Suhrab Shinwari v. Todd M. Lyons, et al.

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

SUHRAB SHINWARI, Case No. 1:26-cv-03573-KES-EPG-HC

Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF v. HABEAS CORPUS, DENY PETITIONER’S MOTION FOR TEMPORARY TODD M. LYONS, et al., RESTRAINING ORDER AS MOOT, AND DIRECT RESPONDENTS TO PROVIDE Respondents. PETITIONER WITH BOND HEARING BEFORE IMMIGRATION JUDGE (ECF Nos. 1, 2) Petitioner, represented by counsel, is a federal immigration detainee proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth herein, the undersigned recommends granting the petition for writ of habeas corpus, denying Petitioner’s motion for temporary restraining order as moot, and ordering that Respondent provide Petitioner with an individualized bond hearing before an immigration judge at which the government must justify Petitioner’s continued detention by clear and convincing evidence. I. Petitioner is a citizen of Afghanistan. On October 24, 2024, Petitioner presented to U.S. border officials at the southern border with a CBP One appointment and immediately expressed a fear of return to Afghanistan. Petitioner was provided with a credible fear interview, and following a positive credible fear determination, he was placed into removal proceedings pursuant 8 U.S.C. § 1229a and detained by the U.S. Department of Homeland Security (“DHS”). (ECF No. 1 at 6.1) On March 4, 2025, Petitioner filed a Form I-589 Application for Asylum and Withholding of Removal. On March 20, 2026, an immigration judge (“IJ”) issued an oral decision on Petitioner’s application, denying asylum based on a determination that Petitioner had been “firmly resettled” in Brazil and ordered withholding of removal to Afghanistan only. (ECF No. 1 at 7; ECF No. 1-2.) On April 11, 2026, Petitioner filed an appeal of the IJ's decision with the Board of Immigration Appeals (“BIA”). The BIA appeal remains pending. (ECF No. 1 at 7.) On May 8, 2026, Petitioner filed a petition for writ of habeas corpus and a motion for temporary restraining order (“TRO”). (ECF Nos. 1, 2.) On May 15, 2026, Respondents filed a response, and Petitioner filed a reply on May 21, 2026. On May 22, 2026, the assigned district judge referred the matter to the undersigned. (ECF No. 8.) II. Given that the petition and the motion for temporary restraining order challenge Petitioner’s detention and seek identical relief, and for purposes of judicial efficiency, the undersigned recommends “advanc[ing] the trial on the merits and consolidat[ing] it with” the motion for preliminary injunction. Fed. R. Civ. P. 65(a)(2). See Dzhabrailov v. Decker, No. 20- CV-3118 (PMH), 2020 WL 2731966, at *4 (S.D.N.Y. May 26, 2020) (considering preliminary injunction and merits of habeas petition simultaneously). See also 28 U.S.C. § 2243 (“The court shall summarily hear and determine the facts, and dispose of [a petitioner’s habeas petition] as law and justice require.”). A. Section 1231(a) Congress has enacted a complex statutory scheme governing the detention of noncitizens during removal proceedings and following the issuance of a final order of removal. “Where an alien falls within this statutory scheme can affect whether his detention is mandatory or discretionary, as well as the kind of review process available to him if he wishes to contest the necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). “Four statutes grant the Government authority to detain noncitizens who have been placed in removal proceedings”: 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a). Avilez v. Garland, 69 F.4th 525, 529 (9th Cir. 2023). “Section 241(a) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1231(a), authorizes the detention of noncitizens who have been ordered removed from the United States.” Johnson v. Arteaga-Martinez, 596 U.S. 573, 575 (2022). “After the entry of a final order of removal against a noncitizen, the Government generally must secure the noncitizen’s removal during a 90-day ‘removal period.’” Id. (internal quotation marks omitted) (quoting 8 U.S.C. § 1231(a)(1)(A)). This “removal period” begins on the latest of either (1) the date a noncitizen’s “order of removal becomes administratively final,” (2) the date of a court’s final order, if the noncitizen’s removal order is judicially reviewed and this court stays the noncitizen’s removal, or (3) the date the noncitizen is released from criminal detention or confinement. Id. § 1231(a)(1)(B)(i)–(iii). Avilez, 69 F.4th at 531. “During the removal period, detention is mandatory.” Johnson v. Guzman Chavez, 594 U.S. 523, 528 (2021) (citing 8 U.S.C. § 1231(a)(2)). In Claim Two of the petition, Petitioner argues that “if this Court determines that the withholding-only order triggered the post-removal-order detention period under 8 U.S.C. § 1231(a), Petitioner invokes Zadvydas v. Davis, 533 U.S. 678 (2001).” (ECF