The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 SAMIULLAH AHMADI, Case No. 1:25-cv-01044-CDB (HC)
12 Petitioner, FINDINGS AND RECOMMENDATIONS TO
GRANT PETITIONER’S MOTION FOR
13
v. TEMPORARY RESTRAINING ORDER
14
MOISES BECERRA, et al., (Doc. 9)
15
Respondents.
7-Day Objection Period
16
Clerk of the Court to Assign District Judge
17
18
19 Petitioner Samiullah Ahmadi (“Petitioner”) initiated this action with the filing of a petition
20 for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on August 18, 2025, in which he challenges
21 his detention by immigration authorities on statutory and constitutional grounds. (Doc. 1).
22 Respondents are Moises Becerra (Acting Field Office Director of San Francisco Office of
23 Detention and Removal of Immigration and Customs Enforcement (“ICE”)), Todd M. Lyons
24 (Acting Director of ICE), Kristi Noem (in her official capacity as Secretary of the Department of
25 Homeland Security (“DHS”)), Pam Bondi (in her official capacity as Attorney General of the
26 United States), and Tonya Andrews (Facility Administrator at Golden State Annex) (collectively,
27 “Respondents”). They timely responded to the petition (Doc. 7) and Petitioner replied (Doc. 8).
1 Pending before the undersigned is Petitioner’s motion for temporary restraining order
2 (“TRO”), filed on February 3, 2026. (Doc. 9). On February 4, 2026, Respondents timely filed an
3 opposition to the motion for TRO. (Doc. 11). Although the face of Petitioner’s motion requests a
4 hearing (Doc. 9-1 at 1), considering the exigency of Petitioner’s request for emergency injunctive
5 relief, the undersigned finds it appropriate to deem the motion submitted for decision without
6 hearing or oral argument. See Local Rule 230(g). For the reasons set forth herein, the undersigned
7 recommends that Petitioner’s motion for TRO be granted.
8 I. Relevant Background
9 A. Factual Background1
10 Petitioner, a 29-year-old man and citizen of Afghanistan, fled Afghanistan from fear of
11 persecution and the Taliban and entered the United States near San Diego, California, on September
12 24, 2023, without inspection, admission, parole, valid entry documents or a visa. (Doc. 1 ¶¶ 1, 5,
13 17, 28); (Doc. 7 at 2); (Doc. 7-1, Declaration of Deportation Officer Alejandro Parra (“Parra Decl.”)
14 ¶¶ 5-6); (Doc. 9-1 at 2). Upon his arrival, Petitioner was apprehended and placed into removal
15 proceedings. Parra Decl. ¶ 8. That same day, U.S. Customs and Border Protection (“CBP”) issued
16 Petitioner a Notice to Appear (“NTA”) pursuant to section 240 of the Immigration and Nationality
17 Act (“INA”) and released Petitioner on his own recognizance with regular ICE check-ins since he
18 was determined to present neither a flight risk nor a danger to the community. (Doc. 1 ¶ 28); (Doc.
19 7-1 at 7, Ex. 1) (Form I-213, Record of Deportable/Inadmissible Alien, dated July 18, 2025).
20 Although Petitioner was issued and served a NTA, the NTA was not filed timely in immigration
21 court within the 120 calendar days after scheduling the immigration case, and the Executive Office
22 for Immigration Review (“EOIR”) therefore deemed Petitioner’s case a failure to prosecute. (Doc.
23 7-1 at 8, Ex. 1).
24
25
26 1 The factual background is drawn from Petitioner’s petition for writ of habeas corpus and
other evidence in the record. (Docs. 1, 7-9). A court “may treat the allegations of a verified . . .
27
petition [for writ of habeas corpus] as an affidavit.” L. v. Lamarque, 351 F.3d 919, 924 (9th Cir.
2003) (citing McElyea v. Babbitt, 833 F.2d 196, 197–98 (9th Cir. 1987)).
1 On September 16, 2024, Petitioner filed an asylum application with the United States
2 Citizenship and Immigration Services (“USCIS”) and was issued a receipt notice. (Doc. 1 ¶ 29).
3 In February 2025, Petitioner filed a Form I-765 Application for Employment Authorization
4 Document which was issued to him in March 2025. Id.
5 On June 2, 2025, Petitioner attended his prescheduled ICE appointment where ICE took his
6 passport, provided him with a copy, and installed the “BI Smart Link” phone application on his
7 phone and scheduled follow-up appointments for June 16 and June 18, 2025. Id. ¶ 30. Petitioner
8 complied with instructions to take a selfie every Monday. Id. On June 18, 2025, Petitioner
9 attended his scheduled follow-up ICE appointment at the San Francisco office where he was re-
10 detained without any notice or hearing or custody redetermination, processed for expedited removal
11 pursuant to section 235(b) of the INA, and transferred to his current detention at the Golden State
12 Annex Detention Facility. Id. ¶¶ 31, 33; Parra Decl. ¶ 9. Petitioner alleges that to date, he has
13 maintained his residence at the address provided to ICE and USCIS, has consistently complied with
14 all scheduled appointments, and that he had regularly and timely checked into his Intensive
15 Supervision Appearance Program (“ISAP”) appointments. (Doc. 1 ¶ 32). Petitioner alleges that
16 he had been supporting himself by working as an Uber driver, that he has no criminal record, and
17 there have been no other changed circumstances from the time he was initially apprehended and
18 released. Id. He further alleges that he has expanded his community ties in the United States during
19 the time he was released, and that he has extended family members in the United States, including
20 siblings. Id.
21 After he was re-detained, on July 14, 2025, Petitioner requested the immigration court
22 reconsider his custody determination, and on July 25, 2025, the court denied his request, stating it
23 lacked jurisdiction over Petitioner because he was mandatorily detained under 8 U.S.C. § 1225(b)
24 as an applicant for admission who attempted to come into the United States at a port-of-entry. Para
25 Decl. ¶¶ 10, 11 (citing Matter of Q. Li, 29 I&N Dec. 66 (BIA 2025)); (Doc. 7-1 at 15, Ex. 3) (Order
26 of the Immigration Judge, dated July 25, 2025); (Doc. 1 ¶ 34).
