1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SANJEEV BUDHA, Case No. 1:25-cv-01941-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT PETITION FOR WRIT OF HABEAS 13 v. CORPUS IN PART1 14 RON MURRAY, Mesa Verde ICE (Doc. 1) Processing Center Facility Administrator, 15 et al., FIVE-DAY OBJECTION PERIOD 16 Respondents. 17 18 Petitioner Sanjeev Budha, an immigrant detainee in U.S. Immigration Customs and 19 Enforcement (“ICE”) custody at the Mesa Verde Processing Center in Bakersfield, California, 20 initiated this action by filing a counseled petition for writ of habeas corpus under 28 U.S.C. § 21 2241, docketed on December 18, 2025. (Doc. 1, “Petition”). On December 22, 2025, the 22 assigned district judge referred this matter to the undersigned after denying Petitioner’s Motion 23 for a Temporary Restraining Order. (Docs. 3, 7). 24 The Petition raises the following claims for relief: Petitioner’s detention in ICE custody 25 without a bond hearing violates his Fifth Amendment substantive and procedural due process 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 27 (E.D. Cal. 2022).
28 1 rights; his re-arrest and detention is in violation of the Fourth Amendment; and his arrest and 2 detention is in violation of the Administrative Procedure Act. (Id. at 15-19). As relief, inter alia, 3 Petitioner asks the Court to issue a writ of habeas corpus requiring Respondents to immediately 4 release him from custody. (Id. at 19). 5 In response, Respondent argues the Court should deny the Petition because, (1) Petitioner 6 has not established a violation of his due process rights because, as an “applicant for admission,” 7 he is subject to mandatory detention under 8 U.S.C. § 1225(b)(2) and is therefore ineligible for a 8 bond hearing;2 (2) the Fourth Amendment does not provide Petitioner with a basis for habeas 9 relief; and (3) “because a writ of habeas corpus provides Petitioner an adequate remedy to his 10 detention challenge, suit under the APA is precluded.” (Doc. 11). In reply, Petitioner argues that 11 Respondents made no meaningful effort to address his due process claims, including the failure to 12 address how Petitioner, who was previously released on bond under § 1226, could still be seen as 13 “seeking entry” pursuant to § 1225(b)(2). (Doc. 12 at 2). Petitioner also highlights Respondents’ 14 acknowledgement that there are no factual or legal issues in this case that render it distinct from 15 the cases cited in the Court’s December 23, 2025 order directing response. (See Doc. 8 (citing 16 Chavarria v. Chestnut, 2025 WL 3533606, at *4 (E.D. Cal. Dec. 9, 2025) (finding petitioner 17 demonstrated a likelihood of success on the merits of his procedural due process claim and 18 ordering immediate release); Bernal v. Albarran, 2025 WL 3281422, at *6 (N.D. Cal. Nov. 25, 19 2025) (determining that petitioner’s detention was not authorized under § 1225(b)(2)(A) or § 20 1226(a))); (Doc. 11 at 5). 21 Significant to the consideration of the Petition is Petitioner’s status as a Nepalese citizen 22 who was charged with removability soon after entering the country without inspection and placed 23 in standard removal proceedings under § 1229a, detained pursuant to 8 U.S.C. § 1226, and later 24 2 Respondent also “acknowledges” district court cases within the Ninth Circuit that have recently vacated 25 or stayed the Department of Homeland Security’s July 8, 2025 Interim Guidance Regarding Detention Authority for Applications for Admission, and an appeal regarding the application of § 1225(b)(2) that is 26 currently pending before the Ninth Circuit. (Doc. 11 at 5-6 (citing Maldonado Bautista v. Noem, 2025 WL 3713987 (C.D. Cal. Dec. 18, 2025); Garro Pinchi v. Noem, 2025 WL 3691938 (N.D. Cal. Dec. 19, 2025); 27 Rodriguez v. Bostock, No. 25-6842 (9th Cir.)). However, as noted in Petitioner’s reply, Respondents “do not seem to point out the relevance of these cases at this stage in this proceeding,” nor does the Petition 28 assert any claims relying on these cases. (Doc. 12 at 4). 1 released pursuant to § 1226 on a $12,000 bond. The undersigned recommends the district court 2 grant the Petition as to Claim Two (procedural due process) in part for the reasons set forth 3 below.3 4 I. BACKGROUND 5 Petitioner is a native and citizen of Nepal who entered the United States without 6 inspection on or around February 7, 2025, and was detained almost immediately thereafter. (Doc 7 11-1 at 2-5, Exh. 2). On March 3, 2025, U.S. Citizenship and Immigration Services (“USCIS”) 8 issued a Notice to Appear charging him as subject to removal pursuant to 8 U.S.C. § 9 1182(a)(6)(A)(i) (alien entry without inspection) and 8 U.S.C. § 1182(a)(7)(i)(I) (alien not in 10 possession of valid entry document). (Id.). On the same date, Petitioner was issued a Notice of 11 Custody Determination stating that Petitioner would be detained pursuant to INA § 236, codified 12 in 8 U.S.C. § 1226. (Id. at 6). On March 26, 2025, an Immigration Judge (“IJ”) granted 13 Petitioner’s request for a change in custody status pursuant to 8 C.F.R. § 1236. (Id. at 13-14). He 14 was ordered released from custody under bond of $12,000 and enrolled in the Alternative to 15 Detention (“ATD”) program “at the discretion of DHS.” (Id.). At some point, Petitioner filed an 16 application for asylum, and that application remains pending. (Doc. 1 at 13-14, ¶ 62). 