1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SHERESE LEE ANN DRAKE Case No. 1:26-cv-02242-KES-CDB (HC) (A-Number: 208-484-978), 12 FINDINGS AND RECOMMENDATIONS TO Petitioner, GRANT PETITION FOR WRIT OF HABEAS 13 CORPUS v. 14 (Doc. 1) WARDEN OF THE CALIFORNIA CITY 15 DETENTION FACILITY, et al., 7-Day Objection Period 16 Respondents. 17 18 Petitioner Sherese Lee Ann Drake (“Petitioner”), a federal immigration detainee proceeding 19 pro se, initiated this action on March 23, 2026, with the filing of a petition for writ of habeas corpus 20 under 28 U.S.C. § 2241, while in custody of Immigration and Customs Enforcement (“ICE”) at the 21 California City Detention Facility. (Doc. 1). Respondents are the unnamed Warden of the 22 California City Detention Facility, the current or acting San Francisco ICE Field Office Director, 23 the current or acting ICE Director, the current or acting Secretary of Homeland Security, and the 24 current or acting United States Attorney General (collectively, “Respondents”). Id. ¶¶ 13-17. 25 For the reasons set forth herein, the undersigned recommends that Petitioner’s petition for 26 writ of habeas corpus be granted. 27 /// 28 /// 1 I. Relevant Background 2 The relevant facts are taken from the petition and Respondents’ answer. See (Docs. 1, 8). 3 Petitioner is a citizen and native of Jamaica who was lawfully admitted to the United States on 4 April 13, 2016, at New York, New York, with a B-2 “temporary visitor for pleasure/tourism” visa 5 authorizing presence in the United States for a temporary period not to exceed October 12, 2016. 6 (Doc. 8-1 at 25) (Form I-831, Record of Deportable/Inadmissible Alien (“Ex. 6”)); see (Doc. 1 ¶ 7 18). Petitioner remained in the United States beyond the authorized period. Id. 8 While he was still eligible to remain in the United States, on April 14, 2016, Petitioner was 9 arrested for a drug trafficking crime which resulted in a conviction on August 29, 2016, and 10 imposition of a one-year sentence. (Doc. 8-1 at 12) (certified record of conviction); see id. at 27 11 (“[Petitioner] was convicted for [criminal possession of a controlled substance (cocaine)], Felony 12 and sentenced to (1) One year in prison and license suspended for 6 months.”); id. at 8 (April 14, 13 2016, DHS Notice to Detain, Remove, or Present Alien, noting Petitioner is “[p]aroled for criminal 14 prosecution”), 10 (DHS Immigration Detainer – Request for Voluntary Action, noting that “[u]pon 15 completion of the proceeding or investigation for which the [Petitioner] was transferred to your 16 custody, DHS intends to resume custody of the subject to complete processing.”), 28 (“On 17 10/03/2016, the New York Queens County Supreme Court convicted the [Petitioner] of criminal 18 possession of controlled substance/narcotics and sentenced her to 1 year imprisonment. It appears 19 the detainer was not honored, and the [Petitioner] was released upon completion of her sentence.”). 20 Petitioner married a United States Citizen on November 14, 2022. Id. at 28. On January 21 26, 2024, Petitioner’s husband filed on Petitioner’s behalf a Form I-130 petition for alien relative 22 and a Form I-485 application to register permanent residence or adjust status with the United States 23 Citizenship and Immigration Services (“USCIS”). Id. Petitioner was paroled into the United States 24 for criminal prosecution. Id. On August 20, 2025, following a second interview regarding 25 Petitioner’s application for adjustment, USCIS identified potential indicators for marriage fraud 26 and concluded that the marriage was entered into for purposes of evading U.S. immigration laws. 27 Id. Later that day, Petitioner was arrested by ICE as a B-2 overstay in Orlando, Florida, and was 28 taken to the ICE-ERO Orlando office for processing. Id.; see id. at 25. Petitioner was issued an 1 initial Form I-862 Notice to Appear (“NTA”) that was dismissed. Id. (“A review of the form 2 indicates the allegations are incorrect. [Petitioner] was not admitted she was paroled and therefore 3 237(a)(1)(B) does not apply.”); see (Doc. 8 at 2) (“[T]he first NTA was dismissed because it 4 charged the wrong ground of removability.”) (citing “Declaration of Deportation Officer Ana/L. 5 Juarez” (“Juarez Decl.”)).1 Petitioner was thereafter issued a second NTA on September 30, 2025. 6 Id. at 36-39 (“Ex. 9”). 7 II. Governing Authority 8 A. The Writ of Habeas Corpus 9 Writ of habeas corpus relief extends to a person in custody under the authority of the United 10 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 11 shall “award the writ or issue an order directing the respondent to show cause why the writ should 12 not be granted, unless it appears from the application that the applicant or person detained is not 13 entitled thereto.” 28 U.S.C. § 2243. 