Tamazi Obolashvili v. Kristi Noem, et al.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TAMAZI OBOLASHVILI, Case No. 1:26-cv-01362-JLT-CDB (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT IN PART PETITION FOR WRIT OF 13 v. HABEAS CORPUS

14 KRISTI NOEM, et al., (Doc. 1)

15 Respondents. 7-Day Objection Period 16 17 Petitioner Tamazi Obolashvili (“Petitioner”), a federal immigration detainee proceeding by 18 counsel, initiated this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 19 2241 on February 17, 2026, and a motion for temporary restraining order (“TRO”) the next day, 20 while in custody of the Immigration and Customs Enforcement (“ICE”) at the California City 21 Correctional Facility in California City. (Docs. 1, 8, 9). Respondents are Kristi Noem, Pamela 22 Bondi, Polly Kaiser, and Christopher Chestnut (collectively, “Respondents”). (Doc. 1 ¶¶ 12-15). 23 The presiding district judge denied Petitioner’s TRO motion because it is unnecessary and 24 would duplicate proceedings in light of the preexisting briefing schedule on the merits of the 25 petition. (Doc. 9) (citing Doc. 7). 26 For the reasons set forth herein, the undersigned recommends that Petitioner’s petition for 27 writ of habeas corpus be granted in part as to Petitioner’s claim for violation of his procedural due 28 process rights under the Fifth Amendment to the U.S. Constitution (“Count Six”). (Doc. 1 at 20). 1 The undersigned separately addresses Petitioner’s request to be refunded his costs/expenses in 2 securing return to his place of residence (Newark, New Jersey) following ICE’s allegedly unlawful 3 transfer of him following his arrest from that jurisdiction to this district. 4 I. Relevant Background 5 Based on Petitioner’s allegations and Respondents’ response to the petition, the relevant 6 facts largely are undisputed. See (Docs. 1, 8, 11).1 Petitioner is a native and citizen of the Republic 7 of Georgia who unlawfully entered the United States on December 21, 2023, in San Diego, 8 California. See (Doc. 1 ¶¶ 11, 16); (Doc. 8-1 at 4, “Ex. A”) (December 29, 2023, Notice to Appear); 9 (Doc. 11 at 1-2). Petitioner was arrested by ICE and placed into removal proceedings pursuant to 10 Section 240 of the Immigration and Naturalization Act (“INA”). See id.; Ex. A. On December 29, 11 2023, Petitioner was released on his own recognizance at the discretion of ICE subject to an order 12 of supervision. (Doc. 1 ¶¶ 11, 16-17); (Doc. 8-1 at 8, “Ex. B”) (December 29, 2023, OREC G-56 13 form informing that “[Petitioner] has been released into the United States at the discretion of the 14 U.S. Customs and Border Protection and are now subject to certain reporting requirements.”); (Doc. 15 11 at 12, “Ex. 1”) (“[Petitioner was] released on his own recognizance due to humanitarian reasons 16 and a lack of detention space.”). As a condition of his release, ICE instructed Petitioner to appear 17 before the New York local ICE Field Office to register for continued monitoring. (Doc. 1 ¶ 17). 18 The San Diego ICE Field Office also scheduled Petitioner to appear before the local New York 19 Immigration Court on November 19, 2024. Id. 20 Petitioner alleges that, following his release, he consistently complied with all conditions 21 of his supervised release, including registering with the New York ICE Field Office as instructed. 22 Id. Petitioner further alleges that he has retained private counsel to represent him before the 23 government in all of his immigration matters and has “uninterruptedly been in continuous 24 1 Notwithstanding the Court directed Respondents to provide the Court, in their response 25 to the petition, with copies of relevant portions of Petitioner’s A-File and other supporting documents, including notices to appear and orders relating to Petitioner’s release from custody 26 (Doc. 7), Respondents provided with their response only a Form I-213 dated the day of 27 Petitioner’s re-arrest by ICE (January 12, 2026) and purporting to summarize Petitioner’s immigration history. Thus, to the extent Respondents fail to proffer record evidence refuting 28 Petitioner’s allegations, those allegations are deemed true. 1 compliance with all remaining conditions of his [order of supervision].” Id. 2 Petitioner was re-detained by ICE officers on January 12, 2026, and alleges that he was 3 “unlawfully re-arrested” after he was instructed to appear for his regular check-ins with the New 4 Jersey ICE Field Office and was thereafter unlawfully transferred to Fresno County in California 5 where he is now being detained (in fact, Petitioner is in custody in Kern County). Id. at 18; (Doc. 6 11 at 2). Petitioner alleges that Respondents have not provided him with a custody hearing before 7 a neutral adjudicator to justify his re-arrest and continued detention, nor have Respondents 8 identified any material factual or legal change since his December 29, 2023, release that would 9 support revoking his status as released on his own recognizance. (Doc. 8 at 7). Petitioner separately 10 alleges that ICE’s transfer of Petitioner from the area of responsibility where he resides (Newark, 11 New Jersey) to this district violated ICE’s policy prohibiting such transfers unless certain 12 prerequisites are met, and that such a regulatory violation constitutes arbitrary and capricious action 13 under the Administrative Procedures Act (“APA”). 