17 On October 26, 2025, ICE officers arrested and re-detained Petitioner at his residence in 18 Daly City, California for violations of the terms of his ATD program, specifically, for failing to 19 check in via phone on March 29, 2025. (Doc. 11-1 at 11). Petitioner asserts that he requested a 20 bond hearing, and the IJ found he did not have jurisdiction to hold a bond hearing pursuant to the 21 Board of Immigration Appeals’ (“BIA”) decision in Matter of Yajure Hurtado, 29 I.&N. Dec. 216 22 (BIA 2025). (Doc. 1 at 14, ¶ 65). 23 At the time the Petition was filed, Petitioner remains detained in ICE custody at the Mesa 24 Verde Processing Facility in Bakersfield, California. (Id., ¶ 70). His next Master Calendar 25 hearing date is currently scheduled for March 11, 2026. (Id., ¶ 71). Before he was re-detained, 26 3 In light of the Court’s conclusion that Petitioner’s re-detention was in violation of his procedural due 27 process rights under the Fifth Amendment, and recommendation that Petitioner be granted a prompt post- deprivation hearing pursuant to § 1226(a), the Court declines to address Petitioner’s additional substantive 28 due process and statutory claims for relief. 1 Petitioner claims he never violated the terms or conditions of his release from custody, appeared 2 for all required court hearings and meetings with ICE, and has no criminal history. (Id., ¶¶ 59-60, 3 73). 4 II. APPLICABLE LAW AND ANALYSIS 5 A. Jurisdiction 6 A district court may grant a writ of habeas corpus when the petitioner “is in custody in 7 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). As 8 pertinent here, “district courts retain jurisdiction under 28 U.S.C. § 2241 to consider habeas 9 challenges to immigration detention that are sufficiently independent of the merits of [a] removal 10 order.” Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) (citing Singh v. Holder, 638 11 F.3d 1196, 1211–12 (9th Cir. 2011)); see also Jennings v. Rodriguez, 538 U.S. 281, 294 (2018). 12 B. Statutory and Legal Framework 13 As background, the Court will briefly outline the statutory framework of detention 14 authority under the INA, and the recent shift in long-standing practice by Executive agencies in 15 interpreting these statues. 16 1. Mandatory Detention under 8 U.S.C. § 1225(b) 17 Title 8 U.S.C. § 1225, titled “Inspection by immigration officers; expedited removal of 18 inadmissible arriving aliens; referral for hearing,” states that an “alien present in the United States 19 who has not been admitted or arrives in the United States … shall be deemed for purposes of this 20 chapter an applicant for admission.” 8 U.S.C. § 1225(a)(1). “Applicants for admission must ‘be 21 inspected by immigration officers’ to ensure that they may be admitted into the country consistent 22 with U.S. immigration law.” Jennings, 583 U.S. at 287 (quoting § 1225(a)(3)). Pursuant to § 23 1225(b)(1), if an immigration officer determines that an arriving alien is inadmissible, and the 24 alien does not indicate an intention to apply for asylum or a fear of persecution, “the officer 25 [must] order the alien removed from the United States without further hearing or review.” § 26 1225(b)(1)(A)(i); 8 U.S.C. § 1182(a)(7). As relevant here, pursuant to § 1225(b)(2)(A), subject to 27 certain exceptions, “in the case of an alien who is an applicant for admission, if the examining 28 officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be 1 admitted, the alien shall be detained for a proceeding under 1229a of this title.” § 1225(b)(2)(A) 2 (emphasis added). “Applicants for admission” may be temporarily released on parole only “for 3 urgent humanitarian reasons or significant public benefit.” Jennings, 583 U.S. at 288 (quoting 8 4 U.S.C. § 1182(d)(5)(A) and citing 8 C.F.R §§ 212.5(b), 235.3 (2017)). As explained by the 5 Supreme Court in Jennings v. Rodriguez, 6 [r]ead most naturally, §§ 1225(b)(1) and (b)(2) … mandate detention of applicants for admission until certain proceedings have concluded. 7 Section 1225(b)(1) aliens are detained for “further consideration of the application for asylum,” and § 1225(b)(2) aliens are in turn 8 detained for “[removal] proceeding[s].” Once those proceedings end, detention under § 1225(b) must end as well. Until that point, 9 however, nothing in the statutory text imposes any limit on the length of detention. And neither § 1225(b)(1) nor § 1225(b)(2) says 10 anything whatsoever about bond hearings. 11 583 U.S. at 297. 