1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 O.P.A.M., Case No. 1:25-cv-01423 JLT SAB
12 Petitioner, ORDER CONVERTING THE MATTER TO A PRELIMINARY INJUNCTION AND 13 v. GRANTING THE PRELIMINARY INJUNCTION2 14 MINGA WOFFORD, ET AL.,1 (Doc. 2) 15 Respondents. 16 I. INTRODUCTION 17 Before the Court for decision is O.P.A.M.’s request for a temporary restraining order 18 (“TRO”) (Doc. 2) filed in conjunction with his petition for writ of habeas corpus brought under 19 28 U.S.C. § 2241 challenging his ongoing immigration detention (Doc. 1). Having evaluated the 20 TRO request, Respondents’ opposition (Doc. 11), and O.P.A.M.’s reply (Doc. 12), the Court 21 converts the matter into a motion for preliminary injunction (“PI”) and GRANTS that motion. 22 /// 23 1 Respondents appear to suggest that Petitioner has not sued Mesa Verde’s warden. (Doc. 11 at 6.) Clearly, Petitioner 24 has attempted to do so. If Respondent is suggesting that the Warden has changed, the Court has been unable to identify the new Warden’s name. Regardless, the Court would not lack personal jurisdiction over the Warden of the 25 facility because Fed. R. Civ. P. 25(d) would permit the Court to substitute that official’s name in for the named Warden. See, e.g., Krumback v. Wasko, No. 4:24-CV-04156-KES, 2025 WL 2430736, at *3 (D.S.D. Aug. 22, 2025). 26 Respondent also object to Petitioner naming multiple officials as Respondents in this matter. In the interest of expedience, the Court will defer determinations of these questions to the merits phase. 27 2 Upon the agreement of the parties, the Court converts the motion for temporary restraining order into one for 28 preliminary injunction. (Doc. 11 at 1, n.1.; Doc. 12 at 20.) The parties have also affirmatively declined an evidentiary 1 II. FACTUAL & PROCEDURAL BACKGROUND 2 O.P.A.M., a citizen and national of Ecuador, claims to have fled his home country after 3 facing threats and violence from a criminal organization. (Doc. 1, ¶ 50.) He crossed the border 4 into the United States in March 2024, at which time he was apprehended by the Department of 5 Homeland Security (DHS) near Lukeville, Arizona. (Doc. 1-2, ¶ 10; Doc. 11-1, ¶ 7.) At that time, 6 he expressed a fear to return to his home country. (Doc. 11-2.) According to the declaration of 7 Deportation Officer Martinez, O.P.A.M. admitted to entering the United States unlawfully. (Doc. 8 11-1, ¶ 7.) On March 11 or 12, 2024, DHS released O.P.A.M. on his own recognizance “due to a 9 lack of detention space” to await his immigration court hearing. (Doc. 1-2, ¶ 12; Doc. 11-1, ¶ 8.) 10 In doing so, immigration officials necessarily determined that O.P.A.M. did not present a risk of 11 flight or danger to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a 12 warrant of arrest may, in the officer’s discretion, release an alien not described in section 13 236(c)(1) of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that 14 the alien must demonstrate to the satisfaction of the officer that such release would not pose a 15 danger to property or persons, and that the alien is likely to appear for any future proceeding.”). 16 According to information relayed to the Court from O.P.A.M. through counsel, after his 17 release from DHS custody in March 2024, O.P.A.M. came to live in New York. (Doc. 1-2, ¶ 13.) 18 He established a life in Albion, New York, where he lived with a long-term partner, maintained 19 gainful employment, paid taxes, kept a clean criminal record, participated in his church 20 community, and complied with all requirements to appear in immigration court. (Doc. 1-2, ¶¶ 41- 21 43.) O.P.A.M. was the primary source of household income and supported his partner and their 22 household needs. (Id. at ¶ 41.) O.P.A.M.’s partner submitted a letter describing their relationship 23 and the emotional and financial strain O.P.A.M.’s detention has caused them. (Doc. 1-4 at 2.) 24 (“Since his detention, my life has become very difficult, both emotionally and financially.”) 25 O.P.A.M.’s employer and relatives praised his work ethic, character, and devotion to his family, 26 faith, and community. (Id. at 4, 6, 9.) 27 O.P.A.M. also timely filed for asylum and withholding of removal under the Convention 28 Against Torture prior to his initial Master Hearing before the Immigration Court on February 27, 1 2025. (Doc. 1-2, ¶¶ 19-20.) Prior to his detention, his next scheduled hearing on his asylum 2 application was scheduled for December 10, 2025. (Id. at 20-21.) 3 On August 7, 2025, O.P.A.M. was apprehended by ICE agents on his way to work. (Doc. 4 1-2, ¶ 25.) The government asserts that according to 8 U.S.C. § 1225(b)(2)(A), O.P.A.M. is 5 subject to mandatory detention. (Doc. 11-1, ¶ 18.) After being placed in DHS custody, O.P.A.M. 6 was transported first to an ICE office and then to the Batavia Processing Center in Buffalo, New 7 York on August 7, 2025 (Doc. 1-2, ¶ 29); then, on September 10, 2025, to a detention center in 8 Louisiana (Id., ¶ 12); and finally, on or around September 13, 2025, to the Mesa Verde 9 Processing Center in Bakersfield, California (Id., ¶ 35.) 10 On October 25, 2025, O.P.A.M. filed both a petition for writ of habeas corpus (Doc. 1) 11 asserting that his detention violates his procedural and substantive due process rights under the 12 Fifth Amendment, as well as a motion for temporary restraining order requesting immediate 13 release and other injunctive relief. (Doc. 2.) On October 27, 2025, this Court entered a minute 14 order setting a briefing and hearing schedule. (Doc. 6.) In addition, this Court ordered 15 Respondents not to remove O.P.A.M. from the United States nor transfer O.P.A.M. out of the 16 Eastern District of California unless and until this Court orders otherwise. (Id.) 17 Respondents and O.P.A.M. timely field their respective opposition (Doc. 11) and reply 18 (Doc. 12) briefs. The government opposed the issuance of preliminary injunctive relief and 19 maintains that O.P.A.M.’s detention is “mandatory” under expedited removal procedures set forth 20 at 8 U.S.C. § 1225(b)(2). (See generally Doc. 11). 21 For the reasons set forth below, the Court converts the matter to a motion for preliminary 22 injunction and GRANTS the motion. 23 III. LEGAL BACKGROUND 24 A. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 25 Two statutes govern the detention and removal of inadmissible noncitizens from the 26 United States: 8 U.S.C. § 1226 and § 1225. In the interest of expedience, the Court relies here, as 27 relevant, on the legal background accurately presented by the district court in Salcedo Aceros v. 28 Kaiser, No. 25-CV-06924-EMC, 2025 WL 2637503 (N.D. Cal. Sept 12, 2025): 1 A. Full Removal Proceedings and Discretionary Detention (§ 1226) 2 The “usual removal process” involves an evidentiary hearing before 3 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 4 § 1229(a), also known as “full removal,” by filing a Notice to Appear with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N. 5 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 6 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 7 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 8 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 9 (citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be released if he or she “demonstrate[s] to the satisfaction of the officer that such release 10 would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” Id. (citing 8 C.F.R. 11 § 236.1(c)(8)).
12 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 13 Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)). If, at this hearing, the detainee demonstrates by the preponderance of 14 the evidence that he or she is not “a threat to national security, a danger to the community at large, likely to abscond, or otherwise a 15 poor bail risk,” the IJ will order his or her release. Diaz, 53 F.4th at 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)). 16 Once released, the noncitizen’s bond is subject to revocation. Under 8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s 17 bond or parole ‘at any time,’ even if that individual has previously been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D. 18 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 19 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 20 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 21 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 22 B. Expedited Removal and Mandatory Detention (§ 1225) 23 While “§ 1226 applies to aliens already present in the United States,” 24 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 25 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 26 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 27 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 28 that: 1 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the 2 United States or is described in clause (iii) is inadmissible under section 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 3 1182(a)(6)(C) or 1182(a)(7)], the officer shall order the alien removed from the United States without further hearing or 4 review unless the alien indicates either an intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of 5 persecution.”
6 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer to noncitizens who are inadmissible due to misrepresentation or 7 failure to meet document requirements. Clause (iii) of § 1225(b)(1) allows the Attorney General (who has since delegated the 8 responsibility to the Department of Homeland Security Secretary) to designate for expedited removal noncitizens “who ha[ve] not been 9 admitted or paroled into the United States, and who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, 10 that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of 11 the determination of inadmissibility under this subparagraph.” § 1225(b)(1)(A)(iii)(II). 12 To summarize, under § 1225(b)(1), two groups of noncitizens are 13 subject to expedited removal. First, there are “arriving” noncitizens who are inadmissible due to misrepresentation or failure to meet 14 document requirements. The implementing agency regulations define “arriving alien” as applicants for admission “coming or 15 attempting to come into the United States at a port-of-entry.” 8 C.F.R. § 1.2. The second group –designated noncitizens –includes 16 noncitizens who meet all of the following criteria: (1) they are inadmissible due to lack of a valid entry document or 17 misrepresentation; (2) they have not “been physically present in the United States continuously for the 2-year period immediately prior 18 to the date of the determination of inadmissibility”; and (3) they are among those whom the Secretary of Homeland Security has 19 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 1225(b)(1). 20 “Initially, DHS’s predecessor agency did not make any designation 21 [under (3)], thereby limiting expedited removal only to ‘arriving aliens,’” that is, noncitizens encountered at ports of entry. Make the 22 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 23 extended by designation expedited removal to noncitizens who arrive by sea and who have been present for fewer than two years, and to 24 noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. Id. This 25 was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to “apply 26 expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 27 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 28 have been in the United States for less than two years and are 1 inadmissible for lack of valid documentation or misrepresentation. In short, expedited removal was expanded to apply for the first time to 2 vast numbers of noncitizens present in the interior of the United States. 3 Under the expedited removal statute § 1225(b)(1), if an applicant 4 “indicates either an intention to apply for asylum” or “a fear of persecution,” the immigration officer “shall refer the alien for an 5 interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the asylum officer determines that the applicant has a “credible fear,” the 6 applicant “receive[s] ‘full consideration’ of his asylum claim in a standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the 7 officer determines there is no “credible fear,” the officer “shall order the alien removed from the United States without further hearing or 8 review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may be appealed by the applicant to an immigration judge, who must 9 conduct the review “to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the 10 determination.” Id. Detention under § 1225(b)(1) is “mandatory” “pending a final determination of credible fear of persecution and if 11 found not to have such a fear, until removed.” Id. (citing § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under 12 this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until 13 removed.”)