14 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 15 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 16 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 17 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 18 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 19 detention” in ICE custody). 20 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 21 Two statutes govern the detention and removal of inadmissible noncitizens from the United 22 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 23 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 24 Sept 12, 2025), which the undersigned adopts herein: 25 /// 26 /// 27 1 Respondents’ response to the petition refers to and relies on a declaration of Deportation 28 Officer Ana/L. Juarez that does not appear in the record. See (Docs. 8, 8-1, 8-2). 1 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 2 The “usual removal process” involves an evidentiary hearing before 3 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 4 § 1229(a), also known as “full removal,” by filing a Notice to Appear with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N. 5 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 6 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 7 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 8 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 9 (citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be released if he or she “demonstrate[s] to the satisfaction of the officer that such release 10 would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” Id. (citing 8 C.F.R. 11 § 236.1(c)(8)).
12 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 13 Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)). If, at this hearing, the detainee demonstrates by the preponderance of 14 the evidence that he or she is not “a threat to national security, a danger to the community at large, likely to abscond, or otherwise a 15 poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)). 16 Once released, the noncitizen’s bond is subject to revocation. Under 8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s 17 bond or parole ‘at any time,’ even if that individual has previously been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D. 18 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 19 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 20 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 21 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 22 2. Expedited Removal and Mandatory Detention (§ 1225) 23 While “§ 1226 applies to aliens already present in the United States,” 24 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 25 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 26 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 27 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 28 1 that:
2 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 3 who is arriving in the United States or is described in clause (iii) is inadmissible under section 4 212(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 5 removed from the United States without further hearing or review unless the alien indicates either an 6 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 7 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 8 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 9 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 10 designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 11 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 12 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 13 § 1225(b)(1)(A)(iii)(II).
14 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 15 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 16 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 17 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 18 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 19 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 20 among those whom the Secretary of Homeland Security has designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 21 1225(b)(1).
22 “Initially, DHS’s predecessor agency did not make any designation [under (3)], thereby limiting expedited removal only to ‘arriving 23 aliens,’” that is, noncitizens encountered at ports of entry. Make the Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS 24 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS extended by designation expedited removal to noncitizens who arrive 25 by sea and who have been present for fewer than two years, and to noncitizens apprehended within 100 air miles of any U.S. 26 international land border who entered within the last 14 days. Id. This was the status quo until January 2025, when the Department of 27 Homeland Security revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” 28 Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 1 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 2 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 3 short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United 4 States.
