Rivera Giorges v. Kaiser

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 ALEX RIVERA GIORGES, et al., Case No. 25-cv-07683-NW

8 Plaintiffs,

ORDER DENYING PETITIONER-

9 v. PLAINTIFFS' MOTION FOR

PRELIMINARY INJUNCTION

10 POLLY KAISER, et al.,

Re: ECF No. 3

Defendants.

11

12

13 Before the Court are two unrelated, non-U.S. citizens who have lived continuously in the

14 United States since they were children, Mr. Alex Rivera Giorges (Rivera) from the age of eleven,

15 and Mr. Sokha Khan since he was two years old.1 Both men committed aggravated felonies while

16 in their twenties, served their sentences, and when paroled were immediately detained by

17 Immigration and Customs Enforcement (“ICE”) for removal proceedings. In a 2020 class action

18 lawsuit brought during the COVID-19 pandemic, a United States District Court judge determined

19 in a bond hearing that neither man was a danger to public safety or a flight risk, and both men

20 were released from ICE detention. For more than five years the men have had meaningful family

21 relationships, been engaged in their communities, and led law-abiding lives.

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24

1 At the hearing on the temporary restraining order, pro bono counsel explained that they had

consolidated Rivera’s and Khan’s habeas applications into a single action to preserve resources.

25

The Government noted the procedural anomaly in a footnote. See Opp. at 13 n.6; Est. of Saunders

v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014) (“Arguments raised only in footnotes, or only on

26

reply, are generally deemed waived.”). The appropriate remedy for improper joinder would be to

sever each Petitioner’s claims and require each Petitioner to proceed in a separate action, not to

27

deny relief. See Acord v. California, No. 17-cv-01089-MJS (HC), 2017 WL 4699835, at *1 (E.D.

1 Now, Petitioners ask the Court to enjoin the Government from re-detaining either of them

2 absent evidence that they pose a current flight risk or danger to the community. To re-detain

3 them, Petitioners argue, would deny Petitioners the process that they are due under the Fifth

4 Amendment. In response, the Government contends that Petitioners are subject to detention

5 provisions that the Supreme Court has found to be constitutionally sound without requiring a pre-

6 deprivation hearing. This Court must decide how long, if at all, the United States may hold

7 Petitioners in detention without a bond hearing before an Immigration Judge (“IJ”) who will

8 determine whether either should be released pending the outcome of their immigration

9 proceedings.

10 Based on the facts currently before the Court, the plain language of Title 8 of the U.S.

11 Code (the Immigration and Nationality Act (“INA”)) (specifically §§ 1223(c) and 1231(a)), and

12 binding Supreme Court and Ninth Circuit decisions, the Government may re-detain Petitioners

13 without running afoul of the Fifth Amendment. The Due Process Clause does not allow for

14 Petitioners to be detained indefinitely, but Petitioners are not currently detained, and they have not

15 established that they are likely to face indefinite detention going forward. Accordingly, the Court

16 finds that Petitioners have not demonstrated that they are likely to succeed on the merits and

17 DENIES the preliminary injunction.

18 I. BACKGROUND

19 A. Zepeda Rivas Class Action

20 Petitioners are members of the class that litigated Zepeda Rivas v. Jennings, No. 20-cv-

21 02731-VC (N.D. Cal. filed April 20, 2020) (hereinafter “Zepeda Rivas”). Filed shortly after the

22 onset of the pandemic, the suit challenged the crowded custody conditions in the ICE San

23 Francisco Field Office’s detention centers, including at the Yuba County Jail, that exposed

24 detainees to COVID-19 infection and related health complications. Many of the class members,

25 including Rivera and Khan, had serious criminal convictions that stripped them of legal status in

26 the United States and required their detention pending a final order of removal. But, due to the

27 COVID-19 public health emergency, petitioners argued that the statutory presumption that their

1 detention validly served those purposes should give way to individualized review by a federal

2 judge. Id. at 40. The Zepeda Rivas court agreed.