14 [Section] 1225 also contains a provision that applies to applicants for admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. 15 This provision, 1225(b)(2), states that, subject to statutory exceptions, “in the case of an alien who is an applicant for admission, 16 if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, 17 the alien shall be detained for a proceeding under section 1229a [full removal proceedings] of this title.” § 1225(b)(2). In other words, 18 noncitizens subject to 1225(b)(2) are not eligible for expedited removal but are subject to mandatory detention while their full 19 removal proceedings are pending. This is in contrast to the default detention regime under § 1226(a), which allows for discretionary 20 release and review of detention through a bond hearing.
21 C. The Government’s Recent Change in Position
22 Until this year, the DHS has applied § 1226(a) and its discretionary release and review of detention to the vast majority of noncitizens 23 allegedly in this country without valid documentation. This practice was codified by regulation. The regulations implementing the Illegal 24 Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens 25 who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible 26 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other 27 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 28 the border between ports of entry and are shortly thereafter 1 apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 2 (2022) (No. 21-954)) . . .
3 In 2025, however, the Government’s policy changed dramatically. The DHS revised its § 1225 designation to “apply expedited removal 4 to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis 5 added). The Secretary of Homeland Security memorandum directed federal immigration officers to “consider ... whether to apply 6 expedited removal” to “any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been 7 applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps to terminate any ongoing removal proceeding and/or any active 8 parole status.” Id. The memorandum states that DHS shall take the actions contemplated by the memorandum “in a manner that takes 9 account of legitimate reliance interests,” but states that “the expedited removal process includes asylum screening, which is 10 sufficient to protect the reliance interests of any alien who has applied for asylum or planned to do so in a timely manner.” Huffman 11 Memorandum (Jan. 23, 2025).
12 Since mid-May of 2025, the Department of Homeland Security has made a practice of appearing at regular removal proceedings in 13 immigration court, moving to dismiss the proceedings, and then re- arresting the individual in order to place them in expedited removal 14 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does not dismiss the full removal proceedings, ICE still makes an arrest, 15 apparently in reliance on § 1225(b)(2)’s detention provision.
16 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 17 B. Parole Revocation 18 In Y-Z-H-L v Bostock, 2025 WL 1898025, at *10–12 (D. Or. July 9, 2025), the court 19 explained the parole process in immigration cases and noted that before parole may be revoked, 20 the parolee must be given written notice of the impending revocation, which must include a 21 cogent description of the reasons supporting the revocation decision. The court held:
22 Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required 23 detention, to be “paroled” into the United States. This provision, at issue in this case, states: 24 The Secretary of Homeland Security may, except as 25 provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States 26 temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian 27 reasons or significant public benefit any alien applying for admission to the United States, but such parole of 28 such alien shall not be regarded as an admission of the 1 alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 2 have been served the alien shall forthwith return or be returned to the custody from which he was paroled 3 and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for 4 admission to the United States.
5 8 U.S.C. § 1182(d)(5)(A).
