Wilfran Rafael Vargas Sivira v. Kristi Noem, et al.

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 WILFRAN RAFAEL VARGAS SIVIRA, Case No. 1:25-cv-01987-KES-EPG-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITION FOR WRIT OF 13 v. HABEAS CORPUS AND ORDER PETITIONER’S IMMEDIATE RELEASE 14 KRISTI NOEM, et al., 15 Respondents.

16 17 Petitioner, represented by counsel, is an immigration detainee proceeding with a petition 18 for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the 19 undersigned recommends granting the petition for writ of habeas corpus and ordering 20 Petitioner’s immediate release. 21 I. 22 BACKGROUND 23 Petitioner is a citizen of Venezuela who last entered the United States on August 23, 24 2022. He was paroled by the Department of Homeland Security (“DHS”) under 8 U.S.C. 25 § 1182(d)(5)(A) on that same date. After being paroled, Petitioner was granted Temporary 26 Protected Status (“TPS”)1 and given work authorization by DHS. He filed an I-589 Asylum

27 1 “Pursuant to the TPS statute, 8 U.S.C. § 1254a, the DHS Secretary may designate a foreign state for TPS when nationals of that state cannot return there safely due to armed conflict, natural disaster, or other 1 Application based on his fear of return to Venezuela. He has been gainfully employed at a 2 mattress factory. (ECF No. 1 at 14.) 3 Petitioner has no criminal history and has been complying with parole requirements by 4 appearing at scheduled check-ins with U.S. Immigration and Customs Enforcement (“ICE”). It 5 was at one of these check-ins at the Dallas Field Office where Petitioner was detained on 6 October 22, 2025. DHS served Petitioner with a Notice to Appear (“NTA”), placing him in 7 removal proceedings and charging him with being removable under 8 U.S.C. § 1182(a)(7)(B). 8 (ECF No. 1 at 14.) 9 On December 23, 2025, Petitioner filed the instant petition for writ of habeas corpus, 10 challenging his re-detention as violative of due process. (ECF No. 1.) Respondents have filed a 11 return, and Petitioner filed a traverse. (ECF Nos. 11, 12.) 12 II. 13 DISCUSSION 14 In his sole claim for relief, Petitioner asserts that he “has a fundamental interest in liberty 15 and being free from official restraint” and that the “government’s detention of Petitioner without 16 a bond redetermination hearing to determine whether he is a flight risk or danger to others 17

18 remain temporarily in the United States is contrary to the national interest of the United States.’” Nat’l TPS All. v. Noem, 150 F.4th 1000, 1010 (9th Cir. 2025) (quoting 8 U.S.C. § 1254a(b)(1)(C)). “Such a 19 designation permits certain nationals of the foreign state, who have continuously resided in the United States since the effective date of the designation, to register for employment authorization and protection 20 from deportation for the duration of the TPS period.” Nat’l TPS All., 150 F.4th at 1010 (citing 8 U.S.C. § 1254a(a)(1), (b)(2)). “Other restrictions apply: applicants must be ‘admissible’ under the immigration 21 laws, id. § 1254a(c)(1)(A)(iii); they must not have been ‘convicted of any felony or 2 or more misdemeanors committed in the United States,’ id. § 1254a(c)(2)(B)(i); and they risk revocation of status if the Secretary ‘finds that the [noncitizen] was not in fact eligible for such status,’ id. § 1254a(c)(3)(A).” 22 Nat’l TPS All., 150 F.4th at 1010. “An alien provided temporary protected status under this section shall not be detained by the Attorney General on the basis of the alien’s immigration status in the United 23 States.” 