Zakzouk v. Becerra

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KHALID FAWZI ZAKZOUK, Case No. 25-cv-06254-KAW

8 Petitioner-Plaintiff, ORDER GRANTING PETITIONER'S 9 v. MOTION FOR A PRELIMINARY INJUNCTION 10 MOISES BECERRA, et al., Re: Dkt. No. 2 11 Respondents-Defendants.

12 13 On July 25, 2025, Petitioner-Plaintiff Khalid Fawzi Zakzouk filed a petition for a writ of 14 habeas corpus and complaint for declaratory and injunctive relief. (Petition, Dkt. No. 1.) On July 15 26, 2025, Petitioner filed a motion for a temporary restraining order and preliminary injunction, 16 seeking to enjoin Defendant-Respondents (“Government”) from re-detaining him until he has an 17 opportunity to challenge his re-detention before a neutral decisionmaker and there was a 18 reasonable likelihood of removal. (Pet’r’s Mot. at 31, Dkt. No. 2.) Petitioner also sought to 19 require the Government to provide a constitutionally compliant procedure before removing 20 Petitioner to a third country. (Id.) That same day, the duty judge granted Petitioner’s motion for a 21 temporary restraining order. (TRO Order, Dkt. No. 3.) 22 Now pending before the Court is Petitioner’s motion for a preliminary injunction, as 23 confirmed at the hearing. Having considered the parties’ filings, the relevant legal authorities, and 24 the arguments made at the October 2, 2025 hearing, the Court GRANTS Petitioner’s motion for a 25 preliminary injunction. 26 I. BACKGROUND 27 Petitioner is a stateless Palestinian who has resided in the United States since June 1, 1988, 1 (Petition ¶¶ 3, 32.) On March 31, 1998, he filed an application for asylum, seeking protection 2 from his country of birth and last place of residence, Saudi Arabia. (Petition ¶ 32.) Although born 3 in Saudi Arabia, Petitioner is not a citizen because Saudi Arabia’s citizenship law is based on a 4 strict interpretation of jus sanguinis (right of blood). (Petition ¶ 32.) Petitioner has never been 5 accorded citizenship by any country, and he is not eligible for a passport from the Palestinian 6 Authority.1 (Petition ¶ 32.) 7 On January 24, 2000, an immigration judge denied Petitioner’s asylum application, 8 ordering him removed to Saudi Arabia or, alternatively, Egypt. (Petition ¶ 34; Alvarez Decl. ¶ 5, 9 Exh. 1, Dkt. No. 14-1.) On February 18, 2003, Petitioner’s motion to reopen immigration 10 proceedings was denied. (Petition ¶ 34; Alvarez Decl. ¶ 6.) 11 In the interim, Petitioner was convicted of possession of drug paraphernalia in 1994, 12 possession of tetrahydrocannabinols in 1997, receiving stolen property in 2001, and possession of 13 a firearm in 2003. (Alvarez Decl. ¶¶ 10, 12, 16, 17.) At some point, Petitioner was imprisoned for 14 a pending criminal charge; upon his release, U.S. Immigration and Customs Enforcement (“ICE”) 15 in Milwaukee (Petitioner’s previous place of residence) detained Petitioner for three months. 16 (Petition ¶ 35.) ICE then released Petitioner on his own recognizance and placed him on an Order 17 of Supervision (“OSUP”). (Petition ¶ 35.) 18 After obtaining permission from ICE, Petitioner moved to San Francisco, where he was 19 detained by ICE for three months. (Petition ¶ 35.) Upon his release on January 10, 2008, ICE 20 confirmed that Petitioner’s removal was not reasonably foreseeable because he was a stateless 21 Palestinian with no right to return to any country. (Petition ¶¶ 35-36.) Petitioner was again placed 22 on an OSUP, which required Plaintiff to attend regular check in appointments and permitted him 23 to apply for work authorization. (Petition ¶ 36.) 24 Petitioner has remained on release for the last seventeen years, without incident. (Petition 25 ¶ 37.) Petitioner is married to a U.S. citizen, and is the primary caretaker for his fifteen year-old 26