6 Y-Z-H-L v Bostock, 2025 WL 1898025, at *3 (emphasis added). Y-Z-H-L determined that under 7 the Administrative Procedure Act, immigration parolees are entitled to determinations related to 8 their parole revocations that are not arbitrary, capricious or an abuse of discretion. Id. at *10. An 9 agency acts arbitrarily and capriciously by failing to make a reasoned determination or where the 10 agency fails to “articulate[] a satisfactory explanation for its action including a rational 11 connection between the facts found and the choice made.” Id. Parole revocations in the context of 12 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole 13 shall, in the opinion of the Secretary of Homeland Security, have been served the alien shall 14 forthwith return or be returned to the custody from which he was paroled.” Id. at *12 (quoting 8 15 C.F.R. § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except 16 where the immigrant has departed or when the specified period of parole has expired. 17 Applying Y-Z-H-L and § 212.5(e), Mata Velasquez v. Kurzdorfer, No. 25-CV-493-LJV, 18 2025 WL 1953796, at *11 (W.D.N.Y. July 16, 2025), found that the INA requires a case-by-case 19 analysis as to the decision to revoke humanitarian parole: 20 This Court agrees that both common sense and the words of the 21 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 22 an individual [noncitizen] received parole.” See id. There is no indication in the record that the government conducted any such 23 analysis here. On the contrary, the letter Mata Velasquez received merely stated summarily that DHS had “revoked [his] parole.” 24 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 25 determination specific to Mata Velasquez that either “the purpose for which [his] parole was authorized” has been “accomplish[ed]” or that 26 “neither humanitarian reasons nor public benefit warrants [his] continued presence...in the United States.” See 8 C.F.R. 27 § 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- 28 L-H, 2025 WL 1898025, at *13. 1 In Pinchi v. Noem, No. 5:25-CV-05632-PCP, ___ F. Supp. 3d ___, 2025 WL 2084921, at *3 2 (N.D. Cal. July 24, 2025), the court reached a similar conclusion relying on the Due Process 3 Clause: 4 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 5 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 6 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 7 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 8 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. 9 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 10 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 11 liberty interest in remaining out of custody on bond.”). 12 Id. (emphasis added). Other courts, including this Court, have held similarly. Doe v. Becerra, No. 13 2:25-CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); see also Padilla v. 14 U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme 15 Court has consistently held that non-punitive detention violates the Constitution unless it is 16 strictly limited, and, typically, accompanied by a prompt individualized hearing before a neutral 17 decisionmaker to ensure that the imprisonment serves the government’s legitimate goals.”). 18 IV. ANALYSIS 19 A. Jurisdiction 20 1. Habeas Corpus 21 Under 28 U.S.C. § 2241, the Court has the authority to determine a petition for writ of 22 habeas corpus in which the petitioner asserts he is being held in custody “in violation of the 23 Constitution or laws or treaties of the United States.” “The essence of habeas corpus is an attack 24 by a person in custody upon the legality of that custody, and that the traditional function of the 25 writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 26 O.P.A.M seeks his immediate release from custody, which he contends violates the 27 Constitution of the United States. (See Doc. 1.) Thus, he properly invokes the Court’s habeas 28 jurisdiction. 1 2. Judicial Review under the INA 2 The INA limits judicial review in many instances. Though 8 U.S.C § 1252(g), precludes 3 this Court from exercising jurisdiction over the executive’s decision to “commence proceedings, 4 adjudicate cases, or execute removal orders against any alien,” there is no removal order at issue 5 here and the central issue is O.P.A.M.’s continued detention. Thus, Court has the authority to 6 review the termination of O.P.A.M.’s release. See Jennings v. Rodriguez, 583 U.S. 281, 294 7 (2018) (holding that § 1252(g) precludes judicial review only as to the three areas specifically 8 outlined in the subsection); see also Reno v. American–Arab Anti–Discrimination Comm., 525 9 U.S. 471, 482 (1999). 10 B. Preliminary Injunction 11 The standard for issuing a TRO is the same as the standard for issuing a preliminary 12 injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 13 2001) (explaining that the analysis for temporary restraining orders and preliminary injunctions is 14 “substantially identical”). When seeking a TRO or PI, plaintiffs must establish: (1) they are 15 “likely to succeed on the merits” of their claims, (2) they are “likely to suffer irreparable harm in 16 the absence of a preliminary injunction,” (3) “the balance of equities tips in [their] favor” and (4) 17 “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 18 (2008). The moving party has the burden to “make a showing on all four prongs” of the Winter 19 test to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 20 1135 (9th Cir. 2011). Thus, the moving party has “the burden of persuasion.” Mazurek v. 21 Armstrong, 520 U.S. 968, 972 (1997); Hecox v. Little, 104 F.4th 1061, 1073 (9th Cir. 2023). The 22 Court may weigh the request for a preliminary injunction with a sliding-scale approach. Alliance, 23 at 1135 (9th Cir. 2011). Accordingly, a stronger showing on the balance of hardships may support 24 the issuance of a preliminary injunction where there are “serious questions on the merits … so 25 long as the plaintiff also shows that there is a likelihood of irreparable injury and that the 26 injunction is in the public interest.” Id. “A preliminary injunction is an extraordinary remedy 27 never awarded as of right.” Winter, 555 U.S. at 24. Preliminary injunctions are intended to 28 “merely to preserve the relative positions of the parties until a trial on the merits can be held, and 1 to balance the equities at the litigation moves forward.” Lackey v. Stinnie, 604 U.S. ___, 145 S. 2 Ct. 659, 667 (2025) (citations omitted). 