Chestnut

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8

9 BERTA MARINA PEREZ HERNANDEZ, Case No. 1:25-cv-01388-JLT-EPG-HC

10 Petitioner, FINDINGS AND RECOMMENDATION TO

GRANT PETITION FOR WRIT OF

11 v. HABEAS CORPUS AND DIRECT

RESPONDENT TO RELEASE PETITIONER

12 CHRISTOPHER CHESTNUT,

13 Respondent.

14

15 Petitioner is a federal immigration detainee proceeding pro se with a petition for writ of

16 habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons set forth herein, the undersigned

17 recommends that the petition for writ of habeas corpus be granted and Petitioner be released

18 from custody.

19 I.

20 BACKGROUND

21 Petitioner is a citizen and national of Guatemala. (ECF No. 1 at 16, 17.1) Petitioner

22 claims that she has lived in the United States for over twenty years, has U.S. citizen children, and

23 has no criminal record other than a single arrest for driving without a license and insurance.

24 (ECF No. 12 at 3.)

25 On June 27, 2025, Petitioner was arrested by U.S. Immigration and Customs

26 Enforcement (“ICE”). (ECF No. 1 at 17.) It appears that Petitioner is being charged as “an alien

27 present in the United States without being admitted or paroled, or who arrived in the United

1 States at any time or place other than as designated by the Attorney General” under section

2 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”). (ECF No. 1 at 17.)

3 On July 14, 2025, an immigration judge (“IJ”) ordered that Petitioner be released from

4 custody under a bond of $2,000 and alternatives to detention at the discretion of the Department

5 of Homeland Security (“DHS”). (ECF No. 1 at 13.) Petitioner alleges that DHS first filed an

6 EOIR-43 to “get an automatic stay of the bond order” and then DHS filed an appeal of the bond

7 order to the Board of Immigration Appeals (“BIA”), “triggering yet another stay.” (ECF No. 1 at

8 2.) On September 23, 2025, the BIA issued an order, which stated:

9 The Department of Homeland Security has appealed an

Immigration Judge’s July 14, 2025, bond order. The record,

10 however, contains only a form order decision of the Immigration

Judge. To conduct a meaningful review of that decision, the Board

11 requires the form order be accompanied by a memorandum

indicating the reasons for the Immigration Judge’s determination.

12 See Matter of Daryoush, 18 I&N Dec. 352,353 (BIA 1982). We

must therefore return the record to the Immigration Court for

13 further action. Upon receipt of the record, the Immigration Judge

should prepare a written memorandum in support of the decision.

14 The Immigration Judge should then certify the record back to the

Board.

15

16 (ECF No. 1 at 11.)

17 On October 9, 2025, a different IJ denied Petitioner’s request for a change in custody

18 status due to lack of jurisdiction, stating:

19 The undisputed facts in this case reflect that the [petitioner] entered

the United States without inspection on or about June 2003.

20 Subsequent to the issuance of the Court’s bond decision, the Board

held that based on the language of section 235(b)(2)(A) of the

21 Immigration and Nationality Act, Immigration Judges lack

authority to hear bond requests or to grant bond to aliens like the

22 [petitioner] who are present in the United States without

admission. Matter of Yajure Hurtado, 29 I&N Dec. 216, 220-29

23 (BIA 2025). Based on the [petitioner]’s presence in the United

States without admission and the Board’s intervening precedent in

24 Yajure Hurtado, the Court lacked the authority to conduct the

Bond hearing.

25

The Court acknowledges that a prior Immigration Judge granted

26 bond, however, since the Court lacked jurisdiction to grant bond,

that bond order is rescinded. The [petitioner] points to no evidence

27 to show that she has been admitted in any lawful status since her

unlawful entry without inspection.

1 The Courts [sic] prior order, dated 07/14/2025, is rescinded and

this order is substituted in its place.

2

Motion for Bond is DENIED.

3

4 (ECF No. 1 at 9–10.)

5 On October 17, 2025, Petitioner filed a petition for writ of habeas corpus and a motion

6 for temporary restraining order (“TRO”) in this Court. (ECF Nos. 1, 2.) On October 20, 2025, the

7 Court denied the motion for TRO. (ECF No. 4.) On November 19, 2025, Respondent filed an

8 answer. (ECF No. 10.) On December 5, 2025, Petitioner filed a reply. (ECF No. 12.) That same

9 day, Petitioner also filed a motion for preliminary injunction. (ECF No. 11.)