5 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 6 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 7 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 8 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order 9 the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may 10 be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable within 24 11 hours, but in no case later than 7 days after the date of the determination.” Id. Detention under § 1225(b)(1) is “mandatory” 12 “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing 13 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible 14 fear of persecution and, if found not to have such a fear, until removed.”) 15 [Section] 1225 also contains a provision that applies to applicants for 16 admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory 17 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking 18 admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full 19 removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited 20 removal but are subject to mandatory detention while their full removal proceedings are pending. This is in contrast to the default 21 detention regime under § 1226(a), which allows for discretionary release and review of detention through a bond hearing. 22 3. The Government’s Recent Change in Position 23 Until this year, the DHS has applied § 1226(a) and its discretionary 24 release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice 25 was codified by regulation. The regulations implementing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 26 (“IIRIRA”) state that “Despite being applicants for admission, aliens who are present without having been admitted or paroled (formerly 27 referred to as aliens who entered without inspection) will be eligible for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 28 (Mar. 6, 1997). In fact, the government has conceded in other 1 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 2 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 3 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . . 4 In 2025, however, the Government’s policy changed dramatically. 5 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 6 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 7 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 8 to expedited removal but to whom expedited removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps 9 to terminate any ongoing removal proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the 10 actions contemplated by the memorandum “in a manner that takes account of legitimate reliance interests,” but states that “the 11 expedited removal process includes asylum screening, which is sufficient to protect the reliance interests of any alien who has 12 applied for asylum or planned to do so in a timely manner.” Huffman Memorandum (Jan. 23, 2025). 13 Since mid-May of 2025, the Department of Homeland Security has 14 made a practice of appearing at regular removal proceedings in immigration court, moving to dismiss the proceedings, and then re- 15 arresting the individual in order to place them in expedited removal proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does 16 not dismiss the full removal proceedings, ICE still makes an arrest, apparently in reliance on § 1225(b)(2)’s detention provision. 17 18 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 19 III. Exhaustion 20 A. Governing Authority 21 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 22 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 23 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 24 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 25 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 26 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 27 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 28 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 1 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 2 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 3 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 4 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 5 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 6 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 7 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 8 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 9 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 10 to be disregarded.”). 11 B. Analysis 12 The Court finds that the prudential exhaustion requirement should be waived as it would be 13 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 14 to mandatory detention under 8 U.S.C. §§ 1225(b) and 1226(c), and Petitioner must remain 15 incarcerated under that framework without individualized process. See (Doc. 8 at 2). Petitioner 16 therefore lacks recourse through statutory or administrative means. See Avilez v. Garland, 69 F.4th 17 525, 533-34 (9th Cir. 2023) (citing Jennings v. Rodriguez, 583 U.S. 281, 303, 305-06 (2018) (“We 18 hold that § 1226(c) mandates detention of any alien falling within its scope and that detention may 19 end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness- 20 protection purposes” and “§ 1226(c) makes clear that detention of