14 II. Governing Authority 15 A. The Writ of Habeas Corpus 16 Writ of habeas corpus relief extends to a person in custody under the authority of the United 17 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus 18 shall “award the writ or issue an order directing the respondent to show cause why the writ should 19 not be granted, unless it appears from the application that the applicant or person detained is not 20 entitled thereto.” 28 U.S.C. § 2243. 21 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus 22 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner 23 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443 24 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir. 25 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his 26 detention” in ICE custody). 27 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226) 28 Two statutes govern the detention and removal of inadmissible noncitizens from the United 1 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district 2 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal. 3 Sept 12, 2025), which the undersigned adopts herein: 4 1. Full Removal Proceedings and Discretionary Detention (§ 1226) 5 The “usual removal process” involves an evidentiary hearing before 6 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C. 7 § 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. 8 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while removal proceedings are pending, a noncitizen “may be arrested and 9 detained” and that the government “may release the alien on ... conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at 10 108 (during removal proceedings, applicant may either be “detained” or “allowed to reside in this country”). When a person is apprehended 11 under § 1226(a), an ICE officer makes the initial custody determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) 12 (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 13 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. 14 § 236.1(c)(8)).

15 “Federal regulations provide that aliens detained under § 1226(a) receive bond hearings at the outset of detention.” Jennings v. 16 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 17 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 18 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)). 19 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 20 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. 21 Cal. 2019). However, if an immigration judge has determined the noncitizen should be released, the DHS may not re-arrest that 22 noncitizen absent a change in circumstance. See Panosyan v. Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release 23 decision was made by a DHS officer, not an immigration judge, the Government’s practice has been to require a showing of changed 24 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017). 25 2. Expedited Removal and Mandatory Detention (§ 1225) 26

While “§ 1226 applies to aliens already present in the United States,” 27 U.S. immigration law also “authorizes the Government to detain certain aliens seeking admission into the country under 28 1 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a 2 noncitizen “who has not been admitted or who arrives in the United States” is considered “an applicant for admission.” 8 U.S.C. 3 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225 authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides 4 that:

5 “If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) 6 who is arriving in the United States or is described in clause (iii) is inadmissible under section 7 212(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 8 removed from the United States without further hearing or review unless the alien indicates either an 9 intention to apply for asylum under section 208 [8 USCS § 1158] or a fear of persecution.” 10 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer 11 to noncitizens who are inadmissible due to misrepresentation or failure to meet document requirements. Clause (iii) of § 1225(b)(1) 12 allows the Attorney General (who has since delegated the responsibility to the Department of Homeland Security Secretary) to 13 designate for expedited removal noncitizens “who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not 14 affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States 15 continuously for the 2-year period immediately prior to the date of the determination of inadmissibility under this subparagraph.” 16 § 1225(b)(1)(A)(iii)(II).

17 To summarize, under § 1225(b)(1), two groups of noncitizens are subject to expedited removal. First, there are “arriving” noncitizens 18 who are inadmissible due to misrepresentation or failure to meet document requirements. The implementing agency regulations 19 define “arriving alien” as applicants for admission “coming or attempting to come into the United States at a port-of-entry.” 8 20 C.F.R. § 1.2. The second group –designated noncitizens –includes noncitizens who meet all of the following criteria: (1) they are 21 inadmissible due to lack of a valid entry document or misrepresentation; (2) they have not “been physically present in the 22 United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility”; and (3) they are 23 among those whom the Secretary of Homeland Security has designated for expedited removal. Thuraissigiam, 591 U.S. at 109; § 24 1225(b)(1).

