Ricardo Aguilar Garcia v. Polly Kaiser, et al.

• Court: District Court, N.D. California
• Decided: October 24, 2025
• Docket: 3:25-cv-05070
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICARDO AGUILAR GARCIA, Case No. 3:25-cv-05070-JSC

8 Petitioner, ORDER RE: MOTION FOR 9 v. PRELIMINARY INJUNCTION

10 POLLY KAISER, et al., Re: Dkt. No. 1 Respondents. 11

12 13 Petitioner filed this petition for a writ of habeas corpus with a motion for a temporary 14 restraining order seeking an order enjoining the Department of Homeland Security (“DHS”), their 15 agents, employees, and successors in office from re-detaining him until such time as he has had an 16 opportunity to challenge his re-detention before a neutral decisionmaker. (Dkt. No. 1.1) The 17 Court granted the motion for a temporary restraining order and issued an order to show cause as to 18 why a preliminary injunction should not issue. (Dkt. No. 3.) The government thereafter agreed to 19 an extended briefing schedule on the motion for a preliminary injunction and agreed the temporary 20 restraining order would remain in effect while the motion for a preliminary injunction is pending. 21 (Dkt. No. 16.) Having considered the parties’ initial and supplemental briefing and the relevant 22 legal authority, and having had the benefit of oral argument on October 23, 2025, the Court 23 DENIES the motion for preliminary injunction. 24 BACKGROUND 25 Petitioner, a non-citizen, has resided in the United States since 1997. (Dkt. No. 1-1 at ¶ 5.) 26 In 2013, he was granted DACA status for two years, but that status expired in 2015. (Id.) In 27 1 2018, he was placed in removal proceedings and charged as removable under 8 U.S.C. § 2 1182(a)(6)(A)(i) (“An alien present in the United States without being admitted or paroled, or who 3 arrives in the United States at any time or place other than as designated by the Attorney General, 4 is inadmissible”). (Dkt. No. 17-1 at ¶ 5.) On December 20, 2018, an immigration judge ordered 5 Petitioner removed to Mexico. (Dkt. No. 1-1 at ¶ 2; Dkt. No. 17-1 at ¶ 8.) After nearly a year in 6 detention, Petitioner was released on bond on July 3, 2019. (Dkt. No. 17-1 at ¶ 13.) Six days later, 7 the Board of Immigration Appeals (BIA) denied his appeal of the removal order. (Id. at ¶ 14.) 8 Petitioner filed a petition for review to the Ninth Circuit Court of Appeals, see Aguilar 9 Garcia v. Bondi, No. 19-71917, which automatically stayed his removal until further order of the 10 court. (Dkt. No. 17-1 at ¶ 16.) In May 2020, Petitioner filed a motion to reopen with the BIA 11 which was denied, in part, as untimely in June 2023. (Id. at ¶¶ 18-19.) Petitioner thereafter filed 12 with the Ninth Circuit a petition for review of the denial of his motion to reopen, see Aguilar 13 Garcia v. Bondi, No. 23-1536, which was consolidated with his earlier filed petition for review. 14 (Id. at ¶¶ 20-21.) 15 On February 28, 2025, the Ninth Circuit denied Petitioner’s two petitions for review and 16 his motion for stay, but kept the temporary stay of removal in place until issuance of the mandate. 17 Garcia v. Bondi, No. 19-71917, 2025 WL 655056, at *2 (9th Cir. Feb. 28, 2025), amended and 18 superseded on reh’g, No. 19-71917, 2025 WL 1341670 (9th Cir. May 8, 2025). Petitioner filed a 19 petition for panel rehearing and on May 8, 2025 the Ninth Circuit issued an amended decision 20 denying the consolidated petitions for review. Shortly thereafter, the Ninth Circuit granted 21 Petitioner’s motion to stay issuance of the mandate so that he could file a motion to reopen. (Dkt. 22 No. 17-1 at ¶¶ 25-26.) 23 The motion to reopen was based on Petitioner’s April 10, 2025 marriage to a U.S. Citizen 24 which renders him eligible for cancellation of removal for nonpermanent residents under 8 U.S.C. 25 § 1129b(b). (Dkt. No. 1 at ¶ 20; Dkt. No. 1-1 at ¶ 19.) Petitioner financially supports his wife, 26 who is a full-time student and struggles with a chronic medical condition, and his five-year-old 27 stepson who also has health challenges. (Dkt. No. 1-1 at ¶¶ 12, 21-22.) On June 4, 2025, 1 18, 2025, Petitioner also filed a motion to stay removal with the BIA. (Dkt. No. 24 at 7, n.1.) 