12 2. Discretionary Detention under 8 U.S.C. § 1226(a)4 13 Title 8 U.S.C. § 1226, titled “Apprehension and detention of aliens,” instructs that “[o]n a 14 warrant issued by the Attorney General, an alien may be arrested and detained pending a decision 15 on whether the alien is to be removed from the United States.” Pursuant to § 1226(a) the 16 government has broad discretion whether to continue to detain the arrested alien or release the 17 alien on (A) bond of at least $1,500 … or (B) conditional parole. § 1226(a); Rodriguez Diaz v. 18 Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) (citing 8 C.F.R. § 236.1(c)(8)) (noting an ICE 19 officer makes the initial custody determination when a person is apprehended under § 1226(a) 20 and may release the alien if he or she “demonstrate[s] to the satisfaction of the officer that such 21 release would not pose a danger to property or persons, and that the alien is likely to appear for 22 any future proceeding.”). Section 1226 also provides that “a detainee may request a bond hearing 23 before an IJ at any time before a removal order becomes final,” and may request an additional 24
25 4 Section 1226(c) “carves out a statutory category of aliens who may not be released under § 1226(a),” mandating detention for an alien apprehended under § 1226 “who falls into one of several enumerated 26 categories involving criminal offenses.” Jennings, 583 U.S. at 289 (emphasis in original). In January 2025, the Laken Riley Act (“LRA”) amended § 1226(c) to add a new category of alien ineligible for 27 release under § 1226(a), including aliens deemed “inadmissible” for being “present in the United States without being admitted or paroled,” who have been arrested for, charged with, or convicted of certain 28 crimes. LRA, Pub. L. No. 119-1 (Jan. 29, 2025); see 8 U.S.C. § 1182(a)(6)(A)(i), § 1226(c)(1)(E). 1 bond hearing if he or she can demonstrate a material change in circumstances. Id. at 1197 (citing 2 8 C.F.R. § 236.1(d)(1), 1003.19(e)). 3 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at 4 the outset of detention.” Jennings, 583 U.S. at 306 (citing 8 C.F.R. § 236.1(d)(1)). To obtain 5 release, the detainee must demonstrate by the preponderance of the evidence that he or she is “not 6 a threat to national security, a danger to the community at large, likely to abscond, or otherwise a 7 poor bail risk.” Matter of Guerra, 24 I.& N. Dec. 37, 40 (B.I.A. 2006); Ortega-Cervantes v. 8 Gonzales, 501 F.3d 1111, 1115 (9th Cir. 2007). After discretionary release under § 1226(a), the 9 government retains authority “at any time” to revoke bond or conditional parole, rearrest the alien 10 under the original warrant, and detain the alien. § 1226(b). However, “if an immigration judge 11 has determined the noncitizen should be released, the DHS may not re-arrest that noncitizen 12 absent a change in circumstance. Where the release decision was made by a DHS officer, not an 13 immigration judge, the Government’s practice has been to require a showing of changed 14 circumstance before re-arrest.” M.R.R. v. Chestnut, 2025 WL 3265446, at *3 (E.D. Cal. Nov. 24, 15 2025) (internal citations omitted); Martinez Hernandez v. Andrews, 2025 WL 2495756, at *10 16 (E.D. Cal. Aug. 28, 2025) (noting that while statute allows for rearrest at any time, “this does not 17 mean that DHS may exercise its discretion in a manner that is inconsistent with constitutional 18 requirements.”). 19 Relevant here is DHS's “Alternatives to Detention” (ATD) program, designed “to provide 20 supervised release and enhanced monitoring for a subset of foreign nationals subject to removal 21 whom ICE has released into the United States.” Audrey Singer, Cong. Research Serv., R45804, 22 Immigration: Alternatives to Detention (ATD) Programs 14 (July 8, 2019), 23 https://sgp.fas.org/crs/homesec/R45804.pdf. “These aliens are not statutorily mandated to be in 24 DHS custody, are not considered threats to public safety or national security, and have been 25 released either on bond, their own recognizance, or parole pending a decision on whether they 26 should be removed from the United States.” Id. 27 //// 28 //// 1 3. Government’s Change in Position 2 “Until this year, the DHS has applied § 1226(a) and its discretionary release and review of 3 detention to the vast majority of noncitizens allegedly in this country without valid 4 documentation.” Salcedo Aceros v. Kaiser, 2025 WL 2637503, at *3 (N.D. Cal. Sept. 12, 2025); 5 see also, e.g., Escobar Salgado v. Mattos, 2025 WL 3205356, at *3 (D. Nev. Nov. 17, 2025) 6 (citing Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997) 7 (“Until the government adopted its new interpretation of § 1225(b)(2) this year, the longstanding 8 (almost three decades) practice of the agencies charged with interpreting and enforcing the INA 9 without inspection and were apprehended while present in the U.S. By contrast, those 10 apprehended at or near a port of entry were designated as ‘arriving aliens.’); Rodriguez v. 11 Bostock, 779 F. Supp. 3d 1239, 1244 (W.D. Wash. 2025) (“The longstanding practice of the 12 Executive branch agencies charged with interpreting and enforcing the INA considered 13 noncitizens like [petitioner] who had entered without inspection, and were apprehended while 14 residing in the United States, as subject to Section 1226(a).”). However, in July 2025, the 15 Department of Homeland Security (“DHS”), in conjunction with the Department of Justice 16 (“DOJ”) adopted the legal position that § 1225, instead of § 1226, is the applicable immigration 17 authority for an “applicant for admission” including an alien present in the United States “who 18 has not been admitted or who arrives in the United States, whether or not at a designated port of 19 arrival,” and all applicants for admission are subject to mandatory detention under § 1225(b). 