25 “Initially, DHS’s predecessor agency did not make any designation [under (3)], thereby limiting expedited removal only to ‘arriving 26 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 27 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS extended by designation expedited removal to noncitizens who arrive 28 by sea and who have been present for fewer than two years, and to 1 noncitizens apprehended within 100 air miles of any U.S. international land border who entered within the last 14 days. Id. This 2 was the status quo until January 2025, when the Department of Homeland Security revised its § 1225 designation to “apply 3 expedited removal to the fullest extent authorized by statute.” Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan. 4 24, 2025). Under this designation, expedited removal applies to noncitizens encountered anywhere within the United States, who 5 have been in the United States for less than two years and are inadmissible for lack of valid documentation or misrepresentation. In 6 short, expedited removal was expanded to apply for the first time to vast numbers of noncitizens present in the interior of the United 7 States.

8 Under the expedited removal statute § 1225(b)(1), if an applicant “indicates either an intention to apply for asylum” or “a fear of 9 persecution,” the immigration officer “shall refer the alien for an interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the 10 asylum officer determines that the applicant has a “credible fear,” the applicant “receive[s] ‘full consideration’ of his asylum claim in a 11 standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the officer determines there is no “credible fear,” the officer “shall order 12 the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may 13 be appealed by the applicant to an immigration judge, who must conduct the review “to the maximum extent practicable within 24 14 hours, but in no case later than 7 days after the date of the determination.” Id. Detention under § 1225(b)(1) is “mandatory” 15 “pending a final determination of credible fear of persecution and if found not to have such a fear, until removed.” Id. (citing 16 § 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under this clause shall be detained pending a final determination of credible 17 fear of persecution and, if found not to have such a fear, until removed.”) 18 [Section] 1225 also contains a provision that applies to applicants for 19 admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287. This provision, 1225(b)(2), states that, subject to statutory 20 exceptions, “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking 21 admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [full 22 removal proceedings] of this title.” § 1225(b)(2). In other words, noncitizens subject to 1225(b)(2) are not eligible for expedited 23 removal but are subject to mandatory detention while their full removal proceedings are pending. This is in contrast to the default 24 detention regime under § 1226(a), which allows for discretionary release and review of detention through a bond hearing. 25 3. The Government’s Recent Change in Position 26 Until this year, the DHS has applied § 1226(a) and its discretionary 27 release and review of detention to the vast majority of noncitizens allegedly in this country without valid documentation. This practice 28 was codified by regulation. The regulations implementing the Illegal 1 Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) state that “Despite being applicants for admission, aliens 2 who are present without having been admitted or paroled (formerly referred to as aliens who entered without inspection) will be eligible 3 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997). In fact, the government has conceded in other 4 contexts that “DHS’s long-standing interpretation has been that 1226(a) [discretionary detention] applies to those who have crossed 5 the border between ports of entry and are shortly thereafter apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of 6 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785 (2022) (No. 21-954)) . . . 7 In 2025, however, the Government’s policy changed dramatically. 8 The DHS revised its § 1225 designation to “apply expedited removal to the fullest extent authorized by statute.” Designating Aliens for 9 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis added). The Secretary of Homeland Security memorandum directed 10 federal immigration officers to “consider ... whether to apply expedited removal” to “any alien DHS is aware of who is amenable 11 to expedited removal but to whom expedited removal has not been applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps 12 to terminate any ongoing removal proceeding and/or any active parole status.” Id. The memorandum states that DHS shall take the 13 actions contemplated by the memorandum “in a manner that takes account of legitimate reliance interests,” but states that “the 14 expedited removal process includes asylum screening, which is sufficient to protect the reliance interests of any alien who has 15 applied for asylum or planned to do so in a timely manner.” Huffman Memorandum (Jan. 23, 2025). 16 Since mid-May of 2025, the Department of Homeland Security has 17 made a practice of appearing at regular removal proceedings in immigration court, moving to dismiss the proceedings, and then re- 18 arresting the individual in order to place them in expedited removal proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does 19 not dismiss the full removal proceedings, ICE still makes an arrest, apparently in reliance on § 1225(b)(2)’s detention provision. 20 21 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted). 22 C. Parole Revocation 23 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole 24 process in immigration cases and noted that before parole may be revoked, the parolee must be 25 given written notice of the impending revocation, which must include a cogent description of the 26 reasons supporting the revocation decision. The court held:

