Sarwari

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9 AT SEATTLE

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11 PARWIZ SARWARI, CASE NO. 2:26-cv-00121-TL

12 Petitioner, ORDER ON PETITION FOR WRIT

13 v.

OF HABEAS CORPUS

14 CAMMILLA WAMSLEY, Seattle Field

Office Director, Enforcement and Removal

15 Operations, United States Immigration and

Customs Enforcement (ICE), et al.,

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Respondents.

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19 This matter is before the Court on Petitioner Parwiz Sarwari’s Petition for Writ of Habeas

20 Corpus (“habeas petition”). Dkt. No. 1. Respondents are Cammilla Wamsley, Seattle Field

21 Office Director, Enforcement and Removal Operations (“ERO”), United States Immigration and

22 Customs Enforcement (“ICE”); Bruce Scott, Warden, Northwest ICE Processing Center

23 (“NWIPC”); Kristi Noem, Secretary, United States Department of Homeland Security (“DHS”);

24 Pamela Bondi, United States Attorney General; and DHS. Having considered the habeas petition,

1 Respondents’ return (Dkt. No. 4),1 Petitioner’s traverse (Dkt. No. 6), and the relevant record, the

2 Court GRANTS the petition and ORDERS Petitioner’s release.

3 I. BACKGROUND

4 Petitioner, a native of Afghanistan, fled his home country in fear of retribution by the

5 Taliban after a high-profile career in law enforcement, with a focus on counter-narcotics. Dkt.

6 No. 1 ¶ 1; Dkt. No. 1-2 (Arash Sarwary Decl.) ¶¶ 7–10. Petitioner’s brother, Arash Sarwary, is a

7 United States citizen who previously served alongside the United States Marine Corps and other

8 branches of the U.S. military for nearly two decades, and their late father was a two-star general

9 who worked closely with the U.S. Army Special Forces. Dkt. No. 1-2 at ¶¶ 2, 11. According to

10 Arash Sarwary, the family is publicly known in Afghanistan for its loyalty and service to the

11 United States, placing Petitioner and his family at risk of torture and extrajudicial killing if

12 returned to Afghanistan. Id. ¶¶ 11–12. After the Taliban seized control of Afghanistan, many

13 traffickers Parwiz Sawari had arrested were released from prison, and Taliban members actively

14 searched for him by name and issued an arrest warrant against him and members of his family

15 because of the Sarwari/Sarwary brothers’ cooperation with the United States government. Id.

16 ¶ 10. These threats compelled the family to flee Afghanistan. Id.

17 On January 29, 2023, Petitioner, along with his wife and six children, turned themselves

18 in to the Border Patrol inside the United States near El Paso, Texas, after having entered the

19 country from Mexico without inspection. See Dkt. No. 1 ¶ 3; Dkt. No. 6-2 (Form I-213) at 3–4.

20 Petitioner was initially placed in expedited removal proceedings, but after he expressed a fear of

21 returning to Afghanistan, he was referred to United States Citizenship and Immigration Services

22 (“USCIS”) for adjudication of his asylum claim. See Dkt. No. 1 ¶ 22; Dkt. No. 4 at 2. On

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24 1 As used in this order, the term “Respondents” includes all Respondents except Respondent Scott. Respondent Scott

has not responded to the habeas petition and has not appeared in this case.

1 January 30, 2023, Petitioner was paroled into the United States pursuant to 8 U.S.C.

2 § 1182(d)(5)(A). Dkt. No. 6-3 (Interim Notice Authorizing Parole) at 2. This provision permits

3 the government to temporarily release a noncitizen from custody within the United States “on a

4 case-by-case basis for urgent humanitarian reasons or significant public benefit.” 8 U.S.C.

5 § 1182(d)(5)(A). Petitioner’s parole was set to expire after one year. Dkt. No. 6-3 at 2. In June

6 2023, Petitioner timely submitted an application for asylum. Dkt. No. 1 ¶ 3. At some point,

7 according to Petitioner, he was issued a Notice to Appear (“NTA”) for full removal proceedings,

8 but it was not filed with the immigration court.2 Id. On August 16, 2023, Petitioner was issued an

9 Order of Release on Recognizance “[i]n accordance with section 236 of the Immigration and

10 Nationality Act,” allowing him to continue to remain undetained while he awaited adjudication

11 of his asylum petition and subjecting him to certain conditions of release, including participation

12 in DHS’s Alternatives to Detention (“ATD”) program.3 Dkt. No. 6-4 (Order of Release on

13 Recognizance) at 2–3.

14 For the next several years, Petitioner and his family rebuilt their lives in their new home

15 in Oregon while they waited for USCIS to process their asylum applications. See Dkt. No. 1 ¶ 4,

16 Dkt. No. 1-2 ¶ 15. Petitioner and his wife attended periodic ERO check-ins as part of the

17 requirements of their release under the ATD program. Dkt. No. 1 ¶ 23. Petitioner alleges that he

18 has “fully complied with all hearings, filing deadlines, and other requirements” of ATD (id.

