259-JST, 2025 WL 2243616, at *4 (N.D. Cal. Aug. 23 6, 2025). “[A] request for affirmative relief is not proper when raised for the first time in an opposition.” Id. Respondents’ request is therefore denied without prejudice. 24 4 Petitioner filed his reply twice. See Docs. 8, 9. The filings appear to be identical. 25
5 The cases cited in respondents’ notice of supplemental authority did not address the due process 26 issue presented here; they examined the interpretation of 8 U.S.C. §§ 1225(b) and 1226(a). See 27 Doc. 10 (citing, e.g., Olalde v. Noem, No. 1:25-CV-00168-JMD, 2025 WL 3131942 (E.D. Mo. Nov. 10, 2025)). 28 1 IV. Discussion 2 Petitioner argues that his re-detention violates the Due Process Clause of the Fifth 3 Amendment, the Fourth Amendment, and ICE’s regulations governing the revocation of 4 humanitarian parole. See Doc. 3. The Court addresses petitioner’s due process claim below.6 5 Because civil immigration detention is typically justified only when a noncitizen presents 6 a risk of flight or danger to the community, see Zadvydas v. Davis, 533 U.S. 678, 690 (2001), 7 Padilla v. ICE, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023), petitioner argues that the Due 8 Process Clause bars the government from re-detaining him without first providing a hearing 9 where it must prove he is a flight risk or danger. Doc. 1 at ¶¶ 36–46; Doc. 2 at 7–12. 10 Respondents make two threshold arguments in response. 11 Respondents argue that petitioner has no due process rights and that his rights are limited 12 to those provided by statute. Doc. 7 at 9 (citing DHS v. Thuraissigiam, 591 U.S. 103, 139–40 13 (2020), and Landon v. Plasencia, 459 U.S. 21, 32 (1982)). This argument is unpersuasive for two 14 reasons. First, it fails to appreciate the distinction between persons already located inside the 15 United States, like petitioner, and persons attempting to enter the United States, like the 16 petitioners in Thuraissigiam and Landon. “It is well established that certain constitutional 17 protections available to persons inside the United States are unavailable to aliens outside of our 18 geographic borders.” Zadvydas, 533 U.S. at 693 (citing United States v. Verdugo–Urquidez, 494 19 U.S. 259, 269 (1990); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)). “But once an alien 20 enters the country, the legal circumstance changes, for the Due Process Clause applies to all 21 ‘persons’ within the United States, including aliens, whether their presence here is lawful, 22
23 6 Petitioner claims that ICE failed to follow its own regulations in revoking his parole, including by not providing notice to him of its intent to do so, and that his re-arrest without new probable 24 cause violates the Fourth Amendment. Petitioner’s claim concerning the regulations is without merit because the regulations governing termination of humanitarian parole provide that “[p]arole 25 shall automatically be terminated without written notice . . . at the expiration of the time for which parole was authorized . . . .” 8 C.F.R. § 212.5(e)(1). As petitioner’s parole expired on August 28, 26 2025, see Doc. 1 at 33, petitioner was not entitled to notice under the regulations. 27 Petitioner also claims that his re-detention violated the Fourth Amendment. Given that this Order finds that petitioner is entitled to relief on the merits of his due process claim, it need 28 not reach petitioner’s Fourth Amendment argument. 1 unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693; see Hernandez v. Sessions, 872 2 F.3d 976, 990 (9th Cir. 2017) (“[I]t is well-established that the Due Process Clause stands as a 3 significant constraint on the manner in which the political branches may exercise their plenary 4 authority.”). 5 Second, respondents’ argument misconstrues the nature of the challenge that petitioner 6 brings in this case, which is a challenge to his detention. Thuraissigiam held that a petitioner who 7 was stopped at the border did not have any due process rights regarding admission into the 8 United States. Thuraissigiam, 591 U.S. at 107; see also Landon, 459 U.S. at 32 (“(“[A]n alien 9 seeking initial admission to the United States requests a privilege and has no constitutional rights 10 regarding his application . . . .”). However, petitioner challenges his re-detention without a 11 hearing; he does not challenge in this habeas action any determination regarding his admissibility. 