3 On April 29, 2020, the judge granted provisional class certification and issued a temporary

4 restraining order. Zepeda Rivas v. Jennings, 445 F. Supp. 3d 36 (N.D. Cal. 2020). The order

5 created a process for each class member to submit an individual bail application with specific

6 information, including the applicants’ criminal history, for the Court’s consideration. Id. at 41-42.

7 The Court would then assess each application and “avoid releasing detainees who [we]re a danger

8 to the community and . . . minimize the possibility that released detainees [would] fail to appear

9 for their removal proceedings.” Id. at 40.

10 B. Mr. Alex Rivera Giorges

11 1. Background

12 Rivera was born in El Salvador where he had a traumatic childhood. When he was very

13 young his parents left for the United States, and Rivera lived with an aunt who emotionally and

14 physically neglected him. On the rare occasions when his parents inquired about him, they did so

15 only by talking to Rivera’s aunt, never directly to him. As a child in El Salvador, Rivera

16 witnessed shootings and murders, and endured physical abuse.

17 On August 6, 1980, when he was 11, Rivera entered the United States as a Lawful

18 Permanent Resident. He lived with his parents in Los Angeles, California, where he continued to

19 be neglected and physically abused. He was lonely and unsafe. Rivera sought protection among a

20 gang of kids in his neighborhood. He began to get in fights, stole things, and spent time in a

21 juvenile correctional facility. His negative associations and conduct continued into young

22 adulthood. On July 29, 1992, when he was 22 years old, he was convicted of second-degree

23 murder and conspiracy, and sentenced to fifteen years to life in prison, with the possibility of

24 parole.

25 In 2014, having already served 22 years of his sentence, then 45-year-old Rivera was

26 diagnosed with lymphoma. His six months of chemotherapy occurred in prison. During his

27 treatment and remission, Rivera disassociated with all gang members. He earned his G.E.D., took

1 classes on criminal thinking, anger management, denial management, and participated in various

2 self-help and rehabilitations groups including Careless Youth Corrected by Lifers’ Experiences

3 (CYCLE), and Criminals & Gang Members Anonymous (CGA). While incarcerated Mr. Rivera

4 also participated in Alcoholics Anonymous. He has now been sober for 25 years.

5 In March 2019, the California Parole Board found that Rivera was suitable for release into

6 the community and granted him parole. But when he was released on June 25, 2019, ICE

7 immediately arrested and detained him at the Yuba County Jail in Marysville, California. Yuba

8 County Jail has a troubled record for inmate conditions, including lack of medical care, inadequate

9 hygiene, and excessive use of solitary confinement. See, e.g., Hedrick v. Grant, No.

10 276CV00162-JAM-EFB, 2023 WL 5957608, at *7 (E.D. Cal. Sept. 13, 2023).

11 As discussed above, Rivera was a member of the class in Zepeda Rivas. On May 13, 2020,

12 Rivera submitted his bail application pursuant to the Zepeda Rivas temporary restraining order. In

13 his application Rivera explained he was not a danger to the community. He noted that, among

14 other things, the California Parole Board found that he did not pose a risk to public safety when he

15 was released on parole in June of 2019. Rivera’s application also explained that he was not a

16 flight risk because he had an extensive family network in California, had enrolled in transitional

17 housing and re-entry programs, had pending applications for immigration relief, and had ongoing

18 support from his pro bono attorney and social worker.

19 The judge granted Rivera’s bail application on May 23, 2020, with the single condition

20 that class counsel certify to ICE that space in the transitional housing facility was available for

21 Rivera when he was released. Additionally, ICE fit Rivera with an ankle monitor. On June 4,

22 2020, ICE released Rivera from custody where he had been detained nine days shy of one year

23 (since June 15, 2019).