27 1 Although Petitioner used an Egyptian refugee travel document, it is common for Palestinians in 1 daughter. (Petition ¶ 37.) Petitioner’s daughter is a U.S. citizen, who has been diagnosed with 2 major depressive disorder and anxiety and relies heavily on her father for support. (Petition ¶ 37.) 3 Petitioner is a homemaker, responsible for managing the household and preparing all meals, while 4 supporting his spouse’s career. (Petition ¶ 37.) Petitioner has complied with all terms of his 5 OSUP, including regularly renewing his employment authorization and never missing a check in 6 appointment. (Petition ¶ 37.) During this time, ICE has never moved to re-detain Petitioner. 7 (Petition ¶ 37.) 8 On Thursday, July 17, 2025, Petitioner attended his regularly scheduled check-in 9 appointment, and was told that he should return the following week to apply for travel documents 10 to Saudi Arabia and Jordan. (Petition ¶ 38; Alvarez Decl. ¶ 7.) Although Petitioner explained that 11 he had no right to return to either country because he is stateless, the officer responded: “Things 12 are different now.” (Petition ¶ 38.) Petitioner was instructed to return the form on Monday, July 13 21, 2025, but received an extension until Monday, July 28, 2025 (Petition ¶ 38.) 14 On July 24, 2025, Petitioner’s counsel e-mailed ICE to seek clarification for the purpose of 15 the July 28, 2025 appointment, reiterating that Petitioner was a stateless Palestinian who was 16 released from ICE custody on an OSUP because ICE was unable to remove him. (Petition ¶ 39.) 17 Counsel did not receive a response. (Petition ¶ 39.) The Government now asserts that there was 18 no intent to take Petitioner into ICE custody at the July 21, 2025 or July 28, 2025 appointments. 19 (Alvarez Decl. ¶¶ 8-9.) The Government does not assert that it has no intent to take Petitioner into 20 ICE custody, although the Government stated at the hearing that it could not affirmatively state 21 that it had no intention of eventually taking Petitioner into ICE custody given the final order of 22 removal. 23 On July 25, 2025, Petitioner filed the instant petition for writ of habeas corpus and 24 complaint. On July 26, 2025, Petitioner filed a motion for a TRO and preliminary injunction; the 25 motion for a TRO was granted that same day, enjoining the Government from “re-detaining 26 Petitioner-Plaintiff without notice and a pre-deprivation hearing before a neutral decisionmaker.” 27 (TRO Order at 7.) On July 29, 2025, the parties stipulated to a briefing schedule and agreed that 1 briefing and a hearing. (Dkt. No. 12.) 2 On August 26, 2025, the Government filed its opposition. (Gov’t Opp’n, Dkt. No. 14.) On 3 September 9, 2025, Petitioner filed his reply. (Pet’r’s Reply, Dkt. No. 15.) 4 II. LEGAL STANDARD 5 A preliminary injunction is an “extraordinary and drastic remedy” that is “never awarded 6 as of right.” Munaf v. Green, 553 U.S. 674, 689-90 (2008) (citations omitted). Thus, “[a] plaintiff 7 seeking a preliminary injunction must establish (1) likely success on the merits; (2) likely 8 irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the 9 plaintiff’s favor; and (4) that an injunction is in the public interest.” Pimentel v. Dreyfus, 670 F.3d 10 1096, 1105 (9th Cir. 2012) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 11 (2008)). “[A] certain threshold showing [must be] made on each factor.” Leiva-Perez v. Holder, 12 640 F.3d 962, 966 (9th Cir. 2011). 13 The Ninth Circuit applies a “sliding scale” approach, in which “the elements of the 14 preliminary injunction test are balanced, so that a stronger showing of one element may offset a 15 weaker showing of another.” Pimentel, 670 F.3d at 1105 (internal quotation omitted). The 16 moving party must, however, “demonstrate a fair chance of success on the merits, or questions 17 serious enough to require litigation.” Id. (internal quotation omitted). 18 III. DISCUSSION 19 A. Jurisdiction 20 As an initial matter, the Government makes various arguments that the Court lacks 21 jurisdiction to resolve this motion. (Gov’t Opp’n at 9-14.) All of these arguments were squarely 22 rejected in Ortega v. Kaiser, Case No. 25-cv-5259-JST, 2025 U.S. Dist. LEXIS 152600 (N.D. Cal. 23 Aug. 6, 2025). 