The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 Case No.: 25-cv-02180-DMS-MMP
JULIAN VASQUEZ GARCIA;
12 NICOLAS JIATAZ PATZAN;
ORDER GRANTING IN PART AND
ALFREDO VASQUEZ,
13 DENYING IN PART PETITIONERS’
E X P A R T E A P P L I C A T I O N FOR
14 Petitioners, TEMPORARY RESTRAINING
15 v. ORDER AND ORDER TO SHOW
CAUSE
16 KRISTI NOEM, Secretary, U.S.
Department of Homeland Security;
17
PAMELA BONDI, U.S. Attorney
18 General; TODD LYONS, Acting Director,
Immigration and Customs Enforcement;
19
GREGORY J. ARCHAMBEAULT,
20 Director, San Diego Field Office,
Immigration and Customs Enforcement,
21
Enforcement and Removal Operations;
22 JEREMY CASEY, Warden, Imperial
Regional Detention Facility;
23
IMMIGRATION AND CUSTOMS
24 ENFORCEMENT; DEPARTMENT OF
HOMELAND SECURITY,
25
Respondents.
26
27
28
1 Pending before the Court is Petitioners’ Ex Parte Application for Temporary
2 Restraining Order and Order to Show Cause (“Application”), (Ex Parte Appl. (“Appl.”),
3 ECF No. 2). Respondents filed an Opposition, (Opp’n, ECF No. 5), and Petitioners filed
4 a Reply (Reply, ECF No. 6). For the following reasons, Petitioners’ Application is granted
5 in part and denied in part.
6 I. BACKGROUND
7 Petitioner Julian Vasquez Garcia, an alleged noncitizen, entered the United States
8 on an unknown date. (Opp’n at 4). He was residing in Colton, California when, on July
9 9, 2025, Immigration and Customs Enforcement (“ICE”) agents arrested him. (Appl. at 2).
10 Petitioner Nicolas Jiataz Patzan, an alleged noncitizen, entered the United States in 2002,
11 (Opp’n at 4), and has since resided in the country, (Appl. at 3). ICE agents arrested him
12 on June 12, 2025. (Id.). Petitioner Alfredo Vasquez, an alleged noncitizen, entered the
13 United States in 2021. (Opp’n at 4). ICE agents arrested him on June 22, 2025. (Appl. at
14 4).
15 ICE charged each Petitioner with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i),
16 as being present in the United States without being admitted or paroled. (Id. at 3–4, Exs.
17 A, D, G). Petitioner Alfredo Vasquez is also being charged under 8 U.S.C. §
18 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid entry document. (Id. at 4,
19 Ex. G); (Opp’n at 5). ICE placed Petitioners in removal proceedings pursuant to 8 U.S.C.
20 § 1229a. (Appl. at 3–4).
21 Immigration judges (“IJs”) then denied each Petitioner’s request for a bond hearing,
22 finding that Petitioners were “applicants for admission” and, therefore, subject to
23 mandatory detention under 8 U.S.C. § 1225(b)(2). (Id. at 3–4, Exs. C, E, H); (Opp’n at 4–
24 5). Petitioners allege that the IJs’ findings are based on a new Department of Homeland
25 Security (“DHS”) and Department of Justice (“DOJ”) policy, issued on July 8, 2025,
26 requiring all “applicants for admission” (meaning, “alien[s] present in the United States
27 who [have] not been admitted or who arrive[] in the United States, whether or not at a
28 designated port of arrival”) to be mandatorily detained during removal proceedings
1 pursuant to § 1225(b)(2). (Appl. at 8, Ex. J). Petitioners argue that this reported policy
2 sets forth a “new legal interpretation [of § 1225(b)(2)]” that is “plainly contrary to the
3 statutory framework and contrary to decades of agency practice[.]” (Id. at 2). Petitioners
4 claim that they should not be mandatorily detained under § 1225(b)(2), but rather granted
5 bond hearings pursuant to § 1226(a). (Id.). Accordingly, Petitioners ultimately argue that
6 the new reported policy and the “resulting ongoing detention of Petitioners without a bond
7 hearing is depriving Petitioners of statutory and constitutional rights[.]” (Id.). Petitioners
8 have not appealed the bond denial orders to the Board of Immigration Appeals (“BIA”).