24 A few months after his release, on October 1, 2020, ICE imposed additional monitoring

25 conditions upon Rivera, including serving him with an Order of Supervision and enrolling him in

26 the Intensive Supervision Appearance Program (“ISAP”), both of which require regular, in-person

27 check-in appointments with ICE. Additionally, ICE monitored Rivera via a smartphone

1 application that also enabled virtual check-in appointments. Rivera has always reported as

2 required for his Order of Supervision and ISAP check-ins, including after February 2025, when

3 ICE elected to remove his ankle monitor. He has not had any new criminal arrests, charges, or

4 convictions.

5 Almost immediately after his release, Rivera started working for a non-profit organization

6 in the Bay Area that provides shelter to disabled and medically vulnerable, unhoused people. In

7 his first year he was recognized as “Employee of the Month” twice. Rivera was later promoted to

8 a supervisory position, and he remains employed at the organization to this day. Rivera also

9 volunteers at local food banks, rides his bike, and has developed healthy friendships. He took

10 courses to earn back his driver’s license and diligently saved money until he was able to purchase

11 a car and pay for car insurance. He has a bank account, pays taxes, and rents his apartment. In

12 short, he has led a law-abiding life that demonstrates a commitment to his community.

13 2. Immigration Proceedings

14 The Government issued Rivera a Notice to Appear, dated June 20, 2019. On March 2,

15 2020, shortly before the COVID-19 pandemic instigated the Zepeda Rivas class action, an IJ

16 issued an order denying Rivera relief from removal. Rivera appealed, and the Board of

17 Immigration Appeals (“BIA”) issued a decision denying that appeal on December 31, 2020,

18 rendering the IJ’s decision a final order of removal.2 By the time the BIA issued its decision,

19 Rivera was no longer in detention.

20 Despite the final order of removal, Rivera has continued to take steps to lawfully remain in

21 the United States. Recently, the Ninth Circuit remanded his immigration case to the Executive

22

23

24 2 A final order of removal is defined as “the order” of the IJ “concluding that the alien is

deportable or ordering deportation.” Rizo v. Lynch, 810 F.3d 688, 690 (9th Cir. 2016) (quoting 8

25 U.S.C. § 1101(a)(47)(A)). “By statute, an order of removal ‘become[s] final upon’ a decision of

the BIA affirming that order or the expiration of the period for seeking BIA review.” Coria v.

26 Garland, 114 F.4th 994, 1001 (9th Cir. 2024), cert. denied sub nom. Coria v. Bondi, 145 S. Ct.

1961 (2025) (quoting 8 U.S.C. § 1101(a)(47)(B)); Ordonez v. I.N.S., 345 F.3d 777, 784 (9th Cir.

27 2003) (“When the BIA dismisses an appeal from a final order of deportation, the IJ’s order

becomes the final order of deportation on the date of the BIA's decision.”).

1 Office of Immigration Review (EOIR). Rivera has a pending motion with the Board of

2 Immigration Appeals (BIA) to prevent his removal under the Convention Against Torture.

3 C. Mr. Sokha Khan

4 1. Background

5 Khan’s parents fled their home country of Cambodia due to violence, political instability,

6 and persecution. Initially they traveled to the Phanat Nikhom Refugee Camp in Chonburi

7 Province, Thailand, where Khan was born in 1980. When Khan was two, his parents traveled to

8 the United States where he has resided ever since. He has never been to Cambodia and has never

9 been back to Thailand since he left as a baby.

10 On June 15, 1983, Khan was admitted as a refugee to the United States at San Francisco,

11 California. His status was adjusted to Lawful Permanent Resident on November 29, 1989,

12 retroactive to June 15, 1983, under section 209(a) of the Immigration and Nationality Act. His

13 mother is now a United States citizen, and his father is a Lawful Permanent Resident.

14 On January 4, 2006, Khan pled nolo contendere to two felonies, first-degree and second-

15 degree robbery, and was respectively sentenced to six years and fourteen years for those

16 convictions. Khan had no prior criminal history when he pled to the charges. He was 25 years

17 old, married, living in Stockton, California, and had two daughters who were four and two years

18 old. He spent the next fourteen years in prison.

19 When Khan was released on parole on June 22, 2020, he received a notice to appear for

20 removal proceedings. He was transferred from prison directly to ICE custody.

