1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRIDON BABUADZE, Case No. 1:26-cv-01499-KES-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT PETITION FOR WRIT OF HABEAS 13 v. CORPUS (A-Number 249 261 029)
14 CHRISTOPHER CHESTNUT, et al., (Doc. 1)
15 Respondents. 7-Day Objection Period 16 17 Petitioner Pridon Babuadze, a federal immigration detainee proceeding by counsel, initiated 18 this action on February 20, 2026, with the filing of a petition for writ of habeas corpus under 28 19 U.S.C. § 2241. (Doc. 1). Petitioner is in the custody of Immigration and Customs Enforcement 20 (“ICE”) at the California City Correctional Facility. Id. ¶ 13. Respondents are: Christopher 21 Chestnut, Warden of the California City Correctional Facility; Kristi Noem, Secretary of Homeland 22 Security; Todd Lyons, Acting Director of ICE; and Pamela Bondi, United States Attorney General. 23 See id. 24 At the Court’s direction, Respondents timely filed a response to the petition on February 25 March 9, 2026. (Doc. 6). Petitioner filed a reply on the following day. (Doc. 7). For the reasons 26 set forth herein, the undersigned recommends that Petitioner’s petition for writ of habeas corpus be 27 granted. 28 /// 1 I. Relevant Background 2 The relevant facts are undisputed. See (Doc. 6). Petitioner is a citizen and native of the 3 nation of Georgia who entered the United States without inspection on March 11, 2024. He was 4 detained by United States Customs and Border Protection and released on his own recognizance. 5 (Doc. 1 ¶ 56-59). Respondents issued a Notice to Appear stating that Petitioner is a person present 6 in the United States who has not been admitted or paroled. Petitioner filed an application for asylum 7 in June 2024. Id. ¶¶ 62-67. Despite the absence of any material change in circumstances, on or 8 about January 11, 2026, he was re-detained without advance notice or a hearing to determine his 9 risk of flight or danger. Id. ¶ 2. Petitioner has no criminal history and has complied with all 10 requirements to apply for asylum protection and to appear at immigration appointments. Id. ¶ 69- 11 70. 12 The Court also takes judicial notice that Petitioner has been in removal proceedings since 13 April 3, 2024, and currently has a “next hearing” on April 29, 2026.1 14 II. Governing Authority 15 A. The Writ of Habeas Corpus 16 Writ of habeas corpus relief extends to a person in custody under the authority of the United 17 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 18 shall “award the writ or issue an order directing the respondent to show cause why the writ should 19 not be granted, unless it appears from the application that the applicant or person detained is not 20 entitled thereto.” 28 U.S.C. § 2243. 21 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 22 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 23 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 24 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 25 1 See https://acis.eoir.justice.gov/en/caseInformation (last visited Mar. 23, 2026, using Petitioner’s 26 A-Number and nationality); Daniels-Hall v. National Edu. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this information, as it was made publicly available by government 27 entities ... and neither party disputes the authenticity of the web sites or the accuracy of the information displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F. Supp. 3d 1028, 1034 (E.D. Cal. 2024) (taking 28 judicial notice of information on federal government agency’s website). 1 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 2 detention” in ICE custody). 3 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 4 Two statutes govern the detention and removal of inadmissible noncitizens from the United 5 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 6 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 7 Sept 12, 2025), which the undersigned adopts herein: 8 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 9 The “usual removal process” involves an evidentiary hearing before 10 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 11 § 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. 12 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 13 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 14 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 15 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 16 (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 17 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. 18 § 236.1(c)(8)).
19 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 20 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 21 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 22 poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)). 23 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 24 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. 25 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 26 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 27 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 28 1 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 2 /// 3 2. Expedited Removal and Mandatory Detention (§ 1225) 4 While “§ 1226 applies to aliens already present in the United States,” 5 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 6 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 7 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 8 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 9 that:
10 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 11 who is arriving in the United States or is described in clause (iii) is inadmissible under section 12 212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C) or 1182(a)(7)], the officer shall order the alien 13 removed from the United States without further hearing or review unless the alien indicates either an 14 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 15 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 16 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 17 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 18 designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 19 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 20 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 21 § 1225(b)(1)(A)(iii)(II).