3 The status quo refers to “the last uncontested status which preceded the pending 4 controversy.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963) (quoting 5 Westinghouse Elec. Corp. v. Free Sewing Mach. Co., 256 F.2d 806, 808 (7th Cir. 1958)). In the 6 Court’s view, that is the status before O.P.A.M. was arrested. See Kuzmenko v. Phillips, No. 25- 7 CV-00663, 2025 WL 779743, at *3 (E.D. Cal. Mar. 10, 2025) (granting a temporary restraining 8 order requiring immediate release of the petitioner back to home confinement from custody, as a 9 restoration of the status quo). 10 Even if the Court’s action here constitutes a mandatory injunction,3 the evidence supports 11 that action. O.P.A.M. alleges he has suffered and is suffering violations of his substantive and 12 procedural due process rights and that his continued unlawful detention will impose on him 13 serious injury if the injunction is not issued. The injunction issued here is on firm legal footing 14 and the result does not appear to be doubtful either; due process clearly requires that O.P.A.M. be 15 given a hearing before his bond is revoked. These injuries are not capable of redress through 16 monetary compensation. Accordingly, injunctive relief is appropriate even under the higher 17 standard for mandatory injunctions.4 18 3 “A prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination 19 of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (internal citations omitted). In other words, a prohibitory injunction “freezes the positions of the parties until 20 the court can hear the case on the merits.” Heckler v. Lopez, 463 U.S. 1328, 1333 (1983). A mandatory injunction, on the other hand, “orders a responsible party to ‘take action.’” Marlyn Nutraceuticals, 571 F.3d at 879 (quoting 21 Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996)). Although subject to a higher standard, a mandatory injunction is permissible when “extreme or very serious damage will result” that is “not capable of compensation in damages,” 22 and the merits of the case are not “doubtful.” Id. (internal citations and quotation marks omitted).
23 4 The government questions whether the Court can order preliminary relief of the nature requested here because the relief sought is akin to the relief requested in the underlying § 2241 petition. (Doc. 11 at 6–7.) The government cites 24 Senate of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992), which indeed held that entering “judgment on the merits in the guise of preliminary relief is a highly inappropriate result.” But the circumstances of that case were 25 quite different. In Mosbacher, the trial court ordered as preliminary relief the release of data that the defendant sought to keep private and thus, had the Ninth Circuit not reversed, the defendant would “have lost the whole case for all 26 practical purposes.” Id. Some district courts have relied on this line of cases to deny immigration detainee’s requests for release at the TRO stage. See, e.g., Mendez v. U.S. Immigr. & Customs Enf’t, No. 23-CV-00829-TLT, 2023 WL 27 2604585, at *3 (N.D. Cal. Mar. 15, 2023) (citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Keo v. Warden of Mesa Verde Ice Processing Center, No. 1:24-cv-00919-HBK, 2024 WL 3970514 (E.D. Cal. Aug. 28, 28 2024) (citing Mendez, Mosbacher, and Comenisch). But a closer look at Camenisch reveals that the Supreme Court 1 1. Likelihood of Success on the Merits 2 This first factor “is the most important” under Winter, and “is especially important when a 3 plaintiff alleges a constitutional violation and injury.” Baird v. Bonta, 81 F.4th 1036, 1041 (9th 4 Cir. 2023). O.P.A.M. contends that his re-detention and continued detainment violates due both 5 substantive and procedural due process. (See generally Doc. 2, ¶¶ 16–35.) 6 a. Respondents Rely on an Incorrect Interpretation of § 1225 for the Authority 7 to Detain Respondent 8 Respondents maintain O.P.A.M.’s detention is “mandatory” under 1225(b) while his 9 removal proceedings are pending. (Doc. 11 at 5-7.) The various legal arguments relied upon by 10 DHS to support this assertion have been rejected by this Court in other proceedings. See, e.g., 11 Ortiz Donis v. Chestnut, 1:25-CV-01228-JLT, 2025 WL 2879514 at *3–6 (E.D. Cal. Oct. 9, 12 2025). The government’s recent interpretation of the relationship between § 1225 and § 1226 is 13 unfounded and detention is therefore not “mandatory” in this case,5 where petitioner has been 14 present in the United States for approximately nineteen months and was released on his own 15 recognizance well before Respondents adopted the new interpretation of the governing statutes. 16 b. Due Process Protections 17 O.P.A.M. contends that his continued detention violates his due process rights. (See Doc. 18 1, ¶¶ 25–34.) In Pinchi v. Noem, No. 5:25-CV-05632-PCP, ___ F. Supp. 3d ___, 2025 WL 19 2084921, at *3 (N.D. Cal. July 24, 2025), the court held, 20 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 21 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 22 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 23 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 24
25 fact and conclusions of law made by a court in a preliminary injunction or TRO posture are preliminary and do not bind the court at the trial on the merits. Thus, it is not appropriate to enter a final judgment at a TRO stage.” Doe v. 26 Noem, 778 F. Supp. 3d 1151, 1167 (W.D. Wash. 2025) (evaluating government argument based on Comenisch).