24 First, the Government argues that Petitioner does not have a cognizable habeas petition 25 because he “is not in physical custody and is not challenging restraints on his freedom.” (Gov’t 26 Opp’n at 9.) The Supreme Court has held that “habeas corpus relief is not limited to immediate 27 release from illegal custody, but that the writ is available as well to attack future confinement and 1 the Government’s argument that habeas relief is unavailable where the petitioner is not in 2 immediate custody. 2025 U.S. Dist. LEXIS 152600, at *6; see also Giorges v. Kaiser, Case No. 3 25-cv-7683-TLT, 2025 U.S. Dist. LEXIS 176069, at *7 (N.D. Cal. Sept. 9, 2025). Additionally, 4 Petitioner is bringing due process claims and has pled federal question jurisdiction, which serves 5 as an alternative basis for jurisdiction. (Petition ¶ 19; see Ortega, 2025 U.S. Dist. LEXIS 152600, 6 at *6-7 (“A district court has authority both to entertain constitutional challenges and to grant 7 injunctive relief where a plaintiff’s due process claims arise under the Constitution, and a plaintiff 8 invokes 28 U.S.C. § 1331, which provides subject matter jurisdiction irrespective of the 9 accompanying habeas petition”).) 10 Second, the Government argues that 8 U.S.C. § 1252(g) bars the Court’s review of 11 Petitioner’s claims because it “arises from his concerns about the execution of his removal order.” 12 (Gov’t Opp’n at 10.) In relevant part, § 1252(g) provides: “no court shall have any jurisdiction to 13 hear any cause or claim by or on behalf of any alien arising from the decision or action by the 14 Attorney General to commence proceedings, adjudicate cases, or execute removal orders against 15 any alien under this Act.” Here, Petitioner does not challenge the validity or execution of the 16 removal order, but his potential detention or removal to a third country without constitutionally 17 adequate notice or a meaningful opportunity to apply for protection under the Convention Against 18 Torture (“CAT”), as required by the Immigration and Nationality Act (“INA”). (See Petition ¶¶ 19 43-44.) In Ortega, the district court likewise found that § 1252(g) did not apply where the 20 petitioner was “not challeng[ing[ the execution of the final removal order entered against him, 21 which provided for his removal only to El Salvador” but “his potential detention or removal to a 22 country other than El Salvador.” 2025 U.S. Dist. LEXIS 152600, at *7-8. In so finding, the 23 district court emphasized that the Supreme Court has adopted a “‘narrow reading of § 1252(g)’ 24 that excludes from its reach ‘many other decisions or actions that may be part of the deportation 25 process.’” Id. at *8 (quoting Reno v. Am.-Arab Anti Discrim. Comm., 525 U.S. 471, 486 (1999)). 26 Third, the Government argues that 8 U.S.C. §§ 1252(a)(5) and (b)(g) requires a court of 27 appeals to review Petitioner’s claims rather than this court. (Gov’t Opp’n at 12.) The Ninth 1 over challenges to detention that are independent of challenges to removal orders.” Singh v. 2 Holder, 638 F.3d 1196, 1211 (9th Cir. 2011) (internal quotation omitted). Again, Petitioner is not 3 challenging the validity of his final removal order, but any potential removal to a third country 4 without a meaningful opportunity to apply for CAT protection or his indefinite detention while the 5 Government seeks a third-country removal order or attempts to remove Petitioner to a country to 6 which he has no right to return. Thus, §§ 1252(a)(5) and (b)(g) do not apply. See Ortega, 2025 7 U.S. Dist. LEXIS 152600, at *10; Singh, 638 F.3d at 1006 (finding that § 1252(a)(5) did not bar 8 the petitioner’s claims because his claims “are independent of his removal order” and did not 9 require the court “to review the removal order”). 