22 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 23 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 24 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 25 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 26 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 27 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 28 among those whom the Secretary of Homeland Security has 1 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 1225(b)(1). 2 “Initially, DHS’s predecessor agency did not make any designation 3 [under (3)], thereby limiting expedited removal only to ‘arriving aliens,’” that is, noncitizens encountered at ports of entry. Make the 4 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 5 extended by designation expedited removal to noncitizens who arrive by sea and who have been present for fewer than two years, and to 6 noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. Id. This 7 was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to “apply 8 expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 9 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 10 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 11 short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United 12 States.
13 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 14 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 15 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 16 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order 17 the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may 18 be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable within 24 19 hours, but in no case later than 7 days after the date of the determination.” Id. Detention under § 1225(b)(1) is “mandatory” 20 “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing 21 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible 22 fear of persecution and, if found not to have such a fear, until removed.”) 23 [Section] 1225 also contains a provision that applies to applicants for 24 admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory 25 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking 26 admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full 27 removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited 28 removal but are subject to mandatory detention while their full 1 removal proceedings are pending. This is in contrast to the default detention regime under § 1226(a), which allows for discretionary 2 release and review of detention through a bond hearing.
3 3. The Government’s Recent Change in Position
4 Until this year, the DHS has applied § 1226(a) and its discretionary release and review of detention to the vast majority of noncitizens 5 allegedly in this country without valid documentation. This practice was codified by regulation. The regulations implementing the Illegal 6 Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens 7 who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible 8 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other 9 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 10 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 11 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . . 12 In 2025, however, the Government’s policy changed dramatically. 13 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 14 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 15 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 16 to expedited removal but to whom expedited removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps 17 to terminate any ongoing removal proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the 18 actions contemplated by the memorandum “in a manner that takes account of legitimate reliance interests,” but states that “the 19 expedited removal process includes asylum screening, which is sufficient to protect the reliance interests of any alien who has 20 applied for asylum or planned to do so in a timely manner.” Huffman Memorandum (Jan. 23, 2025). 21 Since mid-May of 2025, the Department of Homeland Security has 22 made a practice of appearing at regular removal proceedings in immigration court, moving to dismiss the proceedings, and then re- 23 arresting the individual in order to place them in expedited removal proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does 24 not dismiss the full removal proceedings, ICE still makes an arrest, apparently in reliance on § 1225(b)(2)’s detention provision. 25 26 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 27 C. Parole Revocation 28 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 1 process in immigration cases and noted that before parole may be revoked, the parolee must be 2 given written notice of the impending revocation, which must include a cogent description of the 3 reasons supporting the revocation decision. The court held: 4 Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required 5 detention, to be “paroled” into the United States. This provision, at issue in this case, states: 6 The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this 7 title, in his discretion parole into the United States temporarily under such conditions as he may prescribe 8 only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying 9 for admission to the United States, but such parole of such alien shall not be regarded as an admission of the 10 alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 11 have been served the alien shall forthwith return or be returned to the custody from which he was paroled 12 and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for 13 admission to the United States. 14 8 U.S.C. § 1182(d)(5)(A). 