aliens within its scope must 21 continue ‘pending a decision on whether the alien is to be removed from the United States.’”)); 22 Hernandez v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017) (“[A] court may waive the prudential 23 exhaustion requirement if ‘administrative remedies are inadequate or not efficacious, pursuit of 24 administrative remedies would be a futile gesture, irreparable injury will result, or the 25 administrative proceedings would be void.’”) (quoting Laing, 370 F.3d at 1000); Chavez v. Noem, 26 -- F. Supp. 3d. --, 2025 WL 2730228, at *4 (S.D. Cal. Sept. 24, 2025) (“The Court therefore finds 27 the prudential exhaustion requirements waived for futility. Because Petitioners need to show only 28 one of the Laing factors applies, … the Court need not address the other factors.”) (internal citation 1 omitted). 2 For these reasons and because Respondents do not argue Petitioner should be required to 3 exhaust administrative remedies, waiver of the prudential exhaustion requirement for Petitioner’s 4 claim for habeas corpus relief is appropriate. 5 IV. Discussion 6 Petitioner asserts a single cause of action in her petition for violation of procedural due 7 process under the Fifth Amendment to the U.S. Constitution. See (Doc. 1 at 16-17). 8 A. Procedural Due Process 9 1. Governing Authority 10 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 11 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 12 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 13 individuals against two types of government action’: violations of substantive due process and 14 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 15 “Procedural due process imposes constraints on governmental decisions which deprive 16 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 17 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 18 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 19 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 20 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 21 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 22 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 23 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 24 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 25 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 26 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 27 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 28 v. Brewer, 408 U.S. 471, 481 (1972). 1 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 2 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 3 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 4 Due Process Clause stands as a significant constraint on the manner in which the political branches 5 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 6 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 7 justification for physical confinement outweighs the individual's constitutionally protected interest 8 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 9 1196, 1203 (9th Cir. 2011)). 10 2. Analysis – Relevant Statutory Detention Authority 11 Respondents assert that Petitioner is subject to mandatory detention under § 1226(c). See 12 (Doc. 8 at 2-3). 13 Another judge of this Court has addressed and applied the holdings of the key Supreme 14 Court and Ninth Circuit rulings applicable here, and the undersigned adopts that analysis herein 15 (see Kakkar v. Chestnut, No. 1:25-CV-1627 JLT SAB, 2025 WL 3638298, at *4-5 (E.D. Cal. Dec. 16 15, 2025)):
17 Under 8 U.S.C. § 1226(a)(2), DHS “may continue to detain” or “may release the 18 alien” on bond or conditional parole, “pending a decision on whether the alien is to be removed from the United States.” Such conditional release, however, may be 19 revoked by DHS “at any time.” 8 U.S.C. § 1226(b). The Board of Immigration Appeals (“BIA”) has placed the following limitation on this authority: “where a 20 previous bond determination has been made by an immigration judge, no change should be made by [the DHS] absent a change of circumstance.” Matter of Sugay, 21 17 I&N Dec. 637, 640 (BIA 1981). 22 Alternatively, under Section 1226(c), DHS “shall take into custody any alien who 23 is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(iii) of this title.” 8 U.S.C. § 1226(c). This includes any “alien who 24 is convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). Under this provision, non-citizens may be released “only if the Attorney General decides ... 25 that release ... is necessary to provide protection to a witness, a potential witness, a 26 person cooperating with an investigation ... and the alien will not pose a danger to the safety of other[s] ... and is likely to appear for any scheduled proceeding.” Id. 27 at § 1226(c)(4). Thus, noncitizens detained under this category are not entitled to bond hearings as those detained under § 1226(a) are. See Jennings v. Rodriguez, 28 1 583 U.S. 281, 303–304 (2018) (“By expressly stating that the covered aliens may be released ‘only if’ certain conditions are met, § 1226(c)(2), the statute expressly 2 and unequivocally imposes an affirmative prohibition on releasing detained aliens under any other conditions.”) (emphasis in original). 3