10 Finally, the Government turns to the Foreign Affairs Reform and Restructuring Act of 11 1998 (“FARRA”), which implements CAT and provides that “no court shall have jurisdiction to 12 review the regulations adopted to implement this section, and nothing in this section shall be 13 construed as providing any court jurisdiction to consider or review claims raised under the 14 Convention or this section.” (Gov’t Opp’n at 13; FARRA § 2242(d), codified at 8 U.S.C. § 1231 15 (note).) Petitioner does not seek review of “the regulations adopted to implement” CAT or 16 “claims considered under” CAT. Rather, “he seeks review of only his potential re-detention and 17 notice and opportunity to apply for CAT relief if removal becomes reasonably foreseeable.” 18 (Pet’r’s Reply at 13.) Thus, “FARRA, by its plain language, does not bar this Court’s review of 19 such claims.” Ortega, 2025 U.S. Dist. LEXIS 152600, at *11. 20 B. Likely Success on the Merits 21 Here, Petitioner asserts three claims: (1) that Petitioner’s re-detention would violate the 22 Due Process Clause because it would be indefinite, (2) that Petitioner’s re-detention would violate 23 the Due Process Clause absent a hearing before a neutral adjudicator, and (3) that Petitioner is 24 entitled to constitutionally adequate procedures -- including notice and an opportunity to apply for 25 fear-based relief -- prior to being removed to any third country. (Pet’r’s Mot. at 11, 14, 24.) The 26 Court finds that Petitioner has shown, at a minimum, that serious questions exist as to the merits of 27 each claim. 1 i. Removal to Third Country 2 The Court starts with the merits of Petitioner’s assertion that he is entitled to notice and an 3 opportunity to apply for fear-based relief prior to being removed to a third country. “The Fifth 4 Amendment guarantees due process in deportation proceedings.” Torres-Aguilar v. I.N.S., 246 5 F.3d 1267, 1270 (9th Cir. 2001). Thus, “[a] noncitizen must be given sufficient notice of a 6 country of deportation that, given his capacities and circumstances, he would have a reasonable 7 opportunity to raise and pursue his claim for withholding of deportation.” Aden v. Nielsen, 409 F. 8 Supp. 3d 998, 1009 (W.D. Wash. 2019); see Ortega, 2025 U.S. Dist. LEXIS 152600, at *12. 9 Here, Petitioner was ordered removed to Saudi Arabia or Egypt, which are both countries 10 to which Petitioner has no right to return. (Alvarez Decl., Exh. 1.) For that reason, Petitioner was 11 previously released because his removal was not reasonably foreseeable. (Petition ¶ 3.) Thus, to 12 the extent the Government now seeks to remove Petitioner to a third country for which no final 13 removal order exists (such as Jordan), Petitioner would have a right to be afforded notice and an 14 opportunity to be heard on a fear-based claim as to that country under the Fifth Amendment. See 15 Aden, 409 F. Supp. 3d at 1009; Ortega, 2025 U.S. Dist. LEXIS 152600, at *13; J.R. v. Bostock, 16 No. 2:25-cv-01161-JNW, 2025 U.S. Dist. LEXIS 124229, at *7-8 (W.D. Wash. June 30, 2025) 17 (finding that the petitioner had “raised serious questions about the merits of his due process claim 18 that the Government violated his rights by attempting third-country removals without providing 19 him notice and an opportunity to seek CAT protection”). 20 The Government does not appear to address this claim. Indeed, the Government 21 recognizes that Petitioner could move to reopen his immigration court proceedings based on fear 22 of removal to any third country, although it fails to explain how Petitioner could do so without 23 getting reasonable notice of which third country the Government intends to deport him to. (Gov’t 24 Opp’n at 12-13.) Thus, the Court finds that Petitioner has raised a serious question as to the merits 25 of his claim that he is entitled to notice and an opportunity to be heard before being removed to a 26 third country. 27 ii. Detention 1 Clause. “The Due Process Clause applies to all ‘persons’ within the United States, including 2 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. 