9 (Opp’n at 4–5). Petitioners are currently detained at the Imperial Regional Detention
10 Facility in Calexico, California. (Appl. at 3–4).
11 Following the bond hearing denials, Petitioners filed a petition for a writ of habeas
12 corpus with the Court, making the following claims for relief: (1) Petitioners’ Detention is
13 in Violation of 8 U.S.C. § 1226(a); (2) Petitioners’ Detention Violates the Administrative
14 Procedure Act, 5 U.S.C. § 706(2); and (3) Petitioners’ Detention Violates Their Fifth
15 Amendment Right to Due Process. (Pet., ECF No. 1, at 16–18). Alongside their petition,
16 Petitioners filed an Application for a temporary restraining order (“TRO”), pending here,
17 seeking to “release [Petitioners] from custody,” or alternatively, “provide [each Petitioner]
18 with an individualized bond hearing before an immigration judge pursuant to 8 U.S.C. §
19 1226(a)[.]”1 (Appl. at 1).
20 II. LEGAL STANDARD
21 The legal standard for issuing a TRO is the essentially identical to the standard for
22 issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,
23
24
25
26 1 Petitioners also seek a TRO “prohibiting Respondents from relocating Petitioners outside of the
[Southern] District [of California] pending final resolution of this litigation.” (Appl. at 2). Respondents
27 state that “ICE has agreed that Petitioners will not be moved out of the Southern District of California
during the pendency of this matter.” (Opp’n at 1 n.1). The Court therefore deems this request unopposed,
28
1 240 F.3d 832, 839 n.7 (9th Cir. 2001); see also Zamfir v. Casperlabs, LLC, 528 F. Supp.
2 3d 1136, 1142 (S.D. Cal. 2021).
3 “A party seeking a preliminary injunction must meet one of two variants of the same
4 standard.” All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017). Under
5 the Winter standard, a party is entitled to a preliminary injunction if he demonstrates (1)
6 “that he is likely to succeed on the merits,” (2) “that he is likely to suffer irreparable harm
7 in the absence of preliminary relief,” (3) “that the balance of equities tips in his favor,” and
8 (4) “that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc.,
9 555 U.S. 7, 20 (2008). A party “must make a showing on all four prongs to obtain a
10 preliminary injunction.” A Woman’s Friend Pregnancy Res. Clinic v. Becerra, 901 F.3d
11 1166, 1167 (9th Cir. 2018) (citation modified).
12 Under the Ninth Circuit’s “serious questions” test, “a ‘sliding scale’ variant of the
13 Winter test,” a party is “entitled to a preliminary injunction if it demonstrates (1) ‘serious
14 questions going to the merits,’ (2) ‘a likelihood of irreparable injury,’ (3) ‘a balance of
15 hardships that tips sharply towards the [petitioner],’ and (4) ‘the injunction is in the public
16 interest.’” Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180, 1190
17 (9th Cir. 2024) (quoting All. for the Wild Rockies, 865 F.3d at 1217). “[I]f a [petitioner]
18 can only show that there are ‘serious questions going to the merits’—a lesser showing than
19 likelihood of success on the merits—then a preliminary injunction may still issue if the
20 ‘balance of hardships tips sharply in the [petitioner’s] favor,’ and the other two Winter
21 factors are satisfied.” All. for the Wild Rockies, 865 F.3d at 1217 (emphasis in original)
22 (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)). A
23 petitioner need only demonstrate success as to at least one of his claims to receive an
24 injunction. See Ozkay v. Equity Wave Lending, Inc., 2020 WL 12764953, at *2 (N.D. Cal.
25 Nov. 25, 2020).
26 A district court may consider “the parties’ pleadings, declarations, affidavits, and
27 exhibits submitted in support of and in opposition to the application.” Cal. Rifle & Pistol
28 Ass’n, Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 745 F. Supp. 3d 1037, 1048 (C.D. Cal.
1 2024); see also Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009) (finding district
2 court did not abuse its discretion in granting a preliminary injunction when it relied on
3 hearsay evidence and “the many exhibits, affidavits, declarations and factual allegations
4 which have been submitted . . . by all parties . . . throughout the course of this litigation”).