15 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 16 immigration parolees are entitled to determinations related to their parole revocations that are not 17 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 18 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 19 a satisfactory explanation for its action including a rational connection between the facts found and 20 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 21 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 22 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 23 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 24 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 25 the immigrant has departed or when the specified period of parole has expired. 26 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 27 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 28 to revoke humanitarian parole: 1 This Court agrees that both common sense and the words of the 2 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 3 an individual [noncitizen] received parole.” See id. There is no indication in the record that the government conducted any such 4 analysis here. On the contrary, the letter Mata Velasquez received merely stated summarily that DHS had “revoked [his] parole.” 5 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 6 determination specific to Mata Velasquez that either “the purpose for which [his] parole was authorized” has been “accomplish[ed]” or that 7 “neither humanitarian reasons nor public benefit warrants [his] continued presence...in the United States.” See 8 C.F.R. 8 § 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- 9 L-H, 2025 WL 1898025, at *13. 10 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 11 a similar conclusion relying on the Due Process Clause: 12 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 13 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 14 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 15 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 16 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. 17 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 18 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 19 liberty interest in remaining out of custody on bond.”). 20 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 21 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 22 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 23 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 24 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 25 imprisonment serves the government’s legitimate goals.”). 26 III. Exhaustion 27 A. Governing Authority 28 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 1 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 2 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 3 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 4 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 5 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 6 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 7 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 8 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 9 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 10 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 11 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 12 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 13 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 14 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 15 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 16 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 17 to be disregarded.”). 18 B. Analysis 19 Petitioner asserts that exhaustion would be futile as the Executive Office for Immigration 20 Review (“EOIR”) has provided guidance to all immigration judges that any noncitizen who entered 21 the country without inspection is ineligible for custody redetermination before an immigration 22 judge due to lack of jurisdiction. Additionally, Petitioner alleges that Respondents “will argue that 23 since [noncitizens apprehended near the border] are not being detained under the ‘interior arrest’ 24 statute [§ 1226(a)], the [i]mmigration [j]udge lacks the basic jurisdiction to hold a bond 25 hearing …” (Doc. 1 at 6; citing Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025), & 26 Matter of Qu-Li, 29 I&N Dec. 66 (B.I.A. 2025)). Respondents neither respond to nor refute this 27 allegation. See (Doc. 6). 28 The Court finds that the prudential exhaustion requirement should be waived as it would be 1 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 2 to mandatory detention under § 1225(b). See id.; Jennings v. Rodriguez, 583 U.S. 281, 282 (2018) 3 (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings during the course 4 of their detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). Further, the 5 BIA has held that all noncitizens present within the country without admission are seeking 6 admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. v. Wofford, 7 No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 2025) (“In 8 addition, pursuit of administrative remedies would almost certainly be futile given the BIA’s recent 9 holding that all noncitizens present in the United States without admission are ‘seeking admission’ 10 for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing Hurtado, 29 I&N Dec. 11 216). 12 For these reasons and because Respondents do not argue Petitioner should be required to 13 exhaust administrative remedies, the undersigned recommends that the prudential exhaustion 14 requirement be waived for Petitioner’s claim for habeas corpus relief. See, e.g., Chavez v. Noem, 15 No. 3:25-cv-02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving 16 prudential exhaustion requirement because the BIA “already applied its expertise in deciding and 17 designating” Hurtado as precedential, pursuant to which detainees are subject to mandatory 18 detention without bond under § 1225(b)(2)); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1253 19 (W.D. Wash. 2025) (“The Ninth Circuit has recognized ‘the irreparable harms imposed on anyone 20 subject to immigration detention.’”) (citing Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 21 2017)); J.A.C.P., 2025 WL 3013328, at *7 n.9. 