No. 1 at 10.) Here, Petitioner has filed an appeal with the BIA regarding his removal order. “Section 1231(a) does not apply to detention during the pendency of administrative or judicial removal proceedings.” Avilez, 69 F.4th at 530–31. Accordingly, Petitioner is not detained pursuant to § 1231, and thus, the undersigned recommends finding that Petitioner is not entitled to habeas relief on Claim Two. B. Due Process In Claim One of the petition, Petitioner asserts that he “is not subject to mandatory detention is thus discretionary under § 1226(a)[.]” (ECF No. 1 at 9.) Petitioner also asserts that his detention violates due process. (ECF No. 1 at 9–10.) In the response, Respondents argue Petitioner “presented himself on October 24, 2024, at the San Ysidro Port of Entry for his CBP One appointment,” “was turned over to the Admissibility Enforcement Unit to be processed as Expedited Removal Pending Credible Fear,” “has remained in DHS custody continuously since that date without a bond hearing,” “has never entered the United States,” and thus, “comes within the ambit of 8 U.S.C. § 1225(b)(1)(B)(ii).” (ECF No. 6 at 1, 2.) In the reply, Petitioner does not contest Respondents’ assertion that he is subject to 8 U.S.C. § 1225(b)(1)(B)(ii). Rather, Petitioner argues that § 1225(b) does not authorize indefinite detention without a hearing and that the Mathews test compels a bond hearing. (ECF No. 7 at 2–7.) The Court finds that Petitioner is detained pursuant to § 1225(b)(1)(B)(ii). See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 111 (2020) (“Applicants who are found to have a credible fear may also be detained pending further consideration of their asylum applications.”). In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court addressed a challenge to prolonged detention under § 1231(a)(6) by noncitizens who “had been ordered removed by the government and all administrative and judicial review was exhausted, but their removal could not be effectuated because their designated countries either refused to accept them or the United States lacked a repatriation treaty with the receiving country.” Prieto–Romero, 534 F.3d at 1062 (citing Zadvydas, 533 U.S. at 684–86). The Supreme Court held that § 1231(a)(6) does not authorize indefinite detention and “limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. Thus, after a presumptively reasonable detention period of six months, a noncitizen was entitled to release if “it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Id. at 701. In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court rejected a facial challenge to mandatory detention under 8 U.S.C. § 1226(c). The Supreme Court upheld its “longstanding necessary for their removal proceedings.” Id. at 526. The Supreme Court distinguished Zadvydas by emphasizing that mandatory detention under § 1226(c) has “a definite termination point” and “in the majority of cases it lasts for less than the 90 days . . . considered presumptively valid in Zadvydas.” Id. at 529. However, Justice Kennedy specifically noted that “a lawful permanent resident alien such as respondent could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified.” Demore, 538 U.S. at 532 (Kennedy, J., concurring). “In a series of decisions, the [Ninth Circuit] . . . grappled in piece-meal fashion with whether the various immigration detention statutes may authorize indefinite or prolonged detention of detainees and, if so, may do so without providing a bond hearing.” Rodriguez v. Hayes (Rodriguez I), 591 F.3d 1105, 1114 (9th Cir. 2010). This culminated in Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), in which the Ninth Circuit held that for noncitizens detained under 8 U.S.C. §§ 1225(b), 1226(a), and 1226(c), “the government must provide periodic bond hearings every six months so that noncitizens may challenge their continued detention as ‘the period of . . . confinement grows.’” 804 F.3d at 1089 (quoting Diouf v. Napolitano (Diouf II), 634 F.3d 1081, 1091 (9th Cir. 2011)). Importantly, the Ninth Circuit applied the canon of constitutional avoidance to interpret these immigration detention provisions as providing a statutory right to a bond hearing once detention become prolonged. See Rodriguez Diaz v. Garland, 53 F.4th 1189, 1195 (9th Cir. 2022). In Jennings v. Rodriguez, the Supreme held that the Ninth Circuit misapplied the constitutional avoidance canon to find that “§§ 1225(b)(1) and (b)(2) contain an implicit 6– month limit on the length of detention” and “[o]nce that 6–month period elapses, respondents contend, aliens previously detained under those provisions must instead be detained under the authority of § 1226(a), which allows for bond hearings in certain circumstances.” 