27 Section 1182 . . . has a subsection titled “Temporary admission of nonimmigrants,” which allows noncitizens, even those in required 28 detention, to be “paroled” into the United States. This provision, at 1 issue in this case, states:

2 The Secretary of Homeland Security may, except as provided in subparagraph (B) or in section 1184(f) of this 3 title, in his discretion parole into the United States temporarily under such conditions as he may prescribe 4 only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying 5 for admission to the United States, but such parole of such alien shall not be regarded as an admission of the 6 alien and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security, 7 have been served the alien shall forthwith return or be returned to the custody from which he was paroled 8 and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for 9 admission to the United States. 10 8 U.S.C. § 1182(d)(5)(A). 11 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act, 12 immigration parolees are entitled to determinations related to their parole revocations that are not 13 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and 14 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[] 15 a satisfactory explanation for its action including a rational connection between the facts found and 16 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of 17 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall, 18 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith 19 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R. 20 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where 21 the immigrant has departed or when the specified period of parole has expired. 22 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128 23 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision 24 to revoke humanitarian parole:

25 This Court agrees that both common sense and the words of the statute require parole revocation to be analyzed on a case-by-case 26 basis and that a decision to revoke parole “must attend to the reasons an individual [noncitizen] received parole.” See id. There is no 27 indication in the record that the government conducted any such analysis here. On the contrary, the letter Mata Velasquez received 28 1 merely stated summarily that DHS had “revoked [his] parole.” Docket Item 62-1 at 5. Thus, there is no indication that—as required 2 by the statute and regulations—an official with authority made a determination specific to Mata Velasquez that either “the purpose for 3 which [his] parole was authorized” has been “accomplish[ed]” or that “neither humanitarian reasons nor public benefit warrants [his] 4 continued presence...in the United States.” See 8 C.F.R. § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s 5 parole violated his rights under the statute and regulations. See Y-Z- L-H, 2025 WL 1898025, at *13. 6 7 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached 8 a similar conclusion relying on the Due Process Clause:

9 . . . even when ICE has the initial discretion to detain or release a noncitizen pending removal proceedings, after that individual 10 is released from custody she has a protected liberty interest in remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508, 11 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court joins other courts of this district facing facts similar to the present 12 case and finds Petitioner raised serious questions going to the merits of his claim that due process requires a hearing before an IJ prior to 13 re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021 WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v. 14 Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal. Aug. 23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on 15 preparole, parole, and probation status have a liberty interest, so too does [a noncitizen released from immigration detention] have a 16 liberty interest in remaining out of custody on bond.”). 17 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra, 18 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t, 19 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that 20 non-punitive detention violates the Constitution unless it is strictly limited, and, typically, 21 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the 22 imprisonment serves the government’s legitimate goals.”). 23 III. Exhaustion 24 A. Governing Authority 25 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before 26 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing 27 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires 28 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative 1 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United 2 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is 3 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been 4 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)). 5 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it 6 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.” 7 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 8 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although 9 courts have discretion to waive the exhaustion requirement when it is prudentially required, this 10 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion 11 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v. 12 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring 13 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly 14 to be disregarded.”). 