12 See Padilla v. ICE, 704 F. Supp. 3d 1163, 1170–72 (W.D. Wash. 2023) (discussing 13 Thuraissigiam and explaining the distinction between a challenge to admission and a challenge to 14 detention); Hernandez, 872 F.3d at 981 (“[T]he government’s discretion to [detain] non-citizens 15 is always constrained by the requirements of due process.”). 16 “Although the Supreme Court has described Congress’s power over the ‘policies and rules 17 for exclusion of aliens’ as ‘plenary,’ and held that this court must generally ‘defer to Executive 18 and Legislative Branch decisionmaking in that area,’ it is well-established that the Due Process 19 Clause stands as a significant constraint on the manner in which the political branches may 20 exercise their plenary authority”—through detention or otherwise. Hernandez, 872 F.3d at 990 21 n.17 (citing Kleindienst, 408 U.S. at 769; Zadvydas, 533 U.S. at 695). The Due Process Clause 22 protects petitioner, a person inside the United States, from unlawful detention. See Zadvydas, 533 23 U.S. at 693. 24 Next, respondents assert that petitioner is mandatorily detained pursuant to 8 U.S.C. 25 § 1225(b)(2)(A), and argue that, in other contexts, the Supreme Court has upheld mandatory 26 detention schemes.7 Doc. 7 at 8–9 (citing Demore v. Kim, 538 U.S. 510 (2003)). In Demore, the 27 7 Respondents argue that the Court should require prudential exhaustion because petitioner has 28 not exhausted his administrative remedies by seeking a bond hearing before the immigration 1 Supreme Court upheld the constitutionality of § 1226(c), a mandatory detention provision, on a 2 facial challenge. Demore, 538 U.S. at 513. A facial challenge requires a plaintiff to show that a 3 statute is “unconstitutional in every conceivable application.” Foti v. City of Menlo Park, 146 4 F.3d 629, 635 (9th Cir. 1998). In contrast, an as-applied challenge requires a plaintiff to show 5 only that “the application of the statute to a specific factual circumstance” is unconstitutional. 6 Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011). As other courts have explained in 7 considering Demore, its conclusion that § 1226(c)’s mandatory detention scheme is constitutional 8 in some of its applications “does not mean that the Court does not have the power to grant 9 petitions for habeas corpus raising as-applied constitutional challenges to [] detention without a 10 bond hearing.” Perera v. Jennings, 598 F. Supp. 3d 736, 744 (N.D. Cal. 2022). Here, petitioner 11 presses an as-applied constitutional challenge: he argues that he has a protected liberty interest 12 under the Due Process Clause due to his release on parole, and that such liberty interest bars the 13 government from re-detaining him without a bond hearing. Doc. 1 at ¶¶ 36–46; Doc. 2 at 7–12. 14 Petitioner’s as-applied constitutional challenge is analyzed “in two steps: the first asks 15 whether there exists a protected liberty interest under the Due Process Clause, and the second 16 examines the procedures necessary to ensure any deprivation of that protected liberty interest 17 accords with the Constitution.” Garcia v. Andrews, No. 2:25-cv-01884-TLN-SCR, 2025 WL 18 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky Dep’t of Corrections v. Thompson, 490 19 U.S. 454, 460 (1989)). 20 a. Liberty Interest 21 A protected liberty interest may arise from a conditional release from physical restraint. 22 Young v. Harper, 520 U.S. 143, 147–49 (1997). Even when a statute allows the government to 23
24 court. Doc. 7 at 10. As respondents argue, however, petitioner is subject to 8 U.S.C. § 1225(b), as he was paroled pursuant to 8 U.S.C. § 1182(d)(5)(A). Those detained under 8 U.S.C. 25 § 1225(b) are not entitled to a bond hearing under the statute. Jennings v. Rodriguez, 583 U.S. 281, 297 (2018) (“[N]either § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond 26 hearings.”). A request to exhaust administrative remedies would therefore be futile. Hernandez 27 v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (“[A] court may waive the prudential exhaustion requirement if “administrative remedies are inadequate or not efficacious, pursuit of 28 administrative remedies would be a futile gesture . . . .”). 