5 Any evidentiary issues “properly go to weight rather than admissibility.” Am. Hotel &
6 Lodging Ass’n v. City of Los Angeles, 119 F. Supp. 3d 1177, 1185 (C.D. Cal. 2015).
7 Injunctive relief can be prohibitory or mandatory. “A prohibitory injunction
8 prohibits a party from taking action and preserves the status quo pending a determination
9 of the action on the merits.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
10 571 F.3d 873, 878 (9th Cir. 2009) (citation modified) (quoting Chalk v. U.S. Dist. Ct., 840
11 F.2d 701, 704 (9th Cir. 1988)). “A mandatory injunction orders a responsible party to take
12 action[,] . . . goes well beyond simply maintaining the status quo pendente lite[,] and is
13 particularly disfavored.” Id. at 879 (citation modified). The “status quo” refers to the “last,
14 uncontested status” between the parties before the controversy arose. N.D. ex rel. Parents
15 Acting as Guardians Ad Litem v. State of Haw. Dep’t of Educ., 600 F.3d 1104, 1112 n.6
16 (9th Cir. 2010) (quoting Marlyn Nutraceuticals, Inc., 571 F.3d at 879); Ariz. Dream Act
17 Coal. v. Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014). Mandatory injunctions are subject
18 to heightened scrutiny whereas prohibitory injunctions are evaluated under the traditional
19 Winter test. See Marlyn Nutraceuticals, Inc., 571 F.3d at 879. “In general, mandatory
20 injunctions ‘are not granted unless extreme or very serious damage will result and are not
21 issued in doubtful cases or where the injury complained of is capable of compensation in
22 damages.’” Id. (quoting Clune v. Publishers’ Ass’n of N.Y. City, 214 F. Supp. 520, 531
23 (S.D.N.Y. 1963)).
24 III. DISCUSSION
25 A. Proper Habeas Petition?
26 The Court first addresses Respondents’ contention that Petitioners brought improper
27 habeas claims. Specifically, Respondents argue that Petitioners “are not challenging the
28 lawfulness of their custody[;] [r]ather, they are challenging the type of review they receive
1 related to bond hearings.” (Opp’n at 5). However, Petitioners, indeed, “challeng[e] the
2 lawfulness of their detention pursuant to § 1225(b)(2).” (Reply at 8). Petitioners brought
3 a proper habeas corpus petition.
4 B. Jurisdiction
5 The Court next considers whether it has authority to hear this case. Respondents
6 argue that the Court lacks jurisdiction per 8 U.S.C. § 1252(b)(9) and 8 U.S.C. § 1252(g).
7 (Opp’n at 6–10). Each statute is addressed in turn.
8 1. Section 1252(b)(9)
9 Under § 1252(b)(9), “[j]udicial review of all questions of law and fact, including
10 interpretation and application of constitutional and statutory provisions, arising from any
11 action taken or proceeding brought to remove an alien from the United States under this
12 subchapter shall be available only in judicial review of a final order.” 8 U.S.C. § 1252(b)(9)
13 (emphasis added). Respondents argue that this jurisdictional limit includes “decisions to
14 detain for purposes of removal or for proceedings.” (Opp’n at 9 (citing Jennings v.
15 Rodriguez, 583 U.S. 281, 294–95 (2018) (plurality opinion) (“[Respondents] are not
16 challenging the decision to detain them in the first place or to seek removal . . . . [therefore,]
17 § 1252(b)(9) does not present a jurisdictional bar.” (emphasis added)))). Petitioners argue
18 that the Jennings court, before examining the merits of a statutory interpretation question
19 about § 1225 and § 1226, held that the detention at issue did not “‘aris[e] from’ the actions
20 taken to remove” the noncitizen class members, and thus, § 1252(b)(9) did not apply.
21 (Reply at 5 (citing Jennings, 583 U.S. at 293)).