8 U.S.C. § 1254(d)(4). “In March of this year, the United States District Court for the Northern District of California 24 entered a preliminary order postponing the effective date of the Secretary of Homeland Security’s decision to remove ‘temporary protected status’ (TPS) from Venezuelan nationals living in the United 25 States.” Noem v. Nat’l TPS All., 146 S. Ct. 23, 23–24 (2025) (mem.). “In May, [the Supreme] Court stayed that order while the Government appealed. The United States Court of Appeals for the Ninth 26 Circuit ultimately affirmed the District Court’s preliminary order.” Id. at 24. In September, “the District Court entered final judgment in respondents’ favor, holding unlawful and setting aside the Secretary’s actions effectuating her decision—namely, her vacatur of a pending extension of TPS for Venezuelan 27 nationals, and her termination of that status itself.” Id. On October 3, 2025, the Supreme Court granted the government’s application for stay, id., thereby allowing the Secretary’s vacatur and termination of 1 violates his right to due process.” (ECF No. 1 at 50–51.) “Respondents acknowledge that the 2 weight of authority is not in their favor in section 1225(b)(2) cases, but oppose the habeas 3 petition, as well as any motion for injunctive relief, for the reasons set forth in Matter of Yajure 4 Hurtado, 29 I & N Dec. 216 (BIA 2025) . . . as well as cases such as Valencia v. Chestnut, No. 5 25-cv-01550, 2025 WL 3205133 (E.D. Cal. Nov. 17, 2025)[.]” (ECF No. 11 at 1–2.) 6 “We examine procedural due process questions in two steps: the first asks whether there 7 exists a liberty or property interest which has been interfered with by the State; the second 8 examines whether the procedures attendant upon that deprivation were constitutionally 9 sufficient.” Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal citations 10 omitted). 11 A. Liberty Interest 12 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including 13 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. 14 Davis, 533 U.S. 678, 693 (2001). “Freedom from imprisonment—from government custody, 15 detention, or other forms of physical restraint—lies at the heart of the liberty that Clause 16 protects.” Id. at 690. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court addressed 17 whether due process requires a parolee be afforded some opportunity to be heard prior to 18 revocation of parole. 408 U.S. at 472. In examining “the nature of the interest of the parolee in 19 his continued liberty,” the Supreme Court stated: 20 The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The 21 parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and 22 function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free 23 to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him 24 to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. . . . The 25 parolee has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions. 26 27 Morrissey, 408 U.S. at 482. The Supreme Court found “that the liberty of a parolee, although 1 a ‘grievous loss’ on the parolee and often on others” and held that “the liberty is valuable and 2 must be seen as within the protection of” due process. Morrissey, 408 U.S. at 482. 3 Relying on Morrissey, courts in this district have consistently held that noncitizens who 4 have been released from immigration custody pending civil removal proceedings have a 5 protected liberty interest in remaining out of immigration custody. See, e.g., Doe v. Becerra, 787 6 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); J.A.E.M. v. Wofford, No. 1:25-cv-01380-KES-HBK 7 (HC), 2025 WL 3013377, at *3–6 (E.D. Cal. Oct. 27, 2025); J.C.L.A. v. Wofford, No. 1:25-cv- 8 01310-KES-EPG (HC), 2025 WL 2959250, at *3–5 (E.D. Cal. Oct. 17, 2025); Qazi v. Albarran, 9 No. 2:25-cv-02791-TLN-CSK, 2025 WL 3033713, at *4 (E.D. Cal. Oct. 10, 2025); Martinez 10 Hernandez v. Andrews, No. 1:25-cv-01035 JLT HBK, 2025 WL 2495767, at *10 (E.D. Cal. 11 Aug. 28, 2025); Yang v. Kaiser, No. 2:25-cv-02205-DAD-AC (HC), 2025 WL 2791778, at *8 12 (E.D. Cal. Aug. 20, 2025); Maklad v. Murray, No. 1:25-cv-00946 JLT SAB, 2025 WL 2299376, 13 at *7–8 (E.D. Cal. Aug. 8, 2025). 