4 Section 1226(c)’s mandatory detention requirement applies even if the government does not immediately detain a criminal non-citizen upon immediate release from a 5 correctional facility. See Nielsen v. Preap, 586 U.S. 392, 396 (2019) (finding that the Ninth Circuit's interpretation—namely, that criminal aliens not arrested 6 immediately upon release from criminal custody are exempt from § 1226(c)’s 7 mandatory detention and thus entitled to a bond hearing—is wrong). However, the Supreme Court expressly noted that its decision, “on the meaning of that statutory 8 provision[,] does not foreclose as-applied challenges—that is, constitutional challenges to applications of the statute.” Id. at 420. Courts routinely review as- 9 applied constitutional challenges to § 1226(c) detention. See e.g., Perera v. Jennings, No. 21-cv-04136-BLF, 2021 WL 2400981, at *4 (N.D. Cal. June 11, 10 2021); Pham v. Becerra, No. 23-cv-01288-CRB, 2023 WL 2744397, at *5 (N.D. 11 Cal. March 31, 2023); Carballo v. Andrews, No. 1:25-cv-00978-KES-EPG, 2025 WL 2381464, at *4 (E.D. Cal. Aug. 15, 2025). 12 13 Here, on August 29, 2016, Petitioner was convicted under New York state law of criminal 14 possession of a controlled substance in the third degree (cocaine) and received a one-year jail 15 sentence. See (Doc. 8-1 at 12, 27). Petitioner’s second NTA provides that Petitioner is subject to 16 removal under Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (“INA”) for 17 conviction of “any law or regulation … relating to a controlled substance” as well as under Section 18 212(a)(2)(C)(i) of the INA as an alien who “has been an illicit trafficker in any controlled 19 substance[.]” Id. at 39. 20 Under § 1226(c), detention is mandatory where a noncitizen “is deportable by reason of 21 having committed any offense covered” in § 1182(a)(2) or § 1227(a)(2)(B). 8 U.S.C. § 22 1226(c)(1)(A)&(B). Section 1182(a)(2) provides that “[a]ny alien convicted of, or who admits 23 having committed, or who admits committing acts which constitute the essential elements of … (II) 24 a violation of … any law or regulation of a State, the United States, or a foreign country relating to 25 a controlled substance (as defined in section 802 of Title 21), is inadmissible.” 8 U.S.C. § 26 1182(a)(2)(A)(i)(II). Section 1227(a)(2)(B) provides that “[a]ny alien who at any time after 27 admission has been convicted of a violation of … any law or regulation of a State, the United States, 28 or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other 1 than a single offense involving possession for one's own use of 30 grams or less of marijuana, is 2 deportable.” 8 U.S.C. § 1227(a)(2)(B)(i). Under New York Penal Law § 220.16, “[a] person is 3 guilty of criminal possession of a controlled substance in the third degree when [s]he knowingly 4 and unlawfully possesses[] … one or more preparations, compounds, mixtures or substances 5 containing a narcotic drug and said preparations, compounds, mixtures or substances are of an 6 aggregate weight of one-half ounce or more[.]” N.Y Pen. Law § 220.16-12. 7 Petitioner’s § 220.16-12 conviction following her guilty plea to the charge of “criminal 8 possession of a controlled substance 3rd degree PL 220.16 12 BF (Cocaine)” (see Doc. 8-1 at 12) 9 qualifies as an offense covered under both §§ 1182(a)(2) and 1227(a)(2)(B) such that she is subject 10 to mandatory detention under § 1226(c). Because the record shows that Petitioner is subject to 11 mandatory detention under § 1226(c) based on her conviction for violation of § 220.16-12, under 12 the statutory framework above, Petitioner is subject to § 1226(c)(4)’s release provision and 13 therefore is not entitled to bond hearings in the same fashion as those detained under § 1226(a). 14 Notwithstanding the undersigned’s finding that Petitioner is subject to mandatory detention 15 under § 1226(c), here, Petitioner raises a due process argument that her “ongoing prolonged 16 detention without a [bond] hearing violates due process.” (Doc. 1 at 16-17). As explained in the 17 statutory scheme above, Preap “does not foreclose as-applied challenges … to applications of [§ 18 1226(c)].” Preap, 586 U.S. at 420; Kakkar, 2025 WL 3638298 at *5. 19 Therefore, the undersigned considers Petitioner’s as-applied challenge to her detention 20 raised in her due process claim. 21 3. Analysis – Procedural Due Process 22 On Petitioner’s as-applied procedural due process challenge to her continuing detention by 23 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 24 interest under the Due Process Clause, and … [(2)] the procedures necessary to ensure any 25 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 26 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 27 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 28 “There is … a meaningful distinction between a challenge to an initial period of 1 detention, … and a challenge to re-detention after a court has previously granted release on bond 2 pending immigration proceedings.” Carballo v. Andrews, et. al, No. 1:25-cv-00978-KES-EPG, at 3 2025 WL 2381464, at *7 (E.D. Cal. Aug. 15, 2025) (emphasis in original). “‘[T]he liberty interests 4 of [an individual] who is re-arrested differ from the liberty interests of a detained person.’” Id. 5 (quoting Guillermo M.R. v. Kaiser, No. 25-cv-05436-RFL, 2025 WL 1810076, at *1 (N.D. Cal. 6 June 30, 2025)). “In the former situation, where ICE detains an individual upon their release from 7 a correctional facility, without any substantial intervening period of release, that individual has no 8 opportunity ‘to form the [] enduring attachments of normal life.’” Id. (quoting Morrissey, 408 U.S. 9 at 482). 