22 Admittedly, the case law surrounding § 1252(b)(9) is “‘notoriously complicated,’”
23 “confusing,” and “piecemeal,” Adam J. Garnick, Noncitizens’ Access to Federal District
24 Courts: The Narrowing on § 1252(b)(9) Post-Jennings, 169 U. Pa. L. Rev. 783, 807 (2021)
25 (citing Singh v. Gonzales, 499 F.3d 969, 980 (9th Cir. 2007)), as evidenced by both parties
26 using Jennings to make opposite arguments. (See, e.g., Opp’n at 9); (Reply at 5). This
27 Court need not, and does not, resolve the parties’ staunchly different interpretations of
28 Jennings. Nielsen v. Preap, 586 U.S. 392 (2019), provides enough clarity to resolve the
1 present issue. In Preap, detainees were denied bond hearings and subjected to mandatory
2 detention pursuant to 8 U.S.C. § 1226(c). Id. at 399. The Supreme Court held that §
3 1252(b)(9) did not bar jurisdiction: “[a]s in Jennings, respondents here ‘are not asking for
4 review of an order of removal; they are not challenging the decision to detain them in the
5 first place or to seek removal [as opposed to the decision to deny them bond hearings]; and
6 they are not even challenging any part of the process by which their removability will be
7 determined.’” Id. at 402 (emphasis added). Thus, Preap makes clear that decisions to deny
8 bond hearings fall outside the purview of § 1252(b)(9)’s jurisdictional bar.
9 The Ninth Circuit agrees. “‘[Section] 1252(b)(9) has built-in limits,’ specifically,
10 ‘claims that are independent of or collateral to the removal process do not fall within the
11 scope of § 1252(b)(9).’” Gonzalez v. U.S. Immigr. & Customs Enf’t, 975 F.3d 788, 810
12 (9th Cir. 2020) (citing J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016)). “[C]laims
13 challenging the legality of detention pursuant to an immigration detainer are independent
14 of the removal process.” Id.
15 Here, Petitioners do not challenge ICE’s authority to charge Petitioners or initiate
16 removal proceedings. (See generally Pet.); (Appl.). Instead, Petitioners “challenge the
17 new DHS and [DOJ] bond policy and the immigration judge orders considering Petitioners
18 detained under § 1225 rather than § 1226(a).” (Reply at 7). Their detention pursuant to §
19 1225(b)(2) may be during—but is nonetheless independent of—the removal proceedings.
20 Accordingly, § 1252(b)(9) does not strip this Court of jurisdiction.
21 2. Section 1252(g)
22 Section 1252(g) provides that “[e]xcept as provided in this section and
23 notwithstanding any other provision of law (statutory or nonstatutory), including section
24 2241 of title 28, or any other habeas corpus provision . . . no court shall have jurisdiction
25 to hear any cause or claim by or on behalf of any alien arising from the decision or action
26 by the Attorney General to commence proceedings, adjudicate cases, or execute removal
27 orders against any alien under this chapter.” 8 U.S.C. § 1252(g). Respondents argue that
28 because Petitioners’ detentions arise from the government’s decision to commence
1 proceedings against them, there is no jurisdiction. (Opp’n at 7–10). Petitioners argue that
2 they do not challenge a decision to “commence proceedings,” but instead “challenge
3 Respondents’ conclusion that they are subject to mandatory detention while those
4 proceedings take place.” (Reply at 4). The Court agrees with Petitioners.
5 Section 1252(g) should be read “narrowly” as to apply “only to three discrete actions
6 that the Attorney General may take: her ‘decision or action’ to
7 ‘commence proceedings, adjudicate cases, or execute removal orders.’” Ibarra-Perez v.
8 United States, No. 24-631, at *6, *14–15 (9th Cir. Aug. 27, 2025) (emphasis in original).
9 Section 1252(g) “does not prohibit challenges to unlawful practices merely because they
10 are in some fashion connected to removal orders.” Id. at *18. Specifically, § 1252(g) does
11 not bar due process claims. Walters v. Reno, 145 F.3d 1032, 1032 (9th Cir. 1998). “[The
12 plaintiffs’] objective was not to obtain judicial review of the merits of their . . . proceedings,
13 but rather to enforce their constitutional rights to due process in the context of those
14 proceedings.” Id. at 1052.