2 Shortly before Petitioner’s marriage, on March 17, 2025, Petitioner received notice to 3 report to the Intensive Supervision Appearance Program (ISAP) two days later. (Dkt. No. 1-1 at ¶ 4 7.) Petitioner did so and was placed on an order of supervision. (Id.; Dkt. No. 1-1 at 15.) The 5 order of supervision provided Petitioner was permitted “to be at large” under certain conditions, 6 including that he again report for a check-in on May 1, 2025. (No. 1-1 at 15.) When he appeared 7 on May 1, he was told to reappear on August 1, but on June 13, he received a message to reappear 8 at the San Francisco ISAP Office the next day or the day after—Saturday or Sunday, June 14-15. 9 (Dkt. No. 1-1 at ¶¶ 8-9.) Petitioner then filed the underlying habeas petition and motion for a 10 temporary restraining order. (Dkt. Nos. 1, 2.) The court granted the motion for a temporary 11 restraining order and set a schedule for hearing his motion for a preliminary injunction. (Dkt. No. 12 3.) The parties stipulated to an extended briefing and hearing date on the preliminary injunction 13 and the government agreed the temporary restraining order could remain in effect until disposition 14 of the preliminary injunction. (Dkt. No. 9.) 15 After completion of the briefing on the motion for preliminary injunction, the Ninth Circuit 16 denied Petitioner’s motion to extend the stay of the mandate. See Ricardo Aguilar Garcia v. 17 Pamela Bondi, No. 19-71917, Dkt. No. 102 (9th Cir. Aug. 29, 2025). The mandate issued on 18 September 10, 2025. The Court thereafter requested supplemental briefing regarding whether the 19 issuance of the mandate impacted the underlying petition. (Dkt. No. 22.) That briefing is now 20 complete (Dkt. Nos. 24, 25, 26), and the Court heard oral argument on October 23, 2025. 21 DISCUSSION 22 A. Statutory Basis for Detention and the Court’s Jurisdiction 23 As a preliminary matter, the government contends this Court lacks jurisdiction to grant 24 Petitioner’s preliminary injunction motion. When this petition was filed, Petitioner’s detention 25 was governed by 8 U.S.C. § 1226(a). But now that the Ninth Circuit’s mandate has issued, the 26 parties agree his order of removal is final and his detention is governed by Section 1231. (Dkt. 27 No. 24 at 2; Dkt. No. 25 at 2.) “Section 1231(a) applies to detention after the entry of a final order 1 removal proceedings.” Avilez v. Garland, 69 F.4th 525, 530–31 (9th Cir. 2023) (quoting 8 U.S.C. 2 § 1231(a)(1)–(2)).2 Section 1231(a) requires that the Attorney General physically remove an 3 individual ordered removed within 90 days of the order. 8 U.S.C. § 1231(a)(1). It further requires 4 that the individual remain detained during the 90-day removal period. 8 U.S.C. § 1231(a)(2); see 5 also Zadvydas v. Davis, 533 U.S. 678, 698 (2001) (the statute “mandates” detention during the 90- 6 day removal period). 7 The government urges that in light of the final removal order, 8 U.S.C. § 1252(g) deprives 8 this Court of jurisdiction to grant the requested preliminary injunction relief. Section 1252(g) 9 provides “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien 10 arising from the decision or action by the Attorney General to commence proceedings, adjudicate 11 cases, or execute removal orders against any alien.” As support for its contention that 1252(g) 12 applies, the government relies on Rauda v. Jennings, 55 F.4th 773, 777 (9th Cir. 2022) 13 (concluding 8 U.S.C. § 1252(g) strips courts of jurisdiction to enjoin removal orders). Rauda, 14 however, is inapposite. Rauda’s 2241 petition sought to enjoin his removal while his motion to 15 reopen was pending. Rauda, 55 F.4th at 777. The court concluded such request ran afoul of 16 Section 1252(g)’s withholding jurisdiction for claims arising from the commencement, 17 adjudication, or execution of removal orders. Id. Here, however, Petitioner does not seek to 18 enjoin, or even challenge, his removal; instead, he seeks a hearing prior to his re-detention on the 19 grounds he has a vested liberty interest in his current conditional release. (Dkt. No. 1 at 15-16.) 20 Section “1252(g) d[oes] not bar due process claims.” Ibarra-Perez v. United States, No. 24-631, - 21 -F.4th--, 2025 WL 2461663, at *7 (9th Cir. Aug. 27, 2025). 22 B. Preliminary Injunction Factors 23 To obtain a preliminary injunction, Petitioner must establish that (1) he is “likely to 24 succeed on the merits,” (2) he is “likely to suffer irreparable harm in the absence of preliminary 25