20 The Notice further provides “[t]hese aliens are also ineligible for a custody redetermination 21 hearing (‘bond hearing’) before an immigration judge and may not be released for the duration of 22 their removal proceedings absent a parole by DHS. For custody purposes, these aliens are now 23 treated in the same manner that ‘arriving aliens’ have historically been treated.” See ICE Memo: 24 Interim Guidance Regarding Detention Authority for Applications for Admission, American 25 Immigration Lawyers Association (July 8, 2025), https://www.aila.org/library/ice-memo-interim- 26 guidance-regarding-detention-authority-for-applications-for-admission (last visited January 7, 27 2026). As noted above, in September 2025, the BIA issued a precedential decision adopting this 28 interpretation of the government’s detention authority under the INA and holding that IJ’s do not 1 have authority to hear bond requests or grant bond to aliens “who are present in the United States 2 without admission,” because they are applicants for admission and subject to mandatory detention 3 under § 1225(b)(2)(A). See Matter of Yajure Hurtado, 29 I&N Dec. 216 at *9. 4 C. Due Process 5 The Fifth Amendment's Due Process Clause provides that “[n]o person shall be ... 6 deprived of life, liberty, or property, without due process of law.” Further, it is “well established 7 that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” 8 Trump v. J.G.G., 604 U.S. 670 (2025) (citing Reno v. Flores, 507 U.S. 292, 305 (1993); Zadvydas 9 v. Davis, 533 U.S. 678, 693-94 (2001). However, the Supreme Court has simultaneously 10 acknowledged that “the nature of protection [under the Due Process clause] may vary depending 11 on [immigration] status and circumstance.” Zadvydas, 522 U.S. at 693 (“The distinction between 12 an alien who has effected an entry into the United States and one who has never entered runs 13 throughout immigration law.”). As relevant here, “once an alien enters the country, the legal 14 circumstances change, for the Due Process Clause applies to all ‘persons’ within the United 15 States, including aliens, whether their presence here is lawful, unlawful, temporary or 16 permanent.” Id.; see also Leng May Ma v. Barber, 357 U.S. 185, 187 (1958) (“our immigration 17 laws have long made a distinction between those aliens who have come to our shores seeking 18 admission ... and those who are within the United States after an entry, irrespective of its legality. 19 In the latter instance, the Court has recognized additional rights and privileges not extended to 20 those in the former category who are merely ‘on the threshold of initial entry.’”). The Due 21 Process Clause generally “requires some kind of a hearing before the State deprives a person of 22 liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990). 23 D. Claim Two: Procedural Due Process Violation 24 Petitioner claims his continued detention without a pre-deprivation hearing violates his 25 procedural due process rights under the Fifth Amendment. (Doc. 1 at 16-17). Respondents do 26 not meaningfully address Petitioner’s due process arguments; rather, their sole argument in 27 response is that Petitioner has not “met his burden” of establishing a violation of due process 28 rights because, as “an applicant for admission,” he is subject to the mandatory detention under § 1 1225(b) and is thus “ineligible” for a bond hearing. (Doc. 11 at 3-4). Given the relevance of this 2 dispute to the due process analysis, as a threshold matter the Court joins with the overwhelming 3 majority of courts across the country in rejecting Respondents’ argument that noncitizens who 4 were previously released on conditional parole and later re-detained are “applicants for 5 admission” subject to mandatory detention under § 1225(b)(2)(A); rather, the detention of those 6 noncitizens, like Petitioner, continues to be governed by § 1226(a) during removal proceedings. 