15 Petitioners do not contest the charges brought against them or the initiation of
16 removal proceedings. (See generally Appl.). Instead, Petitioners argue that they should
17 be provided a bond hearing in accordance with § 1226(a), to determine their detention
18 status during the removal proceedings. (Id. at 5–15). Petitioners are enforcing their
19 constitutional rights to due process in the context of the removal proceedings—not the
20 legitimacy of the removal proceedings or any removal order. Therefore, § 1252(g) does
21 not limit the Court’s jurisdiction in the present case.
22 C. Exhaustion
23 “Exhaustion can be either statutorily or judicially required.” Acevedo-Carranza v.
24 Ashcroft, 371 F.3d 539, 541 (9th Cir. 2004). The parties agree that exhaustion here is a
25 prudential requirement. (Appl. at 18); (Opp’n at 10–11). “[A] court may waive the
26 prudential exhaustion requirement if ‘administrative remedies are inadequate or not
27 efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury
28 will result, or the administrative proceedings would be void.’” Hernandez v. Sessions, 872
1 F.3d 976, 988 (9th Cir. 2017) (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir.
2 2004)). “The party moving the court to waive prudential exhaustion requirements bears
3 the burden of demonstrating that at least one of these Laing factors applies.” Aden v.
4 Nielsen, 2019 WL 5802013, at *2 (W.D. Wash. Nov. 7, 2019) (citing Ortega-Rangel v.
5 Sessions, 313 F. Supp. 3d 993, 1003 (N.D. Cal. 2018)). Respondents argue that Petitioners
6 have failed to exhaust administrative remedies, and therefore, “this matter should be
7 dismissed or stayed.” (Opp’n at 10–13). Petitioners argue that several Laing factors are
8 met. (Appl. at 18–22). The Court finds the prudential exhaustion requirements are waived
9 because pursuing administrative remedies would be futile.2
10 Petitioners argue that exhausting administrative remedies would be futile because
11 all ICE employees have been directed by DHS’ and DOJ’s new policy to “consider anyone
12 arrested in the United States and charged with being inadmissible under § 1182(a)(6)(A)(i)
13 to be an ‘applicant for admission’ under . . . § 1225(b)(2)(A) and therefore be subject to
14 mandatory detention.” (Id. at 18). Respondents argue that Petitioners have not established
15 that review at the BIA and the Ninth Circuit would be “futile.” (Opp’n at 13). The Court
16 disagrees.
17 Respondents take the position that Petitioners, by being in the United States without
18 admission, are “applicants for admission” and are subject to mandatory detention under §
19 1225(b)(2). (See id. at 15–18). The reported July 8, 2025 policy states that any “applicant
20 for admission” is “subject to detention under [§ 1225(b)] and may not be released from
21 ICE custody . . . . These aliens are also ineligible for a custody redetermination hearing
22 (‘bond hearing’) before an immigration judge and may not be released for the duration of
23 their removal proceedings absent a parole by DHS.” (Appl. at 8, Ex. J). Notably,
24 Respondents do not contest the existence and enforcement of the reported July 8, 2025
25
26
27 2 Because Petitioners need to show only one of the Laing factors applies, Aden, 2019 WL 5802013, at
*2, the Court need not, and does not, address the other factors.
28
1 policy; do not argue that Petitioners mischaracterized this reported policy; and do not argue
2 that the BIA has authority to or would reverse the IJs’ findings that Petitioners must be
3 mandatorily detained under § 1225(b)(2). (See generally Opp’n). It therefore seems clear
4 that anyone deemed inadmissible under § 1182(a)(6)(A)(i) (that is, “[a]n alien present in
5 the United States without being admitted or paroled”), will be subjected to mandatory
6 detention under § 1225(b)(2)—the very determination that Petitioners challenge—even
7 after BIA review.
8 Based on the present record, Petitioners sufficiently showed that exhausting
9 administrative remedies would be futile. As such, prudential exhaustion requirements are
10 waived.
11 D. Injunctive Relief Sought
12 The Court now considers whether Petitioners seek prohibitory or mandatory
13 preliminary injunctive relief.
