Zuleinyth Acosta Ontiveros v. Patrick Divver, Field Office Director of Enforcement and Removal Operations, San Diego Field Office, Immigration and Customs Enforcement; Todd M. Lyons, Acting Director, U.S. Immigration and Customs Enforcement; Markwayne Mullin, Secretary, U.S. Department of Homeland Security; U.S. Department of Homeland Security

• Court: District Court, S.D. California
• Decided: July 9, 2026
• Docket: 3:26-cv-03795
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Zuleinyth ACOSTA ONTIVEROS, Case No.: 26cv3795-GPC(SBC)

12 Petitioner, ORDER GRANTING PETITION 13 v. FOR WRIT OF HABEAS CORPUS 14 Patrick, DIVVER, Field Office Director of Enforcement and Removal Operations, 15 San Diego Field Office, Immigration and 16 Customs Enforcement; Todd M. LYONS, Acting Director, U.S. Immigration and 17 Customs Enforcement; Markwayne 18 MULLIN, Secretary, U.S. Department of Homeland Security; U.S. DEPARTMENT 19 OF HOMELAND SECURITY; Todd 20 BLANCHE, U.S. Attorney General; EXECUTIVE OFFICE FOR 21 IMMIGRATION REVIEW; Christopher 22 J. LAROSE, Warden of Otay Mesa Detention Facility, 23 Respondents. 24

25 On June 29, 2026, Petitioner Zuleinyth Acosta Ontiveros (“Petitioner”) filed a 26 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 seeking to be released for 27 28 1 her unlawful detention in violation of the Due Process Clause of the Fifth Amendment. 2 (Dkt. No. 1, Pet.) Respondents filed a response on July 7, 2026. (Dkt. No. 7.) 3 Discussion 4 Petitioner, a 27-year-old native and citizen of Venezuela, entered the United States 5 on December 1, 2023 when she was twenty-five years old seeking asylum. (Dkt. No. 1, 6 Pet. at 2.) At that time, she was detained for one day1 and then released on her own 7 recognizance. (Id.) On December 2, 2023, she was issued a Notice to Appear charging 8 her with being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the 9 United States without inspection. (Id.) On May 3, 2026, her vehicle was pulled over by 10 ICE officials because the license plates were expired and placed under arrest. (Id.) She 11 was not provided a reason for her detention. (Id.) She alleges her detention violates the 12 Due Process Clause of the Fifth Amendment. (Id. at 2-5.) 13 In response to the order to show cause, Respondents mischaracterize Petitioner’s 14 argument stating that the legal issue presented concern whether Petitioner is subject to 15 mandatory detention under 8 U.S.C. §§ 1225(b)(2)(A) or 1226(a). (Dkt. No. 7 at 2.) 16 Instead, Petitioner challenges the constitutionality of her re-detention without any 17 meaningful pre-deprivation procedure and opportunity to respond. 18 To the extent that Respondents do not engage with the due process arguments 19 contained in the petition and do not oppose the Petition, the Court interprets this silence as 20 a concession. See e.g., Mikhailovskii v. Semaia et al., No. 5:26-CV-0960-DSR, 2026 WL 21 1196232, at *2 (C.D. Cal. Apr. 27, 2026) (“Respondents affirmatively stated in their 22 Answer that they do not oppose the Petition, including Petitioner’s due process claim. . . . 23 Consistent with precedent, courts in this Circuit have regarded such silence as a 24 concession.”). Nonetheless, the Court addresses the constitutionality of Petitioner’s 25 detention. 26 27 28 1 Petitioner argues that her re-detention on May 3, 2026, after she had been briefly 2 detained and released on her own recognizance on December 2, 2023 pending removal 3 proceedings, without any explanation or change in circumstance, violates the Due Process 4 Clause of the Fifth Amendment. (Dkt No. 1, Pet. at 2.) 5 Under the Due Process Clause of the Fifth Amendment, no person shall be “deprived 6 of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. Indeed, 7 “[f]reedom from imprisonment—from government custody, detention, or other forms of 8 physical restraint—lies at the heart of the liberty that [the Due Process] Clause 9 protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Due process rights apply to 10 noncitizens, including those whose presence in the United States is unlawful. Id. at 693. 