21 Like Rivera, Khan was part of the Zepeda Rivas class action. He filed a bail application in

22 which he explained that he was not a danger to the community, because, among other things, the

23 California Parole Board found that he did not pose a risk to public safety when they released him

24 on parole. His application also explained that he was not a flight risk.

25 Approximately one month later, on July 21, 2020, the judge in Zepeda Rivas released

26 Khan, and ICE fit him with an ankle monitor. Several months later ICE imposed more monitoring

27

1 conditions on Khan, including serving him with an Order of Supervision and enrolling him in

2 ISAP.

3 Since Khan was released from ICE detention more than five years ago, he has lived with

4 his mother, who is 66-years-old. She suffers from high cholesterol, diabetes, and high blood

5 pressure. Khan takes his mother to medical appointments, helps with her medication, and is her

6 primary caretaker. Khan has reported to all his check-in appointments with ICE, has complied

7 with all conditions of his release, and does not have any new criminal arrests, charges, or

8 convictions. Khan is now 45-years-old. Over the last five years he has been law abiding. In

9 addition to caring for his mother and being a parent to his two older daughters who are 20 and 22,

10 Khan is also the father of a third daughter who is three years old.

11 2. Immigration Proceedings

12 Khan appears to be at the beginning of his removal proceedings. The Government issued a

13 superseding Notice to Appear to Khan dated August 22, 2025. Khan filed a motion to terminate

14 these removal proceedings, and the IJ deferred ruling on Khan’s motion until the status conference

15 set for December 23, 2025. The record currently before the Court indicates that, unlike Rivera,

16 Khan is not currently subject to a final order of removal.

17 D. Procedural Posture of this Action

18 On September 9, 2025, Petitioners filed the instant petition for writ of habeas corpus and

19 an emergency motion for a temporary restraining order. ECF Nos. 1, 2. Petitioners asserted that

20 the Government was likely to violate their “weighty liberty interest[s] under the Due Process

21 Clause of the Fifth Amendment” and that a TRO was necessary to prevent “imminent

22 unconstitutional detention.” Id. The Court granted Petitioners’ TRO that same day and issued an

23 Order to Show Cause why a preliminary injunction should not issue. The Government responded

24 on September 15, 2025; Petitioners filed their reply on September 18, 2025; and the Court heard

25 argument on September 22, 2025. At the hearing, the Court maintained the terms of the TRO for

26 two weeks and asked the parties for additional briefing on recent decisions that were issued by

27 district courts within the Ninth Circuit. The parties timely filed their supplemental briefs, and the

1 Court extended the terms of the TRO until October 10, 2025, to evaluate the parties’ arguments

2 and recent caselaw.

3 II. LEGAL STANDARD

4 An injunction is a matter of equitable discretion and is “an extraordinary remedy that may

5 only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat.

6 Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). The party seeking a preliminary injunction must

7 establish (1) that they are “likely to succeed on the merits,” (2) that they are “likely to suffer

8 irreparable harm in the absence of preliminary relief,” (3) that “the balance of equities tips in

9 [their] favor,” and (4) “that an injunction is in the public interest.” Id. at 20. In cases where “the

10 Government is the opposing party,” the third and fourth factors “merge.” Nken v. Holder, 556

11 U.S. 418, 435 (2009). Where the plaintiff does not establish a likelihood of success on the merits

12 but merely establishes “serious questions going to the merits,” a preliminary injunction may still

13 issue if the plaintiff can show that the balance of hardships “tips sharply in [his] favor,” irreparable

14 injury is likely, and the injunction is in the public interest. All. for the Wild Rockies v. Cottrell,

15 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation marks omitted).

