7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 SALVADOR GONZALEZ-JAIMES, Case No. 1:26-cv-04534-KES-EPG-HC
11 Petitioners, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 12 v. HABEAS CORPUS AND DIRECT RESPONDENTS TO PROVIDE 13 WARDEN OF THE CALIFORNIA CITY PETITIONER WITH BOND HEARING DETENTION FACILITY, et al., 14 ORDER DENYING PETITIONER’S Respondents. MOTION FOR APPOINTMENT OF 15 COUNSEL
16 (ECF No. 3) 17 Petitioner is a federal immigration detainee proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. 19 For the reasons set forth herein, the undersigned recommends granting the petition for 20 writ of habeas corpus and ordering that Respondents provide Petitioner with an individualized 21 bond hearing before an immigration judge at which the government must justify Petitioner’s 22 continued detention by clear and convincing evidence. 23 I. 24 BACKGROUND 25 Petitioner is a citizen of Mexico who has lived in the United States since 2000 and was 26 granted Deferred Action for Childhood Arrivals (“DACA”), which has since expired. (ECF No. 27 1 at 9; ECF No. 9-1 at 3.1) On August 21, 2024, Petitioner was convicted of threatening a 1 school/public officer/employee and was sentenced to 147 days in jail. (ECF No. 9-3 at 3.) On 2 March 4, 2026, Butte County jail contacted Enforcement and Removal Operations (“ERO”) to 3 advise that Petitioner was scheduled for release, and Petitioner was taken into immigration 4 custody. (Id. at 2.) 5 On June 12, 2026, Petitioner filed the instant petition for writ of habeas corpus raising a 6 prolonged detention due process claim. (ECF No. 1 at 10–20.) The Court construed the petition 7 “as also raising a due process claim regarding Petitioner’s re-detention and challenging the 8 statutory authority for Petitioner’s detention.” (ECF No. 7 at 1.) On July 1, 2026, Respondent 9 filed an answer. (ECF No. 9.) 10 II. 11 DISCUSSION 12 Although the deadline for Petitioner to file a reply to Respondents’ response has not yet 13 passed, the undersigned finds that issuance of the findings and recommendation is appropriate. 14 A. Statutory Basis of Petitioner’s Detention 15 Congress has enacted a complex statutory scheme governing the detention of noncitizens 16 during removal proceedings and following the issuance of a final order of removal. “Where an 17 alien falls within this statutory scheme can affect whether his detention is mandatory or 18 discretionary, as well as the kind of review process available to him if he wishes to contest the 19 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). 20 “Four statutes grant the Government authority to detain noncitizens who have been 21 placed in removal proceedings”: 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a). Avilez v. 22 Garland, 69 F.4th 525, 529 (9th Cir. 2023). Respondent asserts that Petitioner is subject to 23 mandatory detention under to 8 U.S.C. § 1225(b)(2)(A) whereas Petitioner asserts that § 1226(a) 24 is applicable. 25 8 U.S.C. § 1226(a) “is the default detention statute for noncitizens in removal 26 proceedings.” Avilez, 69 F.4th at 529. Detention under § 1226(a) “is discretionary” and 27 “provides for release on bond or conditional parole.” Id. The Supreme Court has described 8 1 Under § 302, 110 Stat. 3009–579, 8 U.S.C. § 1225, an alien who “arrives in the United States,” or “is present” in this country but 2 “has not been admitted,” is treated as “an applicant for admission.” § 1225(a)(1). Applicants for admission must “be inspected by 3 immigration officers” to ensure that they may be admitted into the country consistent with U.S. immigration law. § 1225(a)(3). 4 As relevant here, applicants for admission fall into one of two 5 categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2). Section 1225(b)(1) applies to aliens initially 6 determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. See § 1225(b)(1)(A)(i) (citing 7 §§ 1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain other aliens designated by the Attorney General in his discretion. 8 See § 1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not 9 covered by § 1225(b)(1) (with specific exceptions not relevant here). See §§ 1225(b)(2)(A), (B). 