1 arrest and detain an individual, a protected liberty interest under the Due Process Clause may 2 entitle the individual to procedural protections not found in the statute. See id. (due process 3 requires pre-deprivation hearing before revocation of preparole); Gagnon v. Scarpelli, 411 U.S. 4 778, 782 (1973) (same, in probation context); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) 5 (same, in parole context). To determine whether a specific conditional release rises to the level of 6 a protected liberty interest, “[c]ourts have resolved the issue by comparing the specific 7 conditional release in the case before them with the liberty interest in parole as characterized by 8 Morrissey.” Gonzalez-Fuentes v. Molina, 607 F.3d 864, 887 (1st Cir. 2010) (internal quotation 9 marks and citation omitted). 10 In Morrissey, the Supreme Court explained that parole from a criminal conviction 11 “enables [the parolee] to do a wide range of things open to persons” who have never been in 12 custody or convicted of any crime, including to live at home, work, and “be with family and 13 friends and to form the other enduring attachments of normal life.” Morrissey, 408 U.S. at 482. 14 “Though the [government] properly subjects [the parolee] to many restrictions not applicable to 15 other citizens,” such as monitoring and seeking authorization to work and travel, his “condition is 16 very different from that of confinement in a prison.” Id. “The parolee has relied on at least an 17 implicit promise that parole will be revoked only if he fails to live up to the parole conditions.” 18 Id. The revocation of parole undoubtedly “inflicts a grievous loss on the parolee.” Id. (quotations 19 omitted). Therefore, a parolee possesses a protected interest in his “continued liberty.” Id. at 20 481–84. 21 Petitioner’s parole from detention is similar. For over a year, it allowed him to establish 22 ties in the community while pursuing relief in his removal proceedings. He ultimately received 23 employment authorization, was gainfully employed, and supported his family. He and his wife 24 raised their daughter and attended church. These actions were made possible by petitioner’s 25 freedom, which is “the most elemental of liberty interests[.]” Hamdi v. Rumsfeld, 542 U.S. 507, 26 529 (2004). 27 Respondents point out that petitioner’s parole expired on August 28, 2025, and that they 28 were permitted to re-detain him under the statute and its implementing regulations. See Doc. 7 at 1 7–8. However, petitioner’s liberty interest did not expire along with his parole. The interim 2 notice authorizing petitioner’s parole stated: “You have been released from service custody 3 pending a final decision in your exclusion/deportation hearing.” Doc. 1 at 32 (emphasis added). 4 While the interim notice explained that his parole was valid only for one year, it stated that it 5 could be extended. Doc. 1 at 33. Only three months before the one-year expiration date, 6 immigration authorities granted petitioner work authorization for a period of five years. Doc. 1 at 7 82. Furthermore, the applicable regulations provide that if parole expires, “a noncitizen ‘shall 8 again be released on parole’ if their ‘exclusion, deportation, or removal order cannot be executed 9 within a reasonable time,’ [unless] in the opinion of a DHS official ‘the public interest requires 10 that the alien be continued in custody.’” Rodriguez Cabrera v. Mattos, No. 2:25-CV-01551- 11 RFB-EJY, 2025 WL 3072687, at *2 (D. Nev. Nov. 3, 2025) (quoting 8 C.F.R. § 212.5(e)(2)(i)).8 12 Under the circumstances of this case, where immigration officials provided to petitioner a 13 document stating that he was released “pending a final decision” in his removal proceedings, 14 petitioner had not even had his initial hearing in those removal proceedings, and petitioner was 15 granted a five-year work authorization permit during his year on parole status, petitioner 16 reasonably maintained a liberty interest in his release pending a final removal decision in his 17 immigration case. This conclusion is bolstered by the fact that the applicable regulations provide 18 that if a non-citizen is re-detained after parole expires, they “shall again be released on parole” if 19 their “exclusion, deportation, or removal order cannot be executed within a reasonable time . . . .” 20 8 C.F.R. § 212.5(e)(1), (e)(2)(i). Here, not only is there is no removal order against petitioner, but 21 petitioner had also not even had an initial hearing in his removal proceedings when agents re- 22 detained him. 23 In a similar case, the District Court for the Western District of Washington found 24 unpersuasive the government’s argument that a noncitizen did not have a liberty interest where 25