19 ¶ 26), although Respondents contest this (Dkt. No. 4 at 1 (alleging “multiple ATD violations”)).

20 It is uncontested that Petitioner and his wife have committed no crimes in the United States and

21 are not accused or suspected of posing a danger to their community. Dkt. No. 1 ¶ 25; see

22 generally Dkt. No. 4.

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2 Although this NTA would be part of Petitioner’s A-File, neither Party has presented it to the Court.

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3 Section 236 of the Immigration and Nationality Act is codified at 8 U.S.C. § 1226.

1 On December 25, 2025, after nearly three years in the United States, Petitioner had

2 expected to spend Christmas Day with his family and take his children to view the Christmas

3 lights in their community. Dkt. No. 1-2 at 14. Those plans were interrupted when ICE officers

4 arrived at their home without warning, arrested Petitioner in front of his family, and transported

5 him across state lines to the NWIPC in Tacoma, Washington. Id.; Dkt. No. 1 at 24; Dkt. No. 4

6 at 3. Petitioner was not provided with advance notice of his detention or the reasons for it. Dkt.

7 No. 1 at 27. Even during the arrest, Petitioner was not given an explanation for his detention.

8 Id. at 24.

9 Petitioner was placed in removal proceedings, and, according to Respondents,4 a merits

10 hearing on his asylum application has been set for February 10, 2026. Dkt. No. 4 at 3. On

11 January 7, a bond hearing was held, at which, according to Respondents, an immigration judge

12 found Petitioner was subject to mandatory detention under Matter of Q. Li, 29 I&N Dec. 66 (BIA

13 2025). Id.

14 Plaintiff filed the petition now before the Court on January 14, 2026, seeking a writ of

15 habeas corpus under 28 U.S.C. § 2241. He alleges, through counsel, that his arrest and re-

16 detention violate the Due Process Clause of the Fifth Amendment to the United States

17 Constitution. Dkt. No. 1.

18 II. LEGAL STANDARD

19 “Writs of habeas corpus may be granted by . . . the district courts . . . within their

20 respective jurisdictions.” 28 U.S.C. § 2241(a). Habeas petitioners must prove by a preponderance

21 of the evidence that they are entitled to relief, Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.

22 2004)—that is, that they are “in custody in violation of the Constitution or laws or treaties of the

23 United States,” 8 U.S.C. § 2241(c).

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4 The Court has not been provided with any records pertaining to Petitioner’s removal proceedings.

1 III. DISCUSSION

2 Petitioner argues that his arrest and re-detention without notice and an opportunity to be

3 heard violates the Due Process Clause of the Fifth Amendment to the United States Constitution

4 (Dkt. No. 1 ¶¶ 6, 7, 30), which prohibits the federal government from depriving any person of

5 “life, liberty, or property, without due process of law[.]” U.S. Const. Amend. V. The right to due

6 process extends to “all ‘persons’ within the United States, including [noncitizens], whether their

7 presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678,

8 693 (2001).

9 “Procedural due process imposes constraints on governmental decisions which deprive

10 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of

11 the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “The

12 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and

13 in a meaningful manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

14 In Mathews, the Supreme Court established a three-part balancing test determining

15 whether an administrative procedure provides the process constitutionally due:

16 First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest

17 through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the

18 Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute

19 procedural requirement would entail.

20 424 U.S. at 335.

21 In Rodriguez Diaz v. Garland, the Ninth Circuit assumed without deciding that the

22 Mathews test applies in “the immigration detention context.” 53 F.4th 1189, 1206-07 (9th Cir.

23 2022). District courts in this Circuit have applied the Mathews test in similar circumstances since

24 then. See, e.g., Torres v. Hermosillo, No. C25-2687, 2026 WL 145715, at *6 (W.D. Wash. Jan.

1 20, 2026); Sira-Hurtado v. Hermosillo, No. C25-2173, 2025 WL 3294986, at *2 (W.D. Wash.

2 Nov. 26, 2025); Pinchi v. Noem, 792 F. Supp. 3d 1025, 1033 (N.D. Cal. 2025)

3 Petitioner argues that the Mathews test applies to his case and compels a finding that due

4 process required that he be given notice and an opportunity to respond before he was deprived of

5 his liberty. Dkt. No. 1 ¶¶ 30–41. Respondents do not dispute that Mathews governs (see Dkt.