3 Davis, 533 U.S. 678, 693 (2001). “Freedom from imprisonment -- from government custody, 4 detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause 5 protects.” Id. at 690. In deciding what procedures are required to protect a liberty interest, courts 6 apply the three-part test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (1) “the 7 private interest that will be affected by the official action, (2) “the risk of an erroneous deprivation 8 of such interest through the procedures used, and the probable value, if any, of additional or 9 substitute procedural safeguards, and (3) “the Government’s interest, including the function 10 involved and the fiscal and administrative burdens that the additional or substitute procedural 11 requirement would entail.” See Ortega, 2025 U.S. Dist. LEXIS 152600, at *13-14; Pinchi v. 12 Noem, No. 25-cv-5632-PC, 2025 U.S. Dist. LEXIS 142213, at *8-9 (N.D. Cal. July 24, 2025); 13 Guillermo M.R. v. Kaiser, No. 25-cv-5436-RFL, 2025 U.S. Dist. LEXIS 138205, at *11 (N.D. Cal. 14 July 17, 2025). 15 Courts in this district have repeatedly found that the Mathews factors support Petitioner’s 16 constitutional right to a hearing before a neutral decisionmaker prior to any future detention. With 17 respect to the first factor, Petitioner has a substantial private interest in remaining out of custody, 18 which “enables him to do a wide range of things open to persons” who are free from custody. 19 Morrisey v. Brewer, 408 U.S. 471, 482 (1972). This includes remaining in his home, caring for 20 his daughter, and supporting his wife. See Pinchi, 2025 U.S. Dist. LEXIS 142213, at *9-10; M.R., 21 2025 U.S. Dist. LEXIS 138205, at *13. Further, Petitioner’s interest in remaining out of detention 22 is heightened by the seventeen years he has spent out of custody. See id. at *12 (“The more than 23 two years that she has spent out of custody since ICE initially released her have only heightened 24 her liberty interest in remaining out of detention.”). 25 While the Government suggests that Petitioner’s due process interest in his liberty 26 “terminated when the IJ ordered his removal” (see Gov’t Opp’n at 15), the Government provides 27 no legal authority in support of this proposition, which flies in the face of the Supreme Court’s 1 Zadvydas, 533 U.S. at 693 (emphasis added). In the alternative, the Government argues that in 2 Diouf v. Napolitano, the Ninth Circuit recognized that an immigrant detainee’s liberty interests 3 have a lesser liberty interest in freedom from detention. (See Gov’t Opp’n at 16-17 (citing Diouf, 4 634 F.3d 1081, 1086-87 (9th Cir. 2011).) This finding does not suggest that individuals such as 5 Petitioner lack any due process interest in his liberty; rather, the Ninth Circuit still recognized that 6 “freedom from prolonged detention” was an important interest at stake. Diouf, 634 F.3d at 1087. 7 Moreover, “even when ICE has the initial discretion to detain or release a noncitizen pending 8 removal proceedings, after that individual is released from custody [he] has a protected liberty 9 interest in remaining out of custody.” Pinchi, 2025 U.S. Dist. LEXIS 142213, at *8; Calderon v. 10 Kaiser, No. 25-cv-6695-AMO, 2025 U.S. Dist. LEXIS 163975, at *5 (N.D. Cal. Aug. 22, 2025) 11 (“[E]ven when an initial decision to detain or release an individual is discretionary, the 12 government’s subsequent release of the individual from custody creates an implicit promise that 13 the individual’s liberty will be revoked only if they fail to abide by the conditions of their 14 release.”). Here, Petitioner was released from custody seventeen years ago, and thus has a strong 15 interest in remaining out of custody. Accordingly, the first factor supports a pre-deprivation 16 administrative hearing. 