27 On August 11, 2025, while in ICE detention, an asylum officer with USCIS interviewed
1 ICE placed Petitioner into removal proceedings. Id. ¶ 14. On September 18, 2025, Petitioner
2 appeared with his counsel for his first master calendar hearing before an immigration judge and
3 was granted a continuance in light of his counsel’s request for additional preparation time. Id. ¶
4 15. Petitioner’s next hearing before the immigration court regarding his asylum claim was
5 scheduled for October 21, 2025. Id. ¶ 16. Petitioner remains in detention pending his asylum claim
6 proceedings in immigration court. Id. ¶ 17.
7 Although not alleged in the petition, in his motion for TRO, Petitioner asserts that he was
8 issued a work permit, a U.S. social security card, and a California driver’s license. (Doc. 9-1 at 3);
9 (Doc. 9-2, Declaration of Bashir Ghazialam (“Ghazialam Decl.”) ¶¶ 11, 14). He asserts that his
10 individual hearing before the immigration judge was scheduled for January 22, 2026, but was
11 continued due to the immigration judge’s unavailability. (Doc. 9-1 at 4).
12 II. Governing Authority2
13 The standard for issuing a temporary restraining order is “substantially identical” to the
14 standard for issuing a preliminary injunction. See Stuhlbarg Intern. Sales Co. v. John D. Brush &
15 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “A preliminary injunction is an extraordinary remedy
16 never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing
17 Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). “A plaintiff seeking a preliminary injunction must
18 establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
19 absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is
20 in the public interest.” Glossip v. Gross, 576 U.S. 863, 876 (2015) (quoting Winter, 555 U.S. at 20);
21 Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–12 (1982)). “Under Winter, plaintiffs must
22 establish that irreparable harm is likely, not just possible, in order to obtain a preliminary
23 injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
24 Likelihood of success on the merits is a threshold inquiry and is the most important factor.” Simon
25 v. City & Cnty. of San Francisco, 135 F.4th 784, 797 (9th Cir. 2025) (quoting Env’t Prot. Info. Ctr.
26 v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020)). “[I]f a plaintiff can only show that there are serious
27 2 The Court has jurisdiction over Petitioner’s claim that he is improperly detained, pursuant
to 28 U.S.C. § 2241. See (Docs. 1, 3). In opposing Petitioner’s petition, Respondents do not
1 questions going to the merits—a lesser showing than likelihood of success on the merits—then a
2 preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiff's favor,
3 and the other two Winter factors are satisfied.” Friends of the Wild Swan v. Weber, 767 F.3d 936,
4 942 (9th Cir. 2014) (internal quotation marks and citations omitted).
5 Preliminary injunctions are intended “merely to preserve the relative positions of the parties
6 until a trial on the merits can be held, and to balance the equities at the litigation moves forward.”
7 Lackey v Stinnie, 604 U.S. 192, 200 (2025) (citations and quotations omitted). “The status quo
8 refers to ‘the last uncontested status which preceded the pending controversy.’” E.A.P.C. v.
9 Wofford, No. 1:25-cv-01546-JLT-CDB, 2025 WL 3289185, at *8 (E.D. Cal. Nov. 25, 2025)
10 (quoting Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963)).
11 III. Exhaustion
12 A. Governing Authority
13 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before
14 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing
15 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires
16 “as a prudential matter, that habeas petitioners exhaust available judicial and administrative
17 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United
18 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is
19 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been
20 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)).
21 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it
22 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.”
23 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d
24 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although
25 courts have discretion to waive the exhaustion requirement when it is prudentially required, this
26 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion
27 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v.
1 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly
2 to be disregarded.”).
3 B. Analysis
4 In his petition, Petitioner contends that exhaustion should be waived because administrative
5 remedies are futile, his continued detention results in irreparable harm, he has exhausted all
6 administrative remedies, and no further ones are available. (Doc. 1 ¶ 40).
7 Respondents do not address exhaustion of administrative remedies in their response to the
8 petition nor their opposition to the motion for TRO. See generally (Docs. 7, 11).
9 The undersigned finds that the prudential exhaustion requirement should be waived as it
10 would be futile to seek release by administrative means. Specifically, because Respondents
11 contend that Petitioner is subject to indefinite mandatory detention under 8 U.S.C. § 1225(b), see
12 (Doc. 7 at 3), under that framework, Petitioner has no statutory right to a bond hearing during his
13 course of detention and therefore lacks recourse through statutory or administrative means. See
14 Jennings v. Rodriguez, 583 U.S. 281, 282 (2018) (“§§ 1225(b) … do[e]s not give detained aliens
15 the right to periodic bond hearings during the course of their detention.”); Rodriguez Diaz v.
16 Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022). Further, the BIA has recently held that all
17 noncitizens present within the country without admission are seeking admission pursuant to § 1225,
18 rendering any administrative relief futile. See J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO
19 (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27, 2025) (“In addition, pursuit of administrative
20 remedies would almost certainly be futile given the BIA’s recent holding that all noncitizens present
21 in the United States without admission are ‘seeking admission’ for purposes of 8 U.S.C. §
22 1225(b)(2)(A) and must be detained.”) (citing Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A.
23 2025)).
24 Further, Petitioner has demonstrated irreparable harm. He has been re-detained for over
25 seven months (since June 18, 2025) and has not received a bond hearing despite the government
26 releasing Petitioner from his initial period of immigration detention on his own recognizance after
27 it determined that Petitioner presented neither a flight risk nor a danger to the community. See
1 otherwise address Petitioner’s arguments that exhaustion should be waived for futility and on
2 grounds that continued detention causes him irreparable harm, waiver of the prudential exhaustion
3 requirement for Petitioner’s claim for habeas corpus relief is appropriate. See, e.g., Chavez v.