10 II.

11 DISCUSSION

12 In the petition, Petitioner asserts the following claims for relief: (1) Petitioner is not

13 subject to mandatory detention because she entered the United States without inspection over

14 twenty years ago and was not apprehended upon entry, and thus, cannot be considered to be

15 “seeking admission”; and (2) the automatic stay of Petitioner’s release on bond under 8 C.F.R.

16 § 1003.19(i)(2) and the actions of a different IJ when the case was sent back to the immigration

17 court violate Petitioner’s right to substantive and procedural due process under the Fifth

18 Amendment. (ECF No. 1 at 6.)

19 A. Automatic Stay

20 In Ground Two, Petitioner asserts that the automatic stay of her release on bond under 8

21 C.F.R. § 1003.19(i)(2) violates her right to substantive and procedural due process under the

22 Fifth Amendment. (ECF No. 1 at 6.) The automatic stay regulation provides:

23 In any case in which DHS has determined that an alien should not

be released or has set a bond of $10,000 or more, any order of the

24 immigration judge authorizing release (on bond or otherwise) shall

be stayed upon DHS’s filing of a notice of intent to appeal the

25 custody redetermination (Form EOIR–43) with the immigration

court within one business day of the order, and, except as

26 otherwise provided in 8 CFR 1003.6(c), shall remain in abeyance

pending decision of the appeal by the Board.

27

8 C.F.R. § 1003.19(i)(2).

1 “Courts to address this issue have begun by noting that, for due process purposes,

2 invoking the automatic stay ‘is a separate act of detention’ from the initial act of detaining a

3 noncitizen suspected to be in the country illegally.” Otilio B.F. v. Andrews, No. 1:25-cv-01398-

4 KES-EPG (HC), --- F. Supp. 3d ----, 2025 WL 3152480, at *9 (E.D. Cal. Nov. 11, 2025) (citing

5 Silva v. Larose, No. 25-cv-2329-JES-KSC, 2025 WL 2770639, at *3 (S.D. Cal. Sept. 29, 2025)).

6 “Both the initial act and subsequent act ‘require valid authority and due process.’” Otilio B.F.,

7 2025 WL 3152480, at *9 (quoting Herrera v. Knight, No. 2:25-cv-01366-RFB-DJA, 2025 WL

8 2581792, at *9 (D. Nev. Sept. 5, 2025)).

9 In cases addressing this issue, the “initial act of detention was authorized by 8 U.S.C.

10 § 1226(a). But § 1226(a) detention was no longer authorized once the immigration judge granted

11 petitioner release on bond. The government therefore turned to 8 C.F.R. § 1003.19(i)(2) to detain

12 petitioner pending the government’s appeal to the BIA.” Otilio B.F., 2025 WL 3152480, at *9.

13 Here, however, there is an additional complication because the record was returned to the

14 immigration court, where a different IJ rescinded the July 14, 2025 bond order in light of Matter

15 of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025). “Regardless of the status of the automatic

16 stay as to Petitioner . . . , however, Respondents make clear they continue to detain Petitioner . . .

17 based on their reading of § 1225(b)(2), and the Petition challenges h[er] detention on that

18 statutory basis. The Court thus turns to the statutory basis of [Petitioner]’s detention.” Escobar

19 Salgado v. Mattos, No. 2:25-CV-01872-RFB-EJY, 2025 WL 3205356, at *10 (D. Nev. Nov. 17,

20 2025).2

21 B. Statutory Basis of Petitioner’s Detention

22 Congress has enacted a complex statutory scheme governing the detention of noncitizens

23 during removal proceedings and following the issuance of a final order of removal. “Where an

24

2 Respondent does not address the automatic stay issue at all and does not argue that Petitioner is detained

25 pursuant to the automatic stay. Nonetheless, to the extent Respondent continues to detain Petitioner

pursuant to the automatic stay, the undersigned recommends finding Petitioner’s detention on that basis

26 unconstitutional for the reasons set forth in Otilio B.F., 2025 WL 3152480, at *9–11. See M.P.L. v.

Arteta, No. 25-CV-5307 (VSB), 2025 WL 3288354, at *7 (S.D.N.Y. Nov. 25, 2025) (noting “near

27 unanimity” of “[a]t least 50 district court decisions across the United States in the last 6 months alone”

finding “that DHS’s application of the automatic stay pursuant to 8 C.F.R. § 1003.19(i)(2) violates a non-

1 alien falls within this statutory scheme can affect whether his detention is mandatory or

2 discretionary, as well as the kind of review process available to him if he wishes to contest the

3 necessity of his detention.” Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th Cir. 2008).