14 First, ordering Respondents to release Petitioners would be a prohibitory injunction,
15 because Petitioners seek to preserve the status quo preceding this litigation (being free from
16 federal custody). Requiring the government to hold individualized bond hearings for each
17 Petitioner, however, may be mandatory. One may argue that such an order directs the
18 government to conduct individualized bond hearings it would “not otherwise have held”
19 absent the Court’s direction. See Hernandez, 872 F.3d at 998–99. On the other hand, the
20 requested TRO may be understood as prohibiting the government from continuing to detain
21 individuals per an unconstitutional interpretation of § 1225(b)(2). See id. at 999. “Because
22 the nature of this provision is subject to greater dispute than the first, we assume without
23 deciding that the [injunction] is mandatory.” Id.
24 E. Likelihood of Success / Serious Questions Going to the Merits
25 Petitioners carry the burden of demonstrating a likelihood of success (or
26 alternatively, showing “serious questions going to the merits”). See A Woman’s Friend
27 Pregnancy Res. Clinic, 901 F.3d at 1167; All. for the Wild Rockies, 865 F.3d at 1135.
28 However, Petitioners are not required to prove their case in full at this stage—only such
1 portions that enable them to obtain the injunctive relief they seek. See Univ. of Tex. v.
2 Camenisch, 451 U.S. 390, 395 (1981).
3 Petitioners argue, as the basis for their three claims for relief, that they are unlawfully
4 detained under § 1225(b)(2)’s mandatory detention authority and should instead be
5 provided a bond hearing under § 1226(a). (Appl.). Petitioners also argue that the purported
6 July 8, 2025 policy improperly interprets § 1225 “contrary to the statutory framework and
7 contrary to decades of agency practice.” (Id. at 2). It is worth noting that Respondents do
8 not argue that the reported policy properly interprets § 1225(a)(1) (defining an “applicant
9 for admission”) or § 1225(b)(2) (determining which applicants for admission are subjected
10 to mandatory detention). (See generally Opp’n). In fact, Respondents do not acknowledge
11 the purported policy at all. (See generally id.). Instead, it appears Respondents argue
12 that—independent of any agency guidance or policy—Petitioners, as inadmissible
13 noncitizens, are applicants for admission under § 1225 and are properly detained under §
14 1225(b)(2). (Id. at 14–18).
15 1. Whether Section 1226(a) Includes “Inadmissible” Noncitizens
16 Section 1226(a) applies to an alien who is “detained pending a decision on whether
17 the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Petitioners argue
18 that this language “explicitly” confirms that the statute includes noncitizens who are
19 inadmissible pursuant to § 1182(a). (Appl. at 5). Petitioners also argue that § 1226(c),
20 especially as amended by the Laken Riley Act, Pub. L. No. 119-1, 139 Stat. 3 (2025),
21 implicitly proves that § 1226(a) includes inadmissible noncitizens. (Id. at 6–8). Section
22 1226(c) carves out exceptions to § 1226(a), requiring certain people be subject to
23 mandatory detention. 8 U.S.C. § 1226(c). Specifically, § 1226(c)(1)(E) (enacted by the
24 Laken Riley Act) requires mandatory detention for people who are (1) inadmissible under
25 § 1182(a)(6)(A), (6)(C), or (7); and (2) charged with certain crimes not relevant here. Id.
26 § 1226(c)(1)(E). Petitioners argue that, because § 1226(c)(1)(E) is an exception to §
27 1226(a), if a noncitizen met only one of the § 1226(c)(1)(E) requirements (for example, a
28 noncitizen is inadmissible under § 1182(a)(6)(A), but not charged with any of the
1 qualifying crimes), that noncitizen would be subject to § 1226(a). (Appl. at 6–7). “A plain
2 reading of this exception implies that the default discretionary bond procedures in Section
3 1226(a) apply to a noncitizen who . . . is present without being admitted or paroled but has
4 not been implicated in any crimes as set forth in Section 1226(c). Rodriguez v. Bostock,
5 779 F. Supp. 3d 1239, 1256 (W.D. Wash. 2025). “This lends strong textual support . . .
6 that ‘inadmissible’ noncitizens . . . are included within Section 1226.” Id.