6 No. 4 at 6–9) but argue that Petitioner is lawfully detained pursuant to 8 U.S.C. § 1225(b), that

7 Respondents prevail in the Mathews analysis, and that Petitioner was not entitled to any

8 pre-deprivation process (see generally id.). Consistent with persuasive authority and the

9 arguments of the Parties, the Court will evaluate Petitioner’s claims under Mathews, considering

10 each factor in turn to determine whether Petitioner’s re-detention comports with constitutional

11 due process requirements, after first dispensing with Respondents’ argument that they have a

12 lawful basis to detain Petitioner.

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A. Whether a Lawful Basis for Petitioner’s Detention Exists Is Irrelevant to the Claim

14 Before the Court

15 As a preliminary matter, the Court need not consider whether there is a statutory basis, as

16 Respondents allege, upon which Petitioner might be lawfully detained. “[T]he fact that the

17 Government may believe it has a valid reason to detain Petitioner does not eliminate its

18 obligation to effectuate the detention in a manner that comports with due process.” Ramirez

19 Tesara v. Wamsley, 800 F. Supp. 3d 1130, 1137 (W.D. Wash. 2025). As Respondents

20 acknowledge, the habeas petition before the Court is not directed at their classification of

21 Petitioner, but “challenges his re-detention in December 2025 as violative of due process.” Dkt.

22 No. 4 at 5. As to the merits of this petition, then, Respondents’ arguments regarding their

23 authority to detain Petitioner are neither here nor there, and the Court need not consider them.

24 See, e.g., Chavarria v. Chestnut, No. C25-1755, 2025 WL 3533606, at *5 n.3 (E.D. Cal. Dec. 9,

1 2025) (declining to address respondents’ arguments pertaining to mandatory detention after

2 determining petitioner had been released under § 1182(d)(5)(A) and was likely to succeed on

3 merits of due process claim). To the extent that Respondents argue that a pre-detention hearing

4 would be futile because Petitioner is allegedly subject to mandatory detention, the Court

5 considers that argument infra Section III.C.

6 B. The Mathews Factors Weigh in Petitioner’s Favor

7 1. Petitioner Has a Considerable Private Interest in His Liberty

8 As in Rodriguez Diaz v. Garland, 53 F.4th 1189, 1207 (9th Cir. 2022), one of the cases

9 Respondents rely on, “the government for its part does not seriously dispute that [Petitioner] has

10 a legitimate and reasonably strong private liberty interest under Mathews.” As the Rodriguez

11 Diaz court acknowledges, “a detained person’s liberty interest is substantial.” Id. at 1199.

12 Respondents acknowledge Petitioner’s “weighty liberty interest[]” (Dkt. No. 4 at 6 (quoting

13 Reyes v. King, No. C19-8674, 2021 WL 3727614, at *11 (S.D.N.Y. Aug. 20, 2021)), but

14 counters that noncitizens, and particularly noncitizens in certain types of removal proceedings,

15 have lesser liberty interests than citizens (id. at 6–7) and that “detention during deportation

16 proceedings [is] a constitutionally valid aspect of the deportation process” (id. at 6 (quoting

17 Demore v. Kim, 538 U.S. at 523)). Neither of these assertions is helpful in the Mathews analysis.

18 Petitioner does not contend that his liberty interests is equivalent to a citizen’s, nor does he

19 challenge the constitutionality of immigration detention per se: instead, he asserts, correctly, that

20 the Constitution protects his liberty interests by requiring due process prior to a deprivation of

21 his liberty. See generally Dkt. No. 1.

22 “Freedom from bodily restraint has always been at the core of the liberty protected by the

23 Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U.S. 71, 80

24 (1992); see also Zadvydas, 533 U.S. at 696 (a noncitizen has a liberty interest “strong enough” to

1 challenge “indefinite and potentially permanent” immigration detention). That the Government

2 exercises discretion in setting conditions of release does not eliminate the protections afforded to

3 Petitioner’s liberty interest. See, e.g., Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017)

4 (“While the temporary detention of non-citizens may sometimes be justified by concerns about

5 public safety or flight risk, the government’s discretion to incarcerate non-citizens is always

6 constrained by the requirements of due process[.]”).

7 When he was released from initial detention, first on humanitarian parole, then on his

8 own recognizance, Petitioner acquired a liberty interest entitled to the protections of the Due

9 Process Clause. See Doe v. Becerra, 787 F. Supp. 3d 1083, 1093 (E.D. Cal. Mar. 3, 2025) (“The

10 Supreme Court has repeatedly recognized that individuals who have been released from custody,

11 even where such release is conditional, have a liberty interest in their continued liberty.”).

12 Petitioner’s actions since that initial release, including applying for asylum, supporting his

13 family, participating in community life, and attending mandatory check-ins, demonstrate his

14 reasonable reliance on these interests and the weightiness of those interests. Petitioner can only

15 engage in these actions—the actions that make up his life—while free.