4 “Four statutes grant the Government authority to detain noncitizens who have been

5 placed in removal proceedings”: 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a). Avilez v.

6 Garland, 69 F.4th 525, 529 (9th Cir. 2023). Respondent asserts that Petitioner is subject to

7 mandatory detention pursuant to 8 U.S.C. § 1225(b)(2). (ECF No. 10 at 1). In Ground One,

8 Petitioner argues that “DHS’s argument is directly foreclosed by Torres v. Barr, 976 F.3d 918,

9 927 (9th Cir. 2020) (en banc). Pursuant to that case law, I cannot be considered to be ‘seeking

10 admission.’ So, I am not subject to mandatory detention.” (ECF No. 1 at 6.) Petitioner contends

11 that DHS’s “detention authority lies under § 1226(a).” (ECF No. 12 at 2.)

12 8 U.S.C. § 1226(a) “is the default detention statute for noncitizens in removal

13 proceedings.” Avilez, 69 F.4th at 529. Detention under § 1226(a) “is discretionary” and

14 “provides for release on bond or conditional parole.” Id. The Supreme Court has described 8

15 U.S.C. § 1225 as follows:

16 Under § 302, 110 Stat. 3009–579, 8 U.S.C. § 1225, an alien who

“arrives in the United States,” or “is present” in this country but

17 “has not been admitted,” is treated as “an applicant for admission.”

§ 1225(a)(1). Applicants for admission must “be inspected by

18 immigration officers” to ensure that they may be admitted into the

country consistent with U.S. immigration law. § 1225(a)(3).

19

As relevant here, applicants for admission fall into one of two

20 categories, those covered by § 1225(b)(1) and those covered by

§ 1225(b)(2). Section 1225(b)(1) applies to aliens initially

21 determined to be inadmissible due to fraud, misrepresentation, or

lack of valid documentation. See § 1225(b)(1)(A)(i) (citing

22 §§ 1182(a)(6)(C), (a)(7)). Section 1225(b)(1) also applies to certain

other aliens designated by the Attorney General in his discretion.

23 See § 1225(b)(1)(A)(iii). Section 1225(b)(2) is broader. It serves as

a catchall provision that applies to all applicants for admission not

24 covered by § 1225(b)(1) (with specific exceptions not relevant

here). See §§ 1225(b)(2)(A), (B).

25

Both § 1225(b)(1) and § 1225(b)(2) authorize the detention of

26 certain aliens. Aliens covered by § 1225(b)(1) are normally

ordered removed “without further hearing or review” pursuant to

27 an expedited removal process. § 1225(b)(1)(A)(i). But if a

§ 1225(b)(1) alien “indicates either an intention to apply for

1 asylum interview. § 1225(b)(1)(A)(ii). If an immigration officer

determines after that interview that the alien has a credible fear of

2 persecution, “the alien shall be detained for further consideration

of the application for asylum.” § 1225(b)(1)(B)(ii). Aliens who are

3 instead covered by § 1225(b)(2) are detained pursuant to a

different process. Those aliens “shall be detained for a [removal]

4 proceeding” if an immigration officer “determines that [they are]

not clearly and beyond a doubt entitled to be admitted” into the

5 country. § 1225(b)(2)(A).

6 Regardless of which of those two sections authorizes their

detention, applicants for admission may be temporarily released on

7 parole “for urgent humanitarian reasons or significant public

benefit.” § 1182(d)(5)(A); see also 8 C.F.R §§ 212.5(b), 235.3

8 (2017). Such parole, however, “shall not be regarded as an

admission of the alien.” 8 U.S.C. § 1182(d)(5)(A). Instead, when

9 the purpose of the parole has been served, “the alien shall forthwith

return or be returned to the custody from which he was paroled and

10 thereafter his case shall continue to be dealt with in the same

manner as that of any other applicant for admission to the United

11 States.” Ibid.

12 Jennings v. Rodriguez, 583 U.S. 281, 287–88 (2018).

13 Until this year, DHS has applied section 1226(a) and its regime of

discretionary release and review of detention “to the vast majority

14 of noncitizens allegedly in this country without valid

documentation”—a practice codified by regulation. Id. As early as

15 1997, in the regulations implementing the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, the

16 Immigration and Naturalization Service and the Executive Office

for Immigration Review stated that “[d]espite being applicants for

17 admission, aliens who are present without having been admitted or

paroled (formerly referred to as aliens who entered without

18 inspection) will be eligible for bond and bond redetermination.”