15 B. Analysis 16 Petitioner asserts that prudential exhaustion is not appropriate here where the Board of 17 Immigration Appeals’ (“BIA”) decision in Matter of Yajure Hurtado, 29 I&N Dec. 216, 228 (BIA 18 2025), is binding on immigration judges, rendering exhausting administrative remedies futile. 19 (Doc. 1 ¶ 42). Petitioner argues that the exhaustion requirement should be waived because 20 requiring such would inflict additional irreparable injury to the continuing loss of his fundamental 21 right to liberty. Id. Respondents do not address exhaustion in their filing. See (Doc. 11). 22 The Court finds that the prudential exhaustion requirement should be waived as it would be 23 futile to seek release by administrative means given Respondents’ position that Petitioner is subject 24 to mandatory detention under § 1225(b)(1). See (Doc. 11); Jennings v. Rodriguez, 583 U.S. 281, 25 282 (2018) (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings 26 during the course of their detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 27 2022). Further, the BIA has held that all noncitizens present within the country without admission 28 are seeking admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. 1 v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 2 2025) (“In addition, pursuit of administrative remedies would almost certainly be futile given the 3 BIA’s recent holding that all noncitizens present in the United States without admission are 4 ‘seeking admission’ for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing 5 Hurtado, 29 I&N Dec. 216). 6 For these reasons, the undersigned recommends that the prudential exhaustion requirement 7 be waived for Petitioner’s claim for habeas corpus relief. See, e.g, Chavez v. Noem, No. 3:25-cv- 8 02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving prudential 9 exhaustion requirement because the BIA “already applied its expertise in deciding and designating” 10 Hurtado as precedential, pursuant to which detainees are subject to mandatory detention without 11 bond under § 1225(b)(2)); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1253 (W.D. Wash. 2025) 12 (“The Ninth Circuit has recognized ‘the irreparable harms imposed on anyone subject to 13 immigration detention.’”) (citing Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017)); 14 J.A.C.P., 2025 WL 3013328, at *7 n.9. 15 IV. Discussion 16 As set forth below, because the undersigned finds that Respondents have violated 17 Petitioner’s constitutional rights to procedural due process, and because Petitioner’s other claims 18 seek the same or similar relief (i.e., for immediate release and to enjoin Respondents from re- 19 detaining Petitioner unless his re-detention is justified at a custody hearing before a neutral arbiter 20 in which the government bears the burden of proof), the undersigned declines to address 21 Petitioner’s other claims. See (Doc. 1 at 21-22). 22 A. Procedural Due Process 23 1. Governing Authority 24 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be 25 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995 26 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects 27 individuals against two types of government action’: violations of substantive due process and 28 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)). 1 “Procedural due process imposes constraints on governmental decisions which deprive 2 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the 3 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from 4 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 5 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 6 “Procedural due process requires that, even where a deprivation of liberty survives substantive due 7 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52 8 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer 9 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal 10 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The 11 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in 12 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process 13 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey 14 v. Brewer, 408 U.S. 471, 481 (1972). 15 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 16 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 17 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the 18 Due Process Clause stands as a significant constraint on the manner in which the political branches 19 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled 20 that ‘due process requires adequate procedural protections to ensure that the government’s asserted 21 justification for physical confinement outweighs the individual's constitutionally protected interest 22 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d 23 1196, 1203 (9th Cir. 2011)). 24 2. Analysis 25 On Petitioner’s as-applied procedural due process challenge to his continuing detention by 26 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty 27 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any 28 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews, 1 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky 2 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). 3 Petitioner has an underlying, continuing liberty interest in being free from re-detention. 