10 With these authorities in mind, the undersigned finds Petitioner has an underlying, 11 continuing liberty interest in being free from detention. On April 13, 2016, when Petitioner entered 12 the United States and applied for admission as a B-2 visitor for pleasure, she was paroled into the 13 United States for criminal prosecution. (Doc. 8-1 at 36). Petitioner was convicted of the possession 14 of a controlled substance charge on August 29, 2016. Id. at 12, 27. The record shows that DHS 15 lodged a detainer with the State of New York that was not honored following Petitioner’s sentence, 16 and Petitioner was thereafter released into the United States. See id. at 8 (April 14, 2016, DHS 17 Notice to Detain, Remove, or Present Alien, noting Petitioner is “[p]aroled for criminal 18 prosecution”), 10 (DHS Immigration Detainer – Request for Voluntary Action, noting that “[u]pon 19 completion of the proceeding or investigation for which the [Petitioner] was transferred to your 20 custody, DHS intends to resume custody of the subject to complete processing.”), 28 (“On 21 10/03/2016, the New York Queens County Supreme Court convicted the [Petitioner] of criminal 22 possession of controlled substance/narcotics and sentenced her to 1 year imprisonment. It appears 23 the [DHS] detainer was not honored, and the [Petitioner] was released upon completion of her 24 sentence.”). Although Petitioner was paroled into the United States for the purpose of criminal 25 prosecution, and Respondents contend that DHS’s immigration detainer was not honored by the 26 State of New York following the conclusion of criminal proceedings against Petitioner, Petitioner 27 remained released from the time she completed her one-year jail sentence on an unspecified date 28 in 2017 for a significant amount of time—approximately eight years—during which time she was 1 married in November 2022, raised two U.S. citizen children, and obtained an authorization to work 2 and a social security card. See (Doc. 1 ¶ 23). While Petitioner’s spouse applied for a Form I-130 3 petition for alien relative on her behalf as well as a Form I-485 application for adjustment of status 4 on her behalf in January 2024 that was ultimately denied in August 2025, Respondents’ decision 5 not to detain or proceed with removal proceedings against Petitioner from the time she was released 6 from state custody and filed her immigration-related relief constitutes a tacit decision to permit 7 Petitioner’s release from immigration custody and acceptance that she was not a flight risk nor a 8 danger to the community. 9 Indeed, Respondents do not assert that Petitioner was subject to any conditions of release, 10 nor do they proffer facts permitting the drawing of any reasonable inference that Petitioner is a 11 danger to the public or a flight risk. (Doc. 8); see, e.g., Kakkar, 2025 WL 3638298, at *6 (finding 12 petitioner who completed three-year term of supervised release without incident held a liberty 13 interest in freedom from detention under the Due Process clause); id. at *5 (“in these cases, ICE 14 did not immediately detain the petitioners upon their release from prison. … Instead, the petitioners 15 successfully reintegrated into their communities for several years before being detained pursuant 16 to § 1226(c).”); accord Carballo, 2025 WL 2381464, at *6 (“The courts in [Perera and Pham] 17 found that the petitioners possessed a protected liberty interest arising from their several years of 18 post-conviction freedom[.]”). Put simply, Petitioner was released from state custody following 19 service of her jail sentence and six-month license suspension and was arrested years later by ICE 20 and detained pending removal proceedings. See (Doc. 1 ¶ 23) (“I finished my sentence and was 21 also on probation for [six] months.”); (Doc. 8-1 at 12) (certificate of disposition indicating 22 Petitioner was sentenced to one-year imprisonment and received a six month license suspension). 23 The undersigned therefore agrees with other courts and other judges of this Court that a 24 noncitizen who sustains a conviction for an aggravated felony and who successfully serves their 25 sentence, including terms of court-imposed supervision without incident, maintains a liberty 26 interest in their freedom that implicates protections under principles of procedural due process. See 27 Kakkar, 2025 WL 3638298, at *5 (discussing, inter alia, Perera, which “involv[ed] a legal 28 permanent resident, convicted of possession with intent to distribute controlled substances, released 1 from prison in 2015, and detained by ICE for the first time in April 2021” but “successfully 2 reintegrated into their communities for several years before being detained pursuant to § 1226(c)” 3 and