10 Both § 1225(b)(1) and § 1225(b)(2) authorize the detention of 11 certain aliens. Aliens covered by § 1225(b)(1) are normally ordered removed “without further hearing or review” pursuant to 12 an expedited removal process. § 1225(b)(1)(A)(i). But if a § 1225(b)(1) alien “indicates either an intention to apply for 13 asylum ... or a fear of persecution,” then that alien is referred for an asylum interview. § 1225(b)(1)(A)(ii). If an immigration officer 14 determines after that interview that the alien has a credible fear of persecution, “the alien shall be detained for further consideration 15 of the application for asylum.” § 1225(b)(1)(B)(ii). Aliens who are instead covered by § 1225(b)(2) are detained pursuant to a 16 different process. Those aliens “shall be detained for a [removal] proceeding” if an immigration officer “determines that [they are] 17 not clearly and beyond a doubt entitled to be admitted” into the country. § 1225(b)(2)(A). 18 Regardless of which of those two sections authorizes their 19 detention, applicants for admission may be temporarily released on parole “for urgent humanitarian reasons or significant public 20 benefit.” § 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3 (2017). Such parole, however, “shall not be regarded as an 21 admission of the alien.” 8 U.S.C. § 1182(d)(5)(A). Instead, when the purpose of the parole has been served, “the alien shall forthwith 22 return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same 23 manner as that of any other applicant for admission to the United States.” Ibid. 24 25 Jennings v. Rodriguez, 583 U.S. 281, 287–88 (2018). 26 Until this year, DHS has applied section 1226(a) and its regime of discretionary release and review of detention “to the vast majority 27 of noncitizens allegedly in this country without valid documentation”—a practice codified by regulation. Id. As early as 1 Reform and Immigrant Responsibility Act of 1996, the Immigration and Naturalization Service and the Executive Office 2 for Immigration Review stated that “[d]espite being applicants for admission, aliens who are present without having been admitted or 3 paroled (formerly referred to as aliens who entered without inspection) will be eligible for bond and bond redetermination.” 4 Inspection and Expedited Removal of Aliens, 62 Fed. Reg. at 10323. The government’s briefing in this case acknowledges that 5 its position historically was that section 1226(a) was “an available detention authority for aliens [present without being admitted or 6 paroled] placed in full removal proceedings under § 1229a.” (Dkt. No. 16 (“Opp.”) at 12.) 7 However, the government now disavows its prior position in light 8 of subsequent “legal developments,” including its 2025 designation “restor[ing] the scope of expedited removal to the fullest extent 9 authorized by Congress,” 90 Fed. Reg. at 8139. (Opp. at 12.) It contends that section 1225 is “the sole applicable detention 10 authority for all applicants for admission” and asserts that all applicants for admission are “subject to the mandatory detention 11 framework” of section 1225(b). (Opp. at 12, 14.) 12 Valencia Zapata v. Kaiser, No. 25-CV-07492-RFL, 2025 WL 2741654, at *4 (N.D. Cal. Sept. 13 26, 2025) (footnote omitted). 14 Here, Respondents assert that Petitioner is subject to mandatory detention under 8 U.S.C. 15 § 1225(b)(2). (ECF No. 9 at 1.) “The various legal arguments relied upon by Respondents to 16 support this assertion [that Petitioner’s detention is mandatory under 1225(b) while his removal 17 proceedings are pending] have been rejected by this Court in other proceedings.” J.E.H.G. v. 18 Chestnut, No. 1:25-cv-01673-JLT SKO, 2025 WL 3523108, at *9 (E.D. Cal. Dec. 9, 2025). See 19 Valencia v. Chestnut, No. 1:25-cv-01550 WBS JDP, 2025 WL 3205133, at *2 (E.D. Cal. Nov. 20 17, 2025) (noting that “[h]ere in the Eastern District of California, recent decisions have largely 21 rejected the government’s interpretation of Section 1225(b)(2) as applicable to all ‘applicants for 22 admission,’” recognizing “[o]ther district courts have also reached the result that Section 23 1226(a), not Section 1225(b)(2), provides the appropriate framework for noncitizens already 24 residing in the United States,” and collecting cases). 25 This Court will follow the majority approach in finding that “Respondents’ proposed 26 interpretation of the statute (1) disregards the plain meaning of section 1225(b)(2)(A); (2) 27 disregards the relationship between sections 1225 and 1226; (3) would render a recent amendment to section 1226(c) superfluous; and (4) is inconsistent with decades of prior statutory 1 interpretation and practice.” Sharan S. v. Chestnut, No. 1:25-cv-01427-KES-SKO (HC), 2025 2 WL 3167826, at *5 (E.D. Cal. Nov. 12, 2025). Accordingly, the undersigned recommends 3 finding that Petitioner is not subject to mandatory detention under 8 U.S.C. § 1225(b)(2). 