26 2 The “removal period” commences “on the latest of either (1) the date a noncitizen’s ‘order of removal becomes administratively final,’ (2) the date of a court’s final order, if the noncitizen’s 27 removal order is judicially reviewed and this court stays the noncitizen’s removal, or (3) the date 1 relief,” (3) “the balance of equities tips in [his] favor,” and (4) “an injunction is in the public 2 interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “If a plaintiff can only 3 show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of 4 success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships 5 tips sharply in the plaintiff’s favor, and the other two Winter factors are satisfied.’” All. for the 6 Wild Rockies v. Peña, 865 F.3d 1211, 1217 (9th Cir. 2017) (quoting Shell Offshore, Inc. v. 7 Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)). “Where, as here, the party opposing 8 injunctive relief is a government entity, the third and fourth factors—the balance of equities and 9 the public interest—merge.” Hubbard v. City of San Diego, 139 F.4th 843, 854 (9th Cir. 2025) 10 (citation modified). 11 Petitioner contends the due process clause of the Fifth Amendment entitles him to a pre- 12 detention hearing prior to being re-detained because he was previously conditionally released and 13 remains on bond. (Dkt. No. 1 at 15-16 (“Mr. Aguilar Garcia has a vested liberty interest in his 14 current conditional release, and Due Process does not permit the government to strip him of that 15 liberty without his having the opportunity to argue against his re-detention prior to that re- 16 detention taking place.”).) 17 “Freedom from imprisonment—from government custody, detention, or other forms of 18 physical restraint—lies at the heart of the liberty [the Due Process] Clause protects.” Zadvydas v. 19 Davis, 533 U.S. 678, 690 (2001). Civil detention, including that of a non-citizen, violates due 20 process in the absence of a “special justification” sufficient to outweigh one’s “‘constitutionally 21 protected interest in avoiding physical restraint.’” Id. (quoting Kansas v. Hendricks, 521 U.S. 346, 22 356 (1997)) (internal quotation marks omitted). “Being held in custody by the government at an 23 earlier time does not eliminate one’s liberty interest in remaining on release…because, as courts 24 have repeatedly recognized, conditional release from physical restraint gives rise to a protected 25 liberty interest. See Valencia Zapata v. Kaiser, No. 25-CV-07492-RFL, 2025 WL 2741654, at *6 26 (N.D. Cal. Sept. 26, 2025) (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (finding a 27 parolee had an interest in his continued liberty); Young v. Harper, 520 U.S. 143, 150–53 (1997) 1 individual is discretionary, the government’s subsequent release of the individual from custody 2 creates ‘an implicit promise’ that the individual’s liberty will be revoked only if they fail to abide 3 by the conditions of their release.” Calderon v. Kaiser, No. 25-cv-06695-AMO, 2025 WL 4 2430609, at *2 (N.D. Cal. Aug. 22, 2025) (quoting Morrissey, 408 U.S. at 482). Numerous courts 5 in this District and elsewhere have concluded individuals released from immigration custody on 6 bond have a protectable liberty interest in remaining out of custody on bond. Valencia Zapata, 7 2025 WL 2741654, at *6. Indeed, the court relied on this liberty interest in granting the motion 8 for a temporary restraining order here. (Dkt. No. 3 at 4.) 