27 5 Respondents argue that “Petitioner’s detention is under 1225(b), not § 1226(b)” and “1226(b) cannot apply because Petitioner never legally entered the United States. And § 1225(b) detention does not permit—let alone compel— 28 release based on a lack of dangerousness or flight risk.” (Doc. 11 at 10.) This argument is discussed in greater detail 1 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. 2 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 3 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 4 liberty interest in remaining out of custody on bond.”). 5 Id. (emphasis added). Other courts, including this Court, have held similarly. Doe v. Becerra, No. 6 2:25-CV-00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); see also Padilla v. 7 U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme 8 Court has consistently held that non-punitive detention violates the Constitution unless it is 9 strictly limited, and, typically, accompanied by a prompt individualized hearing before a neutral 10 decisionmaker to ensure that the imprisonment serves the government’s legitimate goals.”).6 Even 11 assuming Respondents are correct that § 1225(b) is the applicable detention authority for all 12 “applicants for admission,” Respondents fail to contend with the liberty interest created by the 13 fact that the Petitioner in this case was released on recognizance in 2024, prior to the 14
15 6 Respondents rely on cases about the due process rights of aliens in different contexts. For example, they argue:
16 An alien who has not effected a legal entry, i.e., has not been admitted into the United States, is entitled only to “[w]hatever the procedure authorized by Congress is.” Shaughnessy v. United States 17 ex rel. Mezei, 345 U.S. 206, 212 (1953) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950)); see also Thuraissigiam, 591 U.S. at 140 (an alien detained after unlawful entry 18 “has only those rights regarding admission that Congress has provided by statute”); Angov v. Lynch, 788 F.3d 893, 898 (9th Cir. 2015) (for “those . . . who have never technically ‘entered’ the United 19 States . . . procedural due process is simply whatever the procedure authorized by Congress happens to be” (cleaned up)). This makes sense, since “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Barrera-Echavarria, 20 44 F.3d at 1449. Put tersely, “applicants for admission have virtually no constitutional rights regarding their applications.” Valencia v. Mukasey, 548 F.3d 1261, 1263 (9th Cir. 2008) (citing 21 Landon v. Plasencia, 459 U.S. 21, 33-34 (1982)). “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Shaughnessy, 338 U.S. at 544. 22 (Doc. 11 at 7.) However, as one thorough decision recently issued in the District of Arizona explained, 23 Thuraissigiam is distinguishable:
24 In Thuraissigiam the Supreme Court held that a petitioner who was stopped at the border did not have any due process rights regarding admission into the United States. 25 Thuraissigiam, 591 U.S. at 107. In contrast, the pending § 2241 petition does not challenge any determination regarding [petitioner’s] admissibility into the United States, 26 but instead involves a challenge to her detention pending the conclusion of her removal proceedings. 27 Rosado v. Figueroa, No. CV 25-02157 PHX DLR (CDB), 2025 WL 2337099, at *15 (D. Ariz. Aug. 11, 28 2025), report and recommendation adopted sub nom. Rocha Rosado v. Figueroa, No. CV-25-02157-PHX- 1 manifestation of this interpretation. 2 Thus, the Court must evaluate the three-part test set forth in Mathews v. Eldridge, 424 3 U.S. 319, 334-335 (1976), to determine whether the procedures (or lack thereof) that have been 4 applied to O.P.A.M. are sufficient to protect the liberty interest at issue. Pinchi, 2025 WL 5 2084921at *3.7 In Mathews, the Court determined the following: 6 [O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three 7 distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such 8 interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the 9 Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute 10 procedural requirement would entail. 11 As to private interest, during his approximately 19 months on parole, O.P.A.M. pursued 12 gainful employment, built a relationship with his partner and many others in his community, and 13 kept a clean criminal record. Thus, parole allowed him to build a life outside detention, albeit 14 under the terms of that parole. O.P.A.M. has a substantial private interest in being out of custody 15 and his detention denies him that liberty interest. Zadvydas v. Davis, 533 U.S. 678, 690 (2001) 16 (“Freedom from imprisonment—from government custody, detention, or other forms of physical 17 restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”). 18 The Supreme Court has held that “the Constitution requires some kind of a hearing before 19 the State deprives a person of liberty or property.” See Zinermon v. Burch, 494 U.S. 113, 127 20 (1990) (emphasis in original). However, the Court also recognized that there may be situations 21 that urgently require arrest, in which a prompt post-deprivation hearing is appropriate. Id. at 128 22 (noting there may be “special case[s]” where a pre-deprivation hearing is impracticable); 23 Guillermo M. R. v. Kaiser, No. 25-CV-05436-RFL, 2025 WL 1983677, at *9 (N.D. Cal. July 17, 24 2025) (“absent evidence of urgent concerns, a pre-deprivation hearing is required to satisfy due 25