583 U.S. at 297–98. Jennings also rejected the Ninth Circuit’s interpretation of a statutory right under 8 U.S.C. § 1226(a) to “periodic bond hearings every six months in which the Attorney General must prove by clear and convincing evidence that the alien’s continued detention is necessary.” arguments on their merits.” Id. at 312. The Ninth Circuit likewise remanded the case to the district court to consider the constitutional arguments in the first instance but observed that it had “grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the arbitrary deprivation of liberty would have thought so.” Rodriguez v. Marin, 909 F.3d 252, 255, 256 (9th Cir. 2018). Following Jennings, the Ninth Circuit reexamined the applicable procedures for immigration detention under 8 U.S.C. § 1231(a)(6). Although “recogniz[ing] some tension between Diouf II and Jennings,” the Ninth Circuit held that it “remain[ed] bound by Diouf II” and concluded that “that the district court did not err in relying on Diouf II’s construction of § 1231(a)(6) to require a bond hearing before an IJ after six months of detention for an alien whose release or removal is not imminent” and “also properly required the Government to bear a clear and convincing burden of proof at such a bond hearing to justify an alien’s continued detention.” Aleman Gonzalez v. Barr, 955 F.3d 762, 766 (9th Cir. 2020). The Supreme Court reversed, holding that 8 U.S.C. § 1252(f)(1) deprived the district court of jurisdiction to entertain the requested class-wide injunctive relief. Garland v. Aleman Gonzalez, 596 U.S. 543, 546 (2022). In Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022), “a companion case decided that same day arising from the Third Circuit, . . . the Supreme Court separately rejected [the Ninth Circuit’s] statutory interpretation in Aleman Gonzalez (which was itself based on Diouf II).” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1201 (9th Cir. 2022). Arteaga-Martinez held that “there is no plausible construction of the text of § 1231(a)(6) that requires the Government to provide bond hearings before immigration judges after six months of detention, with the Government bearing the burden of proving by clear and convincing evidence” and declined to reach the constitutional claims. 596 U.S. at 581, 583. “[A]fter the Supreme Court’s decisions in Jennings and Arteaga-Martinez, it remains undetermined whether the Due Process Clause requires additional bond procedures under” 8 U.S.C. §§ 1225(b), 1226(c), and 1231. Rodriguez Diaz, 53 F.4th at 1201. detainee’s continued mandatory detention becomes unconstitutional. See Rodriguez Diaz, 53 F.4th at 1203 (noting that both the Ninth Circuit “and the Supreme Court have repeatedly declined to decide constitutional challenges to bond hearing procedures in the immigration detention context”). The Ninth Circuit has yet to take a position on whether due process requires a bond hearing for noncitizens detained under 8 U.S.C. § 1225(b), but it has recognized that “district courts throughout this circuit have ordered immigration courts to conduct bond hearings for noncitizens held for prolonged periods under § 1226(c)” based on due process and noted that “[a]ccording to one such court order, the ‘prolonged mandatory detention pending removal proceedings, without a bond hearing, will—at some point—violate the right to due process.’” Martinez v. Clark, 36 F.4th 1219, 1223 (9th Cir. 2022) (citation omitted), vacated on other grounds, 144 S. Ct. 1339 (2024). Respondent contends that “Petitioner’s due process claim for rights not afforded by the governing statute is foreclosed by DHS v. Thuraissigiam, 591 U.S. 103, 138–40 (2020).” (ECF No. 6 at 2.) The Court finds such an argument unpersuasive. Thuraissigiam challenged “restrictions on the ability of asylum seekers to obtain review under the federal habeas statute” that prevented him from “obtain[ing] additional administrative review of his asylum claim and ultimately . . . obtain[ing] authorization to stay in this country,” Thuraissigiam, 591 U.S. at 106. Thuraissigiam did not concern a challenge to prolonged immigration detention. Respondent “ask[s] the Court to extract from Thuraissigiam a broad rule that any inadmissible noncitizen possesses only those due process rights afforded to them by statute, regardless of the nature of their status or the relief they seek. But such a conclusion is untethered to the claim in Thuraissigiam and the Court’s reasoning. Thuraissigiam’s discussion of due process is necessarily constrained to challenges to admissibility to the United States.” Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1171 (W.D. Wash. 2023), appeal filed, No. 24- 2801 (9th Cir. argued May 21, 2025). Courts in the Ninth Circuit have taken a variety of approaches to determine whether due process requires a bond hearing in a particular immigration detention case. See, e.g., Rodriguez, months and entitles [the petitioner] to a bond hearing” in § 1226(c) context); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) (considering six factors, which include: “(1) the total length of detention to date; (2) the likely duration of future detention; (3) the conditions of detention; (4) delays in the removal proceedings caused by the detainee; (5) delays in the removal proceedings caused by the government; and (6) the likelihood that the removal proceedings will result in a final order of removal” in § 1225(b) context); Juarez v. Wolf, No. C20-1660-RJB-MLP, 2021 WL 2323436, at *4 (W.D. Wash. May 5, 2021) (considering, in addition to six factors set forth above, “whether the detention will exceed the time the petitioner spent in prison for the crime that made him [or her] removable” and “the nature of the crimes the petitioner committed” in § 1226(c) context), report and recommendation adopted, 2021 WL 2322823 (W.D. Wash. June 7, 2021); Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D. Cal. 2022) (considering “the total length of detention to date, the likely duration of future detention, and the delays in the removal proceedings caused by the petitioner and the government” in § 1226(c) context). There are also some courts that apply the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). See Zagal-Alcaraz v. ICE Field Off., No. 3:19-cv-01358-SB, 2020 WL 1862254, at *3–4 (D. Or. Mar. 25, 2020) (collecting cases), report and recommendation adopted, 2020 WL 1855189 (D. Or. Apr. 13, 2020). In Rodriguez Diaz, which concerned a noncitizen detained pursuant to 8 U.S.C. § 1226(a) and whether “continued detention was unconstitutional because under the Due Process Clause of the Fifth Amendment, he is entitled to a second bond hearing at which the government bears the burden of proof by clear and convincing evidence,” the panel majority “assume[d] without deciding” that the Mathews test applied, noting that the Ninth Circuit has “regularly applied Mathews to due process challenges to removal proceedings,” and finding “Mathews remains a flexible test that can and must account for the heightened governmental interest in the immigration detention context.” Rodriguez Diaz, 53 F.4th at 1193, 1206. Similarly, the dissent “agree[d] that the test developed in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is the appropriate legal framework (Wardlaw, J., dissenting). See also Black, 103 F.4th at 147 (“conclud[ing] that due process challenges to prolonged detention under section 1226(c) should also be reviewed under Mathews”); A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO (HC), 2025 WL 1424382 (E.D. Cal. May 16, 2025) (applying Mathews test to determine whether due process entitled petitioner to a bond hearing in § 1225(b) context), findings and recommendations adopted, 2025 WL 1808676 (E.D. Cal. July 1, 2025). Given that the Ninth Circuit has “regularly applied Mathews to due process challenges to removal proceedings,” Rodriguez Diaz, 53 F.4th at 1193, the Court will apply Mathews, in which the Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors”: First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews, 424 U.S. at 334. 1. Private Interest With respect to the first factor, the Court finds that the private interest at issue here is fundamental. “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. The Ninth Circuit has held that it “is beyond dispute” an immigration detainee’s “private interest at issue here is ‘fundamental’: freedom from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). See Rodriguez Diaz, 53 F.4th at 1207 (“We have also held, more generally, that an individual’s private interest in ‘freedom from prolonged detention’ is ‘unquestionably substantial.’ . . . Rodriguez Diaz has a legitimate and reasonably strong private liberty interest under Mathews.” (quoting Singh, 638 F.3d at 1208)). Accordingly, the first Mathews factor 2. Risk of Erroneous Deprivation With respect to the second factor, the Court considers the risk of erroneous deprivation of Petitioner’s liberty interest and the probable value of additional procedural safeguards. “In evaluating the risk of erroneous deprivation in the context of noncitizen detention, the Ninth Circuit has looked to whether the detainee has a statutory right to procedural protections, such as individualized custody determinations and the right to seek additional bond hearings throughout detention.” Jensen v. Garland, No. 5:21-cv-01195-CAS (AFM), 2023 WL 3246522, at *6 (C.D. Cal. May 3, 2023) (citing Rodriguez Diaz, 53 F.4th at 1209–10 (finding a small risk of erroneous deprivation where petitioner was detained under § 1226(a) and thus received numerous procedural protections, including individualized custody determinations and right to seek additional bond hearings)). Although the Supreme Court has rejected the Ninth Circuit’s application of the constitutional avoidance canon and its statutory interpretation of § 1225(b), the Court