The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 Case No.: 26cv1168 DMS SBC
ROSA ELVIRA PENALOZA
12 MERCADO,
ORDER GRANTING PETITION;
13 D E N Y I N G E M E R G E N C Y MOTIONS
Petitioner,
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v.
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Director, Otay Mesa Detention Center;
16 Secretary of the Department of Homeland
Security; Director of U.S. Immigration
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and Customs Enforcement,
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Respondents.
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20 Before the Court is Petitioner’s Petition for Writ of Habeas Corpus. (Pet., ECF No.
21 1.) Petitioner is proceeding pro se and in forma pauperis. (See ECF No. 4.) Respondents
22 filed a return, (Return, ECF No. 7), and Petitioner filed a reply, (ECF No. 10). Petitioner
23 also filed an emergency motion for immediate release, (ECF No. 3), and emergency
24 motion to stay her removal pending resolution of her Petition, (ECF No. 11). For the
25 following reasons, the Court grants the Petition and denies the emergency motions.
26 I. BACKGROUND
27 Petitioner is a native and citizen of Mexico. (Return 2.) On December 8, 2024, she
28 applied for admission into the United States at a port of entry. (Id.) However, she did not
1 possess legal documentation to be in or enter the country and was therefore determined to
2 be inadmissible. (Id.) She was subsequently taken into Immigration and Customs
3 Enforcement custody, issued a Notice to Appear (“NTA”), and released on parole. (Id.)
4 On August 21, 2025, Petitioner attended a hearing at the Immigration Court in San
5 Diego, California. (Pet. 2.) At the hearing, the immigration judge (“IJ”) dismissed
6 Petitioner’s case and advised her that she would be detained and transferred to an
7 immigration detention facility. (Id.) Petitioner stated that she wished to appeal. (Id.) She
8 was detained immediately after leaving the Immigration Court. (Id.) On September 8,
9 2025, Petitioner appealed to the Board of Immigration Appeals (“BIA”) the dismissal of
10 her removal proceedings; the appeal remains pending. (Id.) Petitioner is currently
11 mandatorily detained under 8 U.S.C. § 1225(b)(2)(A). (Return 2.)
12 II. LEGAL STANDARD
13 “Writs of habeas corpus may be granted by . . . the district courts . . . within their
14 respective jurisdictions.” 28 U.S.C. § 2241(a). A petitioner prevails in her petition for writ
15 of habeas corpus if he shows that his custody violates the Constitution or laws of the United
16 States. Id. § 2241(c)(3). The writ of habeas corpus is “available to every individual
17 detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004).
18 III. DISCUSSION
19 A. Jurisdiction
20 Respondents argue that the Court lacks jurisdiction per 8 U.S.C. § 1252(g). (Return
21 4–5.) The Court has previously considered and rejected this argument. See Garcia v.
22 Noem, 803 F. Supp. 3d 1064, 1073–74 (S.D. Cal. 2025); Medina-Ortiz v. Noem, No. 25-
23 CV-02819, 2025 WL 4052326, at *2 (S.D. Cal. Oct. 30, 2025). Based on the reasoning of
24 those cases, the Court again rejects this argument.
25 B. Entitlement to Due Process Protections
26 Respondents argue that Petitioner does not have a “due process right to release or a
27 bond hearing after being detained for a certain period of time.” (Return 7 (citing Dep’t of
28 Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020)).) However, this Court “agrees
1 with those district courts that interpret Thuraissigiam as circumscribing an arriving alien’s
2 due process rights to admission, rather than limiting that person’s ability to challenge
3 detention.” Sadeqi v. LaRose, 809 F. Supp. 3d 1090, 1093 (S.D. Cal. 2025) (emphases in
4 original); Aviles-Mena v. Kaiser, No. 25-cv-06783, 2025 WL 2578215, at *4 (N.D. Cal.
5 Sept. 5, 2025). Further, it is a “‘well established’ rule ‘that the Fifth Amendment entitles
6 aliens to due process of law.’” Aviles-Mena, 2025 WL 2578215, at *4 (quoting Trump v.
7 J. G. G., 145 S. Ct. 1003, 1006 (2025)).
8 C. Merits—Fifth Amendment
9 The Court finds that Petitioner’s detention violates the Fifth Amendment “by
10 moving to dismiss [her] [removal] proceedings, revoking [her] parole, and arresting [her]
11 pursuant to § 1225, without providing [her] notice or an opportunity to be heard.” Munoz
12 Materano v. Arteta, 804 F. Supp. 3d 395, 414 (S.D.N.Y. 2025).
13 When determining whether Petitioner’s procedural due process rights have been
14 violated, the Court must consider:
15 three distinct factors: First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest
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through the procedures used, and the probable value, if any, of additional
17 or substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens
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that the additional or substitute procedural requirement would entail.
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Mathews, 424 U.S. at 335.
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First, Petitioner “invokes the most significant liberty interest there is—the interest
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in being free from imprisonment.” Munoz Materano, 804 F. Supp. 3d at 416 (citation
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modified) (citation omitted). Here, Petitioner was paroled prior to the dismissal of her
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removal proceedings and re-detention. Thus, Petitioner undeniably had a liberty interest.
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See Noori v. LaRose, 807 F. Supp. 3d 1146, 1164 (S.D. Cal. 2025) (finding the petitioner
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“has a private interest in remaining free, which developed over the year he resided in the
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United States”). Therefore, the Court finds this factor weighs in favor of Petitioner.