7 2. Whether Section 1225(b)(2) Includes “Inadmissible” Noncitizens
8 Section 1225(b)(2)(A) provides in part that “an alien who is an applicant for
9 admission, if the examining immigration officer determines that an alien seeking admission
10 is not clearly and beyond a doubt entitled to be admitted, . . . shall be detained for a
11 proceeding under [§ 1229a].” 8 U.S.C. § 1225(b)(2)(A). An “applicant for admission” is
12 an “alien present in the United States who has not been admitted or who arrives in the
13 United States (whether or not at a designated port of arrival . . .).” Id. § 1225(a)(1).
14 Respondents argue that § 1225(b) applies “because Petitioners are all present in the United
15 States without being admitted.” (Opp’n at 15).
16 Petitioners argue that for § 1225(b)(2) to apply, the “‘applicant for admission’ must
17 also be ‘seeking admission,’” which is not present here. (Appl. at 13). Respondents argue
18 this is not necessary. (Opp’n at 15–16). According to Respondents, “many people who
19 are not actually requesting permission to enter the United States in the ordinary sense are
20 nevertheless deemed to be ‘seeking admission’ under the immigration laws.” (Id.
21 (emphasis in original) (citing Matter of Lemus-Losa, 25 I. & N. Dec. 734, 743 (BIA
22 2012))). It appears Respondents contend that an applicant for admission is automatically
23 understood to be “seeking admission” within the meaning of § 1225(b)(2)(A), without
24 needed to affirmatively apply for admission or parole. (See id.). The Court takes issue
25 with Respondents’ interpretation.
26 First, assuming any inadmissible noncitizen is “an applicant for admission” who is
27 “seeking admission” (and, therefore, subject to mandatory detention under § 1225(b)(2)),
28 would render the Riley Laken Act “unnecessary.” (Appl. at 7). In other words, as a
1 practical matter, if § 1225(b)(2) already encompassed all inadmissible noncitizens, there
2 would be no need to pass an amendment that required mandatory detention for those who
3 are inadmissible under the same statutes and are being charged with specific, violent
4 crimes. It seems apparent that “seeking admission” under § 1225(b)(2) requires something
5 beyond simply being inadmissible under § 1182(a)(6)(A). “[O]nly those who take
6 affirmative acts, like submitting an ‘application for admission,’ are those who can be said
7 to be ‘seeking admission’ within § 1225(b)(2)(A).” (Appl. at 10). Such an understanding
8 also ensures the phrase “seeking admission” as used in § 1225(b)(2)(A) is not “meaningless
9 or superfluous.” (Id. at 9).
10 Respondents do not argue that Petitioners affirmatively applied for admission. (See
11 generally Opp’n). Rather, Respondents argue that Petitioners, as inadmissible noncitizens,
12 qualify as “applicants for admission” “seeking admission” and, therefore, are subject to
13 mandatory under § 1225(b)(2). (Id. at 15–16). Not so. Accordingly, the Court finds on
14 the present record that Petitioners showed likely success, or at least raised serious questions
15 going to the merits.
16 F. Likelihood of Irreparable Harm
17 Under the second Winter factor, the Court considers whether Petitioners are “likely
18 to suffer irreparable harm in the absence of [injunctive] relief.” Winter, 555 U.S. at 20.
19 “‘Freedom from imprisonment—from government custody, detention, or other forms of
20 physical restraint—lies at the heart of the liberty’ that the Fifth Amendment Due Process
21 Clause Protects.” (Appl. at 15–16 (citing Zadvydas v. Davis, 533 U.S. 678, 690 (2001))).
22 “The deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”
23 Melendres v. Arpaio, 695 F.3d 990, 1002 (quoting Elrod v. Burns, 427 U.S. 347, 373
24 (1976)); see also Moreno Galvez v. Cuccinelli, 492 F. Supp. 3d 1169, 1181 (W.D. Wash.
25 2020). “Thus, it follows inexorably from our conclusion that the government’s current
26 policies are likely unconstitutional—and thus that [Petitioners] will likely be deprived of
27 their physical liberty unconstitutionally in the absence of the injunction—that [Petitioners]
28
1 have also carried their burden as to irreparable harm.” Hernandez, 872 F.3d at 995.
2 Therefore, the second Winter factor favors Petitioners.
3 G. Balance of Equities and Public Interest
4 When the government is a party to a case, the third and fourth Winter factors—the
5 balance of the equities and the public interest—merge. See Drakes Bay Oyster Co. v.
6 Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435
7 (2009)). Petitioners’ suit is premised on the violation of their Fifth Amendment rights.