9 However, since granting Petitioner’s temporary restraining order, the statutory basis for 10 Petitioner’s detention has changed. “[W]hen an alien is ordered removed, the Attorney General 11 shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 12 1231(a)(1)(A). As the Ninth Circuit mandate issued on September 10, 2025, Petitioner falls 13 within the 90-day removal period. See Prieto-Romero v. Clark, 534 F.3d 1053, 1060, n.5 (9th Cir. 14 2008) (“the removal period does not begin until the court of appeals (1) denies the motion for a 15 stay or (2) grants the motion and finally denies the petition for review” and the “’finality of an 16 appellate order hinges on the mandate’”) (internal citation omitted). During the removal period, 17 detention is mandatory: “During the removal period, the Attorney General shall detain the alien.” 18 8 U.S.C.A. § 1231(a)(2)(A); see also Johnson v. Arteaga-Martinez, 596 U.S. 573, 578 (2022) 19 (“[T]he Government generally must secure the noncitizen’s removal during [the] 90-day ‘removal 20 period’” and “the Government ‘shall’ detain noncitizens during [this] statutory removal period.”) 21 (quoting 8 U.S.C. §§ 1231(a)(1)(A), (a)(2)). So, Petitioner’s liberty interest is not the same as 22 when he was detained under 1226(a). In contrast to section 1231(a)(2) mandatory detention, 23 “Section 1226(a) provides that the attorney general ‘may’ detain these noncitizens pending their 24 removal proceedings and “may release” such individuals on ‘bond ... or conditional parole.’” 25 Johnson, 596 U.S. at 579 (quoting 8 U.S.C. §§ 1226(a)(1), (2)). 26 Petitioner argues that notwithstanding the mandatory language of the 90-day detention 27 period, because he was released on bond before his final order of removal, the due process clause 1 somehow poses a risk of flight or danger to the community. Petitioner has not established a 2 likelihood of success or serious questions going to the merits on this novel claim. 3 The Ninth Circuit has held “the period of detention under § 1231(a)(2) [] passes 4 constitutional scrutiny.” Khotesouvan v. Morones, 386 F.3d 1298, 1301 (9th Cir. 2004). 5 Petitioner identifies no case which suggests otherwise. The primary case Petitioner relies on, Doe 6 v. Becerra, 697 F. Supp. 3d 937, 943 (N.D. Cal. 2023), involved a long-detained petitioner who 7 had a final order of removal entered while his habeas petition was pending such that he shifted 8 from detention under 1226(c) to 1231(a)(2). There, the court concluded “the statutory basis for 9 detention [does not] impact[] the analysis, particularly where the Government has made clear that 10 Doe’s continued detention is not speculative.” Id. at 943. The court reasoned:

11 [t]he IJ’s final order of removal may have started a new clock for the Government to take a different type of action, but it did not reset the 12 clock as to the time Doe has been detained without a bond hearing. Doe’s continued civil detention of more than 22 months without a 13 hearing to consider the risks related to his potential release on bond supports his due process claim. 14 Id. at 943. The court explained its “conclusion in this case is based on the length of Doe’s 15 detention without a hearing, not the statutory basis for his detention.” Id. (“While statutory 16 justification for Doe’s detention has shifted, nothing has changed as a practical matter – his time 17 behind bars continues to increase without any showing by Respondents that his civil detention is 18 necessary to achieve the Government’s non-punitive ends.”). This reasoning is inapplicable to 19 Petitioner who has been released on bond since 2019, and there is nothing currently before the 20 Court that suggests if he is detained during the 90-day removal period he will remain in custody 21 beyond that period. 