7 See, e.g., Montero-Alvarez v. Alberran, 2025 WL 3754116, at *4 (E.D. Cal. Dec. 29, 2025) 8 (collecting cases); Sharan S. v. Chestnut, 2025 WL 3167826, at *5 (E.D. Cal. Nov. 12, 2025) 9 (“Respondents’ argument that section 1225(b)(2)(A) applies to all noncitizens present in the 10 United States without admission is unpersuasive. Respondents’ proposed interpretation of the 11 statute (1) disregards the plain meaning of section 1225(b)(2)(A); (2) disregards the relationship 12 between sections 1225 and 1226; (3) would render a recent amendment to section 1226(c) 13 superfluous; and (4) is inconsistent with decades of prior statutory interpretation and practice.”); 14 C.A.R.V. v. Wofford, 2025 WL 3059549, at *8 (E.D. Cal. Nov. 3, 2025) (“The government’s 15 recent interpretation of the relationship between § 1225 and § 1226 is unfounded and detention is 16 therefore not ‘mandatory’ in this case, where petitioner has been present in the United States for 17 approximately four years and was released on his own recognizance well before Respondents 18 adopted the new interpretation of the governing statutes.”); Barco Mercado v. Francis, 2025 WL 19 3295903, at *4 (S.D.N.Y. Nov. 26, 2025) (“By a recent count, the central issue in this case – the 20 administration's new position that all noncitizens who came into the United States illegally, but 21 since have been living in the United States, must be detained until their removal proceedings are 22 completed – has been challenged in at least 362 cases in federal district courts. The challengers 23 have prevailed, either on a preliminary or final basis, in 350 of those cases decided by over 160 24 different judges sitting in about fifty different courts spread across the United States. Thus, the 25 overwhelming, lopsided majority have held that the law still means what it always has meant.”) 26 (collecting cases); But see, e.g., Alonzo v. Noem, 2025 WL 3208284, at *5 (E.D. Cal. Nov. 17, 27 2025) (denying motion for temporary restraining order because petitioner failed to establish he 28 was likely to succeed on the merits of his statutory claim, but also noting the finding “should not 1 be understood an affirmative endorsement of the view that respondents’ interpretation of § 2 1225(b)(2)(A) – which is in line with the expansive understanding of mandatory detention 3 applicability – is correct.”); Ramos v. Lyons, 2025 WL 3199872 (C.D. Cal. Nov. 12, 2025). 4 Here, Petitioner alleges he has a “strong liberty interest in not being re-incarcerated after 5 prior release.” (Doc. 1 at 16). The Court agrees. Procedural due process claims are analyzed in 6 two steps. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“Once it is determined that due 7 process applies, the question remains what process is due.”). First, the Court examines whether a 8 protected liberty interest exists. Garcia v. Andrews, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 9 2025 (citing Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 10 Respondents do not contest that Petitioner was apprehended soon after entering the country and 11 subsequently released on bond. (See Doc. 11-1). As explained supra, to obtain release on bond a 12 detainee must demonstrate by the preponderance of the evidence that he or she is “not a threat to 13 national security, a danger to the community at large, likely to abscond, or otherwise a poor bail 14 risk.” Matter of Guerra, 24 I.& N. Dec. 37, 40 (B.I.A. 2006); Ortega-Cervantes v. Gonzales, 501 15 F.3d 1111, 1115 (9th Cir. 2007). Thus, a prior decision to release noncitizens on bond or parole 16 while their removal proceedings are pending “reflects a determination by the government that the 17 noncitizen is not a danger to the community or a flight risk.” Saravia v. Sessions, 280 F. Supp. 3d 18 1168, 1176 (N.D. Cal. 2017), aff’d sub nom, Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 19 2018); see also Doe v. Becerra, 2025 WL 691664, at *5 (E.D. Cal. Mar. 3, 2025) (noncitizen 20 previously released on bond had a due process interest in his continued liberty) (collecting cases). 21 Where, as here, “even when ICE has the initial discretion to detain or release a noncitizen 22 pending removal proceedings, after that individual is released from custody [he or] she has a 23 protected liberty interest in remaining out of custody.” Pinchi v. Noem, 792 F. Supp. 3d 1025, 24 1032-33 (N.D. Cal. 2025) (“[e]ven when the government has discretion to detain an individual, its 25 subsequent decision to release the individual creates ‘an implicit promise’ that [he or] she will be 26 re-detained only if [he or] she violates the conditions of her release.”) (collecting cases). 27 Petitioner was released from custody on bond pending a final removal decision, and in that time 28 has appeared at immigration appointments when requested, fully complied with requirements to 1 apply for asylum protection, and complied with the laws of the United States. (Doc. 1 at 13-14). 2 Thus, the Court finds Petitioner’s release and time spent out of custody gives rise to a protected 3 liberty interest in continued release following release on bond. See Solano v. Robbins, 2025 WL 4 3718831, at *6 (E.D. Cal. Dec. 23, 2025) (“Relying on Morrissey, courts in this district have 5 consistently held that noncitizens who have been released from immigration custody pending 6 civil removal proceedings have a protected interest in remaining out of immigration custody.”) 7 (collecting cases). 