4 Noem, No. 3:25-cv-02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving
5 prudential exhaustion requirement because the BIA “already applied its expertise in deciding and
6 designating” Hurtado as precedential, pursuant to which detainees are subject to mandatory
7 detention without bond under § 1225(b)(2)); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1253
8 (W.D. Wash. 2025) (“The Ninth Circuit has recognized ‘the irreparable harms imposed on anyone
9 subject to immigration detention.’”) (citing Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir.
10 2017)); J.A.C.P., 2025 WL 3013328, at *7 n.9.
11 IV. Discussion
12 A. Likelihood of Success on the Merits
13 1. Statutory Scheme
14 a. Parties’ Contentions
15 Petitioner asserts claims in his petition that Respondents lack statutory authority to detain
16 him under 8 U.S.C. § 1225(b)(1) because Petitioner’s detention is governed by 8 U.S.C. § 1226(a)
17 and that his detention separately violates Petitioner’s due process rights under the Fifth Amendment
18 to the U.S. Constitution. (Doc. 1 ¶¶ 83-85). Petitioner asserts that he is likely to succeed on the
19 merits of his claims because under the three-part procedural due process test established in Mathews
20 v. Eldridge, 424 U.S. 319 (1976), all three factors support a finding that Respondents’ revocation
21 of his conditional parole release without a pre-deprivation hearing deprives him of his due process.
22 (Doc. 9-1 at 7). In his traverse, Petitioner contends that “the alleged misapplications of 8 U.S.C. §
23 1225 and [] § 1226 constitute Respondents’ basis for his [unlawful] detention.” (Doc. 8 at 2).
24 Petitioner argues that plain text of 8 U.S.C. § 1226(a) demonstrates that Petitioner is not subject to
25 mandatory detention because Respondents served him with an arrest warrant and “warrants are
26 only issued if the noncitizen is detained” under that statute, “not 8 U.S.C. § 1225.” Id. at 4 (citing
27 Doc. 8-1, Declaration of Bashir Ghazialam ISO Traverse (“Gahzialam Tr. Decl.”) Ex. C).
1 Petitioner asserts that § 1226(a) applies to him because he “was released [pursuant to that statute]
2 on his own recognizance, a form of conditional parole, on September 24, 2024.” Id. at 8.
3 Respondents contend that the detention authority in this case is lawful under the
4 Constitution and applicable provisions of the INA. (Doc. 11 at 1). Respondents assert that because
5 Petitioner is an applicant for admission subject to mandatory detention under 8 U.S.C. § 1225(b),
6 he is unlikely to succeed on the merits and therefore does not qualify for a TRO. Id.
7 b. Statutory Immigration Framework (8 U.S.C. §§ 1225 and 1226)
8 Two statutes govern the detention and removal of inadmissible noncitizens from the United
9 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background accurately presented by
10 the district court in Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC, 2025 WL 2637503 (N.D.
11 Cal. Sept 12, 2025):
12 1. Full Removal Proceedings and Discretionary Detention
(§ 1226)
13
The “usual removal process” involves an evidentiary hearing before
14
an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591
15 U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C.
§ 1229(a), also known as “full removal,” by filing a Notice to Appear
16 with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N.
Dec. 520, 520 (BIA 2011). Section § 1226 provides that while
17 removal proceedings are pending, a noncitizen “may be arrested and
detained” and that the government “may release the alien on ...
18
conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at
19 108 (during removal proceedings, applicant may either be “detained”
or “allowed to reside in this country”). When a person is apprehended
20 under § 1226(a), an ICE officer makes the initial custody
determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022)
21
(citing 8 C.F.R. § 236.1(c)(8)). A noncitizen will be released if he or
she “demonstrate[s] to the satisfaction of the officer that such release
22
would not pose a danger to property or persons, and that the alien is
23 likely to appear for any future proceeding.” Id. (citing 8 C.F.R.
§ 236.1(c)(8)).
24
“Federal regulations provide that aliens detained under § 1226(a)
25 receive bond hearings at the outset of detention.” Jennings v.
Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)).
26
If, at this hearing, the detainee demonstrates by the preponderance of
27 the evidence that he or she is not “a threat to national security, a
danger to the community at large, likely to abscond, or otherwise a
1 1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)).
Once released, the noncitizen’s bond is subject to revocation. Under
2
8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s
bond or parole ‘at any time,’ even if that individual has previously
3
been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D.
4 Cal. 2019). However, if an immigration judge has determined the
noncitizen should be released, the DHS may not re-arrest that
5 noncitizen absent a change in circumstance. See Panosyan v.
Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release
6
decision was made by a DHS officer, not an immigration judge, the
7 Government’s practice has been to require a showing of changed
circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp.
8 3d 1168, 1197 (N.D. Cal. 2017).
9 2. Expedited Removal and Mandatory Detention (§ 1225)
10 While “§ 1226 applies to aliens already present in the United States,”
U.S. immigration law also “authorizes the Government to detain
11
certain aliens seeking admission into the country under
12 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited
removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a
13 noncitizen “who has not been admitted or who arrives in the United
States” is considered “an applicant for admission.” 8 U.S.C.
14 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225
authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides
15
that:
16
“If an immigration officer determines that an alien
17 (other than an alien described in subparagraph (F))
who is arriving in the United States or is described in
18 clause (iii) is inadmissible under section
212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C)
19
or 1182(a)(7)], the officer shall order the alien
20 removed from the United States without further
hearing or review unless the alien indicates either an
21 intention to apply for asylum under section 208 [8
USCS § 1158] or a fear of persecution.”
22
Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer
23
to noncitizens who are inadmissible due to misrepresentation or
24 failure to meet document requirements. Clause (iii) of § 1225(b)(1)
allows the Attorney General (who has since delegated the
25 responsibility to the Department of Homeland Security Secretary) to
designate for expedited removal noncitizens “who ha[ve] not been
26
admitted or paroled into the United States, and who ha[ve] not
affirmatively shown, to the satisfaction of an immigration officer,
27
that the alien has been physically present in the United States
continuously for the 2-year period immediately prior to the date of
1 the determination of inadmissibility under this subparagraph.”