22 IV. Discussion 23 Petitioner asserts four causes of action in his petition: violation of substantive due process 24 and procedural due process under the Fifth Amendment to the U.S. Constitution, unlawful arrest in 25 violation of the Fourth Amendment, and violation of the Immigration and Nationality Act (“INA”). 26 (Doc. 1 at 15-19). 27 As set forth below, because the undersigned finds that Respondents have violated 28 Petitioner’s constitutional rights to procedural due process, and because Petitioner’s other claims 1 seek the same or similar relief (i.e., for immediate release and to enjoin Respondents from re- 2 detaining Petitioner unless his re-detention is justified at a custody hearing before a neutral arbiter 3 in which the government bears the burden of proof), the undersigned forbears from addressing 4 Petitioner’s other claims. 5 A. Procedural Due Process 6 1. Governing Authority 7 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 8 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 9 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 10 individuals against two types of government action’: violations of substantive due process and 11 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 12 “Procedural due process imposes constraints on governmental decisions which deprive 13 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 14 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 15 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 16 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 17 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 18 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 19 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 20 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 21 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 22 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 23 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 24 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 25 v. Brewer, 408 U.S. 471, 481 (1972). 26 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 27 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 28 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 1 Due Process Clause stands as a significant constraint on the manner in which the political branches 2 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 3 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 4 justification for physical confinement outweighs the individual's constitutionally protected interest 5 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 6 1196, 1203 (9th Cir. 2011)). 7 2. Analysis 8 On Petitioner’s as-applied procedural due process challenge to his continuing detention by 9 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 10 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any 11 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 12 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 13 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 14 Petitioner has an underlying, continuing liberty interest in being free from re-detention. 15 Specifically, Petitioner was released on his own recognizance by Customs and Border Protection 16 more than 19 months prior to his re-arrest. (Doc. 1 ¶¶ 56-59). By releasing Petitioner in their 17 discretion, immigration officials necessarily determined that Petitioner did not present a risk of 18 flight or danger to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a 19 warrant of arrest may, in the officer’s discretion, release an alien not described in section 236(c)(1) 20 of the Act, under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must 21 demonstrate to the satisfaction of the officer that such release would not pose a danger to property 22 or persons, and that the alien is likely to appear for any future proceeding.”). Accord Rodriguez 23 Diaz, 53 F.4th at 1196. Petitioner remained released from immigration detention for a significant 24 amount of time. (Doc. 1 ¶¶ 2, 56-59). Petitioner has no criminal history and has complied with all 25 requirements to apply for asylum protection and to appear at immigration appointments. Id. ¶ 69- 26 70. Respondents do not dispute this or otherwise assert that Petitioner failed to comply with the 27 conditions of his release, nor do they proffer facts to suggest Petitioner is a danger to the public or 28 a flight risk. See (Doc. 6). 1 The undersigned agrees with other courts and other judges of this Court that noncitizens 2 released from immigration custody on general orders of supervision or on their own recognizance 3 have a liberty interest in their freedom that implicates protections under principles of procedural 4 due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The 5 fact that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks 6 a protectable liberty interest and can be re-detained without process.”); see id. (“[E]ven if 7 immigration detainees must wait months before a periodic re-review of their detention, those 8 already released on immigration bond possess an interest in their continued liberty, which grows 9 over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun v. 10 Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1094 11 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy 12 duration of his conditional release as well as the meaningful connections Petitioner seems to have 13 made with his community during that time create a powerful interest for Petitioner in his continued 14 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5- 15 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an 16 individual, a protected liberty interest under the Due Process Clause may entitle the individual to 17 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES- 18 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily 19 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained 20 in continuous custody and never released on supervision). 