8 Government representations may create a constitutionally protected interest. Perry v. 26 Sindermann, 408 U.S. 593, 599–603 (1972). In Perry, the Supreme Court found that a non- 27 tenured college professor employed under a series of one-year contracts may have a constitutionally protected interest in being re-hired due to statements made in the college’s faculty 28 guide and guidelines promulgated by the university board. See id. at 601–03. 1 his one-year parole had expired shortly before he was re-detained. Ramirez Tesara v. Wamsley, 2 No. 2:25-CV-01723-MJP-TLF, 2025 WL 2637663 (W.D. Wash. Sept. 12, 2025). The court 3 found that the government’s “argument does not explain why [immigration authorities] found 4 Petitioner to be eligible for parole on February 7, 2024, but not the following year even after he 5 had established deep ties to the community . . . and timely filed an asylum application.” Id. at *3. 6 The court held that the petitioner’s liberty interest “did not expire along with Petitioner’s parole 7 agreement.” Id.; see also Rodriguez Cabrera, 2025 WL 3072687, at *12 (rejecting similar 8 government argument); Maklad v. Murray, No. 1:25-CV-00946 JLT SAB, 2025 WL 2299376, at 9 *2, 5–8 (E.D. Cal. Aug. 8, 2025) (reaching same conclusion in similar circumstances). The Court 10 agrees with this reasoning. 11 Respondents also argue that the government had discretion to re-detain petitioner. Doc. 7 12 at 6–7. But while immigration officials may have had discretion over the initial decision to 13 detain or release petitioner, their decision to release an individual from custody creates “an 14 implicit promise” upon which an individual may rely: that his liberty “will be revoked only if [he] 15 fails to live up to the . . . conditions [of release].” Morrissey, 408 U.S. at 482. As other courts 16 have found in similar circumstances, “even when ICE has the initial discretion to detain or release 17 a noncitizen pending removal proceedings, after that individual is released from custody she has a 18 protected liberty interest in remaining out of custody.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 19 1032 (N.D. Cal. 2025); see also Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017) (“the 20 government’s discretion to incarcerate non-citizens is always constrained by the requirements of 21 due process”). 22 The Court finds that petitioner has a protected liberty interest in his release. See 23 Guillermo M. R. v. Kaiser, 791 F. Supp. 3d 1021, 1029 (N.D. Cal. 2025) (recognizing that “the 24 liberty interest that arises upon release [from immigration detention] is inherent in the Due 25 Process Clause”); Ortega v. Kaiser, No. 25-cv-05259-JST, 2025 WL 1771438, at *3 (N.D. Cal. 26 June 26, 2025) (collecting cases finding that noncitizens who have been released have a strong 27 liberty interest). The Court must therefore determine what process is due before the government 28 may terminate his liberty. 1 b. Mathews Factors 2 Due process “is a flexible concept that varies with the particular situation.” Zinermon v. 3 Burch, 494 U.S. 113, 127 (1990). The procedural protections required in a given situation are 4 evaluated using the Mathews v. Eldridge factors:
5 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through 6 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s 7 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 8 requirement would entail. 9 Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)); see Hernandez v. Sessions, 872 10 F.3d 976, 993 (9th Cir. 2017) (applying Mathews factors in immigration detention context).9 11 Turning to the first factor, petitioner has a significant private interest in remaining free 12 from detention. “Freedom from imprisonment—from government custody, detention, or other 13 forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” 14 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Petitioner had been out of custody for over a year, 15 and he established ties in the community, gained lawful employment, and supported his family. 16 His detention denies him that freedom. 17 Second, “the risk of an erroneous deprivation [of liberty] is high” where, as here, “[the 18 petitioner] has not received any bond or custody redetermination hearing.” A.E. v. Andrews, No. 19 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025). Civil 20 immigration detention, which is “nonpunitive in purpose and effect[,]” is justified when a 21 noncitizen presents a risk of flight or danger to the community. See Zadvydas, 533 U.S. at 690; 22