22 Petitioner’s reliance on cases involving individuals subject to mandatory detention under 23 1226(c) (“detention of criminal aliens”) challenging their prolonged detention and seeking a 24 second bond hearing is equally unpersuasive because in none was the petitioner within the 90-day 25 removal period. See, e.g, Espinoza v. Wofford, No. 1:24-CV-01118-SAB-HC, 2025 WL 1556590, 26 at *12 (E.D. Cal. June 2, 2025) (considering whether the petitioner who had been detained under 27 1226(c) for 30-months was entitled to a second bond hearing once his order of removal became 1 final and he was beyond the 90-day removal window); De La Rosa v. Murray, No. 23-CV-06461- 2 VC, 2024 WL 2646470, at *1 (N.D. Cal. Apr. 8, 2024) (considering whether the petitioner, a 3 noncitizen from Mexico who had been in ICE custody for two years pursuant to 8 U.S.C. § 4 1226(c), was entitled to a bond hearing while his petition for review with the Ninth Circuit was 5 pending); see also Guillermo M. R. v. Kaiser, No. 25-CV-05436-RFL, —F.Supp.3d—, 2025 WL 6 1983677 at *5 (N.D. Cal. July 17, 2025) (“Petitioner has already been detained for the 7 ‘mandatory’ 90-day window, and any further detention would be subject to Section 1231(a)(6) 8 under which he ‘may’ be released.”); Ceesay v. Kurzdorfer, 781 F. Supp. 3d 137, 147, 166 9 (W.D.N.Y. 2025) (finding petitioner’s due process rights were violated when he was detained 10 without notice nearly 15 years after his removal order became final at a regularly scheduled ICE 11 check-in). 12 In contrast to all these other cases, Petitioner is within the 90-day mandatory detention 13 window of Section 1231(a)(2) and due process does not require a bond hearing at least until he is 14 in the post-removal period. See Khotesouvan v. Morones, 386 F.3d 1298, 1301 (9th Cir. 2004) 15 (“the due process analysis attaches in the post-removal period”). “A due process claim is 16 cognizable only if there is a recognized liberty or property interest at stake.” Schroeder v. 17 McDonald, 55 F.3d 454, 462 (9th Cir. 1995). Petitioner therefore has not established a likelihood 18 of success or serious questions on the merits of his habeas petition. 19 Having concluded Petitioner has failed to establish a likelihood of success, the Court need 20 not reach the remainder of the Winter factors. See Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 21 2023) (“a ‘court need not consider the other factors’ if a movant fails to show a likelihood of 22 success on the merits.”) (citation omitted); Smith v. Helzer, 95 F.4th 1207, 1215 (9th Cir. 2024) 23 (affirming denial of a preliminary injunction after finding no likelihood of success and without 24 discussing any other preliminary injunction factor). Petitioner’s motion for a preliminary 25 injunction is denied. 26 C. Order to Show Cause as to Mootness 27 “A federal court lacks [subject-matter] jurisdiction to hear a case that is moot”—that is, 1 Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1155 (9th Cir. 2017). This habeas petition was 2 || predicated on the government’s detention authority while he was on conditional release under 3 Section 1226, but that is no longer the statutory basis for his detention. Petitioner is now subject 4 to mandatory detention under Section 1231(a)(2). See Kapila v. Murray, No. 1:24-CV-00914- 5 SAB-HC, 2024 WL 5090012, at *3 (E.D. Cal. Dec. 12, 2024) (“Most appellate courts addressing 6 || this issue have held that a petition challenging detention under 8 U.S.C. § 1226(c) is moot when 7 || the detention authority shifts to § 1231” and collecting cases). Petitioner is therefore ordered to 8 show cause as to why this petition should not be dismissed without prejudice for lack of subject 9 || matter jurisdiction based on mootness. 10 CONCLUSION 11 For the reasons stated above, the Court DENIES the motion for a preliminary injunction 12 and ORDERS Petitioner to show cause as to why the habeas petition should not be dismissed as g 13 moot. Petitioner shall file a response to this Order by November 6, 2025 and the government may 14 || file areply by November 20, 2025. 15 This Order disposes of Docket No. 2. a 16 IT IS SO ORDERED.

17 Dated: October 24, 2025 18 , td 19 me ACQUELINE SCOTT CORLE 20 United States District Judge 21 22 23 24 25 26 27 28