finds Rodriguez v. Robbins (Rodriguez II), 715 F.3d 1127 (9th Cir. 2013), informative regarding the constitutional issue before this Court. The Ninth Circuit “note[d] that the discretionary parole system available to § 1225(b) detainees is not sufficient to overcome the constitutional concerns raised by prolonged mandatory detention” because the “parole process is purely discretionary and its results are unreviewable by IJs” and “release decisions are based on humanitarian considerations and the public interest.” Rodriguez II, 715 F.3d at 1144. See Padilla, 704 F. Supp. 3d at 1174 (finding plaintiffs “allege[d] a viable due process claim” because “the parole process available to them under 8 U.S.C. § 1182(d)(5)(A) is not a constitutionally adequate substitute for a bond hearing particularly since it does not test the necessity of detention,” “does not afford the noncitizen an in-person adversarial hearing before a neutral decisionmaker where he or she may present witness testimony or evidence,” does not require “the ICE detention officer [to] make any factual findings or provide their reasoning, and there is no apparent right to an administrative appeal”). Petitioner has been detained for twenty-one months and has not received any bond deprivation of Petitioner’s liberty interest and the probable value of additional procedural safeguards is high. See Jimenez v. Wolf, No. 19-cv-07996-NC, 2020 WL 510347, at *3 (N.D. Cal. Jan. 30, 2020) (“[T]he risk of an erroneous deprivation of Landeros Jimenez’s liberty interest is high. He has not received any bond or custody redetermination hearing during his one- year detention. Thus, the probable value of additional procedural safeguards—a bond hearing— is high, because Respondents have provided virtually no procedural safeguards at all.”). Therefore, the second Mathews factor weighs in favor of Petitioner. 3. Government’s Interest With respect to the third and final factor, the Court recognizes that “the government clearly has a strong interest in preventing aliens from ‘remain[ing] in the United States in violation of our law’” and “has an obvious interest in ‘protecting the public from dangerous criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (quoting Demore, 538 U.S. at 518, 515). The Ninth Circuit has stated that “[t]hese are interests of the highest order that only increase with the passage of time,” noting that “[t]he longer detention lasts and the longer the challenges to an IJ’s order of removal take, the more resources the government devotes to securing an alien’s ultimate removal” and “[t]he risk of a detainee absconding also inevitably escalates as the time for removal becomes more imminent.” Rodriguez Diaz, 53 F.4th at 1208. However, it is important to stress that the “government interest at stake here is not the continued detention of Petitioner, but the government’s ability to detain him without a bond hearing.” Zagal-Alcaraz, 2020 WL 1862254, at *7. See Zerezghi v. U.S. Citizenship & Immigr. Servs., 955 F.3d 802, 810 (9th Cir. 2020) (noting that “the question [under the third Mathews factor] is not the government’s interest in immigration enforcement” “in general” (emphasis added)); Henriquez v. Garland, No. 5:22-cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) (“Although the Government has a strong interest in enforcing the immigration laws and in ensuring that lawfully issued removal orders are promptly executed, the Government’s interest in detaining Petitioner without providing an individualized bond hearing is low.”). Courts generally have found that the cost of providing a bond hearing is relatively minimal, and there is nothing in the record before this Court demonstrating that providing Petitioner with a bond hearing would be fiscally or administratively burdensome. See Marroquin Ambriz v. Barr, 420 F. Supp. 3d 953, 964 (N.D. Cal. 2019) (noting in context of a § 1226(a) detention, the parties did not contest “that the cost of conducting a bond hearing, to determine whether the continued detention of Petitioner is justified, is minimal”); Singh v. Barr, 400 F. Supp. 3d 1005, 1021 (S.D. Cal. 2019) (noting in the context of § 1226(a) detention that “[t]he government has not offered any indication that a [ ] bond hearing would have outside effects on its coffers”). Accordingly, the third Mathews factor weighs in favor of Petitioner. Based on the foregoing, all three Mathews factor weigh in favor of Petitioner, and Petitioner is entitled to a bond hearing. C. Remedy “The Court finds, consistent with other post-Jennings cases, that the appropriate remedy is a bond hearing before an immigration judge[.]” Lopez, 631 F. Supp. 3d at 882. The Court now turns to the burden of proof at the bond hearing and which party should bear such burden. Having “previously applied the canon of constitutional avoidance to interpret . . . immigration provisions—8 