4 Specifically, Petitioner was released at the discretion of immigration authorities and subject to 5 supervisory conditions more than two years prior to his re-detention on January 12, 2026. See 6 (Doc. 1 ¶¶ 11, 16); (Doc. 8-1 at 8, Ex. B); (Doc. 11 at 12, Ex. 1). In releasing Petitioner, 7 immigration officials necessarily determined that Petitioner did not present a risk of flight or danger 8 to the community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest 9 may, in the officer’s discretion, release an alien not described in section 236(c)(1) of the Act, under 10 the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to 11 the satisfaction of the officer that such release would not pose a danger to property or persons, and 12 that the alien is likely to appear for any future proceeding.”). Accord Rodriguez Diaz, 53 F.4th at 13 1196. Petitioner remained released from immigration detention for a significant amount of time, 14 approximately two years. (Doc. 1 ¶ 20). Petitioner has complied with all conditions of his 15 supervised release, including registering and reporting requirements in all of his immigration 16 matters. Id. ¶ 17. Respondents do not dispute that Petitioner complied with the conditions of his 17 release, nor do they proffer facts to suggest Petitioner is a danger to the public or a flight risk. See 18 (Doc. 11). 19 The undersigned agrees with other courts and other judges of this Court that noncitizens 20 released from immigration custody on general orders of supervision or on their own recognizance 21 have a liberty interest in their freedom that implicates protections under principles of procedural 22 due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The 23 fact that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks 24 a protectable liberty interest and can be re-detained without process.”); see id. (“[E]ven if 25 immigration detainees must wait months before a periodic re-review of their detention, those 26 already released on immigration bond possess an interest in their continued liberty, which grows 27 over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun v. 28 Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1099 1 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy 2 duration of his conditional release as well as the meaningful connections Petitioner seems to have 3 made with his community during that time create a powerful interest for Petitioner in his continued 4 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5- 5 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an 6 individual, a protected liberty interest under the Due Process Clause may entitle the individual to 7 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES- 8 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily 9 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained 10 in continuous custody and never released on supervision). 11 Respondents assert that Petitioner is an “applicant for admission” pursuant to 8 U.S.C. § 12 1225(a) and is “subject to mandatory detention under § 1225(b)(1).” (Doc. 11 at 3; citing, inter 13 alia, Alonzo v. Noem, No. 1:25-cv-01519 WBS SCR, 2025 WL 3208284 (E.D. Cal. Nov. 17, 14 2025)). The petitioners’ circumstances in Alonzo are factually dissimilar from those presented here, 15 as another judge of this Court has explained: Petitioner here was detained by DHS and released, 16 and immigration proceedings have remained pending for a significant period of time. See Garcia 17 v. Chesnut, No. 1:25-cv-01907-JLT-CDB, 2025 WL 3771348, at *8 (E.D. Cal. Dec. 31, 2025) 18 (“However, unlike here, the petitioners in Valencia and Alonzo had never been encountered, let 19 alone processed, by immigration officials, and had not been released on recognizance pending 20 completion of Section 240 removal proceedings.”). 21 Additionally, other judges of this Court, as well as many other courts, have considered and 22 rejected the government’s arguments, finding that Section 1226(a), not Section 1225(b)(2), 23 provides the appropriate framework for noncitizens released following their initial encounter with 24 immigration authorities and have resided in the United States for a significant period, like Petitioner 25 here. See, e.g., H.J.G.G. v. Wofford, No. 1:25-cv-01718-JLT-EPG-HC, 2025 WL 3761803, at *4 26 (E.D. Cal. Dec. 30, 2025) (citing Castillo v. Wofford, No. 1:25-cv-01586-JLT-HBK, 2025 WL 27 3466064, at *8 (E.D. Cal. Dec. 2, 2025)); accord Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919, 28 935-37 (N.D. Cal. 2025), appeal filed, No. 25-7472 (9th Cir. Nov. 26, 2025). Under such 1 circumstances, “the government cannot switch tracks” and subject Petitioner to mandatory 2 detention now under section 1225(b)(2) “after it previously released him on his own recognizance 3 under section 1226(a).” Valencia Zapata, 801 F. Supp. 3d at 936; accord Souza v. Robbins, No. 4 1:25-cv-01597-DJC-JDP, 2025 WL 3263897, at *2 (E.D. Cal. Nov. 23, 2025). 5 Because Petitioner has shown he has a protected liberty interest to remain free from re- 6 detention based on his discretionary release on December 29, 2023, without incident, the 7 undersigned must determine what process is due before the government may terminate that liberty 8 interest. To determine this, the undersigned considers the following factors articulated in Mathews: 9 “[(1)] the private interest that will be affected by the official action; [(2)] the risk of an erroneous 10 deprivation of such interest through the procedures used, and the probable value, if any, of 11 additional or substitute procedural safeguards; and [(3)] the Government’s interest, including the 12 function involved and the fiscal and administrative burdens that the additional or substitute 13 procedural requirement would entail.” Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993- 14 94 (applying Mathews test in immigration detention context); id. at 993 (“The appropriateness of 15 the requirement that ICE and IJs consider financial circumstances and alternative conditions of 16 release is confirmed by the balance of factors under Mathews[.]”). 