succeeded in “raising [an] as-applied due process challenge[] to [his] detention without a bond 4 hearing[.]”); Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The fact 5 that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks a 6 protectable liberty interest and can be re-detained without process.”); Pham, 2023 WL 2744397 at 7 *6 (finding liberty interest for petitioner who was released from prison in 2015 and detained by 8 ICE for the first time in 2023); Perera, 2021 WL 2400981, at *2, 5 (finding petitioner, who was 9 convicted of possession with intent to distribute controlled substances, released from prison in 10 2015, and detained by ICE for the first time in April 2021, has a “grave” liberty interest). Cf. Daley 11 v. Andrews, No. 1:25-cv-00922-KES-CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) 12 (finding a petitioner mandatorily detained pursuant to § 1226(c) did not have a protectible liberty 13 interest because he had remained in continuous custody and never released on supervision). 14 Because Petitioner has shown she has a protected liberty interest to remain free from 15 detention based on her release from state custody for approximately eight years without incident, 16 the undersigned must determine what process is due before the government may terminate that 17 liberty interest. To determine this, the undersigned considers the following factors articulated in 18 Mathews: “[(1)] the private interest that will be affected by the official action; [(2)] the risk of an 19 erroneous deprivation of such interest through the procedures used, and the probable value, if any, 20 of additional or substitute procedural safeguards; and [(3)] the Government’s interest, including the 21 function involved and the fiscal and administrative burdens that the additional or substitute 22 procedural requirement would entail.” Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993- 23 94 (applying Mathews test in immigration detention context); id. at 993 (“The appropriateness of 24 the requirement that ICE and IJs consider financial circumstances and alternative conditions of 25 release is confirmed by the balance of factors under Mathews[.]”). 26 As to the first factor, Petitioner has shown she has a significant private interest in remaining 27 on release from detention. She had been released from state custody for approximately eight years 28 without incident prior to her immigration detention. She alleges that he has lived in the country 1 supporting her family of two U.S. citizen children and has obtained an authorization to work and a 2 social security card, and Respondents do not assert or otherwise show that Petitioner was subject 3 to any conditions of supervision of which she has violated or committed any additional crimes 4 while on release, notwithstanding the denial of her application for adjustment in which USCIS 5 identified potential indicators for marriage fraud. (Doc. 1 ¶ 23); see (Docs. 8, 8-1 at 28). 6 Petitioner’s continued liberty interest in remaining on release is undermined by her immigration 7 detention without a bond hearing. Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from imprisonment 8 is at the core of the Due Process Clause…. The lengthy duration of his conditional release as well 9 as the meaningful connections [he] seems to have made with his community during that time create 10 a powerful interest for [him] in his continued liberty.”). 11 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest 12 is considerable here where she has not received any bond or custody redetermination. Id. at 1094; 13 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 14 2025). Because there were no procedural safeguards to determine if Petitioner’s detention was 15 justified and Respondents proffer no facts indicating whether Petitioner was subject to any 16 conditions of supervised release of which she has violated or that there are any change in 17 circumstances while Petitioner was on release sufficient to justify Petitioner’s re-detention, the 18 probable value of the additional procedural safeguard of a bond hearing to determine whether 19 Petitioner is a flight risk or a danger to the community is high such that this factor weighs in favor 20 of granting a bond hearing. See Doe, 787 F. Supp. at 1094 (“[G]iven that Petitioner was previously 21 found to not be a danger or risk of flight and the unresolved questions about the timing and 22 reliability of the new information, the risk of erroneous deprivation remains high.”); A.E., 2025 WL 23 1424382 at *5; Ramazan, 2025 WL 3145562, at *6. Therefore, this factor weighs in favor of 24 granting a bond hearing. 25 Third, the government’s interest in detaining Petitioner without a bond hearing is low. Doe, 26 787 F. Supp. 3d at 1094 (citation omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 27 2019)); Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) 28 (“And, like other Courts in this district, the Court concludes that the government’s interest in re- 1 detaining Petitioner-[] without a hearing is ‘low,’ particularly in light of the fact that Petitioner[] 2 has long complied with his reporting requirements.”); see Carballo, 2025 WL 2381464, at *8 (“The 3 government has thus far not argued or identified any new factual circumstances in the past five 4 years that would affect such a determination.”); Kakkar, 2025 WL 3638298, at *7 (“The 5 government may have a significant interest in protecting the public from dangerous criminal aliens. 