16 III. DISCUSSION

17 A. Overview of Caselaw Regarding Immigration Detention Statutes

18 The current legal framework in immigration habeas cases is muddled and rapidly evolving.

19 To this Court’s benefit, several decisions have meticulously summarized the recent and extensive

20 developments in the law within this Circuit. See, e.g., Avilez v. Garland, 69 F.4th 525, 529-33

21 (9th Cir. 2023); Espinoza v. Wofford, No. 1:24-CV-01118-SAB-HC, 2025 WL 1556590, at *3

22 (E.D. Cal. June 2, 2025). The Court does not replicate that fastidious work in this Order but relied

23 on those decisions to provide the necessary context for this decision. Here the Court provides a

24 brief recitation of the authority that applies to the circumstances of this case.

25 As the Ninth Circuit noted, “[w]here an alien falls within [the immigration] statutory

26 scheme can affect whether his detention is mandatory or discretionary, as well as the kind of

27 review process available to him if he wishes to contest the necessity of his detention.” Prieto-

1 Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008).3 Though not discussed in the parties’

2 papers, Rivera and Khan are subject to different detention statutes. In total, “[f]our statutes grant

3 the Government authority to detain noncitizens who have been placed in removal proceedings.”

4 Avilez v. Garland, 69 F.4th 525, 529 (9th Cir. 2023). Two of those statutes are relevant here, 8

5 U.S.C. §§ 1226(c) and 1231(a).

6 Section 1226(c) provides that an “alien” who commits certain offenses “shall” be taken

7 into custody “when the alien is released [from prison], without regard” to the terms of that release.

8 § 1226(c)(1). The government is permitted to release an “alien” subject to § 1226(c) “only if”

9 release is necessary to provide protection to a witness in a government investigation.

10 § 1226(c)(4). The Supreme Court has explicitly held that § 1226(c) facially passes constitutional

11 muster. Demore v. Kim, 538 U.S. 510 (2003) (rejecting constitutional challenge because detention

12 § 1226(c) detention contains a “definite termination point” in the form of a final order of removal).

13 Consequently, noncitizens who have committed aggravated felonies may—and, in most

14 circumstances, must—be detained pending an order of final removal. Id. “[Section] 1226(c) on

15 its face offers no opportunity for release on bond.” Rodriguez Diaz v. Garland, 53 F.4th 1189,

16 1197 (9th Cir. 2022) (citing § 1226(c)); Jennings v. Rodriguez, 583 U.S. 281 (2018) (rejecting

17 Ninth Circuit holding that § 1226 contains an implicit six-month time limit on the length of

18 mandatory detention).

19 In contrast, “[§] 1231(a) applies to detention after the entry of a final order of removal,”

20 typically the “ninety-day ‘removal period’ after the conclusion of removal proceedings.” Id. at

21 530–31. For those initial ninety days, a noncitizen’s detention is mandatory: “[d]uring the

22 removal period, the Attorney General shall detain the alien.” § 1231(a)(2) (emphasis added). The

23

24 3 “Alien” is a term used in the INA, which was enacted in 1952; many cases that address

immigration issues and the INA also use that word. The term is now widely considered

25 derogatory because it pejoratively denies and dismisses the humanity of people, including

children. As a result, currently advocates and government agencies often choose to use words

26 such as immigrant or non-citizen instead. Here, the Court uses “alien” only when quoting the

statute or caselaw. See Arce v. United States, 899 F.3d 796, 799 (9th Cir. 2018) (“Following the

27 lead of the United States Supreme Court, we use the term ‘noncitizen’ throughout this opinion to

refer to any person who is not a citizen or national of the United States.” (cleaned up)).

1 statute is especially severe for noncitizens that have aggravated felonies: “[u]nder no

2 circumstance during the removal period shall the Attorney General release an alien who has been

3 found inadmissible” due to the commission of an aggravated felony. Id.

4 After the ninety-day period, the Government may continue detaining noncitizens, but only

5 for “a period reasonably necessary to secure removal.” See Zadvydas v. Davis, 533 U.S. 678,

6 699–701 (2001) (six-month period of post-removal detention presumptively reasonable; beyond

7 that, noncitizen is entitled to release provided he demonstrates “good reason to believe there is no

8 significant likelihood of removal in the reasonably foreseeable future”).