17 As to the second Mathews factor, there is a significant risk that the government will 18 erroneously deprive Petitioner of his liberty interest absent a pre-detention hearing. Where “the 19 petitioner has not received any bond or custody hearing, the risk of an erroneous deprivation of 20 liberty is high because neither the government nor [the petitioner] has had any opportunity to 21 determine whether there is any valid basis for her detention.” Pinchi, 2025 U.S. Dist. LEXIS 22 142213, at *13 (cleaned up); see also Calderon, 2025 U.S. Dist. LEXIS 163975, at *9 (same). In 23 general, “[c]ivil immigration detention is permissible only to prevent flight or protect against 24 danger to the community.” Pinchi, 2025 U.S. Dist. LEXIS 142213, at *13 (citing Zadvydas, 533 25 U.S. at 690). Here, the Government has made no showing that detention of Petitioner would serve 26 either purpose, particularly after Petitioner was released seventeen years ago and has complied 27 with ICE’s reporting requirements. Indeed, it is unclear how the Government will be able to 1 and daughter, who are both U.S. citizens) or a danger to the community given the lack of any 2 criminal record since his release on an OSUP. As Petitioner points out, ICE previously released 3 him after presumably finding that he did not present a flight risk or posed a danger to the 4 community, and the Government has identified no circumstances that have changed this 5 determination. (See Petition ¶ 4.) Thus, providing “the procedural safeguard of a pre-detention 6 hearing will have significant value in helping ensure that any future detention has a lawful basis.” 7 Pinchi, 2025 U.S. Dist. LEXIS 142213, at *14; see also Ortega, 2025 U.S. Dist. LEXIS 152600, 8 at *14. 9 The Government responds that there is little risk of an erroneous deprivation because he is 10 already subject to a removal order, and § 1231(a)(6) authorizes Petitioner’s detention to execute a 11 final removal order. (Gov’t Opp’n at 17, 19.) The Supreme Court, however, has made clear that § 12 1231(a)(6) “does not permit indefinite detention,” such that a detention cannot “exceed a period 13 reasonably necessary to secure removal.” Zadvydas, 533 U.S. at 690, 699. Instead, “once removal 14 is no longer foreseeable, continued detention is no longer authorized by statute.” Id. at 699. The 15 Supreme Court has found that there is a presumption that the “period reasonably necessary to 16 secure removal” is six months; after this period, “once the alien provides good reason to believe 17 that there is no significant likelihood of removal in the reasonably foreseeable future, the 18 Government must respond with evidence sufficient to rebut that showing.” Id. at 701. 19 Here, there is a serious question regarding whether Petitioner’s removal is reasonably 20 foreseeable, such that detention would be permitted. While the Government argued at the hearing 21 that detention is warranted to execute the final order, the Government does not dispute that 22 Petitioner cannot be removed to the countries designated in his final removal order. Rather, 23 “there currently exists no country to which the Government could remove [Petitioner] without his 24 first receiving the opportunity to present a fear-based claim as to that country.” Ortega, 2025 U.S. 25 Dist. LEXIS 152600, at *18. Although the Government argued at the hearing that it would try to 26 execute the final order by removing Petitioner to Jordan, Jordan is not a country to which 27 Petitioner has been ordered removed. Petitioner also points out that it is not apparent that ICE has 1 underscoring that Petitioner’s removal is not likely to be reasonably foreseeable (and thus making 2 any detention not reasonably necessary to effectuate his removal). (Pet’r’s Reply at 19.) Notably, 3 Petitioner has already been detained for six months previously (see Petition ¶ 3), such that any 4 additional detention would likely run afoul of the six month presumption found in Zadvydas. 