6 However, such argument is undermined somewhat by the fact that Respondents waited four years 7 to arrest the Petitioner and have not identified changed circumstances that now justify his arrest.”). 8 “The effort and cost to provide Petitioner with [a bond hearing] is minimal[.]” Doe, 787 F. Supp. 9 3d at 1094. Therefore, any additional burden from requiring the government to seek a bond hearing 10 before it may re-detain Petitioner does not outweigh her liberty interest and the risk of erroneous 11 deprivation. Accordingly, this factor weighs in favor of granting a bond hearing. 12 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 13 procedural due process rights under the Fifth Amendment to the U.S. Constitution through her 14 arrest in August 2025 and continuous and continuing detention thereafter. 15 B. Relief 16 Respondents do not assert that Petitioner is a flight risk or a danger to the community, do 17 not show whether Petitioner is subject to any conditions of supervised release, and have not 18 identified any material changed circumstances since Petitioner was released under supervision. 19 Accordingly, the undersigned finds and will recommend that Respondents be ordered to afford a 20 bond hearing to Petitioner consistent with the holdings in the decisions noted above (Kakkar, 21 Perera, and Pham). See Prior v. Andrews, No. 1:25-cv-01131-JLT-EPG (HC), 2026 WL 698801, 22 at *2 (E.D. Cal. Mar. 12, 2026) (adopting in part findings and recommendations to grant petition 23 for writ of habeas corpus but declining to order the petitioner’s immediate release) (citing Kakkar, 24 2025 WL 3638298, at *6-7, Perera, 2021 WL 2400981, at *4, and Pham, 2023 WL 2744397, at 25 *1-2). Immediate release is not warranted because immigration authorities never previously 26 detained and released Petitioner on any finding that she was neither a flight risk nor danger to the 27 community. See id. 28 Further, the undersigned will recommend the government bear the burden at a bond hearing 1 of establishing, by clear and convincing evidence, that Petitioner poses a danger to the community 2 or a risk of flight or that there is a material change in her removal situation that would justify her 3 re-detention. See id. at *3; Carballo, 2025 WL 2381464, at *9; Kakkar, 2025 WL 3638298, at *6; 4 Pham, 2023 WL 2744397, at *7. 5 V. Conclusion and Recommendation 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. The petition for writ of habeas corpus (Doc. 1) be GRANTED 8 2. Respondents be ORDERED to hold a bond hearing before a neutral arbiter pursuant to 9 section 1226(a) and applicable regulations, at which Petitioner’s eligibility for bond 10 must be considered, and where the government must demonstrate by clear and 11 convincing evidence that Petitioner is a flight risk or danger to the community or that 12 there is a material change in his removal situation such that physical custody is legally 13 justified.2 14 3. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this 15 case. 16 These findings and recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 18 after being served with these findings and recommendations, the parties may file written objections 19 with the Court. Although this objection period is shorter than provided by Local Rule, such an 20 adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 21 Constitution by Respondents, and the fact that the parties have extensively briefed the issues 22 involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 23
24 2 The undersigned also recommends the following:
25 If legally sufficient circumstances justify arrest without notice in advance, a post- deprivation hearing consistent with the requirements set forth here, SHALL be provided 26 within seven days of the arrest. Alternatively, if Petitioner becomes subject to a final order 27 of removal and Petitioner receives notice of such order, Respondents may detain Petitioner for the sole and limited purpose of executing removal. In this event, Respondents SHALL 28 provide a bond hearing in the timeframe required by law. 1 | may require a response within a shorter period if exigencies of the calendar require.”). Any 2 | objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 3 | Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 4 | The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 5 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 6 | and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 7 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 8 | these findings and recommendations under 28 U.S.C. § 636(b)(I)(C). 9 The parties are advised that failure to file objections within the specified time may result in 10 | the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 11 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 | ITIS SO ORDERED. 13 Dated: _ June 3, 2026 | hrnnrD bo 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19