21 Respondents assert that Petitioner is an “applicant for admission” and is “subject to 22 mandatory detention by ICE under 8 U.S.C. § 1225(b)(2).” (Doc. 6 at 1-2; citing, inter alia, Alonzo 23 v. Noem, No. 1:25-cv-01519-WBS-SCR, 2025 WL 3208284 (E.D. Cal. Nov. 17, 2025)). The 24 petitioners’ circumstances in Alonzo are factually dissimilar from those presented here, as another 25 judge of this Court has explained: Petitioner here was detained by Customs and Border Protection 26 and released, and immigration proceedings have remained pending for a significant period of time. 27 See Garcia v. Chesnut, No. 1:25-cv-01907-JLT-CDB, 2025 WL 3771348, at *8 (E.D. Cal. Dec. 28 31, 2025) (“However, unlike here, the petitioners in Valencia and Alonzo had never been 1 encountered, let alone processed, by immigration officials, and had not been released on 2 recognizance pending completion of Section 240 removal proceedings.”). 3 Additionally, other judges of this Court, as well as many other courts, have considered and 4 rejected the government’s arguments, finding that Section 1226(a), not Section 1225(b)(2), 5 provides the appropriate framework for noncitizens released following their initial encounter with 6 immigration authorities and have resided in the United States for a significant period, like Petitioner 7 here. See, e.g., H.J.G.G. v. Wofford, No. 1:25-cv-01718-JLT-EPG-HC, 2025 WL 3761803, at *4 8 (E.D. Cal. Dec. 30, 2025) (citing Castillo v. Wofford, No. 1:25-cv-01586-JLT-HBK, 2025 WL 9 3466064, at *8 (E.D. Cal. Dec. 2, 2025)); accord Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 10 935-37 (N.D. Cal. 2025), appeal filed, No. 25-7472 (9th Cir. Nov. 26, 2025). Under such 11 circumstances, “the government cannot switch tracks” and subject Petitioner to mandatory 12 detention now under section 1225(b)(2) “after it previously released him on his own recognizance 13 under section 1226(a).” Valencia Zapata, 801 F. Supp. 3d at 936; accord Souza v. Robbins, No. 14 1:25-cv-01597-DJC-JDP, 2025 WL 3263897, at *2 (E.D. Cal. Nov. 23, 2025). 15 Because Petitioner has shown he has a protected liberty interest to remain free from re- 16 detention based on his discretionary release in March 2024, the undersigned must determine what 17 process is due before the government may terminate that liberty interest. To determine this, the 18 undersigned considers the following factors articulated in Mathews: “[(1)] the private interest that 19 will be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest 20 through the procedures used, and the probable value, if any, of additional or substitute procedural 21 safeguards; and [(3)] the Government’s interest, including the function involved and the fiscal and 22 administrative burdens that the additional or substitute procedural requirement would entail.” 23 Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 (applying Mathews test in 24 immigration detention context); id. at 993 (“The appropriateness of the requirement that ICE and 25 IJs consider financial circumstances and alternative conditions of release is confirmed by the 26 balance of factors under Mathews[.]”). 27 As to the first factor, Petitioner has shown he has a significant private interest in remaining 28 on release from detention. He had been released from immigration custody for over 19 months 1 prior to his re-detention. Respondents do not assert that he failed to comply with the conditions of 2 his release nor that he committed any crimes. See (Doc. 6). Petitioner’s continued liberty interest 3 in remaining on release is undermined by his re-detention without a bond hearing. Doe, 787 F. 4 Supp. 3d at 1093-94 (“Freedom from imprisonment is at the core of the Due Process Clause…. 5 The lengthy duration of his conditional release as well as the meaningful connections [he] seems 6 to have made with his community during that time create a powerful interest for [him] in his 7 continued liberty.”). 8 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest 9 is considerable here where he has not received any bond or custody redetermination. Id. at 1094; 10 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 11 2025). Because there were no procedural safeguards to determine if Petitioner’s re-detention was 12 justified, and Respondents present no facts indicating any change in circumstances while Petitioner 13 was on release sufficient to justify Petitioner’s re-detention, the probable value of the additional 14 procedural safeguard of a bond hearing to determine whether Petitioner is a flight risk or a danger 15 to the community is high such that this factor weighs in favor of granting a bond hearing. See Doe, 16 787 F. Supp. at 1094 (“[G]iven that Petitioner was previously found to not be a danger or risk of 17 flight and the unresolved questions about the timing and reliability of the new information, the risk 18 of erroneous deprivation remains high.”); A.E., 2025 WL 1424382 at *5; Ramazan, 2025 WL 19 3145562, at *6. Therefore, this factor weighs in favor of granting a bond hearing. 20 Third, the government’s interest in detaining Petitioner without a bond hearing is low, 21 particularly given that Petitioner remained out of custody and was successfully supervised by 22 immigration authorities prior to his re-arrest and detention. Doe, 787 F. Supp. 3d at 1094 (citation 23 omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019)); Diaz v. Kaiser, No. 3:25- 24 cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) (“And, like other Courts in this 25 district, the Court concludes that the government’s interest in re-detaining Petitioner-[] without a 26 hearing is ‘low,’ particularly in light of the fact that Petitioner[] has long complied with his 27 reporting requirements.”). “The effort and cost to provide Petitioner with [a bond hearing] is 28 minimal[.]” Doe, 787 F. Supp. 3d at 1094. Therefore, any additional burden from requiring the 1 government to seek a bond hearing before it may re-detain Petitioner does not outweigh his liberty 2 interest and the risk of erroneous deprivation. Accordingly, this factor weighs in favor of granting 3 a bond hearing. 