9 The detention of “criminal aliens” is governed by its own subsection (§ 1231(a)(6)), and it

10 grants the Government the discretion to detain those individuals beyond the removal period

11 without reference to any bond hearing. § 1231(a)(6). Like § 1226(c), the statute provides no

12 indication that the detainee is entitled to a pre-detention bond hearing. Johnson v. Arteaga-

13 Martinez, 596 U.S. at 581 (“[T]here is no plausible construction of the text of § 1231(a)(6) that

14 requires the Government to provide bond hearings before immigration judges after six months of

15 detention, with the Government bearing the burden of proving by clear and convincing evidence

16 that a detained noncitizen poses a flight risk or a danger to the community.”).

17 B. Application

18 The central question in this case is narrow: can the Government detain Rivera and Khan

19 without a bond hearing? The answer is yes. For one, the Supreme Court has ruled multiple times

20 in multiple contexts that §§ 1226(c) and 1231(a) are facially constitutional without a bond hearing

21 for at least a presumptive six-month period following detention. See Demore (detention under

22 § 1226(c) is “a constitutionally permissible part of” removal proceedings); Khotesouvan, 386 F.3d

23 at 1301 (concluding that the ninety-day period of mandatory detention under § 1231(a)(2) “passes

24 constitutional scrutiny”).

25 Although both Petitioners seek to avoid further detention using an “as-applied” challenge

26 to § 1226(c), on the facts of their individual cases, they cannot succeed. Admittedly, Petitioners

27 are uniquely situated given their court-ordered release in Zepeda Rivas. Nevertheless, these

1 circumstances do not create a constitutional concern. It is true that Petitioners have individualized

2 findings by a sitting federal judge who concluded in 2020 that neither man was a flight risk nor a

3 danger to society. Petitioners have been model citizens since their release in 2020. They have

4 complied fully with all the conditions that ICE has set as part of that release, including regular ICE

5 check-ins. Without question, Petitioners have built meaningful and law-abiding lives in the five

6 years since they left the detention facilities.

7 But the question before this Court is not whether Petitioners are worthy of a second

8 chance—the facts before the Court indicate that they may well be. Nor is the question whether the

9 Government can detain Petitioners indefinitely without due process, as they fear might come to

10 pass. The only question currently before the Court is whether the Government may re-detain

11 Petitioners without a bond hearing. Under current Supreme Court and Ninth Circuit

12 jurisprudence, the Government may do so without running afoul of the Constitution. As a result,

13 the Petitioners have not demonstrated that they are likely to succeed on the merits, and the Court

14 DENIES the preliminary injunction.

15 1. Rivera

16 As discussed infra, the Government detained Rivera pursuant to § 1226(c) from July 2019

17 to June 2020. Under the terms of that statute, his detention was mandatory, and he was “not

18 entitled to a bond hearing under § 1226(c) as a statutory matter.” Avilez, 48 F.4th at 925–27. In

19 June 2020, however, the Zepeda Rivas court required the Government to release certain

20 individuals subject to § 1226(c) mandated detention. The court reviewed Rivera’s application for

21 relief, found he posed neither a flight risk nor a danger to the community, and released him

22 pursuant to the terms negotiated in the governing settlement agreement. In total, Rivera spent just

23 shy of a year in detention.

24 Rivera’s order of removal became final on December 31, 2020, when the BIA denied

25 Rivera’s appeal. At that point Rivera was already out of custody per his individualized hearing in

26 Zepeda Rivas. From December 31, 2020, forward, the statute governing Rivera’s detention shifted

27

1 to § 1231(a). Because Rivera has not been detained since June 2020, he has never been detained

2 under § 1231(a).

3 Although the first ninety days of detention under § 1231(a) is mandatory, according to

4 Zadvydas, an individual may be detained under § 1231(a) for six months without constitutional

5 concern. Even beyond that, the burden is on the petitioner to demonstrate that his detention

6 contravenes the Fifth Amendment: “after a presumptively reasonable six-month period of post-

7 removal period detention, the alien was entitled to release if he successfully demonstrated that

8 there was ‘good reason to believe there is no significant likelihood of removal in the reasonably

9 foreseeable future.’” Prieto-Romero, 534 F.3d at 1062 (quoting Zadvydas, 533 U.S. at 701).