§ 1225(b)(1)(A)(iii)(II).
2
To summarize, under § 1225(b)(1), two groups of noncitizens are
3
subject to expedited removal. First, there are “arriving” noncitizens
4 who are inadmissible due to misrepresentation or failure to meet
document requirements. The implementing agency regulations
5 define “arriving alien” as applicants for admission “coming or
attempting to come into the United States at a port-of-entry.” 8
6
C.F.R. § 1.2. The second group –designated noncitizens –includes
7 noncitizens who meet all of the following criteria: (1) they are
inadmissible due to lack of a valid entry document or
8 misrepresentation; (2) they have not “been physically present in the
United States continuously for the 2-year period immediately prior
9 to the date of the determination of inadmissibility”; and (3) they are
among those whom the Secretary of Homeland Security has
10
designated for expedited removal. Thuraissigiam, 591 U.S. at 109; §
11 1225(b)(1).
12 “Initially, DHS’s predecessor agency did not make any designation
[under (3)], thereby limiting expedited removal only to ‘arriving
13 aliens,’” that is, noncitizens encountered at ports of entry. Make the
Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS
14
169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS
extended by designation expedited removal to noncitizens who arrive
15
by sea and who have been present for fewer than two years, and to
16 noncitizens apprehended within 100 air miles of any U.S.
international land border who entered within the last 14 days. Id. This
17 was the status quo until January 2025, when the Department of
Homeland Security revised its § 1225 designation to “apply
18
expedited removal to the fullest extent authorized by statute.”
19 Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan.
24, 2025). Under this designation, expedited removal applies to
20 noncitizens encountered anywhere within the United States, who
have been in the United States for less than two years and are
21 inadmissible for lack of valid documentation or misrepresentation. In
short, expedited removal was expanded to apply for the first time to
22
vast numbers of noncitizens present in the interior of the United
23 States.
24 Under the expedited removal statute § 1225(b)(1), if an applicant
“indicates either an intention to apply for asylum” or “a fear of
25 persecution,” the immigration officer “shall refer the alien for an
interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the
26
asylum officer determines that the applicant has a “credible fear,” the
applicant “receive[s] ‘full consideration’ of his asylum claim in a
27
standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the
officer determines there is no “credible fear,” the officer “shall order
1 the alien removed from the United States without further hearing or
review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may
2
be appealed by the applicant to an immigration judge, who must
conduct the review “to the maximum extent practicable within 24
3
hours, but in no case later than 7 days after the date of the
4 determination.” Id. Detention under § 1225(b)(1) is “mandatory”
“pending a final determination of credible fear of persecution and if
5 found not to have such a fear, until removed.” Id. (citing
§ 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under
6
this clause shall be detained pending a final determination of credible
7 fear of persecution and, if found not to have such a fear, until
removed.”)
8
[Section] 1225 also contains a provision that applies to applicants for
9 admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287.
This provision, 1225(b)(2), states that, subject to statutory
10 exceptions, “in the case of an alien who is an applicant for admission,
if the examining immigration officer determines that an alien seeking
11
admission is not clearly and beyond a doubt entitled to be admitted,
12 the alien shall be detained for a proceeding under section 1229a [full
removal proceedings] of this title.” § 1225(b)(2). In other words,
13 noncitizens subject to 1225(b)(2) are not eligible for expedited
removal but are subject to mandatory detention while their full
14
removal proceedings are pending. This is in contrast to the default
detention regime under § 1226(a), which allows for discretionary
15
release and review of detention through a bond hearing.
16
3. The Government’s Recent Change in Position
17
Until this year, the DHS has applied § 1226(a) and its discretionary
18 release and review of detention to the vast majority of noncitizens
allegedly in this country without valid documentation. This practice
19
was codified by regulation. The regulations implementing the Illegal
20 Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) state that “Despite being applicants for admission, aliens
21 who are present without having been admitted or paroled (formerly
referred to as aliens who entered without inspection) will be eligible
22 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323
(Mar. 6, 1997). In fact, the government has conceded in other
23
contexts that “DHS’s long-standing interpretation has been that
24 1226(a) [discretionary detention] applies to those who have crossed
the border between ports of entry and are shortly thereafter
25 apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of
Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785
26 (2022) (No. 21-954)) . . .
27
In 2025, however, the Government’s policy changed dramatically.
The DHS revised its § 1225 designation to “apply expedited removal
1 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis
added). The Secretary of Homeland Security memorandum directed
2
federal immigration officers to “consider ... whether to apply
expedited removal” to “any alien DHS is aware of who is amenable
3
to expedited removal but to whom expedited removal has not been
4 applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps
to terminate any ongoing removal proceeding and/or any active
5 parole status.” Id. The memorandum states that DHS shall take the
actions contemplated by the memorandum “in a manner that takes
6
account of legitimate reliance interests,” but states that “the
7 expedited removal process includes asylum screening, which is
sufficient to protect the reliance interests of any alien who has
8 applied for asylum or planned to do so in a timely manner.” Huffman
Memorandum (Jan. 23, 2025).
9
Since mid-May of 2025, the Department of Homeland Security has
10 made a practice of appearing at regular removal proceedings in
immigration court, moving to dismiss the proceedings, and then re-
11
arresting the individual in order to place them in expedited removal
12 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does
not dismiss the full removal proceedings, ICE still makes an arrest,
13 apparently in reliance on § 1225(b)(2)’s detention provision.
14 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted).