23 9 Respondents note that the Supreme Court has never utilized the Mathews factors in evaluating a Due Process claim by a noncitizen, Doc. 11 at 7 (citing Rodriguez Diaz v. Garland, 53 F.4th 24 1189, 1206 (9th Cir. 2022)), but respondents analyze the Mathews factors without proposing an alternative test. Courts in this circuit regularly employ the Mathews factors to evaluate the Due 25 Process argument that petitioner makes here. See e.g., Ramirez Clavijo v. Kaiser, No. 25-CV- 06248-BLF, 2025 WL 2419263, at *4–6 (N.D. Cal. Aug. 21, 2025); Pinchi v. Noem, No. 25-CV- 26 05632-RMI (RFL), 2025 WL 1853763, at *1 (N.D. Cal. July 4, 2025). The Court does not see a 27 reason to depart from this practice. As the Ninth Circuit has noted, “Mathews remains a flexible test” that accounts for the competing interests of an individual detainee and the government. 28 Rodriguez Diaz, 53 F.4th at 1206–07. 1 Padilla, 704 F. Supp. 3d at 1172. While respondents contend that petitioner violated the terms of 2 his release by missing eight check-ins, Doc. 7-1, Jerome Decl. at ¶ 11, petitioner states that he 3 completed all his check-ins via the phone application, but that on two occasions, he checked in 4 after the allotted time, Doc. 1 at ¶ A11. In a similar case, where a noncitizen had missed two 5 appointments with ICE agents, the District Court for the Western District of Washington found: It 6 does not “necessarily follow that Petitioner can be detained for those violations without a hearing. 7 That the Government may believe it has a valid reason to detain petitioner does not eliminate its 8 obligation to effectuate the detention in a manner that comports with due process.” E.A. T.B. v. 9 Wamsley, No. C25-1192-KKE, 2025 WL 2402130, at *4 (W.D. Wash. Aug. 19, 2025). Similarly, 10 here, as there were no procedural safeguards to determine if petitioner’s re-detention was 11 justified, “the probable value of additional procedural safeguards, i.e., a bond hearing, is high.” 12 A.E., 2025 WL 1424382, at *5. 13 Third, although the government has a strong interest in enforcing the immigration laws, 14 the government’s interest in detaining petitioner without a hearing is “low.” Ortega v. Bonnar, 15 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019); Doe v. Becerra, No. 2:25-cv-00647-DJC-DMC, 2025 16 WL 691664, at *6 (E.D. Cal. March 3, 2025); see also Morrissey, 408 U.S. at 483 (noting that 17 “the State has an overwhelming interest in being able to return the individual to imprisonment 18 without the burden of a new adversary criminal trial[,] . . . [y]et, the State has no interest in 19 revoking parole without some informal procedural guarantees.”). In immigration court, custody 20 hearings are routine and impose a “minimal” cost. Doe, 2025 WL 691664, at *6. “If the 21 government wishes to re-arrest [petitioner] at any point, it has the power to take steps toward 22 doing so; but its interest in doing so without a hearing is low.” Ortega, 415 F. Supp. 3d at 970. 23 On balance, the Mathews factors show that petitioner is entitled to a bond hearing. 24 c. Bond Hearing and Burden of Proof 25 The Court finds that a post-deprivation bond hearing is appropriate in the circumstances of 26 this case. The parties dispute whether the burden of proof should fall on petitioner or the 27 government at the bond hearing. The Court finds that in this context the burden is more 28 appropriately placed on the government. See Banda v. McAleenan, 385 F. Supp. 3d 1099, 1107 1 (W.D. Wash. 2019); Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 1:25-CV- 2 00098-SAB-HC, 2025 WL 2099343, at *8 (E.D. Cal. July 25, 2025). 