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1 Next, there is a high risk of erroneous deprivation of this liberty interest when
2 noncitizens are re-detained without a hearing. See, e.g., Pablo Sequen v. Albarran, 806 F.
3 Supp. 3d 1069, 1089 (N.D. Cal. 2025) (citing cases). Here, the record remains unclear
4 “exactly when, or how, a revocation was effected,” or whether Respondents actually
5 revoked Petitioner’s parole prior to the dismissal of her removal proceedings. See Munoz
6 Materano v. Arteta, 804 F. Supp. 3d at 418. It does not appear Respondents formally
7 revoked Petitioner’s parole prior to the dismissal of her removal proceedings. To the extent
8 Respondents want to argue that dismissal of Petitioner’s removal proceedings operates as
9 a proper termination or revocation of parole, such that Respondents could detain Petitioner
10 without providing her notice or an opportunity to be heard, the Court disagrees. First,
11 Petitioner appealed to the BIA the dismissal of her removal proceedings, which means she
12 remains in those removal proceedings while her appeal is pending. Munoz Materano v.
13 Arteta, 804 F. Supp. 3d at 409. Thus, the dismissal of her removal proceedings cannot
14 revoke her parole. Assuming Petitioner did not appeal the dismissal, there is no indication
15 that, prior to dismissing her removal proceedings, Petitioner was notified that Respondents
16 planned to initiate new removal proceedings and mandatorily detain. The IJ warned
17 Petitioner of her impending re-detention after dismissing her case and after Petitioner said
18 she wanted to appeal. (Pet. 2.) Additionally, there is no indication that Petitioner had
19 adequate opportunity to contest the dismissal of her removal proceedings. In fact,
20 Respondents do not acknowledge Petitioner’s allegations that her original removal
21 proceedings were dismissed. Respondents also state that “because Petitioner’s removal
22 proceedings are pending, and she has not been granted temporary parole, section
23 1225(b)(2) mandates her detention until the proceedings have concluded.” (Return 6
24 (emphasis added).) However, Petitioner was paroled. Respondents concede that Petitioner
25 was previously issued an NTA and “released on parole,” prior to being “re-detained on
26 August 21, 2025.” (Id. at 2.) Respondents do not state that Petitioner’s parole expired or
27 was formally revoked. Thus, it appears, based on the current record, that Petitioner was
28 re-detained without an individualized assessment, bond hearing, or opportunity to contest
1 her detention. Accordingly, the second factor—the risk of an erroneous deprivation of
2 such interest through the procedures used—also weighs in favor of Petitioner.
3 On the third factor, “[t]he government may have a ‘strong interest’ in detaining
4 noncitizens during the pendency of removal proceedings as needed to protect the public
5 from dangerous criminal aliens, or to prevent flight and thereby increase the chance that
6 the aliens will be successfully removed.” Pablo Sequen v. Kaiser, 806 F. Supp. 3d 1069,
7 1090 (N.D. Cal. 2025) (citation modified) (quoting Rodriguez Diaz v. Garland, 53 F.4th
8 1189, 1208 (9th Cir. 2022)). However, when the Government has previously decided to
9 release a noncitizen and there is no evidence in the record of any changed circumstance
10 that might have caused the Government to reconsider its initial decision to release the
11 noncitizen, courts have found the Government’s interest in re-detention is low. Doe v.
12 Chestnut, No. 1:25-cv-01372- CDB (HC), 2025 WL 3295154, at *10 (E.D. Cal. Nov. 26,
13 2025) (citations omitted). Here, “Respondents do not argue that [Petitioner] is dangerous
14 or a flight risk.” Munoz Materano, 804 F. Supp. 3d at 420. And “[w]hile the government
15 has an interest in enforcing immigration laws . . . it must pursue that interest ‘in a manner
16 consistent with the Constitution.’” Id. (citation omitted). This factor also weighs in favor
17 of Petitioner. Thus, applying the Mathews balancing test, the Court finds that Petitioner’s
18 detention violates her due process rights and ORDERS her immediate release.1
19 Because the Court is ordering Petitioner’s release, Petitioner’s emergency motion
20 for immediate release, (ECF No. 3), is DENIED as moot. Additionally, Petitioner filed an
21 emergency motion for a stay of removal “pending resolution of her habeas corpus petition.”
22 (ECF No. 11.) Because the Court has decided the Petition, this emergency motion for stay
23 of removal is also DENIED as moot. Petitioner alleges in her emergency motion for stay
24 that she is “currently subject to expedited removal following a final credible fear
25 determination.” (ECF No. 11.) It is unclear whether Petitioner alleges that she has been
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| || placed into expedited removal proceedings or whether there is now a final order of removal.
2 || It is also unclear whether Petitioner wishes to challenge the execution of a final order of
3 |}removal. The Court declines to take any further action or make additional rulings without
4 || more information.
5 IV. CONCLUSION
6 Based on the foregoing, the Court GRANTS the Petition. Respondents shall release
7 || Petitioner within 24 hours, and shall not re-detain Petitioner without first providing a pre-
8 || deprivation hearing before a neutral decisionmaker at which Respondents must prove that
9 changed circumstances related to flight risk or danger warrant Petitioner’s re-detention.
10 ||Respondents are further ORDERED to file a Status Report within seven (7) days of the
11 entry of this Order, confirming Petitioner has been released.
12 Additionally, the Court DENIES Petitioner’s emergency motions as moot.
13 IT IS SO ORDERED.
14 Dated: April 22, 2026 2»
15 Sod
Hon. Dana M. Sabraw
16 United States District Judge
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