26 7 Respondent argues (Doc. 11 at 11) that the Court should not apply Mathews, citing the Ninth Circuit’s ruling in Rodriguez Diaz, 53 F.4th 1206, which noted that the Supreme Court, “when confronted with constitutional 27 challenges to immigration detention has not resolved the, through express application of Mathews.” Yet, after noting that other circuits have applied the Mathews test to immigration detention issues and the Ninth Circuit has applied 28 Mathews in other immigration contexts, Rodriguez Diaz went on to “assume without deciding” that Mathews applied 1 process, particularly where an individual has been released on bond by an IJ”). The rapidly 2 developing caselaw on this subject gives limited guidance as to where this line should be drawn. 3 Finally, as other courts have done, the Court concludes that the government’s interest in 4 detaining O.P.A.M. without proper process is slight, given that there has been no change in any of 5 his circumstances that would warrant a finding that he is a flight risk or a danger to the 6 community. In sum, the Court concludes that he has demonstrated a likelihood of success on the 7 merits on his procedural due process claim. 8 C. Irreparable Harm 9 “It is well established that the deprivation of constitutional rights ‘unquestionably 10 constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting 11 Elrod v. Burns, 427 U.S. 247, 272 (1976)). Moreover, “[t]he Ninth Circuit has recognized 12 ‘irreparable harms imposed on anyone subject to immigration detention’ including ‘the economic 13 burdens imposed on detainees and their families as a result of detention.’” Hernandez v. Sessions, 14 872 F.3d 976, 995 (9th Cir. 2017); Leiva-Perez v. Holder, 640 F.3d 962, 969-970 (9th Cir. 2011) 15 (the inability to pursue a petition for review may constitute irreparable harm). The Petitioner has 16 established irreparable harm. 17 D. Balance of the Harms/Public Interest 18 Because the interest of the government is the interest of the public, the final two factors 19 merge when the government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). The 20 Court agrees with the analysis of Pinchi, and finds it correctly addresses the situation here: 21 “[T]he public has a strong interest in upholding procedural protections against unlawful detention, and the Ninth Circuit has 22 recognized that the costs to the public of immigration detention are staggering.” Jorge M. F., 2021 WL 783561, at *3 (cleaned up) 23 (quoting Ortiz Vargas, 2020 WL 5074312, at *4, and then quoting Hernandez, 872 F.3d at 996); see also Preminger v. Principi, 422 24 F.3d 815, 826 (9th Cir. 2005) (“Generally, public interest concerns are implicated when a constitutional right has been violated, because 25 all citizens have a stake in upholding the Constitution.”). Without the requested injunctive relief, Petitioner-Plaintiff faces the danger of 26 significant health consequences and deprivation of her liberty. Yet the comparative harm potentially imposed on Respondents- 27 Defendants is minimal—a mere short delay in detaining Petitioner- Plaintiff, should the government ultimately show that detention is 28 intended and warranted. Moreover, a party “cannot reasonably assert 1 that it is harmed in any legally cognizable sense by being enjoined from constitutional violations.” Zepeda v. U.S. Immigr. & Nat. Serv., 2 753 F.2d 719, 727 (9th Cir. 1983). 3 This Court therefore joins a series of other district courts that have recently granted temporary restraining orders barring the 4 government from detaining noncitizens who have been on longstanding release in their immigration proceedings, without first 5 holding a pre-deprivation hearing before a neutral decisionmaker. See, e.g., Diaz v. Kaiser, No. 25-cv-05071, 2025 WL 1676854, at *2 6 (N.D. Cal. June 14, 2025); Garcia v. Bondi, No. 25-cv-05070, 2025 WL 1676855, at *3 (N.D. Cal. June 14, 2025). Although Petitioner 7 filed her motion shortly after being detained, rather than immediately beforehand, the same reasoning applies to her situation. Her liberty 8 interest is equally serious, the risk of erroneous deprivation is likewise high, and the government’s interest in continuing to detain 9 her without the required hearing is low. See Doe v. Becerra, No. 2:25-cv-00647-DJC-DMC, 2025 WL 691664, at *6 (E.D. Cal. Mar. 10 3, 2025) (granting a TRO as to an individual who had been detained over a month earlier). 11 12 Pinchi, at *3. In addition, as mentioned, there appears to be no dispute that there is no evidence 13 that O.P.A.M. poses a risk of flight or a danger to the community. For these reasons and those set 14 forth in Pinchi, the Court concludes that the equities and public interest weigh minimally in favor 15 of O.P.A.M. 16 E. Bond 17 “The court may issue a preliminary injunction or a temporary restraining order only if the 18 movant gives security in an amount that the court considers proper to pay the costs and damages 19 sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 20 65(c). The Court has “discretion as to the amount of security required, if any,” and it “may 21 dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the 22 defendant from enjoining his or her conduct.” Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 23 2003) (citation modified). Because “the [Government] cannot reasonably assert that it is harmed 24 in any legally cognizable sense by being enjoined from constitutional violations,” Zepeda, 753 25 F.2d at 727, the Court finds that no security is required here. 26 F. Burden of Proof 27 O.P.A.M. requests that if the Court orders a bond hearing, the government should bear the 28 burden of proof. (See Doc. 12 at 19.) In Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 1 2022), the Ninth Circuit considered whether a noncitizen detained under § 1226(a) pending 2 removal proceedings had a right to a second bond hearing where the government would have the 3 burden to establish by clear and convincing evidence that his continued detention was justified. 4 Rodriguez Diaz concluded that due process did not require that procedure, reasoning in part that:
5 Nothing in this record suggests that placing the burden of proof on the government was constitutionally necessary to minimize the risk 6 of error, much less that such burden shifting would be constitutionally necessary in all, most, or many cases. There is no 7 reason to believe that, as a general proposition, the government will invariably have more evidence than the alien on most issues bearing 8 on alleged lack of future dangerousness or flight risk. 9 Id. at 1212. However, Rodriguez Diaz “held only that a noncitizen detained under section 1226(a) 10 does not have a right to a second bond hearing when the only changed material condition since 11 their first bond hearing is the duration of their detention.” Pinchi, 2025 WL 2084921, at *4. It did 12 not address the burden of proof applicable under the present circumstances. 13 Pinchi went on to discuss why the calculus changes for an individual who had been 14 paroled from immigration custody after their initial detention:
15 Even assuming arguendo that the post-detention bond hearing provided under section 1226(a) provides constitutionally sufficient 16 process for those noncitizens who have never previously been detained and released by DHS, [Petitioner’s] circumstance is 17 different. Her release from ICE custody after her initial apprehension reflected a determination by the government that she was neither a 18 flight risk nor a danger to the community, and [she] has a strong interest in remaining at liberty unless she no longer meets those 19 criteria. The regulations authorizing ICE to release a noncitizen from custody require that the noncitizen “demonstrate to the satisfaction 20 of the officer that such release would not pose a danger to property or persons” and that the noncitizen is “likely to appear for any future 21 proceeding.” 8 C.F.R. § 1236.1(c)(8).
22 Release [therefore] reflects a determination by the government that the noncitizen is not a danger to the community or a flight risk.” 23 Saravia v. Sessions, 280 F. Supp. 3d 1168, 1176 (N.D. Cal. 2017), aff’d sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 24 2018). [Petitioner] was apprehended by ICE officers when she crossed the border into the United States [ ]. ICE then released her 25 on her own recognizance. As ICE was not authorized to release [her] if she was a danger to the community or a flight risk, the Court must 26 infer from [her] release that ICE determined she was neither. [Her] release from ICE custody constituted an “implied promise” that her 27 liberty would not be revoked unless she “failed to live up to the conditions of her release.” Morrissey, 408 U.S. at 482. The 28 regulatory framework makes clear that those conditions were that she 1 remain neither a danger to the community nor a flight risk. [She] justifiably relied on the government’s implied promise in obtaining 2 employment, taking on financial responsibility for her family members, and developing community relationships. The more than 3 two years that she has spent out of custody since ICE initially released her have only heightened her liberty interest in remaining 4 out of detention. Accordingly, [her] private interest in retaining her liberty is significant. 5 6 Pinchi, 2025 WL 2084921, at *4. 7 This reasoning contributed to the conclusion in Pinchi that a pre-deprivation hearing was 8 required under Mathews. The court in Pinchi also placed the burden at any such hearing on the 9 government to demonstrate to a neutral decisionmaker by clear and convincing evidence that re- 10 detention is necessary to prevent danger to the community or flight. Id. at *7. Doing so is logical 11 even for a post-detention custody hearing for the reasons articulated in Pinchi–namely that the 12 immigrant’s initial release reflected a determination by the government that the noncitizen is not a 13 danger to the community or a flight risk. Since it is the government that initiated re-detention, it 14 follows that the government should be required to bear the burden of providing a justification for 15 the re-detention. 16 V. CONCLUSION AND ORDER 17 1. Petitioner’s Motion for Temporary Restraining Order (Doc. 2) is converted to a 18 Motion for Preliminary Injunction, and it is GRANTED. 19 2. Because the government has no evidence that O.P.A.M. poses a risk of flight or 20 poses a danger to the community, O.P.A.M SHALL be released IMMEDIATELY from DHS 21 custody. DHS SHALL NOT impose any additional restrictions on him, such as electronic 22 monitoring, unless that is determined to be necessary at a later custody hearing. 23 3. Respondents are PERMANENTLY ENJOINED AND RESTRAINED from 24 rearresting or re-detaining O.P.A.M. absent compliance with constitutional protections, which 25 include, at a minimum, pre-deprivation notice8 of at least seven days before a pre-deprivation 26 hearing at which the government will bear the burden of demonstrating by clear and convincing 27
28 8 If legally sufficient circumstances justify arrest without notice in advance, a post-deprivation hearing consistent 1 | evidence that he is likely to flee or pose a danger to the community if not arrested. 2 4. Petitioner may file a further brief on the merits within 21 days. Respondents may 3 | file further briefing within 21 days thereafter. 4 5 IT IS SO ORDERED. 6 | Dated: _ November 7, 2025 Cerin | Tower TED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28