4 B. Procedural Due Process 5 “We examine procedural due process questions in two steps: the first asks whether there 6 exists a liberty or property interest which has been interfered with by the State; the second 7 examines whether the procedures attendant upon that deprivation were constitutionally 8 sufficient.” Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal citations 9 omitted). The Court will address each step in turn. 10 1. Liberty Interest 11 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 12 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. 13 Davis, 533 U.S. 678, 693 (2001). “Freedom from imprisonment—from government custody, 14 detention, or other forms of physical restraint—lies at the heart of the liberty that Clause 15 protects.” Zadvydas at 690. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court 16 addressed whether due process requires a parolee be afforded some opportunity to be heard prior 17 to revocation of parole. 408 U.S. at 472. In examining “the nature of the interest of the parolee in 18 his continued liberty,” the Supreme Court stated: 19 The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The 20 parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and 21 function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free 22 to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him 23 to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. . . . The 24 parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. 25 26 Morrissey, 408 U.S. at 482. The Supreme Court found “that the liberty of a parolee, although 27 indeterminate, includes many of the core values of unqualified liberty and its termination inflicts 1 a ‘grievous loss’ on the parolee and often on others” and held that “the liberty is valuable and 2 must be seen as within the protection of” due process. Morrissey, 408 U.S. at 482. 3 Relying on Morrissey, courts in this district have consistently held that noncitizens who 4 have been released from immigration custody pending civil removal proceedings have a 5 protected liberty interest in remaining out of immigration custody. See, e.g., Doe v. Becerra, 787 6 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); J.A.E.M. v. Wofford, No. 1:25-cv-01380-KES-HBK 7 (HC), 2025 WL 3013377, at *3–6 (E.D. Cal. Oct. 27, 2025); J.C.L.A. v. Wofford, No. 1:25-cv- 8 01310-KES-EPG (HC), 2025 WL 2959250, at *3–5 (E.D. Cal. Oct. 17, 2025); Qazi v. Albarran, 9 No. 2:25-cv-02791-TLN-CSK, 2025 WL 3033713, at *4 (E.D. Cal. Oct. 10, 2025); Martinez 10 Hernandez v. Andrews, No. 1:25-cv-01035 JLT HBK, 2025 WL 2495767, at *10 (E.D. Cal. 11 Aug. 28, 2025); Yang v. Kaiser, No. 2:25-cv-02205-DAD-AC (HC), 2025 WL 2791778, at *8 12 (E.D. Cal. Aug. 20, 2025); Maklad v. Murray, No. 1:25-cv-00946 JLT SAB, 2025 WL 2299376, 13 at *7–8 (E.D. Cal. Aug. 8, 2025). 14 This Court previously found that the government’s knowing decision not to detain an 15 individual creates a liberty interest in their continued release and adopts the reasoning of Boso v. 16 Warden of the Golden State Annex Det. Facility, No. 1:26-cv-01790-KES-SAB-HC, 2026 WL 17 1174643 (E.D. Cal. Apr. 30, 2026), report and recommendation adopted, 2026 WL 1389432 18 (E.D. Cal. May 18, 2026). Boso states in pertinent part: 19 To the extent that Petitioner has not previously been detained by immigration officials and released, the Court finds the reasoning of 20 Kharitonova v. Albarran, No. 3:26-CV-01362-JSC, 2026 WL 531441 (N.D. Cal. Feb. 25, 2026), persuasive. Kharitonova 21 concerned a noncitizen who entered the United States on a nonimmigrant visa in 2012, filed her application for asylum and 22 withholding of removal within one year of her arrival, had her asylum case referred to the Executive Office for Immigration 23 Review, which issued a Notice to Appear, resided continuously in the United States, attended all scheduled hearings, was preparing 24 to appear for her merits hearing scheduled for December 22, 2026, and in February 2026 “was detained on the street in front of the 25 home in San Francisco where she work[ed] as a full-time nanny.” Id. at *1. The district court held that the “government’s decision 26 not to detain Petitioner ‘when it processed her asylum application, took her biometrics, referred her asylum case to EOIR, and advised 27 her to appear for multiple hearings over a period of years,’ ... gave rise to ‘a liberty interest on Petitioner’s part that she would remain 1 (citation omitted). The court rejected the “government’s insistence Petitioner lacks a liberty interest because it never before sought to 2 detain her” as “specious” and “unsupported by any legal authority” because “[a]lthough the government did not detain and then release 3 her, it made a decision not to detain her in the first place; Petitioner thus has the same liberty interest in her continued freedom as an 4 individual initially detained.” Kharitonova, 2026 WL 531441, at *2. See also Villanueva-Montanez v. Lyons, No. 2:26-cv-00954- 5 DAD-CKD, 2026 WL 797930, at *1 (E.D. Cal. Mar. 23, 2026) (“[T]he release (or decision not to detain) is ‘based on an 6 evaluation[,]’ allows for ‘a relatively normal life[,]’ and as a result the parolee or petitioner ‘relied on at least an implicit promise’ that 7 the parole or decision not to detain will be revoked only if he fails to live up to the applicable ‘conditions.’ ” (first alteration added) 8 (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972))).
9 Here, Petitioner entered the United States without inspection, but his DACA application was approved by USCIS “on May 29, 2024, 10 deferring [Petitioner’s] removal from the United States.” (ECF No. 10-4 at 1.) Although on February 20, 2026, USCIS issued a notice 11 of “its intent to terminate [Petitioner’s] deferred action for childhood arrivals” due to his felony conviction, the Court 12 recommends finding that Petitioner maintains a liberty interest in his continued release. See Anderson v. Chernut, No. 1:26-CV- 13 01960-DAD-CKD, 2026 WL 809990, at *2 (E.D. Cal. Mar. 24, 2026) (finding, in context of petitioner who was granted parole and 14 whose DACA status was terminated due to a DUI conviction, “that the government’s knowing decision not to detain an individual 15 creates a liberty interest in their continued release” and “[e]ven though petitioner’s parole authorization expired, petitioner 16 maintains her liberty interest in continued release”); Rocha Ramirez v. Warden, No. 1:26-CV-02544-DAD-AC, 2026 WL 17 1078250, at *1 (E.D. Cal. Apr. 21, 2026) (applying Anderson where petitioner entered the United States in 2006 on a valid visa 18 that expired in 2011 and petitioner’s DACA grant expired in 2021); D.L.C. v. Wofford, No. 1:25-cv-01996-DC-JDP, 2026 WL 19 145646, at *4 (E.D. Cal. Jan. 20, 2026) (“[N]umerous courts in the Ninth Circuit have found that when a noncitizen is paroled under 20 that section, his liberty interest does not expire along with his parole.”) (collecting cases). 21 22 Boso, 2026 WL 1174643, at *3. 23 Similarly, here, Petitioner entered the United States without inspection but was granted 24 DACA. Despite his DACA status having since expired, the undersigned recommends finding 25 that Petitioner has a protected liberty interest in remaining out of immigration custody. 26 2. Mathews Test 27 In Mathews, the Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors”: 1 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 2 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 3 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 4 requirements would entail. 5 Mathews, 424 U.S. at 334. 6 With respect to the first factor, the Court finds that the private interest at issue is 7 fundamental. The Ninth Circuit has recognized that it “is beyond dispute” an immigration 8 detainee’s “private interest at issue here is ‘fundamental’: freedom from imprisonment is at the 9 ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. Sessions, 872 F.3d 976, 10 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). 11 With respect to the second factor, “‘the risk of an erroneous deprivation [of liberty] is 12 high’ where, as here, ‘[the petitioner] has not received any bond or custody redetermination 13 hearing.’” J.A.E.M., 2025 WL 3013377, at *7 (alterations in original) (quoting A.E. v. Andrews, 14 No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 871334, at *5 (E.D. Cal. Mar. 19, 2025)). “[A]s 15 there have been no procedural safeguards to determine if petitioner’s re-detention is justified, 16 ‘the probable value of additional procedural safeguards, i.e., a bond hearing, is high.’” Sharan S. 17 v. Chestnut, No. 1:25-cv-01427-KES-SKO (HC), 2025 WL 3167826, at *10 (E.D. Cal. Nov. 12, 18 2025) (quoting A.E., 2025 WL 1424382, at *5). 