15 c. Parole Revocation
16 In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole
17 process in immigration cases and noted that before parole may be revoked, the parolee must be
18 given written notice of the impending revocation, which must include a cogent description of the
19 reasons supporting the revocation decision. The court held:
20 Section 1182 . . . has a subsection titled “Temporary admission of
nonimmigrants,” which allows noncitizens, even those in required
21
detention, to be “paroled” into the United States. This provision, at
22 issue in this case, states:
23 The Secretary of Homeland Security may, except
as provided in subparagraph (B) or in section 1184(f) of
24 this title, in his discretion parole into the United States
temporarily under such conditions as he may prescribe
25 only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit any alien applying
26 for admission to the United States, but such parole of
such alien shall not be regarded as an admission of the
27 alien and when the purposes of such parole shall, in
the opinion of the Secretary of Homeland Security,
have been served the alien shall forthwith return or
1 be returned to the custody from which he was paroled
and thereafter his case shall continue to be dealt with
2 in the same manner as that of any other applicant for
admission to the United States.
3
8 U.S.C. § 1182(d)(5)(A).
4
5 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act,
6 immigration parolees are entitled to determinations related to their parole revocations that are not
7 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and
8 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[]
9 a satisfactory explanation for its action including a rational connection between the facts found and
10 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of
11 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall,
12 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith
13 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R.
14 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where
15 the immigrant has departed or when the specified period of parole has expired.
16 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128
17 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision
18 to revoke humanitarian parole:
19 This Court agrees that both common sense and the words of
the statute require parole revocation to be analyzed on a case-by-case
20 basis and that a decision to revoke parole “must attend to the reasons
an individual [noncitizen] received parole.” See id. There is no
21 indication in the record that the government conducted any such
analysis here. On the contrary, the letter Mata Velasquez received
22 merely stated summarily that DHS had “revoked [his] parole.”
Docket Item 62-1 at 5. Thus, there is no indication that—as required
23 by the statute and regulations—an official with authority made a
determination specific to Mata Velasquez that either “the purpose for
24 which [his] parole was authorized” has been “accomplish[ed]” or that
“neither humanitarian reasons nor public benefit warrants [his]
25 continued presence...in the United States.” See 8 C.F.R.
§ 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s
26 parole violated his rights under the statute and regulations. See Y-Z-
L-H, 2025 WL 1898025, at *13.
27
1 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached
2 a similar conclusion relying on the Due Process Clause:
3 . . . even when ICE has the initial discretion to detain or release
a noncitizen pending removal proceedings, after that individual
4 is released from custody she has a protected liberty interest in
remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508,
5
2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court
6 joins other courts of this district facing facts similar to the present
case and finds Petitioner raised serious questions going to the merits
7 of his claim that due process requires a hearing before an IJ prior to
re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021
8 WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v.
Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal. Aug.
9
23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on
10 preparole, parole, and probation status have a liberty interest, so too
does [a noncitizen released from immigration detention] have a
11 liberty interest in remaining out of custody on bond.”).
12 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra,
13 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t,
14 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that
15 non-punitive detention violates the Constitution unless it is strictly limited, and, typically,
16 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the
17 imprisonment serves the government’s legitimate goals.”).
18 d. Analysis
19 Based on the facts before the undersigned, and undisputed by Respondents (see Docs. 7,
20 11), Petitioner had been present in the United States for a substantial amount of time when he was
21 most recently re-arrested by immigration authorities. See (Doc. 7 at 3); Parra Decl. ¶ 6. Petitioner
22 attaches to his traverse an Order of Release on Recognizance pursuant to section 236 of the INA,
23 dated September 26, 2023, and signed by an immigration officer on that date, releasing Petitioner
24 under a set of conditions. See Ghazialam Tr. Decl. Ex. A. These conditions required that Petitioner
25 not change his place of residence prior to securing permission from the immigration officer, not
26 violate any laws, and assist the DHS in obtaining necessary travel documents. Petitioner was
27 warned that failure to comply with the conditions may result in a revocation of release and arrest.
1 appointments, was issued a work permit, a U.S. Social Security Card, and a California driver’s
2 license, has been supporting himself by working as an Uber driver, has no criminal record, and has
3 expanded his community ties in the United States. (Doc. 1 ¶ 32); (Doc. 9-1 at 3). Respondents
4 neither challenge these representations nor assert that Petitioner violated any such conditions; nor
5 can the undersigned locate any such facts in the record. See (Docs. 1, 7-9, 11).
6 Under these circumstances, the undersigned finds that 8 U.S.C. § 1226(a) attaches as the
7 governing legal scheme. “Because Petitioner[ was] released on [his] own recognizance after [his]
8 initial detention at the border, [he is] also ineligible for expedited removal proceedings as [he has]
9 been “paroled” within the meaning of section 1225(b)(1).” Valencia Zapata v. Kaiser, 801 F. Supp.
10 3d 919, 935 n.4 (N.D. Cal. 2025) (citations omitted); see Garcia v. Andrews, No. 25-cv-01006 JLT
11 SAB, 2025 WL 2420068, at *5 (E.D. Cal. Aug. 21, 2025) (“ICE may choose to release a person on
12 parole. The decision is discretionary and is made on a case-by-case basis. An immigrant who has
13 been detained at the border, may be paroled for humanitarian reasons or due to it providing a
14 significant public benefit (8 U.S.C. § 1182(d)(5)(A)) or he may be conditionally released (8 U.S.C.
15 § 1226(a)); Aviles-Mena v. Kaiser, No. 25-cv-06783-RFL, 2025 WL 2578215, at *4 (N.D. Cal.
16 Sept. 5, 2025) (same). These are distinct procedures. A person on conditional parole is usually
17 released on their own recognizance subject to certain conditions such as reporting requirements.”).
18 Petitioner’s release from his initial period of immigration detention based on an Order of Release
19 on Recognizance pursuant to section 236 of the INA clearly shows that Petitioner was subject to
20 the provisions of § 1226 when he was most recently re-detained.