16 Therefore, the first Mathews factor weighs in Petitioner’s favor.

17 2. The Risk of Erroneous Deprivation of Liberty is High

18 Petitioner contends the risk of erroneous deprivation of his liberty interests in the absence

19 of a pre-deprivation hearing is high “because a hearing serves to ensure that the purposes of

20 detention—the prevention of danger and flight risk—are properly served.” Dkt. No. 1 ¶ 38

21 (citing E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316, 1321 (W.D. Wash. 2025)).

22 For their part, Respondents argue that “the risk of a constitutionally significant and

23 erroneous deprivation did not necessitate a pre-deprivation hearing,” and that, “if the Court were

24 to order a hearing,” a post-deprivation hearing would be sufficient in light of Petitioner’s alleged

1 ATD violations. Dkt. No. 4 at 8. Respondents rely for this step of the analysis on two cases,

2 Zinermon v. Burch, 494 U.S. 113, 127 (1990), and Martinez Hernandez v. Andrews,

3 No. C25-1035, 2025 WL 2495767, at *1 (E.D. Cal. Aug. 28, 2025). Unfortunately, Respondents,

4 through counsel, misconstrue the meaning of these authorities and their application to

5 Petitioner’s case.

6 Respondents represent the Supreme Court precedent in Zinermon v. Burch as follows:

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The Supreme Court has held that “the Constitution requires some

kind of hearing before the State deprives a person of liberty or

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property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990) (emphasis

in the original). But in the same opinion, the Court also recognized

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that a pre-deprivation hearing is not appropriate in every situation.

Id., at 128 (noting there may be “special case[s]” where a pre-

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deprivation hearing is impracticable). Petitioner’s re-detention

qualifies as a special case due to his ATD violations.

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12 Dkt. No. 4 at 7. The lack of authority or argument for the assertion that ATD violations would

13 make this a “special case” is the least of the Court’s concerns. Contrary to Respondents’

14 representation, Zinermon does not suggest there may be special cases; rather, it discusses a

15 single, discrete “special case” known as “the Parratt rule” and represented by the cases Parratt

16 v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984). The Parratt rule

17 applies to a unique subset of deprivations where there is no practical way that “predeprivation

18 procedural safeguards could address the risk of deprivations” because the nature of the

19 deprivation is such that it cannot be foreseen by the state. Id. at 132 (emphasis added). In

20 Parratt, the deprivation in question was the negligent loss of a person’s property while he was in

21 state custody, and in Hudson, the deprivation resulted from unauthorized and tortious conduct by

22 a state employee. Zinermon, 494 U.S. at 129–30. Under the unusual circumstances where

23 pre-deprivation process is not practicable “because of the random and unpredictable nature of the

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1 deprivation” at issue, the Parratt rule holds that a tort remedy provides the process that is due.

2 Id. at 132.

3 The Parratt rule obviously does not apply here. And, while a portion of the Zinermon

4 opinion not cited by Respondents acknowledges a broader subset of “circumstances” under

5 which the Supreme Court has found that “a statutory provision for a postdeprivation hearing, or a

6 common-law tort remedy for erroneous deprivation, satisfies due process,” Respondents do not

7 point to any relevant statutory provision or tort remedy (and in any case, none of Zinermon’s

8 “circumstances” involved a risk of confinement). Zinermon, 494 U.S. at 128 (citing Logan v.

9 Zimmerman Brush Co., 455 U.S. 422, 436 (1982); Memphis Light, Gas & Water Div. v. Craft,

10 436 U.S. 1, 19 (1978); Ingraham v. Wright, 430 U.S. 651, 682 (1977); Mitchell v. W.T. Grant

11 Co., 416 U.S. 600, 619–620, (1974)). There is simply nothing in Zinermon that could plausibly

12 support Respondents’ statement that “Petitioner’s re-detention qualifies as a special case due to

13 his ATD violations.” Dkt. No. 4 at 7.

14 Respondents fare no better with Martinez Hernandez, 2025 WL 2495767, which, like

15 Zinermon, is more harmful than helpful to their case. As presented by Respondents:

16 In Martinez Hernandez v. Andrews, the district court found that

allegations of ATD violations that “are not obviously pretextual as

17 in E.A.T.-B” provided at least an arguable basis “that providing

[the petitioner] with notice and a pre-deprivation hearing would

18 have been impracticable and/or would have motivated his flight.”

Martinez Hernandez, 2025 WL 2495767, at *11–12. Instead of a

19 pre-deprivation hearing, the district court found that any risk of

erroneous deprivation could be reduced through a “prompt, post-

20 deprivation process.” Id. (collecting cases).