14 “Many district courts in the Ninth Circuit have found that non-citizens paroled into the 15 United States pursuant to § 1182(d)(5) have a liberty interest in their continued release, entitling 16 them to certain due process protections, the extent of which are determined by applying the test 17 provided in Mathews v. Eldridge, 424 U.S. 319, 335 (1976).” Rocha Chavarria v. Chestnut, No. 18 1:25-CV-01755-DAD-AC, 2025 WL 3533606, at *3 (E.D. Cal. Dec. 9, 2025). See Omer G. G. v. 19 Kaiser, No. 1:25-CV-01471-KES-SAB (HC), 2025 WL 3254999, at *6 (E.D. Cal. Nov. 22, 20 2025) (“Under the circumstances of this case, where immigration officials provided to petitioner 21 a document stating that he was released ‘pending a final decision’ in his removal proceedings, 22 petitioner had not even had his initial hearing in those removal proceedings, and petitioner was 23 granted a five-year work authorization permit during his year on parole status, petitioner 24 reasonably maintained a liberty interest in his release pending a final removal decision in his 25 immigration case.”); Maklad v. Murray, No. 1:25-CV-00946 JLT SAB, 2025 WL 2299376, at *8 26 (E.D. Cal. Aug. 8, 2025) (finding petitioner has a protected liberty interest after having been 27 released on parole for nearly three years). 1 “Even assuming Respondents are correct that § 1225(b) is the applicable detention 2 authority for all ‘applicants for admission,’ Respondents fail to contend with the liberty interest 3 created by the fact that the Petitioner in this case was released on recognizance[.]” Garcia v. 4 Chestnut, No. 1:25-cv-01907-JLT-CDB, 2025 WL 3771348, at *9 (E.D. Cal. Dec. 31, 2025). 5 Accordingly, the undersigned recommends finding that Petitioner has a protected liberty interest 6 in remaining out of immigration custody. 7 B. Mathews Test 8 In Mathews, the Supreme Court held that “identification of the specific dictates of due 9 process generally requires consideration of three distinct factors”: 10 First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through 11 the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s 12 interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural 13 requirements would entail. 14 Mathews, 424 U.S. at 334. 15 With respect to the first factor, the Court finds that the private interest at issue is 16 fundamental. The Ninth Circuit has recognized that it “is beyond dispute” an immigration 17 detainee’s “private interest at issue here is ‘fundamental’: freedom from imprisonment is at the 18 ‘core of the liberty protected by the Due Process Clause.’” Hernandez v. Sessions, 872 F.3d 976, 19 993 (9th Cir. 2017) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). 20 “Second, the risk of erroneous deprivation is high when, as here, parole is revoked 21 without written notice or reason.” Rocha Chavarria, 2025 WL 3533606, at *4. “Civil 22 immigration detention, which is ‘nonpunitive in purpose and effect[,]’ is justified when a 23 noncitizen presents a risk of flight or danger to the community.” Omer G. G. v. Kaiser, No. 1:25- 24 cv-01471-KES-SAB (HC), 2025 WL 3254999, at *7 (E.D. Cal. Nov. 22, 2025) (alteration in 25 original) (quoting Zadvydas, 533 U.S. at 690). Petitioner’s release on parole necessarily required 26 a determination that he posed neither a flight risk nor a danger. Rocha Chavarria, 2025 WL 27 3533606, at *4 (citing 8 C.F.R. § 212.5(b); Noori v. Larose, No. 25-cv-1824-GPC-MSB, 2025 1 (N.D. Cal. 2017) (“The federal government sometimes releases noncitizens on bond or parole 2 while their removal proceedings are pending. Release reflects a determination by the government 3 that the noncitizen is not a danger to the community or a flight risk.”), aff’d sub nom. Saravia for 4 A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). Respondents do not argue that Petitioner is now 5 a flight risk or a danger to the community. “[A]s there have been no procedural safeguards to 6 determine if petitioner’s re-detention is justified, ‘the probable value of additional procedural 7 safeguards, i.e., a bond hearing, is high.’” Sharan S. v. Chestnut, No. 1:25-cv-01427-KES-SKO 8 (HC), 2025 WL 3167826, at *10 (E.D. Cal. Nov. 12, 2025) (quoting A.E. v. Andrews, No. 1:25- 9 cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025)). 