21 Further corroborating this finding is that Petitioner was arrested on June 18, 2025, pursuant
22 to an arrest warrant invoking section 236 of the INA, see (Doc. 8-1 at 51, Ex. C), and that Petitioner
23 was re-issued NTA on a Form I-862 dated September 4, 2025, indicating that he is “[i]n removal
24 proceedings under section 240 of the [INA],” see (Doc. 7-1 at 10, Ex. 2); Parra Decl. ¶ 14. This
25 record evidence shows that Petitioner is subject to full removal proceedings under 1229a and
26 subject to the statutory detention scheme under § 1226(a). See Valencia Zapata, 801 F. Supp. 3d
27 at 936 (“From the moment that Petitioner[ was] provided with a Form I-862, the removal
1 about-face and extinguish these liberty interests by pursuing mandatory detention against
2 Petitioners, particularly given that Petitioners’ September 4 arrest was pursuant to a I-200 warrant
3 under section 1226.”) (citations omitted); Ramirez Clavijo v. Kaiser, No. 25-cv-06248-BLF, 2025
4 WL 2419263, at *4 (N.D. Cal. Aug. 21, 2025) (“Here, the record clearly shows that the Government
5 has consistently treated Petitioner pursuant to the framework under § 1226(a), and that DHS most
6 recently detained Petitioner on July 24, 2025, by a warrant pursuant to that statute.”); see also Lepe
7 v. Andrews, 801 F. Supp. 3d 1104, 1117 (E.D. Cal. 2025) (noting that section 1226(a) authorizes
8 detention “only” on a warrant, whereas section 1225(b) contains no warrant requirement, and that
9 “use of a warrant is strong evidence that petitioner may be detained, if at all, only pursuant to
10 section 1226(a).”).
11 Therefore, Petitioner has shown he is likely to succeed on his claim asserting a statutory
12 violation under the INA.
13 2. Procedural Due Process
14 a. Governing Authority
15 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be
16 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995
17 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects
18 individuals against two types of government action’: violations of substantive due process and
19 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)).
20 “Procedural due process imposes constraints on governmental decisions which deprive
21 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the
22 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from
23 imprisonment—from government custody, detention, or other forms of physical restraint—lies at
24 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
25 “Procedural due process requires that, even where a deprivation of liberty survives substantive due
26 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52
27 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer
1 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The
2 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in
3 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process
4 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey
5 v. Brewer, 408 U.S. 471, 481 (1972).
6 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including
7 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533
8 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the
9 Due Process Clause stands as a significant constraint on the manner in which the political branches
10 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled
11 that ‘due process requires adequate procedural protections to ensure that the government’s asserted
12 justification for physical confinement outweighs the individual's constitutionally protected interest
13 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d
14 1196, 1203 (9th Cir. 2011)).
15 b. Liberty Interest and Mathews Factor Test
16 Here, Petitioner shows that, under procedural due process, he has an underlying, continuing
17 liberty interest in being free from re-detention. Specifically, Petitioner was conditionally released
18 on an order of recognizance. See Ghazialam Tr. Decl. Ex. A. The decision to release Petitioner
19 necessarily acknowledged the government’s acceptance that Petitioner was not a flight risk nor a
20 danger to the community. See (Doc. 7-1 at 7, Ex. 1) (“The subject did not appear to be a threat to
21 national security, or public safety, and was released from the custody of [DHS] by ‘Order of
22 Recognizance’ (O.R.) pending subject’s immigration hearing. This release was authorized through
23 proper channels.”). See also 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of
24 arrest may, in the officer’s discretion, release an alien not described in section 236(c)(1) of the Act,
25 under the conditions at section 236(a)(2) and (3) of the Act; provided that the alien must
26 demonstrate to the satisfaction of the officer that such release would not pose a danger to property
27 or persons, and that the alien is likely to appear for any future proceeding.”); Rodriguez Diaz, 53
1 detention for a significant amount of time—nearly two years—and without incident as Respondents
2 do not contest Petitioner’s allegations that he has complied with all conditions of his release, with
3 all scheduled ICE appointments, and has no criminal record while Petitioner was free from
4 immigration custody. (Doc. 1 ¶ 32); (Doc. 9-1 at 3); see (Docs. 7, 11).
5 The undersigned agrees with other courts and other judges of this Court that noncitizens
6 released from immigration custody on general orders of supervision or on their own recognizance
7 (like Petitioner here) have a liberty interest in their freedom that implicates protections under
8 principles of procedural due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031
9 (N.D. Cal. 2025) (“The fact that Petitioner is subject to discretionary conditions of release likewise
10 does not mean he lacks a protectable liberty interest and can be re-detained without process.”); see
11 id. (“[E]ven if immigration detainees must wait months before a periodic re-review of their
12 detention, those already released on immigration bond possess an interest in their continued liberty,
13 which grows over time, and a due process right to a hearing before being re-detained.”); Nak Kim
14 Chhoeun v. Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at
15 1099 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy
16 duration of his conditional release as well as the meaningful connections Petitioner seems to have
17 made with his community during that time create a powerful interest for Petitioner in his continued
18 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5-
19 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an
20 individual, a protected liberty interest under the Due Process Clause may entitle the individual to
21 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES-
22 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily
23 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained
24 in continuous custody and never released on supervision).
25 Because Petitioner has shown he has a protected liberty interest, the Court must determine
26 what process is due before the government may terminate that liberty interest. Here, Petitioner
27 asserts that the three-factor test articulated in Mathews applies in consideration of Petitioner’s
1 address the applicability of Mathews. See (Doc. 11). The Court agrees with Petitioner that the
2 Mathews test applies.
3 Mathews “requires consideration of three distinct factors: [(1)] the private interest that will
4 be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest through
5 the procedures used, and the probable value, if any, of additional or substitute procedural
6 safeguards; and [(3)] the Government’s interest, including the function involved and the fiscal and
7 administrative burdens that the additional or substitute procedural requirement would entail.”
8 Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 (applying Mathews test in
9 immigration detention context); id. at 993 (“The appropriateness of the requirement that ICE and
10 IJs consider financial circumstances and alternative conditions of release is confirmed by the
11 balance of factors under Mathews[.]”).