21 Dkt. No. 4 at 7–9 (footnote omitted) (alteration in original). Respondents’ appeal to Martinez

22 Hernandez fails for three reasons. First, Respondents’ omission of critical context distorts the

23 meaning of the authority they cite. The court in Martinez Hernandez was ruling not on a habeas

24 petition, but on a motion for preliminary injunctive relief, as were all the cases it “collect[s].” See

1 Martinez Hernandez, 2025 WL 2495767, at *12 (citing Carballo v. Andrews, No. C25-978, 2025

2 WL 2381464, at *8 (E.D. Cal. Aug. 15, 2025); Perera v. Jennings, No. C21-4136, 2021 WL

3 2400981, at *5 (N.D. Cal. June 11, 2021); Pham v. Becerra, No. C23-1288, 2023 WL 2744397,

4 at *6 (N.D. Cal. Mar. 31, 2023)). These courts merely ruled that “prompt, post-deprivation

5 process [wa]s required,” —in other words, that affirmative action was required to be taken by

6 Respondents—before the petitions were even adjudicated, 2025 WL 2495767 at *12; they were

7 not making an ultimate determination that this was all the process the petitioners were due. On

8 the contrary, in granting preliminary injunctive relief, every one of these courts necessarily

9 found, as the Martinez Hernandez court did, that the petitioner before it was likely to succeed

10 “on the merits of his procedural due process claim.” Id. Second, Martinez Hernandez cannot

11 support an argument that the risk of erroneous deprivation is not high, because it reaches

12 precisely the opposite conclusion. Id. at *11 (“The Court also finds that there is a significant risk

13 of erroneous deprivation under the present circumstances.”) Third, the Martinez Hernandez

14 court’s comment that it was “at least arguable that providing Petitioner with notice and a pre-

15 deprivation hearing would have been impracticable and/or would have motivated his flight,” id.

16 at *12, was made in the context of distinguishing E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316—

17 but the instant case is less like Martinez Hernandez, and more like E.A. T.-B. The Petitioner in

18 Martinez Hernandez had a history of arrests in his country of origin and had been arrested

19 (though not prosecuted) in the United States. 2025 WL 2495767 at *1–2. E.A. T-B does not

20 mention criminal history, see generally 795 F. Supp. 3d 1316; Petitioner has none. And where

21 the Martinez Hernandez court was presented with “ATD records indicat[ing] numerous

22 violations,” 2025 WL 2495767 at *12, Respondents in this matter have presented no such

23 records. Here, like in E.A. T.-B., the only “evidence” Respondents present that the alleged

24 violations occurred is the sworn statement of a deportation officer, made based on “personal and

1 professional knowledge, obtained from various records and systems maintained by ICE in the

2 regular course of business.” Dkt. No. 5 (Delgado Decl) ¶ 2; see Declaration of Christopher

3 Hubbard ¶ 8, E.A. T.-B. v. Wamsley, No. C25-1054 (W.D. Wash. July 18, 2025), ECF 19. Officer

4 Javier Delgado’s statement that “[b]etween November 19, 2024, and December 16, 2025,

5 Petitioner incurred eight (8) ATD violations, including missed office visits, failed home visits, a

6 missed biometric check in, and a location services disabled issue” provides no specific dates or

7 corresponding facts connected to the individual violations.5 These are vague, conclusory

8 allegations to which Petitioner cannot respond and that the Court cannot evaluate.6 As the district

9 court in Martinez Hernandez pointed out, issues such as “tracker low battery” or “no location

10 received” (or, here, “location services disabled issue”) could reflect technical issues rather than a

11 violation. Martinez Hernandez, 2025 WL 2495767, at *11; see also Ramirez Tesara, 800 F.

12 Supp. at 1137 (“While Petitioner is alleged to have missed a scheduled phone call, the record

13 shows that he skipped work to be in a position to take the call which he never received.”) If

14 Respondents wished Petitioner’s alleged ATD violations to be considered, they could and should

15 have provided them to the Court as they did in Martinez Hernandez. Without them, there is no

16 basis for the Court to find that “the allegations are not obviously pretexual as in E.A T.-B.” Dkt.

17 No. 4 at 7 (quoting Martinez Hernandez, 2025 WL 2495767, at *12).

18 Here, where Petitioner has been released upon findings, first, that “urgent humanitarian

19 reasons or significant public benefit” required his release, see 8 U.S.C. § 1182(d)(5)(A), and,

20 later, that he did not pose a flight risk or a danger, see 8 C.F.R. § 236.1(c)(8), and where it is

21 5 Respondents do not even provide information by which the Court might evaluate whether the alleged “violations”

would actually violate the terms of Petitioner’s release. For example, the Order of Release on Recognizance does not

22 clearly require Petitioner to submit to home visits. See Dkt. No. 6-4. While it does require him to “comply with the

requirements of the ATD program,” the Court has no information about those requirements beyond the electronic

23 monitoring and curfew referenced in the Order of Release itself. Id. at 2.