8 Finding that due process applies, the question before the Court is, what process is due? 9 “The constitution typically requires some kind of hearing before the State deprives a person of 10 liberty or property. This is particularly true when the interest is in liberty, the loss of which 11 cannot fully be compensated after the fact.” Salcedo Aceros, 2025 WL 2637503, at *5 (internal 12 quotations and citations omitted). To determine whether constitutionally sufficient procedures to 13 protect a liberty interest of a previously released and then re-detained noncitizen, courts apply the 14 three factor balancing test outlined in Mathews v. Eldridge:5 (1) the private interest that will be 15 affected by the official action, (2) the risk of erroneous deprivation of such interest through the 16 procedures used, and the probable value, if any, of additional procedural safeguards, and (3) the 17 government’s interest, including the function involved, as well as the fiscal and administrative 18 burdens that the procedural requirement would entail. 424 U.S. 319, 335 (1976). 19 First, the Court considers “the private interest that will be affected by the official action.” 20 Id. Petitioner has a substantial private interest in remaining free from detention. See Zadvydas, 21 533 U.S. at 690 (“Freedom from imprisonment – from government custody, detention, or other 22 forms of physical restraint – lies at the heart of the liberty [the Due Process] Clause protects.”); 23 Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (recognizing it is “beyond dispute” that 24 5 The Ninth Circuit has noted that the Supreme Court “when confronted with constitutional challenges to 25 immigration detention has not resolved them through express application of Mathews.” Rodriguez Diaz, 53 F.4th at 1206-07. However, in light of the consistent employment of Mathews by district courts in the 26 Ninth Circuit in determining whether due process applies in the context of re-detention of previously paroled noncitizens, the Court proceeds to apply those factors while still reserving judgment on whether 27 Mathews is an “all embracing test” when encountering due process challenges by immigrant detainees. See A.E. v. Andrews, 2025 WL 1424382, at *4 (citing Dusenbury v. United States, 534 U.S. 161, 168 (2002) 28 (“we have never viewed Mathews as announcing an all-embracing test for deciding due process claims.”). 1 the “private interest at issue here is ‘fundamental’: freedom from imprisonment is the ‘core of the 2 liberty protected by the Due Process Clause.’”). Moreover, the IJ already found that Petitioner 3 does not pose a danger, that flight risk is mitigated by a $12,000 bond, and that Petitioner should 4 be released. (See Doc. 11-1 at 13). Thus, Petitioner’s private interest is heavily affected, and this 5 factor weighs in favor of Petitioner. 6 Second, the Court considers “the risk of an erroneous deprivation of such an interest 7 through the procedures used, and the probable value, if any, of additional or substitute procedural 8 safeguards.” Mathews, 424 U.S. at 335. Petitioner received no form of pre-deprivation custody 9 redetermination hearing. Thus, the risk of erroneous deprivation is considerable. See A.E. v. 10 Andrews, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025) (“The risk of an erroneous 11 deprivation of [a petitioner’s] interest is high where [h]e has not received any bond or custody 12 redetermination hearing.”) (internal quotations omitted). Civil immigration detention is assumed 13 to be “nonpunitive in purpose and effect,” and is therefore justified when a noncitizen presents a 14 risk of flight or danger to the community. See Zadvydas, 533 U.S. at 690. Here, Petitioner was 15 released subject to certain reporting conditions under the ATD program. (Doc. No. 11-1 at 13). 16 “In general, release reflects a determination by the government that the noncitizen is not a danger 17 to the community of a flight risk.” Saravia, 280 F. Supp. 3d at 1176. 18 There is evidence in the supporting documents submitted by Respondent that Petitioner 19 was arrested and detained by ICE for violating the terms of his ATD program, including failing to 20 check in via telephone on March 29, 2025. (Doc. 11-1 at 11). Notably, Respondents make no 21 argument that Petitioner presents a flight risk or danger, and Petitioner claims he has never 22 violated the terms or conditions of his release from custody, and has appeared for all required 23 court hearings and meetings with ICE. (Doc. 1 at 13). Regardless, given the absence of 24 determination by a neutral arbitrator as to whether Petitioner is currently a flight risk or danger to 25 the community, both the risk of erroneous deprivation of Petitioner’s interest, and the probable 26 value of additional safeguards, is high. See A.E., 2025 WL 1424382, at *5. 27 Third, the Court considers the government’s interest, “including the function involved and 28 the fiscal and administrative burdens that the additional or substitute procedural requirements 1 would entail.” Mathews, 424 U.S. at 334. Unquestionably, the government has a significant 2 national interest in enforcing its immigration laws. Indeed, it is a sovereign’s fundamental right 3 to control its borders, to protect national security, and ensure integrity in its immigration system. 