12 As to the first factor, Petitioner has shown he has a significant private interest in remaining
13 on release from detention. He has been out of immigration custody for nearly two years, and during
14 that time, was issued a work permit, a U.S. Social Security Card, a California driver’s license, and
15 has been supporting himself while working as an Uber driver while expanding his community ties
16 to the United States. (Doc. 1 ¶ 32); (Doc. 9-1 at 3). Respondents neither challenge these
17 representations nor assert that Petitioner violated any conditions of his release; nor can the
18 undersigned locate any such facts in the record. See (Docs. 1, 7-9, 11). Petitioner’s continued
19 liberty interest in remaining on release is undermined by his detention. Doe, 787 F. Supp. 3d at
20 1093-94 (“Freedom from imprisonment is at the core of the Due Process Clause … The lengthy
21 duration of his conditional release [for over five years] as well as the meaningful connections [he]
22 seems to have made with his community during that time create a powerful interest for [him] in his
23 continued liberty.”).
24 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest
25 is considerable here where he has not received any bond or custody redetermination. Id. at 1094;
26 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025)
27 (“‘the risk of an erroneous deprivation of [petitioner’s liberty] interest is high’ where ‘[h]e has not
1 no procedural safeguards to determine if Petitioner’s detention was justified, and Respondents have
2 not articulated any change in circumstances while Petitioner was on release sufficient to justify
3 Petitioner’s detention, the probable value of the additional procedural safeguard of a bond hearing
4 to determine whether Petitioner is a flight risk or a danger to the community is high such that this
5 factor weighs in favor of granting a bond hearing. See Doe, 787 F. Supp. at 1094 (“[G]iven that
6 Petitioner was previously found to not be a danger or risk of flight and the unresolved questions
7 about the timing and reliability of the new information, the risk of erroneous deprivation remains
8 high.”); A.E., 2025 WL 1424382 at *5; Ramazan, 2025 WL 3145562, at *6. Therefore, this factor
9 weighs in favor of granting a bond hearing and/or release.
10 Third, the government’s interest in detaining Petitioner without a bond hearing is low. Doe,
11 787 F. Supp. 3d at 1094 (citation omitted); see Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D.
12 Cal. 2019) (“[T]he government's interest in re-arresting Ortega without a hearing before an IJ is
13 low. The allegedly material change of circumstances—the Order of Removal—occurred over a
14 year and a half ago, and during all that time, Ortega has strictly complied with all the requirements
15 of his release. If the government wishes to re-arrest Ortega at any point, it has the power to take
16 steps toward doing so; but its interest in doing so without a hearing is low. Accordingly, the
17 Mathews factors favor Ortega.”); accord Diaz v. Kaiser, No. 3:25-cv-05071, 2025 WL 1676854, at
18 *3 (N.D. Cal. June 14, 2025) (“And, like other Courts in this district, the Court concludes that the
19 government’s interest in re-detaining Petitioner-[] without a hearing is ‘low,’ particularly in light
20 of the fact that Petitioner[] has long complied with his reporting requirements.”). “The effort and
21 cost to provide Petitioner with [a bond hearing] is minimal[.]” Doe, 787 F. Supp. 3d at 1094.
22 Therefore, any additional burden from requiring the government to seek a bond hearing before it
23 may re-detain Petitioner does not outweigh his liberty interest and the risk of erroneous deprivation.
24 Accordingly, this factor weighs in favor of granting a bond hearing and/or release.
25 In sum, the undersigned finds that, under Mathews, Petitioner demonstrates a likelihood of
26 success on the merits of his claims asserting violations of his procedural due process rights.
27 3. Respondents’ Request to Stay
1 Court should stay this case pending conclusion of appellate proceedings in Rodriguez Vazquez, 779
2 F. Supp. 3d 1239 (W.D. Wash. 2025), which Respondents assert considers issues that are likely
3 dispositive in this case, including the dispute over the applicability of 8 U.S.C. §§ 1225 or 1226 “to
4 aliens similarly situated to Petitioner.” (Doc. 11 at 1-2).
5 Having found that Petitioner’s re-arrest and re-detention without a bond determination and
6 continuous detention for more than seven months violates federal law and the U.S. Constitution,
7 the undersigned will recommend the Court decline to stay proceedings. See Zadvydas, 533 U.S. at
8 690 (reaffirming that “freedom from imprisonment—from government custody, detention, or other
9 forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”).
10 B. Irreparable Harm
11 The undersigned now turns to the second Winter factor. “It is well established that the
12 deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.” Hernandez, 872
13 F.3d at 994 (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). “When an alleged
14 deprivation of a constitutional right is involved, most courts hold that no further showing of
15 irreparable injury is necessary.” Warsoldier v. Woodford, 418 F.3d 989, 1001-02 (9th Cir. 2005)
16 (quoting Wright, Miller, & Kane, Federal Practice and Procedure, § 2948.1 (2d ed. 2004)).
17 Petitioner contends that absent the issuance of a TRO, he will continue to suffer irreparable
18 injury each day he remains in detention in violation of his constitutional rights. (Doc. 9-1 at 9).
19 The undersigned agrees. As noted above, Petitioner shows that he is likely to succeed on the merits
20 of his claim that his detention violates the INA and his constitutional rights to procedural due
21 process. Therefore, Petitioner faces irreparable harm absent a TRO. This Winter factor weighs in
22 favor of preliminary injunctive relief.
23 C. Balance of Equities and Public Interest
24 “When … the nonmovant is the government, the last two Winter factors ‘merge.’” Baird v.
25 Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (citing Nken v. Holder, 556 U.S. 418, 435 (2009);
26 Roman v. Wolf, 977 F.3d 935, 940-41 (9th Cir. 2020) (per curiam)).
27 Here, Respondents do not address the balance of the equities and public interest factors.
1 and do not identify any material burden they would experience from issuance of the requested
2 injunction. Therefore, the undersigned has “‘little difficulty concluding that the balance of
3 hardships tips decidedly in [Petitioner’s] favor.’” See Hernandez, 872 F.3d at 996 (quoting Lopez
4 v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983)).