4 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 5 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest 6 in January 2026 and continuing detention thereafter. 7 B. Remedy 8 Respondents do not assert that Petitioner is a flight risk or a danger to the community. As 9 § 1225(b) does not apply to Petitioner, the government may not detain him pursuant to § 1225(b)(1) 10 and his detention violates his procedural due process rights. And because Respondents do not 11 provide any other basis to detain Petitioner and do not assert any risk of flight or danger to the 12 community, the appropriate remedy is Petitioner’s immediate release. 13 Further, the undersigned will recommend that in the event the government seeks to re-detain 14 Petitioner, the government must provide notice to Petitioner a minimum of seven (7) days in 15 advance and must hold a bond hearing before a neutral arbiter pursuant to § 1226(a) and applicable 16 regulations, at which Petitioner’s eligibility for bond must be considered. Ordinarily, the Petitioner 17 bears the burden of demonstrating by a preponderance of the evidence at a bond hearing that he is 18 neither a flight risk nor a danger to the community. Rodriguez Diaz, 53 F.4th at 1197. But as set 19 forth above, the BIA has held that all noncitizens within the country without admission are subject 20 to mandatory detention under § 1225(b)(1). See J.A.C.P., 2025 WL 3013328, at *7 (citing Hurtado, 21 29 I&N Dec. 216). 22 Accordingly, the undersigned will recommend adopting the prevailing view endorsed by 23 judges of this Court that, under the circumstances presented here, if Respondents seek to re-detain 24 Petitioner, Respondents be compelled to provide Petitioner a bond redetermination hearing at which 25 the government will bear the burden of establishing, by clear and convincing evidence, that 26 Petitioner poses a danger to the community or a risk of flight. “Doing so is logical” because “the 27 immigrant’s initial release reflected a determination by the government that the noncitizen is not a 28 danger to the community or a flight risk. Since it is the government that initiated re-detention, it 1 follows that the government should be required to bear the burden of providing a justification for 2 the re-detention.” M.R.R. v. Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 3265446, at *14 3 (E.D. Cal. Nov. 24, 2025) (relying on Pinchi, 792 F. Supp. 3d at 1034, 1038); accord Omer G. G. 4 v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025). 5 C. Respondents’ Reference to Ninth Circuit Appeals 6 Separately, Respondents assert that there are matters pending appeal before the Ninth 7 Circuit that bear on the issues presented in this case. (Doc. 6 at 1 n.1, 2; citing, inter alia, Rodriguez 8 v. Bostock, No. 25-6842). Having found that Petitioner’s re-arrest without a bond determination 9 and continuous detention for a considerable length of time violates the U.S. Constitution, the 10 undersigned will not recommend holding the matter in abeyance pending said appeals. See 11 Zadvydas, 533 U.S. at 690 (reaffirming that “freedom from imprisonment—from government 12 custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due 13 Process] Clause protects.”) 14 V. Conclusion and Recommendation 15 Accordingly, IT IS HEREBY RECOMMENDED that: 16 1. The petition for writ of habeas corpus (Doc. 1) be GRANTED. 17 2. Respondents be ORDERED to release Petitioner immediately. 18 3. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless 19 the government provides notice to Petitioner a minimum of seven (7) days in advance 20 and holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and 21 applicable regulations, at which Petitioner’s eligibility for bond must be considered, 22 and where the government must demonstrate by clear and convincing evidence that 23 Petitioner is a flight risk or danger to the community, such that physical custody is 24 legally justified. 25 4. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this 26 case. 27 These findings and recommendations will be submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 1 | after being served with these findings and recommendations, the parties may file written objections 2 | with the Court. Although this objection period is shorter than provided by Local Rule, such an 3 | adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 4 | Constitution by Respondents, and the fact that the parties have extensively briefed the issues 5 | involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 6 || may require a response within a shorter period if exigencies of the calendar require.”). Any 7 | objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 8 | Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 9 | The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 10 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 11 || and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 12 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 13 | these findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 14 The parties are advised that failure to file objections within the specified time may result in 15 | the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 16 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 | ITIS SO ORDERED. | Dated: _ March 23, 2026 | Wr ba 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 18