4 However, Respondents fail to explain how Petitioner threatens these interests or how the 5 government’s interest is weakened by affording him a hearing before a neutral decisionmaker. 6 Nor does Respondents offer evidence of how affording a hearing results in either a fiscal or 7 administrative burden, which has been found to be “minimal” by other courts. See J.A.E.M. v. 8 Wofford, 2025 WL 3013377, at *7 (E.D. Cal. Oct. 27, 2025) (citing Ortega v. Bonnar, 415 F. 9 Supp. 3d 963, 970 (N.D. Cal. 2019) (“In immigration court, custody hearings are routine and 10 impose a ‘minimal’ cost.”). Because Respondents did not provide Petitioner with notice or 11 reasons prior to his re-detention, and have seemingly offered no reasoning in any proceedings, 12 including this one before this Court, as to why that decision was made, the Court finds 13 Respondents have failed to demonstrate a significant interest in Petitioner’s detention. See Noori 14 v. LaRose, 2025 WL 2800149, at *11 (S.D. Cal. Oct. 1, 2025). As recently explained by a court 15 in this district, 16 the government’s asserted interest is hinged on mere speculation about Petitioner’s risk of flight or dangerousness. [Petitioners] seek 17 a bond hearing, not unqualified release. Providing a bond hearing would not undercut the government’s asserted interest in effecting 18 removal. Indeed, the purpose of a bond hearing is to inquire whether the alien represents a flight risk or danger to the community. Given 19 ‘the minimal cost of conducting a bond hearing, and the ability of the IJ to adjudicate the ultimate legal issue as to whether Petitioner’s 20 continued detention is justified,’ courts have concluded that ‘the government’s interest is not as weighty as Petitioner’s. 21 22 A.E. V. Andrews, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025), report and 23 recommendation adopted, 2025 WL 1808676 (E.D. Cal. July 1, 2025). This Court joins in this 24 analysis and finds Petitioner’s interest outweighs the government’s interest in this instance. 25 Based on the foregoing, the Court finds the Mathews factors weigh in favor of the 26 Petitioner, and his re-detention without hearing was a violation of his procedural due process 27 rights. 28 //// 1 E. Conclusion and Remedy 2 As a final matter, the Court now considers whether a pre-deprivation or post-deprivation 3 bond hearing is appropriate for Petitioner in this case. As previously reasoned by the assigned 4 district judge, 5 The Supreme Court has held that “the Constitution requires some kind of a hearing before the State deprives a person of liberty or 6 property.” See Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (emphasis in original). However, the Court 7 also recognized that there may be situations that urgently require arrest, in which a prompt post-deprivation hearing is appropriate. Id. 8 at 128, 110 S.Ct. 975 (noting there may be “special case[s]” where a pre-deprivation hearing is impracticable); Guillermo M. R. v. Kaiser, 9 No. 25-CV-05436-RFL, 791 F.Supp.3d 1021, 2025 WL 1983677, at *9 (N.D. Cal. July 17, 2025) (“absent evidence of urgent concerns, a 10 pre-deprivation hearing is required to satisfy due process, particularly where an individual has been released on bond by an 11 IJ”). The rapidly developing caselaw on this subject gives limited guidance as to where this line should be drawn. Some courts that 12 have addressed detention-related habeas petitions brought by persons released with enhanced supervision conditions have required pre- 13 deprivation process, but in somewhat different circumstances. In E.A.T.-B. v. Wamsley, No. C25-1192-KKE, 795 F.Supp.3d 1316, 14 2025 WL 2402130, at *4 (W.D. Wash. Aug. 19, 2025), the district court ordered the release of a petitioner arrested by ICE immediately 15 after appearing in immigration court. That court agreed with the petitioner that ICE's post hoc explanation that violations warranted 16 her detention was pretextual, given that ICE first became aware of petitioner's alleged violations a few hours before her immigration 17 hearing, DHS did not raise those violations at the hearing or argue the petitioner should be detained for any reason, and the petitioner 18 was then provided multiple, inconsistent justifications for her arrest. Id. In Arzate v. Andrews, No. 1:25-CV-00942-KES-SKO (HC), 2025 19 WL 2230521, at *7 (E.D. Cal. Aug. 4, 2025), converted to preliminary injunction sub nom, 2025 WL 2411010, at *1 (E.D. Cal. 20 Aug. 20, 2025), the court ordered immediate release of in immigration detainee who had been in compliance with his 21 conditions of release, even though he had incurred a misdemeanor arrest while on parole, in part because no charges were ever filed. 