10 With respect to the third and final factor, “although the government has a strong interest 11 in enforcing the immigration laws, the government’s interest in detaining petitioner without a 12 hearing is ‘low.’” J.A.E.M., 2025 WL 3013377, at *7 (citing Ortega v. Bonnar, 415 F. Supp. 3d 13 963, 970 (N.D. Cal. 2019); Doe, 787 F. Supp. 3d at 1094). See Henriquez v. Garland, No. 5:22- 14 cv-00869-EJD, 2022 WL 2132919, at *5 (N.D. Cal. June 14, 2022) (“Although the Government 15 has a strong interest in enforcing the immigration laws and in ensuring that lawfully issued 16 removal orders are promptly executed, the Government’s interest in detaining Petitioner without 17 providing an individualized bond hearing is low.”). Courts generally have found that the cost of 18 providing a custody hearing is relatively minimal, and there is nothing in the record before this 19 Court demonstrating that providing Petitioner with a pre-deprivation hearing would be fiscally or 20 administratively burdensome. See J.A.E.M., 2025 WL 3013377, at *7 (“In immigration court, 21 custody hearings are routine and impose a ‘minimal’ cost.” (citing Doe, 787 F. Supp. 3d at 22 1094)). 23 On balance, the Mathews factors show that Petitioner is entitled to notice and a bond 24 hearing and “[t]hat hearing should have occurred before petitioner was re-detained.” Carmen 25 G.C. v. Robbins, No. 1:25-cv-01648-KES-HBK (HC), 2025 WL 3521304, at *7 (E.D. Cal. Dec. 26 8, 2025). 27 “‘[T]he root requirement’ of the Due Process Clause” is “‘that an individual be given an opportunity for a hearing before he is 1 Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)); see Zinermon, 494 U.S. at 2 127 (“Applying [the Mathews] test, the Court usually has held that the Constitution requires some kind of a hearing before the State 3 deprives a person of liberty ....”). Courts typically require evidence of urgent concerns or an especially strong government interest to 4 justify a post-deprivation hearing. See Guillermo M. R., 2025 WL 1983677, at *9; United States v. James Daniel Good Real Prop., 5 510 U.S. 43, 53, 59–61 (1993) (“We tolerate some exceptions to the general rule requiring predeprivation notice and hearing, but 6 only in extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after 7 the event[,]” such as “executive urgency.” (internal quotations omitted)). 8 9 Carmen G.C., 2025 WL 3521304, at *7. 10 At such a pre-deprivation hearing, the government bears the burden of proving by clear 11 and convincing evidence that Petitioner is a danger to the community or a flight risk such that re- 12 detention is warranted. See Martinez v. Clark, 124 F.4th 775, 784–86 (9th Cir. 2024) (confirming 13 that the government bears the “clear-and-convincing burden of proof” at an immigration bond 14 hearing ordered pursuant to the Due Process Clause); Carmen G.C., 2025 WL 3521304, at *7 15 (“On balance, the Mathews factors show that petitioner is entitled to a bond hearing where the 16 government must prove that she is a flight risk or danger to the community by clear and 17 convincing evidence.”); J.E.H.G. v. Chestnut, No. 1:25-cv-01673-JLT SKO, 2025 WL 3523108, 18 at *14 (E.D. Cal. Dec. 9, 2025) (“[T]he immigrant’s initial release reflected a determination by 19 the government that the noncitizen is not a danger to the community or a flight risk. Since it is 20 the government that initiated re-detention, it follows that the government should be required to 21 bear the burden of providing a justification for the re-detention.”). 