19 With respect to the third and final factor, “although the government has a strong interest 20 in enforcing the immigration laws, the government’s interest in detaining petitioner without a 21 hearing is ‘low.’” J.A.E.M., 2025 WL 3013377, at *7 (citing Ortega v. Bonnar, 415 F. Supp. 3d 22 963, 970 (N.D. Cal. 2019); Doe, 787 F. Supp. 3d at 1094). See Henriquez v. Garland, No. 5:22- 23 cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) (“Although the Government 24 has a strong interest in enforcing the immigration laws and in ensuring that lawfully issued 25 removal orders are promptly executed, the Government’s interest in detaining Petitioner without 26 providing an individualized bond hearing is low.”). Courts generally have found that the cost of 27 providing a custody hearing is relatively minimal, and there is nothing in the record before this Court demonstrating that providing Petitioner with a pre-deprivation hearing would be fiscally or 1 administratively burdensome. See J.A.E.M., 2025 WL 3013377, at *7 (“In immigration court, 2 custody hearings are routine and impose a ‘minimal’ cost.” (citing Doe, 787 F. Supp. 3d at 3 1094)). 4 On balance, the Mathews factors show that Petitioner is entitled to notice and a bond 5 hearing and “[t]hat hearing should have occurred before petitioner was re-detained.” Carmen 6 G.C. v. Robbins, No. 1:25-cv-01648-KES-HBK (HC), 2025 WL 3521304, at *7 (E.D. Cal. Dec. 7 8, 2025). 8 “‘[T]he root requirement’ of the Due Process Clause” is “‘that an individual be given an opportunity for a hearing before he is 9 deprived of any significant protected interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Boddie v. 10 Connecticut, 401 U.S. 371, 379 (1971)); see Zinermon, 494 U.S. at 127 (“Applying [the Mathews] test, the Court usually has held that 11 the Constitution requires some kind of a hearing before the State deprives a person of liberty ....”). Courts typically require evidence 12 of urgent concerns or an especially strong government interest to justify a post-deprivation hearing. See Guillermo M. R., 2025 WL 13 1983677, at *9; United States v. James Daniel Good Real Prop., 510 U.S. 43, 53, 59–61 (1993) (“We tolerate some exceptions to 14 the general rule requiring predeprivation notice and hearing, but only in extraordinary situations where some valid governmental 15 interest is at stake that justifies postponing the hearing until after the event[,]” such as “executive urgency.” (internal quotations 16 omitted)). 17 Carmen G.C., 2025 WL 3521304, at *7. 18 At such a pre-deprivation hearing, the government bears the burden of proving by clear 19 and convincing evidence that Petitioner is a danger to the community or a flight risk such that re- 20 detention is warranted. See Carmen G.C., 2025 WL 3521304, at *7 (“On balance, the Mathews 21 factors show that petitioner is entitled to a bond hearing where the government must prove that 22 she is a flight risk or danger to the community by clear and convincing evidence.”); J.E.H.G. v. 23 Chestnut, No. 1:25-cv-01673-JLT SKO, 2025 WL 3523108, at *14 (E.D. Cal. Dec. 9, 2025) 24 (“[T]he immigrant’s initial release reflected a determination by the government that the 25 noncitizen is not a danger to the community or a flight risk. Since it is the government that 26 initiated re-detention, it follows that the government should be required to bear the burden of 27 providing a justification for the re-detention.”). 1 Based on the foregoing, Petitioner has demonstrated that he has a strong liberty interest in 2 remaining out of custody, that the risk of erroneous deprivation will be meaningfully reduced by 3 requiring notice and a hearing before a neutral decisionmaker, and that the governmental burden 4 in providing such procedure is quite minimal. Accordingly, the undersigned recommends 5 granting the petition on the due process claim challenging Petitioner’s re-detention.2 6 C. Appropriate Relief 7 Courts in this district have taken differing approaches to the relief granted to petitioners 8 who have been denied bond hearings in violation of due process. In some cases, the immediate 9 release of the petitioner has been ordered. See, e.g., Yurani Hortua v. Chestnut, No. 1:25-cv- 10 01670-TLN-JDP, 2025 WL 3525916 (E.D. Cal. Dec. 9, 2025) (ordering immediate release of 11 petitioner who had been released from immigration detention on parole, was arrested for theft 12 but the case was resolved with community service and did not result in a conviction, and was re- 13 detained at a routine six-month check-in); Carmen G.C., 2025 WL 3521304 (ordering immediate 14 release of petitioner who allegedly violated reporting requirements four times); Rocha Chavarria, 15 2025 WL 3533606 (ordering immediate release of petitioner who allegedly “incurred compliance 16 violations” that were not identified and where respondents did not suggest the alleged violations 17 were the reason for petitioner’s re-detention). 