11 As applied to cases like Petitioner, “even when ICE has the initial discretion to detain 12 or release a noncitizen pending removal proceedings, after that individual is released from 13 custody [he] has a protected liberty interest in remaining out of custody.” Pinchi v. Noem, 14 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025); see also Doe v. Becerra, No. 2:25-CV- 15 00647-DJC-DMC, 2025 WL 691664, at *4 (E.D. Cal. Mar. 3, 2025); Padilla v. United 16 States Immigr. & Customs Enf't, 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023); Ortiz 17 Donis v. Chestnut, No. 1:25-CV-01228-JLT-SAB, 2025 WL 2879514, at *11 (E.D. Cal. 18 Oct. 9, 2025). In fact, the government’s initial release of an individual from custody 19 “creates an ‘implicit promise’ that the individual’s liberty will be revoked only if they fail 20 to abide by the conditions of their release.” Calderon v. Kaiser, No. 25-cv-06695-AMO, 21 2025 WL 2430609, at *2 (N.D. Cal. Aug. 22, 2025) (quoting Morrissey v. Brewer, 408 22 U.S. 471, 482 (1972)). An initial release from ICE custody further reflects “a 23 determination by the government that [an individual is] neither a flight risk nor a danger to 24 the community.” Pinchi, 792 F. Supp. 3d at 1034; Salcedo Aceros v. Kaiser, No. 25-CV- 25 06924-EMC (EMC), 2025 WL 2637503, *7 (N.D. Cal. Sept. 12, 2025). Thus, DHS may 26 generally not re-arrest a previously released noncitizen “absent a change in circumstances.” 27 Salcedo Aceros, 2025 WL 2637503, at *1 (citing Panosyan v. Mayorkas, 854 F. App'x 787, 28 788 (9th Cir. 2021) and Saravia v. Sessions, 280 F. Supp. 3d 1168, 1197 (N.D. Cal. 2017)). 1 Here, because Petitioner was detained and then released from DHS custody on her 2 own recognizance, she maintained a protected liberty interest in remaining out of custody. 3 The Court must next determine “what process is due.” Morrissey, 408 U.S. at 481. 4 “The constitution typically ‘requires some kind of a hearing before the State deprives a 5 person or liberty or property.’” G.S. v. Bostock, No. 2:25-CV-01255-JNW-TLF, 2025 WL 6 3014274 (W.D. Wash. Oct. 8, 2025), report and recommendation adopted sub nom. G.S. 7 v. Bostock, No. 2:25-CV-01255-JNW-TLF, 2025 WL 3014035 (W.D. Wash. Oct. 28, 8 2025) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1990) (emphasis in original)). To 9 determine what procedures are required by due process, the Court evaluates the three-part 10 test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976). See Ortiz Donnis, 11 2025 WL 2879514, at *12. Under Mathews, a court must consider (1) “the private interest” 12 at stake, (2) “the risk of an erroneous deprivation” without additional procedures and “the 13 probable value . . . of additional or substitute procedural safeguards,” and (3) the 14 “Government’s interest, including the function involved and the fiscal and administrative 15 burdens imposed by the additional procedures.” 424 U.S. at 335. 16 As to the first Mathews factor, Petitioner has a significant private interest in his 17 continued liberty. Thus, this factor favors Petitioner. See Salcedo 2025 WL 2637503, *12; 18 Ortiz Donis, 2025 WL 2879514, at *12; Pinchi, 792 F. Supp. 3d at 1034-35. 