U.S.C. §§ 1225(b), 1226(c), and 1231(a)(6)—as providing a statutory right to a bond hearing once detention becomes prolonged,” the Ninth Circuit in Singh “concluded that for these hearings to comply with due process, the government had to bear the burden of proving by clear and convincing evidence that the alien poses a flight risk or a danger to the community.” Rodriguez Diaz, 53 F.4th at 1196 (citing Singh, 638 F.3d at 1203–05). Although Rodriguez Diaz may have declined to impose the standard articulated in Singh, the panel majority specifically stated that it was not “decid[ing] whether Singh remains good law in any respect following Jennings” and even recognized that Singh was based “on general principles of procedural due process, reasoning that a detained person’s liberty interest is substantial.” Rodriguez Diaz, 53 F.4th at 1202 n.4, 1199. Additionally, the Ninth Circuit has suggested post-Jennings that Singh remains good law in Martinez v. Clark, which took “no § 1226(c),” but did address “the scope of federal court review of those bond determinations” and found with respect to a bond hearing for a noncitizen detained under § 1226(c) that “the BIA properly noted that the government bore the burden to establish by clear and convincing evidence that Martinez is a danger to the community.” Martinez, 36 F.4th at 1223, 1231. On remand, and after Rodriguez Diaz was decided, the Martinez panel reconfirmed “that the government bore the burden to establish by clear and convincing evidence that Martinez is a danger to the community” and “that the BIA applied the correct burden of proof.” Martinez v. Clark, 124 F.4th 775, 785, 786 (9th Cir. 2024). Based on the foregoing, the Court finds that the government must justify Petitioner’s continued confinement under § 1225(b) by clear and convincing evidence that Petitioner is a flight risk or a danger to the community. See A.E. v. Andrews, No. 1:25-CV-00107-KES-SKO (HC), 2025 WL 1808676, at *1 (E.D. Cal. July 1, 2025) (directing respondent “to schedule a bond hearing before an immigration judge . . . wherein respondent must justify petitioner’s continued detention by clear and convincing evidence” in § 1225(b) context); Sanchez-Rivera v. Matuszewski, No. 22-cv-1357-MMA (JLB), 2023 WL 139801, at *7 n.5 (S.D. Cal. Jan. 9, 2023) (following “an overwhelming majority of courts that have held that the government must justify the continued confinement of a non-citizen detainee under § 1226(c) by clear and convincing evidence that the non-citizen is a flight risk or a danger to the community”). Further, in the event Petitioner is determined not to be a danger to the community and not to be so great a flight risk as to require detention without bond, the IJ should consider Petitioner’s financial circumstances or alternative conditions of release. See Hernandez v. Sessions, 872 F.3d 976, 1000 (9th Cir. 2017) (“Plaintiffs are likely to succeed on their challenge under the Due Process Clause to the government’s policy of allowing ICE and IJs to set immigration bond amounts without considering the detainees’ financial circumstances or alternative conditions of release.”); Black, 103 F.4th at 138 (The district court “correctly directed the immigration judge (‘IJ’), in setting his bond and establishing appropriate terms for his potential release, to consider his ability to pay and alternative means of assuring appearance.”). Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 1. The petition for writ of habeas corpus be GRANTED on Claim One; 2. Petitioner’s motion for temporary restraining order (ECF No. 2) be DENIED as moot; and 3. Respondent be directed to provide Petitioner with a bond hearing before an immigration judge within three (3) days that complies with the requirements set forth in Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011), at which a. “the government must prove by clear and convincing evidence that [Petitioner] is a flight risk or a danger to the community to justify denial of bond,” Singh, 638 F.3d at 1203, and b. the IJ should consider Petitioner’s financial circumstances or alternative conditions of release in the event Petitioner is determined not to be a danger to the community and not to be so great a flight risk as to require detention without bond. Hernandez v. Sessions, 872 F.3d 976, 1000 (9th Cir. 2017). This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within FOURTEEN (14) days after service of the Findings and Recommendation, any party may file written objections, no longer than fifteen (15) pages, including exhibits, with the Court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days after service of the objections. The assigned United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the \\\ right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5) Dated: _ August 7, 2026 [spe ey — UNITED STATES MAGISTRATE JUDGE 1]