18 In other cases, bond hearings have been ordered rather than immediate release. See, e.g., 19 J.E.H.G., 2025 WL 3523108 (ordering bond hearing for petitioner who allegedly violated 20 reporting requirements numerous times and was re-detained based on said violations); Paz 21 Aguilera v. Albarran, No. 1:25-cv-01619 JLT SAB, 2025 WL 3485016 (E.D. Cal. Dec. 4, 2025) 22 (ordering bond hearing for petitioner who allegedly violated reporting requirements one time and 23 was re-detained based on said violation); Sharan S., 2025 WL 3167826 (ordering bond hearing 24 for petitioner who allegedly violated reporting requirements eight times). 25 Here, Petitioner was detained after he had served his 147-day jail sentence for threatening 26 a school/public officer/employee. Accordingly, the undersigned recommends finding that a post- 27 deprivation hearing is the appropriate remedy. 1 D. Motion for Appointment of Counsel 2 Petitioner has moved for appointment of counsel. (ECF No. 3.) There currently exists no 3 absolute right to appointment of counsel in habeas proceedings. See, e.g., Chaney v. Lewis, 801 4 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958). 5 However, 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage of the 6 proceeding for financially eligible persons if “the interests of justice so require.” To determine 7 whether to appoint counsel, the “court must evaluate the likelihood of success on the merits as 8 well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the 9 legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 10 In light of the Court’s recommendation that Petitioner is entitled to habeas relief, the 11 undersigned will deny Petitioner’s motion for appointment of counsel. 12 III. 13 RECOMMENDATION & ORDER 14 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 15 1. The petition for writ of habeas corpus be GRANTED on the construed due process claim 16 regarding Petitioner’s re-detention and claim challenging the statutory authority for 17 Petitioner’s detention; 18 2. Respondents be enjoined and restrained from continuing to detain Petitioner pursuant 8 19 U.S.C. § 1225(b); and 20 3. Respondents be directed to provide Petitioner with a bond hearing before an immigration 21 judge that complies with the requirements set forth in Singh v. Holder, 638 F.3d 1196 22 (9th Cir. 2011), at which 23 a. “the government must prove by clear and convincing evidence that [Petitioner] is 24 a flight risk or a danger to the community to justify denial of bond,” Singh, 638 25 F.3d at 1203, and 26 b. the immigration judge should consider Petitioner’s financial circumstances or 27 alternative conditions of release in the event Petitioner is determined not to be a ] without bond. 2 Further, the Court HEREBY ORDERS that Petitioner’s motion for appointment of 3 | counsel (ECF No. 3) is DENIED. 4 This Findings and Recommendation is submitted to the assigned United States District 5 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 6 | Rules of Practice for the United States District Court, Eastern District of California. Within 7 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 8 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 9 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 10 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 11 | within fourteen (14) days after service of the objections. The assigned United States District 12 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 13 | The parties are advised that failure to file objections within the specified time may waive the 14 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 15 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED.
18] Dated: _ July 9, 2026 [sf Ree ey 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28