19 Turning to the second Mathews factor, “it is clear that there is a significant risk that 20 the government will erroneously deprive [Petitioner] of that liberty interest if it does not 21 provide [her] with a pre-detention hearing.” Pinchi, 792 F. Supp. 3d at 1035. Where, as 22 here, petitioner has not received any bond or custody hearing, “‘the risk for erroneous 23 deprivation [of liberty] is high’ because neither the government nor [Petitioner] has had an 24 opportunity to determine whether there is any valid basis for [her] detention.” Id. 25 (quoting Singh v. Andrews, 803 F. Supp. 3d 1035, 1047 (E.D. Cal. July 11, 2025)). Further, 26 courts have noted that “civil immigration detention must be ‘nonpunitive in purpose’ and 27 bear a ‘reasonable relation’ to the authorized statutory purposes of preventing flight and 28 danger to the community.” G.S. v. Bostock, 2025 WL 3014274, at *8. By releasing 1 Petitioner in December 2023 on her own recognizance, immigration officers determined 2 that she was neither a flight risk nor a danger to his community. See id.; Ortiz Donis, 2025 3 WL 2879514, at *1; Pinchi, 792 F. Supp. 3d at 1034. 4 Finally, the Government “has failed to show any countervailing interest against 5 providing a pre-detention hearing.” G.S. v. Bostock, 2025 WL 3014274, at *9; Salcedo 6 Aceros, 2025 WL 2637503, at *12. Indeed, “in immigration court, custody hearings are 7 routine and impose a minimal cost.” Singh, 2025 WL 1918679, at *8 (internal quotation 8 marks and citation omitted). On the other hand, the costs of immigration detention are 9 staggering. Hernandez v. Session, 872 F.3d 976, 996 (9th Cir. 2017). In sum, the 10 Government’s interest in detaining Petitioner without a hearing is low. See Singh, 2025 11 WL 1918679, at *8. 12 Each of the Mathews factors favors Petitioner. Thus, Petitioner was entitled to a pre- 13 deprivation bond hearing. The Government detained Petitioner, without explanation and 14 without notice, despite its own prior determination that Petitioner was not a flight risk and 15 posed no danger to the community. “Under these circumstances, given the government’s 16 conduct, the substantial liberty interests held by [Petitioner], and the fact that the 17 government has no evidence and does not contend that [Petitioner] presents [a] risk or flight 18 or to public safety, a pre-deprivation bond hearing is warranted.” Salcedo 2025 WL 19 2637503, *12. At such a hearing, the government must demonstrate to a neutral 20 decisionmaker by clear and convincing evidence that re-detention is necessary to prevent 21 danger to the community or flight. Pinchi, 792 F. Supp. 3d at 1038; see also Ortiz Donis, 22 2025 WL 2879514, at *15. Put simply: “since it is the government that initiated re- 23 detention, it follows that the government should be required to bear the burden of providing 24 a justification for the re-detention.” Ortiz Donis, 2025 WL 2879514, at *15. In light of 25 such a violation, Petitioner’s release from custody is the appropriate remedy. See, e.g., 26 Quiroz v. Larose, No. 26-CV-866 JLS (DEB), 2026 WL 673822, at *3 (S.D. Cal. Mar. 10, 27 2026); Aliyev v. LaRose, No. 3:26-CV-01119-CAB-JLB, 2026 WL 699818, at *3 (S.D. 28 1 Mar. 12, 2026); Devilmar v. LaRose, No. 3:26-CV-01748-JES-MSB, 2026 WL 2 || 1042439, at *2 (S.D. Cal. Apr. 17, 2026); Perez, 2026 WL 102643, at *2. 3 Accordingly, IT IS HEREBY ORDERED that 4 1. Petitioner’s Petition for Writ of Habeas Corpus is GRANTED. 5 2. Because the government has no evidence that Petitioner poses a flight risk or 6 danger to the community, Petitioner SHALL be released IMMEDIATELY 7 from DHS custody under the same conditions as her previous order of release on 8 recognizance. 9 3. Respondents SHALL NOT re-arrest or re-detain Petitioner absent compliance 10 with constitutional protections, which include, at a minimum, pre-deprivation 1] notice of at least seven days before a pre-deprivation hearing at which the 12 government will bear the burden of demonstrating by clear and convincing 13 evidence that Petitioner is likely to flee or pose a danger to the community if not 14 detained. 15 4. The Clerk of Court SHALL enter judgment in Petitioner's favor and close this 16 case. 17 5. The hearing set for July 17, 2026 shall be vacated. 18 IT IS SO ORDERED. 19 ||Dated: July 9, 2026 2 20 Hon. athe Ck 21 United States District Judge 22 23 24 25 26 27 28