17 As to the first factor, Petitioner has shown he has a significant private interest in remaining 18 on release from detention. He had been released from immigration custody for over two years prior 19 to his re-detention. He alleges, and Respondents do not dispute, that he has consistently complied 20 with all conditions of his supervised release, has “uninterruptedly been in continuous compliance 21 with all remaining conditions of his [order of supervision,]” and that Respondents have not 22 provided him with a bond hearing to justify his re-arrest and continued detention nor have they 23 identified any material factual or legal change since his he was released on December 29, 2023, 24 that would support revoking his status on release. (Doc. 1 ¶ 17); (Doc. 8 at 7). Further, Petitioner 25 has alleged and Respondents Petitioner’s continued liberty interest in remaining on release is 26 undermined by his re-detention without a bond hearing. Doe, 787 F. Supp. 3d at 1093-94 27 (“Freedom from imprisonment is at the core of the Due Process Clause…. The lengthy duration of 28 his conditional release as well as the meaningful connections [he] seems to have made with his 1 community during that time create a powerful interest for [him] in his continued liberty.”). 2 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest 3 is considerable here where he has not received any bond or custody redetermination. Id. at 1094; 4 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 5 2025). Because there were no procedural safeguards to determine if Petitioner’s re-detention was 6 justified, and Respondents present no facts indicating any change in circumstances while Petitioner 7 was on release sufficient to justify Petitioner’s re-detention, the probable value of the additional 8 procedural safeguard of a bond hearing to determine whether Petitioner is a flight risk or a danger 9 to the community is high such that this factor weighs in favor of granting a bond hearing. See Doe, 10 787 F. Supp. at 1094 (“[G]iven that Petitioner was previously found to not be a danger or risk of 11 flight and the unresolved questions about the timing and reliability of the new information, the risk 12 of erroneous deprivation remains high.”); A.E., 2025 WL 1424382 at *5; Ramazan, 2025 WL 13 3145562, at *6. Therefore, this factor weighs in favor of granting a bond hearing. 14 Third, the government’s interest in detaining Petitioner without a bond hearing is low, 15 particularly given that Petitioner remained out of custody and was successfully supervised by 16 immigration authorities prior to his re-arrest and detention. Doe, 787 F. Supp. 3d at 1094 (citation 17 omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019)); Diaz v. Kaiser, No. 3:25- 18 cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) (“And, like other Courts in this 19 district, the Court concludes that the government’s interest in re-detaining Petitioner-[] without a 20 hearing is ‘low,’ particularly in light of the fact that Petitioner[] has long complied with his 21 reporting requirements.”). “The effort and cost to provide Petitioner with [a bond hearing] is 22 minimal[.]” Doe, 787 F. Supp. 3d at 1094. Therefore, any additional burden from requiring the 23 government to seek a bond hearing before it may re-detain Petitioner does not outweigh his liberty 24 interest and the risk of erroneous deprivation. Accordingly, this factor weighs in favor of granting 25 a bond hearing. 26 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s 27 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest 28 on January 12, 2026, and continuous and continuing detention thereafter. 1 B. Petitioner’s Other Claims and Request for Relief 2 Because the undersigned finds that the Court may grant the full relief Petitioner seeks—for 3 immediate release and to enjoin Respondents from re-detaining Petitioner unless his re-detention 4 is justified at a custody hearing before a neutral arbiter in which the government bears the burden 5 of proof—in recommending that the writ should issue as to Petitioner’s claim for violation of 6 procedural due process, the undersigned declines to address Petitioner’s other claims which seek 7 the same or similar relief. 8 Petitioner asserts in the petition that, following his release from custody, he “will seek” that 9 Respondents “refund Petitioner his costs and expenses in securing his return to his place of 10 residence from where he was unlawfully transferred to the present California City Immigration 11 Processing Center.” (Doc. 1 ¶ 9). This request for relief is not referred to in or expressly associated 12 with any of his seven causes of action (each denominated in the petition as a “Count”). Thus, for 13 instance, Petitioner has not advanced a cause of action for relief, whether declaratory or otherwise, 14 seeking a ruling by this Court that his transfer was unlawful. Rather, Petitioner references 15 allegations in the body of the petition that ICE transferred him outside the area of responsibility 16 where he resides (Newark, New Jersey) to this district in violation of ICE Policy 11022.1, which 17 prohibits such transfers unless certain prerequisites are met, and that such a regulatory violation 18 constitutes arbitrary and capricious action under the Administrative Procedures Act (“APA”). See 19 (Doc. 1 ¶ 31-35). 20 A copy of ICE Policy 11022.1 (“Detainee Transfers”), reflecting an effective date of 21 January 4, 2012, is attached to the petition. (Doc. 1-1 at Ex. B). It is unclear whether the policy 22 remains in effect; however, the same version of the policy is available on ICE’s website and 23 Respondents do not challenge its authenticity or effectiveness.2 In their response to the petition, 24 Respondents did not address or acknowledge Petitioner’s arguments or this specific request for