6 This makes the ATD-violation evidence in this case even thinner that what was presented in E.A. T.-B., where the

24 Court lacked records but was at least provided the specific date and type of each alleged violation. See Declaration

of Christopher Hubbard ¶ 8, E.A. T.-B. v. Wamsley, No. C25-1054 (W.D. Wash. July 18, 2025), ECF 19.

1 undisputed that he was arrested with no notice of the reasons for the arrest, the risk of erroneous

2 deprivation is high. See Doe, 787 F. Supp. 3d at 1094 (“[G]iven that Petitioner was previously

3 found to not be a danger or risk of flight . . . the risk of erroneous deprivation remains high.”). As

4 other courts in this Circuit have found, a post-deprivation bond hearing under these

5 circumstances “cannot serve as an adequate procedural safeguard because it is after the fact and

6 cannot prevent an erroneous deprivation of liberty.” E.A. T.-B., 795 F. Supp. at 1324 (citing

7 Domingo v. Kaiser, No. C25-5893, 2025 WL 1940179, at *3 (N.D. Cal. July 14, 2025) (“Even if

8 Petitioner-Plaintiff received a prompt post-detention bond hearing under 8 U.S.C. § 1226(a) and

9 was released at that point, he will have already suffered the harm that is the subject of his

10 motion: that is, his potentially erroneous detention.”)).

11 Therefore, the second Mathews factor weighs in Petitioner’s favor.

12 3. Respondents’ Interest in Re-Detention Without Hearing Is Minimal

13 The countervailing governmental interest in Petitioner’s re-detention is minimal.

14 Respondents argue that there is a “heightened government interest in the immigration

15 detention context” and in preventing noncitizens “from remaining in the United States in

16 violation of our law.” Dkt. No. 4 at 8 (citation modified). But those interests are not threatened if

17 a pre-deprivation hearing is required. The fact that Respondents have not even alleged that

18 Petitioner poses a flight right or represents a danger to any person undermines any suggestion

19 that Respondents’ interests must be satisfied immediately.

20 Further, Respondents do not (and could not) argue that the cost of procedural safeguards

21 would be insurmountable. As Petitioner notes, “[i]mmigration custody hearings are routine,

22 administratively modest, and already embedded in the system.” Dkt. No. 7 at 5. While providing

23 Petitioner with a hearing before re-detaining him would naturally have required some expense of

24 money and time, those costs are outweighed by the risk of erroneous deprivation of the liberty

1 interest at stake. See, e.g., Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. Nov. 22, 2019)

2 (“If the government wishes to re-arrest Ortega at any point, it has the power to take steps toward

3 doing so; but its interest in doing so without a hearing is low.”).

4 In sum, this Court finds that all three Mathews factors weigh in Petitioner’s favor.

5 Therefore, his re-detention without a pre-detention hearing violated his rights under the Fifth

6 Amendment to the United States Constitution.

7 C. The Record Indicates Petitioner Is Not Subject to Mandatory Detention

8 Finally, Respondents appear to argue that the Matthews analysis is irrelevant, because

9 Petitioner, they claim, is subject to mandatory detention. Dkt. No. 4 at 9. Relying on a recent

10 decision from another court in this District, they assert that, where detention is mandatory, a pre-

11 detention hearing is not required:

12

Here, Petitioner is subject to mandatory detention as an arriving

alien. Where detention is mandatory, a pre-detention hearing

13

would serve no purpose because release is not legally available.

Calderon v. Noem, No. 2:25-cv-2136, 2025 WL 3754042, at *8

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(W.D. Wash. Dec. 29, 2025) (“The cases cited by Mr. Calderon are

inapposite because none of them involved mandatory detention

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(under the LRA or otherwise).”) “Accordingly, a pre-detention

hearing could only have one outcome: detention.” Id.

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17 Dkt. No. 4 at 9. Respondents’ reliance on Calderon is misplaced. See 2025 WL 3754042 at *8.

18 This is because, while the Calderon court did hold that a petitioner who was subject to

19 mandatory detention was not entitled to a pre-detention hearing, it made clear, in the very

20 passage Respondents quote, that someone like Petitioner is not subject to mandatory detention.

21 Petitioner is not similarly situated to Mr. Calderon, whose pending criminal charge at the time

22 of arrest subjected him to mandatory detention under § 1226(c)(1)(E). He is, however, is

23 similarly situated to most of the petitioners whose cases Calderon explicitly distinguished

24 “because none of them involved mandatory detention.” Calderon, 2025 WL 3754042, at *8

1 (citing E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316, 1323 (W.D. Wash. 2025); Ramirez Tesara,

2 800 F. Supp. at 1135; Kumar v. Wamsley, No. C25-1772, 2025 WL 2677089, at *3 (W.D.