Inspection and Expedited Removal of Aliens, 62 Fed. Reg. at

19 10323. The government’s briefing in this case acknowledges that

its position historically was that section 1226(a) was “an available

20 detention authority for aliens [present without being admitted or

paroled] placed in full removal proceedings under § 1229a.” (Dkt.

21 No. 16 (“Opp.”) at 12.)

22 However, the government now disavows its prior position in light

of subsequent “legal developments,” including its 2025 designation

23 “restor[ing] the scope of expedited removal to the fullest extent

authorized by Congress,” 90 Fed. Reg. at 8139. (Opp. at 12.) It

24 contends that section 1225 is “the sole applicable detention

authority for all applicants for admission” and asserts that all

25 applicants for admission are “subject to the mandatory detention

framework” of section 1225(b). (Opp. at 12, 14.)

26

27 Valencia Zapata v. Kaiser, No. 25-CV-07492-RFL, 2025 WL 2741654, at *4 (N.D. Cal. Sept.

26, 2025) (footnote omitted).

1 Respondent argues that the Eastern District of California “has clearly established that

2 Petitioner, an applicant for admission (through surreptitious entry into the United States and civil

3 detention after first contact with DHS), is subject to mandatory detention pending removal,”

4 citing to Valencia v. Chestnut, No. 1:25-cv-01550 WBS JDP, 2025 WL 3205133, at *2 (E.D.

5 Cal. Nov. 17, 2025), and Alonzo v. Noem, No. 1:25-cv-01519 WBS SCR, 2025 WL 3208284, at

6 *2–5 (E.D. Cal. Nov. 17, 2025). (ECF No. 10 at 3.) However, as noted by Petitioner, (ECF No.

7 12 at 2), Respondent fails to mention other directly relevant rulings from this district, including

8 orders issued by the district judge assigned in this matter, coming to the opposite conclusion.

9 “The various legal arguments relied upon by Respondents to support this assertion [that

10 Petitioner’s detention is mandatory under 1225(b) while her removal proceedings are pending]

11 have been rejected by this Court in other proceedings,” even after Valencia and Alonzo. J.E.H.G.

12 v. Chestnut, No. 1:25-cv-01673-JLT SKO, 2025 WL 3523108, at *9 (E.D. Cal. Dec. 9, 2025).

13 See Valencia, 2025 WL 3205133, at *2 (noting that “[h]ere in the Eastern District of California,

14 recent decisions have largely rejected the government’s interpretation of Section 1225(b)(2) as

15 applicable to all ‘applicants for admission,’” recognizing “[o]ther district courts have also

16 reached the result that Section 1226(a), not Section 1225(b)(2), provides the appropriate

17 framework for noncitizens already residing in the United States,” and collecting cases).

18 The United States District Court for the Central District of California recently held that

19 DHS’s new policy, which “requires ICE employees to consider anyone arrested in the United

20 States and charged with being inadmissible as an ‘applicant for admission’ under 8 U.S.C.

21 § 1225(b)(2)(A),” was unlawful. Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, --- F.

22 Supp. 3d ----, 2025 WL 3289861, at *1, 11 (C.D. Cal. Nov. 20, 2025). Bautista found that

23 “[w]hen considering the statutory definitions of the INA and the plain text of § 1225, it is

24 unambiguous that ‘applicants for admission’ do not include noncitizens already in the United

25 States like Petitioners—individuals that were not determined inadmissible by an ‘examining

26 immigration officer.’” Id. at *9. Thus, “[i]ndividuals who are present in the United States and

27 have not been inspected and authorized by an immigration officers [sic] are merely part of the

1 and “§ 1226(a) is the appropriate governing authority over [their] detention.” Bautista, 2025 WL

2 3289861, at *9 (third alteration in original). Bautista also found that the government’s

3 “interpretation of § 1225 . . . effectively removes § 1226 from existence” and “cannot be

4 harmonized with other portions of the INA.” Id. at *10. Further, the Central District of California

5 certified a nationwide class defined as follows: “All noncitizens in the United States without

6 lawful status who (1) have entered or will enter the United States without inspection; (2) were