10 Despite the plain language of the statute, Rivera has not been detained under § 1231(a).

11 If he is detained, it appears likely that he will be removed in the reasonable future. An IJ found

12 Rivera could be removed to his native El Salvador in March 2020. While Rivera appealed that

13 decision and has made several collateral challenges, that finding has been affirmed by the BIA and

14 remains standing. To the Court, it does not appear there are any procedural hurdles on the horizon

15 that would make it unlikely or impossible for the Government to successfully coordinate Rivera’s

16 removal to El Salvador, assuming that is what the Government elects to do.

17 The Court finds the reasoning of Uc v. Kaiser persuasive, despite the different fact pattern.

18 Following an order of removal and bond hearing, Uc was placed in ICE custody “pursuant to the

19 mandatory detention provisions of 8 U.S.C. § 1231(a)(6).” Uc v. Kaiser, No. 22-CV-04369-CRB,

20 2022 WL 9496434, at *1 (N.D. Cal. Oct. 14, 2022). After six months, Uc received a second bond

21 hearing, where an IJ held that ICE had not met its burden in showing that Uc was a continued

22 danger or flight risk.4 Id. The Government appealed the IJ’s order, but did not move to stay the

23 decision, and Uc was released on bond. Id. Nearly two years passed when the BIA granted ICE’s

24 appeal, vacated the IJ’s bond order, and ordered Uc detained without bond. Id. at *2. Uc filed a

25 habeas petition and TRO asking the court to enjoin the Government from re-detaining him without

26

27 4 Uc received a second bond hearing because of the Ninth Circuit’s holding in Rodriguez, a case

that the Supreme Court reversed shortly after.

1 a new bond hearing, arguing that he had “a protected liberty interest in his conditional release.”

2 Uc, 2022 WL 9496434, at *3.

3 Using the balancing test from Mathews to consider Uc’s claim, the court found that Uc’s

4 liberty interest, though not trivial, was insufficient to trigger a due process violation. The court

5 reasoned that Uc knew “that his release was subject to appellate review” at the BIA and could not

6 reasonably “claim that the government promised him ongoing freedom . . . so long as he complied

7 with the terms of his conditional release.” Id. Consequently, the court found that Uc had a less

8 “weighty” liberty interest than most, and that the circumstances did not outweigh the weight of the

9 authority and government interests favoring detention. Id.

10 That same reasoning applies here. Petitioners were released on bond within the unique

11 circumstances created by the COVID-19 crisis and the Zepeda Rivas settlement agreement.

12 Petitioners could not reasonably “claim that the government promised [them] ongoing freedom . . .

13 so long as [they] complied with the terms of [their] conditional release.” That the settlement

14 agreement had an expiration date indicates that Petitioners’ release was, for all intents and

15 purposes, temporary. Presumably, had the exigent circumstances caused by the pandemic not

16 occurred, both Rivera and Khan would have remained in detention.

17 To the extent Petitioners argue that their release from detention under Zepeda Rivas

18 entitles them to a liberty interest that they otherwise would not have had, that argument is

19 unavailing. Cf. id. (“[Uc’s] argument that the regulations allowed ICE to seek an automatic stay

20 of release pending appeal . . . which would have prevented Mr. Uc's release from the start” cannot

21 really have been his preference.”) (cleaned up)). The Government should not lose the rights to

22 which it is entitled, i.e., the speedy detention and deportation of noncitizens subject to final orders

23 of removal, because it followed the terms of the settlement agreement. What’s more, the

24 Government has diligently attempted to detain and deport Rivera and Khan when the opportunities

25 became available. For both, ICE retrieved Petitioners and placed them in ICE detention on the

26 final days of their prison sentences. ICE now attempts to re-detain Petitioners only three months

27 after the Zepeda Rivas agreement expired.