5 Additionally, the undersigned finds that the public interest also weighs in Petitioner’s favor.
6 “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Index
7 Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 838 (9th Cir. 2020) (citation omitted);
8 Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005) (“[P]ublic interest concerns are implicated
9 when a constitutional right has been violated, because all citizens have a stake in upholding the
10 Constitution.”) (citations omitted). “The public has a strong interest in upholding procedural
11 protections against unlawful detention, and the Ninth Circuit has recognized that the costs to the
12 public of immigration detention are staggering.” Diaz, 2025 WL 1676854, at *3 (citing Jorge M.F.
13 v. Wilkinson, No. 21-CV-01434-JST, 2021 WL 783561, at *3 (N.D. Cal. Mar. 1, 2021)).
14 Therefore, the undersigned finds these Winter factors weigh in favor of granting preliminary
15 injunctive relief.
16 D. Remedy
17 Based on the foregoing, the undersigned finds that Petitioner has met the requirements to
18 issue a temporary restraining order. Respondents do not assert that Petitioner is a flight risk or a
19 danger to the community. As § 1225(b) does not apply to Petitioner, Petitioner has therefore shown
20 a likelihood of success regarding his claims that the government may not detain him pursuant to §
21 1225(b)(1) and that his detention separately violates his procedural due process rights. As
22 Respondents do not provide any other basis to detain Petitioner and do not assert any risk of flight
23 or danger to the community, the appropriate remedy is Petitioner’s immediate release.
24 Further, the undersigned will recommend that in the event the government seeks to re-detain
25 Petitioner, the government must provide notice to Petitioner a minimum of seven days in advance
26 and must hold a bond hearing before a neutral arbiter pursuant to § 1226(a) and applicable
27 regulations, at which Petitioner’s eligibility for bond must be considered. Ordinarily, the Petitioner
1 neither a flight risk nor a danger to the community. Rodriguez Diaz, 53 F.4th at 1197. But as set
2 forth above, an immigration judge has refused to consider Petitioner’s request for a bond re-
3 determination on the grounds that Petitioner purportedly is subject to mandatory detention under §
4 1225(b)(1). As such, the undersigned will recommend the Court follow the majority of courts in
5 the Ninth Circuit in finding, under the circumstances presented here, Respondents should be
6 compelled to provide Petitioner a bond redetermination hearing at which the government will bear
7 the burden of establishing, by clear and convincing evidence, that Petitioner poses a danger to the
8 community or a risk of flight. “Doing so is logical” because “the immigrant’s initial release
9 reflected a determination by the government that the noncitizen is not a danger to the community
10 or a flight risk. Since it is the government that initiated re-detention, it follows that the government
11 should be required to bear the burden of providing a justification for the re-detention.” M.R.R. v.
12 Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 3265446, at *14 (E.D. Cal. Nov. 24, 2025)
13 (relying on Pinchi, 792 F. Supp. 3d at 1034, 1038); accord Omer G. G. v. Kaiser, No. 1:25-cv-
14 01471-KES-SAB, 2025 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025).
15 Because Respondents have not provided any evidence of costs that it will incur due to
16 Petitioner’s release (see Docs. 7, 11), the Court finds that no security bond is required. See
17 Guillermo M.R., 791 F. Supp. 3d at 1038; see also Lepe, 801 F. Supp. 3d at 1120 (noting that courts
18 “regularly waive security in cases like this”).
19 V. Conclusion, Order, and Recommendation
20 Accordingly, the Clerk of the Court is DIRECTED to randomly assign a District Judge to
21 this action.
22 And it is RECOMMENDED that:
23 1. Petitioner’s motion for a temporary restraining order (Doc. 9) be GRANTED.
24 2. Respondents’ request to stay this case pending the outcome of appellate proceedings in
25 Rodriguez Vasquez v. Bostock, 779 F. Supp. 3d 1239 (W.D. Wash. 2025) (Doc. 11) be
26 DENIED.
27 3. Respondents be ORDERED to release Petitioner immediately.
1 4. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless
2 the government provides notice to Petitioner a minimum of seven (7) days in advance
3 and holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and
4 applicable regulations, at which Petitioner’s eligibility for bond must be considered,
5 and where the government must demonstrate by clear and convincing evidence that
6 Petitioner is a flight risk or danger to the community, such that physical custody is
7 legally justified.
8 5. The parties be DIRECTED to file a joint status report within 14 days of any order
9 adopting these findings and recommendations as to Petitioner’s status and address
10 therein whether any further briefing is needed to address the petition on the merits.
11 These Findings and Recommendations will be submitted to the United States District Judge
12 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within seven (7) days
13 after being served with a copy of these Findings and Recommendations, a party may file written
14 objections with the Court. Local Rule 304(b). Although this objection period is shorter than
15 provided by Local Rule, such an adjustment is warranted given Petitioner’s application for
16 emergency injunctive relief and the fact that the parties have extensively briefed the issues
17 involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court
18 may require a response within a shorter period if exigencies of the calendar require.”). Any
19 objections filed should be captioned, “Objections to Magistrate Judge’s Findings and
20 Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown.
21 The Court will not consider exhibits attached to the Objections. To the extent a party wishes to
22 refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document
23 and page number, when possible, or otherwise reference the exhibit with specificity. Any pages
24 filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing
25 these Findings and Recommendations under 28 U.S.C. § 636(b)(l)(C).
26 ///
27 ///
] A party’s failure to file any objections within the specified time may result in the waiver of
2 | certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).
3 | IT IS SO ORDERED.
Dated: _ February 5, 2026 | Mw RY
5 UNITED STATES MAGISTRATE JUDGE
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23
24
25
26
27
28
YS