8 (Pet. at 17–18). It would not be “‘in the public’s interest to allow the [government] . . . to
9 violate the requirements of federal law, especially when there are no adequate remedies
10 available.’” Ariz. Dream Act Coal., 757 F.3d at 1069 (quoting Melendres, 695 F.3d at
11 1002). “The public interest in enforcement of immigration laws, although significant, does
12 not override the public interest in protecting the safeguards of the Constitution.” Domingo-
13 Ros v. Archambeault, 2025 WL 1425558, at *5 (S.D. Cal. May 18, 2025). Accordingly,
14 the third and fourth factors support injunctive relief. A TRO is warranted under the
15 circumstances.
16 H. Scope
17 Under Federal Rule of Civil Procedure 65(d), every order granting an injunction
18 must “describe in reasonable detail—and not by referring to the complaint or other
19 document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d). “[A]n injunction
20 must be narrowly tailored . . . to remedy only the specific harms shown by [Petitioners],
21 rather than ‘to enjoin all possible breaches of the law.’” Price v. City of Stockton, 390 F.3d
22 1105, 1117 (9th Cir. 2004) (quoting Zepeda v. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983)).
23 “Injunctive relief ‘should be no more burdensome to the defendant than necessary to
24 provide complete relief to the plaintiffs before the court.’” Rodriguez, 779 F. Supp. 3d at
25 1263 (citing E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 680 (9th Cir. 2021)).
26 Respondents correctly argue that “receiving a bond hearing would not automatically
27 entitle Petitioners to release from detention.” (Opp’n at 5). Indeed, Petitioners
28 acknowledge that § 1226(a) allows for “discretionary detention.” (Appl. at 7). There is
1 then the possibility of detention even after a bonding hearing. As such, the Court finds that
2 the specific harm alleged—that Petitioners are “unlawfully barred from receiving a bond
3 hearing under the proper statute—is remedied by granting [Petitioners’] request for a bond
4 hearing under § 1226(a) and enjoining [Respondents] from denying bond on the basis that
5 [they are] detained under § 1225(b)(2).” Rodriguez, 779 F. Supp. 3d at 1263. Considering
6 the findings above, the Court DENIES Petitioners’ request to be released from custody,
7 but GRANTS Petitioners’ request to be provided individualized bond hearings pursuant to
8 § 1226(a).
9 I. Bond
10 Under Federal Rule of Civil Procedure 65(c), a court “may issue a preliminary
11 injunction . . . only if the movant gives security in an amount that the court considers proper
12 to pay the costs and damages sustained by any party found to have been wrongfully
13 enjoined or restrained.” Fed. R. Civ. P. 65(c). “Despite the seemingly mandatory
14 language, ‘Rule 65(c) invests the district court with discretion as to the amount of security
15 required, if any.’” Johnson, 572 F.3d at 1086 (quoting Jorgensen v. Cassiday, 320 F.3d
16 906, 919 (9th Cir. 2003)). “In particular, ‘the district court may dispense with the filing of
17 a bond when it concludes there is no realistic likelihood of harm to the defendant from
18 enjoining his or her conduct.’” Id. (citation modified) (quoting Jorgensen, 320 F.3d at
19 919). The Government has not argued that complying with the TRO will be costly. (See
20 generally Opp’n). Therefore, the Court DECLINES to set bond.
21 IV. CONCLUSION
22 Based on the foregoing, Petitioners’ Application for a TRO is: (1) DENIED as to
23 Petitioners’ request to be released from custody; (2) GRANTED as to Petitioners’ request
24 to be provided individualized bond hearings pursuant to § 1226(a); and (3) GRANTED as
25 to Petitioners’ request to remain in the Southern District of California pending final
26 resolution of this litigation. The Court DECLINES to set bond.
27
28
1 Respondents must provide Petitioners with individualized bond hearings under §
2 || 1226(a) within fourteen days of this Order. Respondents shall not deny Petitioners’ bond
3 || on the basis that § 1225(b)(2) requires mandatory detention.
4 IT IS SO ORDERED.
5 ||Dated: September 3, 2025 2»
Jorn Yn « L4\
Hon. Dana M. Sabraw
7 United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28