22 *12 In contrast, this Court ordered a bond hearing in Martinez 23 Hernandez v. Andrews, No. 1:25-CV-01035 JLT HBK, 2025 WL 2495767 (E.D. Cal. Aug. 28, 2025), where the petitioner's records 24 indicated numerous violations. Though Martinez Hernandez offered explanations for the violations and there was a dispute of fact as to 25 whether the violations occurred, ICE's reliance upon those violations was “not obviously pretexual.” Id. at * 12 (“If Respondent's view of 26 the facts is correct, it is at least arguable that providing Petitioner with notice and a pre-deprivation hearing would have been 27 impracticable and/or would have motivated her flight.”). As this Court noted in Martinez Hernandez: 28 1 In similar circumstances, courts have refused to release the petitioners but have ordered timely bond hearings. Carballo 2 v. Andrews, No. 1:25-CV-00978-KES-EPG (HC), 2025 WL 2381464, at *8 (E.D. Cal. Aug. 15, 2025), citing Perera v. 3 Jennings, et. al, No. 21-CV-04136-BLF, 2021 WL 2400981, at *5 (N.D. Cal. June 11, 2021); Pham v. Becerra, No. 23- 4 CV-01288-CRB, 2023 WL 2744397, at *6 (N.D. Cal. Mar. 31, 2023). “[A]llowing a neutral arbiter to review the facts 5 would significantly reduce the risk of erroneous deprivation.” Guillermo M. R. v. Kaiser, No. 25-CV-05436-RFL, 791 6 F.Supp.3d 1021, 2025 WL 1983677, at *8 (N.D. Cal. July 17, 2025). Thus, the Court concludes that prompt, post- 7 deprivation process is required here. 8 M.R.R., 2025 WL 3265446, at *11-12. 9 Here, Petitioner claims he has never violated the terms or conditions of his release from 10 custody, has appeared for all required immigration court hearings and meetings with ICE, and has 11 never tampered with or sought to unlawfully remove the GPS tracking unit ICE required him to 12 wear. (Doc. 1 at 13). However, the report generated at the time of his re-detention expressly 13 relied on a violation of the terms of his ATD program, including failing to report by checking in 14 via telephone on March 29, 2025. (Doc. 11-1 at 11). In reply, Petitioner argues that courts “have 15 looked with skepticism upon allegations of remote or technical violations that have no bearing on 16 the issue of flight risk or danger.” (Doc. 12 at 4). However, based on the reasoning outlined 17 above, the undersigned recommends the Court order Respondents to provide Petitioner with a 18 prompt, post-deprivation hearing pursuant to § 1226(a). See M.R.R., 2025 WL 3265446, at *11- 19 12. 20 Finally, “consistent with the numerous decisions of other courts in this circuit who have 21 ruled on this issue, at such a hearing the burden [will] be on the government to prove that 22 Petitioner is a flight risk or danger to the community by clear and convincing evidence.” 23 Yosseline P.G. v. Noem, 2026 WL 183732, at *5 (E.D. Cal. Jan. 23, 2026) (collecting cases); 24 J.E.H.G. v. Chestnut, 2025 WL 3523108, at *14 (E.D. Cal. Dec. 9, 2025) (noting “the 25 immigrant's initial release reflected a determination by the government that the noncitizen is not a 26 danger to the community or a flight risk. Since it is the government that initiated re-detention, it 27 follows that the government should be required to bear the burden of providing a justification for 28 the re-detention.”) 1 Accordingly, it is hereby RECOMMENDED: 2 1. The Petition for Writ of Habeas Corpus (Doc. 1) be GRANTED in part as follows: 3 a. Respondents be directed to provide Petitioner with a substantive bond hearing 4 pursuant to § 1226(a), at which the Immigration Judge will determine whether 5 Petitioner poses a risk of flight or a danger to the community if released. 6 b. At such a hearing, the government be directed that they SHALL bear the 7 burden of establishing, by clear and convincing evidence, that the Petitioner 8 poses a danger to the community or flight risk 9 2. If released, Respondents be PERMANENTLY ENJOINED AND RESTRAINED 10 from rearresting or re-detaining Petitioner absent compliance with constitutional 11 protections, which include, at a minimum, pre-deprivation notice of at least seven days 12 before a pre-deprivation hearing at which the government will bear the burden of 13 demonstrating by clear and convincing evidence that they are likely to flee or pose a 14 danger to society if not arrested. 15 3. The bond requirement of Federal Rule of Civil Procedure 65(c) be waived. Courts 16 regularly waive security in these cases. See, e.g., Lepe v. Andrews, 2025 WL 17 2716910, at *10 (E.D. Cal. Sept. 23, 2025). 18 4. This case be CLOSED. 19 NOTICE OF EXPEDITED OBJECTIONS 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Given the 22 recommendation to grant the petition in part, a party may file written objections with the 23 Court within five (5) days of service of these Findings and Recommendations. Id.; Local 24 Rule 304(b) (permitting court to set a different time). The document should be captioned, 25 “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 26 (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 27 wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 28 CM/ECF document and page number, when possible, or otherwise reference the exhibit with 1 | specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 2 | the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 3 | 636(b)(1\(C). A party’s failure to file any objections within the specified time may result in the 4 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 5 6 Dated: _ February 2, 2026 Kobo Zh. fare Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17