3 In Singh v. Holder, the Ninth Circuit held, in the context of hearings provided for those 4 detained under § 1226(c), that “the substantial liberty interest at stake” warranted placing the 5 burden on the government to “prove by clear and convincing evidence that an alien is a flight risk 6 or a danger to the community to justify denial of bond.” Singh v. Holder, 638 F.3d 1196, 1203 7 (9th Cir. 2011), abrogated on other grounds by Jennings v. Rodriguez, 583 U.S. 281 (2018); see 8 also Rodriguez Diaz v. Garland, 53 F.4th 1189, 1199 (9th Cir. 2022) (explaining that Singh was 9 based on general principles of due process). “Because it is improper to ask the individual to 10 ‘share equally with society the risk of error when the possible injury to the individual’— 11 deprivation of liberty—is so significant, a clear and convincing evidence standard of proof 12 provides the appropriate level of procedural protection.” Id. at 1203–04 (quoting Addington v. 13 Texas, 441 U.S. 418, 427 (1979)). These same concerns are present here. 14 The Ninth Circuit later extended these principles to bond hearings for those detained 15 under § 1225(b) and § 1231(a). See Diouf v. Napolitano, 634 F.3d 1081, 1082 (9th Cir. 2011); 16 Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) (“Rodriguez”). Although the 17 Supreme Court subsequently held in Jennings that the constitutional avoidance canon could not 18 be used to read a bond hearing requirement into the statute, it did not address an as-applied 19 constitutional due process challenge. Jennings, 583 U.S. at 304–06, 312 (“Because the Court of 20 Appeals . . . had no occasion to consider respondents’ constitutional arguments on their merits[,] 21 . . . we do not reach those arguments.”). Singh “relied on the Due Process Clause in determining” 22 who should bear the burden of proof at those bond hearings. Rodriguez Diaz, 53 F.4th at 1202; 23 see Singh, 638 F.3d at 1203–06. The issue of the burden of proof at a hearing required by due 24 process therefore appears to remain governed by Rodriguez and its extension of Singh’s 25 requirements to bond hearings for § 1225(b) detainees. See Maliwat v. Scott, No. 2:25-CV- 26 00788-TMC, 2025 WL 2256711, at *10 (W.D. Wash. Aug. 7, 2025) (applying Singh in § 1225(b) 27 case); Banda, 385 F. Supp. 3d at 1107 (same); Abdul-Samed, No. 1:25-CV-00098-SAB-HC, 2025 28 WL 2099343, at *8 (same). 1 The government points to Rodriguez Diaz, which held that § 1226(a), which places the 2 | burden of proof on the detainee at a bond hearing, was constitutionally adequate. Rodriguez 3 | Diaz, 53 F.4th at 1210. But “[s]Jection 1226(a) offers substantial procedural protections to 4 | detained persons,” id. at 1194, which cannot be said of § 1225(b). In that regard, § 1225(b) is 5 | more like § 1226(c), as both mandate detention. Accordingly, the burden of proof standard 6 | highlighted in Singh governs this case.!° 7 V. Conclusion and Order 8 Accordingly, the petition for writ of habeas corpus, Doc. 1, is GRANTED in part. 9 | Respondents are ENJOINED AND RESTRAINED from detaining petitioner unless they 10 | demonstrate, within seven (7) days of the date of this Order, by clear and convincing evidence at 11 | abond hearing before a neutral decisionmaker, that petitioner is a flight risk or danger to the 12 | community such that his physical custody is legally justified. Respondents shall file a status 13 || report within ten (10) days of the date of this Order, confirming whether a bond hearing was held 14 | and, if so, the outcome of that hearing. 15 Petitioner’s request to enjoin his removal or transfer outside this District while these 16 || proceedings are pending is DENIED as moot. 17 The Clerk of Court is directed to close this matter. 18 19 | IT IS SO ORDERED. _ 20 Dated: _ November 21, 2025 UNITED STATES DISTRICT JUDGE 21 22 □ ‘0 The government also argues that Zadvydas placed the burden on the petitioner to “provide[] 24 | good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future” before making “the government respond with evidence sufficient to rebut that 25 showing.” Zadvydas, 533 U.S. at 701. But the cited portion of Zadvydas outlined the appropriate 26 | Procedure to be used at a preliminary showing on a challenge to prolonged detention, not whether the burden of proof should fall on the detainee or the government at a bond hearing to determine 27 | whether the detainee should be re-detained, as a flight risk or danger to the community based on changed conditions, after an extended period of release. See id. 28 15
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