1 2. Khan

2 Much of the analysis above applies with equal force to Khan. A notable factual difference

3 is that Khan’s removal proceedings remain pending. Without a final order of removal, Khan’s

4 detention is governed by § 1226(c) rather than § 1231(a). As the Supreme Court noted in

5 Jennings, § 1226(c) “mandates detention” “until the end of applicable [removal] proceedings.”

6 583 U.S. at 297, 303; see also id. at 304 (“[T]he statute expressly and unequivocally imposes an

7 affirmative prohibition on releasing detained aliens” for any reason unrelated to witness

8 protection) (emphasis in original)).

9 Khan’s release was the product of exigent circumstances—the text of the statute

10 temporarily giving way in the face of a public health crisis. Those circumstances have no bearing

11 on whether § 1226(c) applies to Khan now that the settlement agreement has lapsed. Khan

12 remains a noncitizen convicted of an aggravated felony, and he is no longer protected by the terms

13 of the Zepeda Rivas consent decree. He fits squarely into the population of noncitizens covered by

14 § 1226(c). Like Rivera, Khan could not have had a reasonable expectation that his liberty was

15 guaranteed so long as he maintained his good behavior.

16 Additionally, Khan’s single month in detention does not, as a matter of law, create

17 constitutional concerns. See Demore (finding six-month detention under § 1226(c) “for the

18 limited period of [a noncitizen’s] removal proceedings” constitutionally sound). Admittedly,

19 neither the Supreme Court nor the Ninth Circuit has provided guidance as to how long (beyond six

20 months) is too long for a non-citizen to spend in detention without a bond hearing. But, given that

21 Khan was only detained for one month in 2020, and his detention is therefore at least five months

22 shy of the term of detention approved in Demore, that is not the issue before the Court today.5

23

24

25

5 When calculating time spent in detention, courts aggregate nonconsecutive detention periods.

26 The clock does not restart each time that a nonconsecutive detention begins for a noncitizen.

Nguyen v. Scott, No. 2:25-CV-01398, 2025 WL 2419288, at *13 (W.D. Wash. Aug. 21, 2025);

27 Sied v. Nielsen, No. 17-CV-06785-LB, 2018 WL 1876907, at *6 (N.D. Cal. Apr. 19, 2018)

(collecting cases).

] If or when Khan receives a final order of removal, he will move into the phase of

2 || immigration proceedings covered by § 1231(a). Pursuant to that statute, the Government “shall”

3 detain Khan for ninety days to effectuate his removal, and his detention may presumptively last

4 || six months without raising constitutional concerns. If or when that detention occurs, Khan is

5 entitled to renew his habeas petition. As things stand now, Khan has not demonstrated that he

6 || faces the deprivation of his due process rights should the Government elect to re-detain him. See

7 || Keo v. Warden of the Mesa Verde Ice Processing Ctr., No. 1:24-CV-00919-HBK (HC), 2025 WL

8 1029392, at *8 (E.D. Cal. Apr. 7, 2025), appeal dismissed sub nom. Keo v. Warden, No. 25-3546,

9 || 2025 WL 2528945 (9th Cir. June 27, 2025) (“Here, because removal proceedings are still actively

10 || “pending” and Petitioner is not eligible for relief under 8 U.S.C. § 1226(c)(2), detention is

11 mandatory under § 1226(c).”’)

IV. CONCLUSION

13 For the reasons explained above, Petitioners’ motion for a preliminary injunction is

14 || DENIED.

15 Furthermore, the Court issues an ORDER TO SHOW CAUSE why this case should not be

a 16 || dismissed as moot now that Petitioners’ requested relief has been preliminarily denied. If

2 17 || Petitioners object to the dismissal of this matter, Petitioners shall file a response to this Order to

Z 18 Show Cause no later than October 24, 2025.

19 IT ISSO ORDERED.

20 Dated: October 10, 2025

Noél Wise

22 United States District Judge

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