5 In the alternative, the Government argues that Petitioner will be adequately protected by 6 the procedural safeguards found under 8 C.F.R. § 241.4, including periodic custody reviews in 7 which Petitioner will have the opportunity to submit documents in support of his release. (Gov’t 8 Opp’n at 17.) As pointed out in M.R., however, “each of those procedures is essentially no more 9 than a request to ICE’s arresting agents or their supervisors at headquarters to reconsider the 10 agency’s unilateral detention decision.” 2025 U.S. Dist. LEXIS 138205, at *22. Thus, the district 11 court in M.R. found that “there is no opportunity to have a neutral party evaluate ICE’s unilateral 12 determination of the contested facts,” and that this “lack of any neutral review creates a heightened 13 risk of deprivation for Petitioner.” Id. at *23. The Court finds that the second Mathews factor 14 supports a pre-deprivation hearing. 15 Finally, “there is no countervailing government interest -- the third and final Mathews 16 factor -- that supports conducting a bond hearing only after [Petitioner] has been detained, rather 17 than in advance thereof.” Pinchi, 2025 U.S. Dist. LEXIS 142213, at *15. The Government 18 suggests that a hearing would delay executing of his final order of removal, but there is no 19 showing that the Government can remove Petitioner to the countries listed in his final order of 20 removal. (Gov’t Opp’n at 17.) Further, contrary to the Government’s protestations that there is no 21 process for giving aliens with final orders of removal a bond hearing, the Government does not 22 explain why this would be an “unworkable solution.” (Gov’t Opp’n at 17-18.) Rather, courts in 23 this district have already rejected similar arguments, finding that the Government could not 24 “suggest that the cost of providing [a hearing before a neutral decisionmaker] would be fiscally or 25 administratively onerous.” Pinchi, 2025 U.S. Dist. LEXIS 142213, at *17. Such courts have 26 found that “[i]n immigration court, custody hearings are routine and impose a minimal cost. 27 Indeed, it is likely that the cost to the government of detaining [Petitioner] pending any bond 1 (internal quotation omitted); see also Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) 2 (“The costs to the public of immigration detention are ‘staggering’: $158 each day per detainee, 3 amounting to a total daily cost of $6.5 million.”). 4 Accordingly, each of the Mathews factors favor Petitioner. Petitioner has thus 5 demonstrated a serious question exists as to the merit of his claims. 6 C. Irreparable Harm 7 As many other courts in this district have found, the Court finds that Petitioner is likely to 8 suffer irreparable harm in the absence of a preliminary injunction -- namely, detention in likely 9 violation of his constitutional rights. “‘It is well established that the deprivation of constitutional 10 rights unquestionably constitutes irreparable injury.’” Ortega, 2025 U.S. Dist. LEXIS 152600, at 11 *18 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). Further, the Ninth Circuit 12 has recognized “the irreparable harms imposed on anyone subject to immigration detention (or 13 other forms of imprisonment), including “subpar medical and psychiatric care in ICE detention 14 facilities, the economic burdens imposed on detainees and their families as a result of detention, 15 and the collateral harms to children of detainees whose parents are detained.” Hernandez, 872 16 F.3d at 995. Such risks are present here because detention would separate Petitioner from his 17 family, including his daughter who is uniquely dependent on Petitioner for support. (Petition ¶ 5.) 18 In opposition, the Government argues that detention would not cause irreparable harm 19 because “there is no constitutional infringement if restrictions imposed are but an incident of some 20 other legitimate government purpose.” (Gov’t Opp’n at 19 (internal quotation omitted).) As 21 discussed above, however, there is a serious risk that detention without the required procedures 22 would constitute a constitutional violation. Thus, Petitioner has established irreparable harm. See 23 Pinchi, 2025 U.S. Dist. LEXIS 142213, at *18-19; Calderon, 2025 U.S. Dist. LEXIS 163975, at 24 *11; M.R., 2025 U.S. Dist. LEXIS 138205, at *31-32. 