3 Wash. Sept. 17, 2025); Domingo v. Kaiser, No. C25-5893, 2025 WL 1940179, at *1–2 (N.D.

4 Cal., July 14, 2025); Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1026 (N.D. Cal 2025)).7

5 Petitioner specifically points to three of these very cases in his petition as instances where “the

6 government asserted that mandatory detention initially applied,” but the court found that “a

7 person’s re-detention could not occur absent a hearing.” Dkt. No. 1 ¶ 37. Respondents’ citation

8 to Calderon cannot possibly support an argument that “Petitioner is subject to mandatory

9 detention [and therefore] a pre-detention hearing would serve no purpose” (Dkt. No. 4 at 9)

10 because its logic is premised on precisely the opposite conclusion.

11 Putting aside this troubling misrepresentation of authority, Respondents’ unsupported

12 position that Petitioner is “is subject to mandatory detention as an arriving alien” contradicts the

13 record before the Court. “Arriving alien” is a term defined by regulation as any noncitizen

14 “coming or attempting to come into the United States at a port-of-entry, . . . seeking transit

15 through the United States at a port-of-entry, or . . . interdicted in international or United States

16 waters and brought into the United States . . . .” in 8 C.F.R. § 1.2. None of these describe

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18

7 The petitioners in E.A. T-B, Ramirez Tesara, and Kumar are the most similarly siguated to Petitioner here. In each

19 case, the noncitizen petitioner was apprehended by Border Patrol inside the United States after entering without

inspection, was released on parole and/or released on their own recognizance subject to the terms of ATD, and

timely filed an asylum application that was still pending when they were redetained without a predetention hearing.

20 Like the Petitioner here, Mr. T-B was accused of multiple ATD violations. 795 F. Supp. 3d at 1320. Mr. Ramirez

Tesara was “alleged to have missed a scheduled phone call, [but] the record show[ed] that he skipped work to be in

21 a position to take the call which he never received.” 800 F. Supp. 3d at 1137. Mr. Kumar was not accused of

violating ATD, but an Immigration Judge still denied him bond under the theory that he “was subject to mandatory

detention”—the same thing that allegedly happened at Petitioner’s bond hearing. 2025 WL 2677089 at *2 (citation

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to record omitted); see Dkt. No. 4 at 3. The cited Guillermo order specifically rejected the government’s petition that

mandatory detention applied; the Court in Ramirez Tesara later did the same. See Guillermo, 791 F. Supp. 3d at

23 1030 (detention not mandatory under 8 U.S.C. § 1231(a)(6)); Tesara v. Wamsley, 2025 WL 3288295, at *4 (W.D.

Wash. Nov. 25, 2025) (“[A]lthough the Government asserts that Petitioner falls within the mandatory detention

24 scheme under 8 U.S.C. § 1225(b) . . . , his status as a person who has been living and working in this country for

nearly two years counsels against this expanded view of the INA as amended.”).

1 Petitioner. The Court acknowledges that the line between “arriving” and “being present” is not

2 always black and white. For example, in DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020), the

3 Supreme Court held that a noncitizen “who is detained shortly after unlawful entry”—

4 specifically, in that, case, one who made it 25 yards into the country before being detained—

5 “cannot be said to have ‘effected an entry,’ and is in the same position as an alien seeking

6 admission at a port of entry.” (Quoting Zadvydas, 533 U.S. at 693). Here, though, there is

7 nothing in the record indicating how long petitioner had been inside the United States, nor

8 anything suggesting that he had not “effected an entry” into the country before surrendering to

9 Border Patrol. Respondents support their assertion only with citations to regulatory language

10 that, on its face, does not describe Petitioner, with no argument, fact, or authority explaining how

11 he could be classified as “arriving.”8

12 To be clear, that Petitioner was “present in the United States” and not “an arriving alien”

13 are determinations made by Respondents’ own agent on the day of his re-detention. Dkt. No. 6-1

14 (Notice to Appear) at 2 (leaving unchecked the box “You are an arriving alien” and, instead,

15 checking the box “You are an alien present in the United States who has not been admitted or

16 paroled.”). These determinations are also consistent with records and decisions made by

17 Respondents’ agents at every turn since he was first apprehended in Texas in 2023. See Dkt.

18 No. 6-2 at 3–4 (January 2023 Form I-213 describing Petitioner as having “unlawfully entered the

19 United States . . . without being inspected by an immigration officer at a designated Port of

20 Entry”)9; Dkt. No. 6-4 at 2 (August 2023 order releasing Petitioner “in accordance with section

21

8 In addition to 8 C.F.R. § 1.2, Respondents also cite § 235.3(c), which pertains to the detention of “arriving”

22 noncitizens. But because Petitioner does not fall within the definition of “arriving,” this detention provision does not

apply to him, nor does the provision within § 1.2 that “[a]n arriving alien remains an arriving alien even if paroled

pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”

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9 That Petitioner’s I-213 describes him as subject to expedited removal under 235(b)(1), Dkt. No. 6-2 at 3, does not

mean he was “arriving.” Section 235(b)(1) of the INA, codified at 8 U.S.C. § 1225(b)(1), applies not only to

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1 236”). To the extent Respondents expect this Court to overrule their own prior determinations,

2 they have not asked the Court to do so nor provided any factual or legal basis on which it should.