25 2 https://www.ice.gov/doclib/detention-reform/pdf/hd-detainee-transfers.pdf (last visited Mar. 12, 2026). See Daniels-Hall v. National Edu. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) 26 (“It is appropriate to take judicial notice of this information, as it was made publicly available by 27 government entities ... and neither party disputes the authenticity of the web sites or the accuracy of the information displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F. Supp. 3d 1028, 1034 28 (E.D. Cal. 2024) (taking judicial notice of information on federal government agency's website). 1 relief and did not proffer evidence suggesting that Petitioner’s transfer satisfied the prerequisites to 2 out-of-area detainee transfer set forth in ICE Policy 11022.1. 3 Given that Petitioner has not associated his request for anticipated travel expense 4 reimbursement to any of his denominated claims for relief and because he appears to allege only 5 that he will seek such an award only if and after he is released from custody, the undersigned 6 declines to address the issue further given it does not appear to be ripe. 7 C. Remedy 8 Respondents do not assert that Petitioner is a flight risk or a danger to the community. As 9 § 1225(b) does not apply to Petitioner, the government may not detain him pursuant to § 1225(b)(1) 10 and his detention violates his procedural due process rights. And because Respondents do not 11 provide any other basis to detain Petitioner and do not assert any risk of flight or danger to the 12 community, the appropriate remedy is Petitioner’s immediate release. 13 Further, the undersigned will recommend that in the event the government seeks to re-detain 14 Petitioner, the government must provide notice to Petitioner a minimum of seven (7) days in 15 advance and must hold a bond hearing before a neutral arbiter pursuant to § 1226(a) and applicable 16 regulations, at which Petitioner’s eligibility for bond must be considered. Ordinarily, the Petitioner 17 bears the burden of demonstrating by a preponderance of the evidence at a bond hearing that he is 18 neither a flight risk nor a danger to the community. Rodriguez Diaz, 53 F.4th at 1197. But as set 19 forth above, the BIA has held that all noncitizens within the country without admission are subject 20 to mandatory detention under § 1225(b)(1). See J.A.C.P., 2025 WL 3013328, at *7 (citing Hurtado, 21 29 I&N Dec. 216). 22 Accordingly, the undersigned will recommend adopting the prevailing view endorsed by 23 judges of this Court that, under the circumstances presented here, if Respondents seek to re-detain 24 Petitioner, Respondents be compelled to provide Petitioner a bond redetermination hearing at which 25 the government will bear the burden of establishing, by clear and convincing evidence, that 26 Petitioner poses a danger to the community or a risk of flight. “Doing so is logical” because “the 27 immigrant’s initial release reflected a determination by the government that the noncitizen is not a 28 danger to the community or a flight risk. Since it is the government that initiated re-detention, it 1 follows that the government should be required to bear the burden of providing a justification for 2 the re-detention.” M.R.R. v. Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 3265446, at *14 3 (E.D. Cal. Nov. 24, 2025) (relying on Pinchi, 792 F. Supp. 3d at 1034, 1038); accord Omer G. G. 4 v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025). 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 in part as to Petitioner’s 8 procedural due process claim arising under the Fifth Amendment to the U.S. 9 Constitution (Count Six). 10 2. Respondents be ORDERED to release Petitioner immediately. 11 3. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless 12 the government provides notice to Petitioner a minimum of seven (7) days in advance 13 and holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and 14 applicable regulations, at which Petitioner’s eligibility for bond must be considered, 15 and where the government must demonstrate by clear and convincing evidence that 16 Petitioner is a flight risk or danger to the community, such that physical custody is 17 legally justified. 18 4. Respondents retain recourse to their statutory authorities to detain Petitioner in the 19 event that an executable final order of removal is issued, and Petitioner receives notice 20 of this order, for the sole purpose of executing removal pursuant to the final order of 21 removal. 22 5. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this 23 case. 24 These findings and recommendations will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days 26 after being served with these findings and recommendations, the parties may file written objections 27 with the Court. Although this objection period is shorter than provided by Local Rule, such an 28 adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S. 1 | Constitution by Respondents, and the fact that the parties have extensively briefed the issues 2 | involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court 3 | may require a response within a shorter period if exigencies of the calendar require.”). Any 4 | objections filed should be captioned, “Objections to Magistrate Judge’s Findings and 5 | Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. 6 | The Court will not consider exhibits attached to the Objections. To the extent a party wishes to 7 | refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document 8 | and page number, when possible, or otherwise reference the exhibit with specificity. Any pages 9 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 10 | these findings and recommendations under 28 U.S.C. § 636(b)(1)(C). The parties are advised that 11 | failure to file objections within the specified time may result in the waiver of rights on appeal. 12 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 13 | 1394 (9th Cir. 1991)). 14 | ITIS SO ORDERED. | Dated: _ Mareh 12, 2026 | Word by 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 20