25 iii. Balance of Equities and the Public Interest 26 The final two factors -- the balance of equities and the public interest -- “merge where, as 27 is the case here, the government is the opposing party.” Leiva-Perez v. Holder, 640 F.3d 962, 970 1 in Petitioner’s favor. Ortega, 2025 U.S. Dist. LEXIS 152600, at *20. 2 “The public has a strong interest in upholding procedural protections against unlawful 3 detention, and the Ninth Circuit has recognized that the costs to the public of immigration 4 detention are staggering.” Diaz v. Kaiser, No. 25-cv-5071-BLF, 2025 U.S. Dist. LEXIS 113566, 5 at *8 (N.D. Cal. June 14, 2025) (internal quotation omitted); see also Ortega, 2025 U.S. Dist. 6 LEXIS 152600, at *20 (same); Pinchi, 2025 U.S. Dist. LEXIS 142213, at *20 (same); M.R., 2025 7 U.S. Dist. LEXIS 138205, at *32-33 (“The public has an interest in the orderly and efficient 8 administration of this country’s immigration laws, but also has a strong interest in upholding 9 procedural protections against unlawful detention. . . . Further, the general public’s interest in the 10 efficient allocation of the government’s fiscal resources is served by avoiding the cost of potential 11 erroneous detention.”); Calderon, 2025 U.S. Dist. LEXIS 163975, at *12 (finding that the balance 12 of hardships favored the petitioner where “[a]t most, the Government’s injury would be a short 13 delay in detaining Ortiz Calderson, and despite its contention that it has a compelling interest in 14 the steady enforcement of its immigration laws, it cannot reasonably assert that it is harmed in any 15 legally cognizable sense by being enjoined from constitutional violations”). 16 “Faced with a choice between minimally costly procedures and preventable human 17 suffering, the Court concludes that the balance of hardships tips decidedly in [P]etitioner’s favor.” 18 Clavijo v. Kaiser, No. 25-cv-6248-BLF, 2025 U.S. Dist. LEXIS 163056, at *25 (N.D. Cal. Aug. 19 21, 2025) (internal quotations omitted). 20 D. Security 21 Federal Rule of Civil Procedure 65(c) provides that “[t]he court may issue a preliminary 22 injunction or a temporary restraining order only if the movant gives security in an amount that the 23 court considers proper to pay the costs and damages sustained by any party found to have been 24 wrongfully enjoined or restrained.” The Court has “discretion as to the amount of security 25 required, if any,” and “may dispense with the filing of bond when it concludes there is no realistic 26 likelihood of harm to the defendant from enjoining his or her conduct.” Jorgensen v. Cassiday, 27 320 F.3d 906, 919 (9th Cir. 2003). The Government has made no argument that security should 1 harm to the Government from enjoining its conduct” in cases similar to the instant one. Calderon, 2 |} 2025 US. Dist. LEXIS 163975, at *13; see also Ortega, 2025 U.S. Dist. LEXIS 152600, at *21; 3 || Clavijo, 2025 U.S. Dist. LEXIS 163056, at *26; M_R., 2025 U.S. Dist. LEXIS 138205, at *33. 4 || Thus, the Court will not require a security bond. 5 IV. CONCLUSION 6 For the reasons stated above, the Court GRANTS Petitioner’s motion for a preliminary 7 || injunction. During the pendency of these proceedings, Respondents-Defendants are enjoined and 8 || restrained from detaining Petitioner unless he is afforded notice and a hearing before an 9 || immigration judge, and prohibited from removing Petitioner to a third country without first 10 || providing him with constitutionally compliant notice and an opportunity to apply for fear-based 11 relief prior to being removed to a third country. IT IS SO ORDERED. 5 13 Dated: October 10, 2025 .

B15 United States Magistrate Judge

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