3 The officers’ repeated determinations speak for themselves, and the Court has been given

4 nothing else to go on but the unsupported assertions of counsel.

5 Other than their assertion that Petitioner is an “arriving alien,” Respondents offer no

6 argument that he would be subject to detention under 8 U.S.C. § 1225(b), and the Court will not

7 consider other possible grounds that Respondents did not assert. See generally Dkt. No. 4. It is

8 important to note, however, that the record before the Court clearly shows that Respondents have

9 considered Petitioner to be detainable only under § 1226, not § 1225, since at least August 2023,

10 when DHS issued an “Order of Release on Recognizance” informing Petitioner that he was being

11 subjected to terms of conditional release “[i]n accordance with section 236 of the Immigration

12 and Nationality Act”—that is, 8 U.S.C. § 1226. Dkt. No. 6-4 at 2. This is a critical distinction,

13 because, as Respondents repeatedly acknowledge, the conditional release they previously granted

14 to Petitioner is not available to noncitizens in removal proceedings under § 1225. See, e.g., Dkt.

15 No. 4 at 5 (“The sole means of release from detention pursuant to Section 1225(b) is temporary

16 parole [under Section 1182(d)(5)(A).]”) In other words, if Petitioner was truly subject to

17 mandatory detention under § 1225, Respondents could never have released him under § 1226—a

18 contradiction Respondents completely ignore.

19 The Court presumes Respondents’ determination that Petitioner was eligible for

20 conditional release under 8 U.S.C. § 1226 was correct, as it appears Petitioner was never an

21 “arriving alien,” Respondents offer no other reason he would be subject to detention under

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“arriving” noncitizens, but also to “certain other” noncitizens designated by the Secretary of Homeland Security

24 who have been present in the United States for less than two years without being admitted or paroled. See 8 U.S.C.

§§ 1225(b)(1)(A)(i), (iii).

1 § 1225, and Respondents do not indicate that they erred in releasing Petitioner under 8 U.S.C.

2 § 1226.

3 * * *

4 For the foregoing reasons, the Court finds that Petitioner is in custody in violation of the

5 Constitution of the United States. Petitioner must be released and not re-detained without a

6 hearing before an immigration judge.

7 D. Miscellaneous Matter

8 That resolves the petition. Unfortunately, however, the Court feels compelled to write

9 further to address the unacceptable number of authorities cited by Respondents that were

10 misrepresented, inapplicable, or both. Specifically, Respondents’ treatment of Zinermon v.

11 Burch, 494 U.S. 113, Martinez Hernandez v. Andrews, 2025 WL 2495767, and Calderon v.

12 Noem, 2025 WL 3754042, falls short of the basic level of accuracy that the Court expects from

13 litigants who come before it. The Court will give Respondents the benefit of the doubt this time

14 and assume that each of these was an oversight or misunderstanding rather that a deliberate

15 attempt to mislead the Court. But where a person’s liberty is at stake—and where, as here, that

16 liberty was unconstitutionally deprived—there is no room for such oversights or

17 misunderstandings. The Court expects better, especially from the United States Attorney’s

18 Office, which “is the representative not of an ordinary party to a controversy, but of a

19 sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at

20 all; and whose interest, therefore, . . . is not that it shall win a case, but that justice shall be done.”

21 Berger v. United States, 295 U.S. 78, 88 (1935). Future such misrepresentations may expose

22 Respondents and their counsel to sanctions.

23 //

24 //

1 IV. CONCLUSION

2 Accordingly, the Court ORDERS as follows:

3 (1) The Petition for a Writ of Habeas Corpus (Dkt. No. 1) is GRANTED.

4 (2) Respondents SHALL release Petitioner from detention immediately pursuant to the

5 conditions in his preexisting Order of Release on Recognizance;

6 (3) Respondents and all their officers, agents, employees, attorneys, and persons

7 acting on their behalf or in concert with them SHALL NOT re-detain Petitioner until

8 after an Immigration Court hearing is held (on adequate notice) to determine

9 whether detention is appropriate, or until Petitioner is issued a final order of

10 removal.

11 (4) Within 24 hours of this Order, Respondents SHALL provide the Court with a

12 declaration confirming that Petitioner has been released from custody and

13 informing the Court of the date and time of his release.

14 (5) Any motion requesting fees should be filed within the deadlines set by the Equal

15 Access to Justice Act, 28 U.S.C. § 2412.

16 Dated this 3rd day of February, 2026.

17

A

18

Tana Lin

United States District Judge

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