7 not or will not be apprehended upon arrival; and (3) are not or will not be subject to detention

8 under 8 U.S.C. § 1226(c), § 1225(b)(1), or § 1231 at the time the Department of Homeland

9 Security makes an initial custody determination.” Bautista v. Santacruz, No. 5:25-CV-01873-

10 SSS-BFM, --- F.R.D. ----, 2025 WL 3288403, at *9 (C.D. Cal. Nov. 25, 2025).3

11 This Court will follow the majority approach in finding that “Respondents’ proposed

12 interpretation of the statute (1) disregards the plain meaning of section 1225(b)(2)(A); (2)

13 disregards the relationship between sections 1225 and 1226; (3) would render a recent

14 amendment to section 1226(c) superfluous; and (4) is inconsistent with decades of prior statutory

15 interpretation and practice.” Sharan S. v. Chestnut, No. 1:25-cv-01427-KES-SKO (HC), 2025

16 WL 3167826, at *5 (E.D. Cal. Nov. 12, 2025).

17 Based on the foregoing, the undersigned recommends finding that the statutory basis of

18 Petitioner’s detention is 8 U.S.C. § 1226(a), which provides for release on bond or conditional

19 parole, and thus, Petitioner is entitled to habeas relief on Ground One.4

20 C. Appropriate Remedy

21 “Federal habeas corpus practice, as reflected by the decisions of [the Supreme] Court,

22 indicates that a court has broad discretion in conditioning a judgment granting habeas relief.

23 Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of habeas corpus matters ‘as

24 law and justice require.’” Hilton v. Braunskill, 481 U.S. 770, 775 (1987). “[H]abeas corpus is, at

25 its core, an equitable remedy.” Schlup v. Delo, 513 U.S. 298, 319 (1995). “Moreover, in

26

3 It appears that Petitioner may be part of the Bautista class.

27 4 In light of this conclusion, the Court declines to address whether the actions of a different IJ when the

case was sent back to the immigration court by the BIA violated Petitioner’s right to substantive and

1 constitutional adjudication as elsewhere, equitable remedies are a special blend of what is

2 necessary, what is fair, and what is workable.” Lemon v. Kurtzman, 411 U.S. 192, 200 (1973)

3 (footnote omitted).

4 Here, the undersigned recommends that Petitioner be released from immigration

5 detention, subject to the bond and other conditions imposed by the IJ in the July 14, 2025 order.

6 See Escobar Salgado, 2025 WL 3205356, at *26 (“Petitioner Escobar-Salgado faces the specific

7 harm of being deprived of his opportunity to be released on bond, pursuant to IJ Baker’s order,

8 for several months. The Court finds this harm is remedied by his immediate release, subject to

9 the bond conditions imposed by IJ Baker.”); Jacobo Ramirez v. Noem, No. 2:25-cv-02136-RFB-

10 MDC, 2025 WL 3270137, at *13 (D. Nev. Nov. 24, 2025) (“The Court finds that the specific

11 harm suffered by Plaintiff Jacobo-Ramirez—revocation of bond and re-detention, after a

12 constitutionally adequate bond hearing established that his continued detention was not

13 warranted—is remedied by ordering his immediate release, subject to the bond conditions

14 imposed by IJ Daugherty on September 3, 2025, and enjoining Defendants from preventing his

15 release on the basis that he is detained under § 1225(b)(2).”).

16 III.

17 RECOMMENDATION

18 Accordingly, the undersigned HEREBY RECOMMENDS that:

19 1. The petition for writ of habeas corpus (ECF No. 1) be granted on Ground One; and

20 2. Respondent be directed to immediately release Petitioner, subject to the bond and other

21 conditions imposed by the immigration judge in the July 14, 2025 order.

22 This Findings and Recommendation is submitted to the assigned United States District

23 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local

24 Rules of Practice for the United States District Court, Eastern District of California. Within

25 FOURTEEN (14) days after service of the Findings and Recommendation, any party may file

26 written objections, no longer than fifteen (15) pages, including exhibits, with the Court and

27 serve a copy on all parties. Such a document should be captioned “Objections to Magistrate

1 | within fourteen (14) days after service of the objections. The assigned United States District

2 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C).

3 | The parties are advised that failure to file objections within the specified time may waive the

4 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

5 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

6

7 IT IS SO ORDERED.

8| Dated: _ December 12, 2025 [sf ey —

9 UNITED STATES MAGISTRATE JUDGE

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28