22 C. Appropriate Relief 23 Courts in this district have taken differing approaches to the relief granted to petitioners 24 who have been released, subsequently re-detained, and denied bond hearings in violation of due 25 process. In some cases, the immediate release of the petitioner has been ordered. See, e.g., 26 Yurani Hortua v. Chestnut, No. 1:25-cv-01670-TLN-JDP, 2025 WL 3525916 (E.D. Cal. Dec. 9, 27 2025) (ordering immediate release of petitioner who had been released from immigration detention on parole, was arrested for theft but the case was resolved with community service and 1 did not result in a conviction, and was re-detained at a routine six-month check-in); Carmen 2 G.C., 2025 WL 3521304 (ordering immediate release of petitioner who allegedly violated 3 reporting requirements four times); Rocha Chavarria, 2025 WL 3533606 (ordering immediate 4 release of petitioner who allegedly “incurred compliance violations” that were not identified and 5 where respondents did not suggest the alleged violations were the reason for petitioner’s re- 6 detention). In other cases, bond hearings have been ordered rather than immediate release. See, 7 e.g., J.E.H.G., 2025 WL 3523108 (ordering bond hearing for petitioner who allegedly violated 8 reporting requirements numerous times and was re-detained based on said violations); Paz 9 Aguilera, 2025 WL 3485016 (ordering bond hearing for petitioner who allegedly violated 10 reporting requirements one time and was re-detained based on said violation); Sharan S., 2025 11 WL 3167826 (ordering bond hearing for petitioner who allegedly violated reporting 12 requirements eight times). 13 Here, there is nothing before this Court demonstrating that Petitioner violated his 14 conditions of release. Respondents do not allege any violations nor do they contend that 15 Petitioner is a flight risk or a danger to the community. Accordingly, the undersigned 16 recommends finding that Petitioner’s immediate release is the appropriate remedy. 17 D. Abeyance Pending Ninth Circuit’s Rodriguez Vazquez Decision 18 “The government also wishes to bring to the Court’s attention the fact that the Ninth 19 Circuit will likely address the application of section 1225(b)(2) in Rodriguez v. Bostock, 9th Cir. 20 No. 25-6842, an appeal that is scheduled for oral argument in March 2026.” (ECF No. 11 at 2.) 21 Rodriguez Vazquez v. Bostock, 779 F. Supp. 3d 1239, 1245 (W.D. Wash. 2025), 22 concerned a noncitizen who entered the United States without inspection, lived in the country for 23 fifteen years, was apprehended by ICE, and raised a statutory claim that he is detained under 24 § 1226(a) and not subject to mandatory detention under § 1225(b)(2). The Court is doubtful that 25 the Ninth Circuit decision in Rodriguez Vazquez will have any bearing on the procedural due 26 process claim raised in the present case. In light of the recommendation that the petition be 27 granted on procedural due process grounds, the Court finds abeyance pending the Ninth Circuit’s 1 Hil. 2 RECOMMENDATION 3 Accordingly, the undersigned HEREBY RECOMMENDS that: 4 1. The petition for writ of habeas corpus be GRANTED. 5 2. Respondents be directed to immediately release Petitioner from custody with the same 6 conditions he was subject to immediately prior to his detention on October 22, 2025. 7 3. Respondents be enjoined and restrained from re-detaining Petitioner unless Respondents 8 demonstrate, by clear and convincing evidence at a pre-deprivation bond hearing before a 9 neutral decisionmaker, that Petitioner is a flight risk or danger to the community such that 10 his physical custody is legally justified. 11 This Findings and Recommendation is submitted to the assigned United States District 12 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 | Rules of Practice for the United States District Court, Eastern District of California. Within 14 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 15 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 16 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 17 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 18 | within fourteen (14) days after service of the objections. The assigned United States District 19 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 20 | The parties are advised that failure to file objections within the specified time may waive the 21 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 22 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 73 IT IS SO ORDERED. 24] Dated: _ January 28, 2026 [sl Fey 5 UNITED STATES MAGISTRATE JUDGE 26 27 28