# Noem

> District Court, E.D. California · March 13, 2026

URL: https://www.frixlaw.com/law-library/cases/11377151

## Case

- **Full name:** Nirmal Singh v. Kristi Noem, et al.
- **Court:** District Court, E.D. California
- **Decided:** March 13, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 NIRMAL SINGH, Case No. 1:26-cv-00722-KES-CDB (HC)
12 Petitioner, FINDINGS AND RECOMMENDATIONS TO
GRANT PETITION FOR WRIT OF HABEAS
13 v. CORPUS (A-Number 240 614 324)

14 KRISTI NOEM, et al., (Doc. 1)

15 Respondents. 7-Day Objection Period
16
17 Petitioner Nirmal Singh, a federal immigration detainee proceeding by counsel, initiated
18 this action on January 28, 2026, with the filing of a petition for writ of habeas corpus under 28
19 U.S.C. § 2241. (Doc. 1). Petitioner is in custody the of Immigration and Customs Enforcement
20 (“ICE”) at the Golden State Annex facility, located in McFarland, California. Id. ¶ 5. Respondents
21 are: the unnamed Warden of the Golden State Annex Detention Center; Kristi Noem, Secretary of
22 Homeland Security; Sergio Albarran, Acting Field Office Director for the San Francisco ICE Field
23 Office; Todd Lyons, Acting Director of ICE; and Pamela Bondi, United States Attorney General.
24 See id.
25 At the Court’s direction, Respondents timely filed a response to the petition on February
26 10, 2026. (Doc. 7). Petitioner filed a status report indicating his intent to proceed without further
27 briefing. (Doc. 8). For the reasons set forth herein, the undersigned recommends that Petitioner’s
28 petition for writ of habeas corpus be granted.
1 I. Relevant Background
2 The relevant facts are undisputed. See (Doc. 7). Petitioner is a citizen of India who entered
3 the United States without inspection on April 11, 2022. (Doc. 1 ¶¶ 1, 14; Doc. 7 at 6 ¶ 6). He was
4 detained by the Department of Homeland Security (“DHS”) and released on his own recognizance
5 subject to ICE’s imposition of a $3,000 immigration bond; DHS issued a Notice to Appear in
6 immigration court. (Doc. 1 ¶¶ 1, 15-16; Doc. 7 at 6 ¶¶ 6-7 & Exhibit 4). On June 29, 2022,
7 Petitioner filed an application for asylum. DHS issued Petitioner a Form I-766, Employment
8 Authorization Document. (Doc. 1 ¶¶ 17-18). On October 14, 2025, Petitioner attended his
9 immigration court hearing and was detained by Respondents immediately after the hearing. (Doc.
10 1 ¶¶ 19-20; Doc. 7 at 6 ¶¶ 8-10). The Court also takes judicial notice that Petitioner has been in
11 removal proceedings since April 18, 2022, Petitioner was ordered removed on October 14, 2025,
12 and the order was appealed on October 20, 2025.1
13 II. Governing Authority
14 A. The Writ of Habeas Corpus
15 Writ of habeas corpus relief extends to a person in custody under the authority of the United
16 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus
17 shall “award the writ or issue an order directing the respondent to show cause why the writ should
18 not be granted, unless it appears from the application that the applicant or person detained is not
19 entitled thereto.” 28 U.S.C. § 2243.
20 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus
21 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner
22 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443
23 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir.
24 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his
25
1 See https://acis.eoir.justice.gov/en/caseInformation (last visited Mar. 12, 2026, using Petitioner’s
26 A-Number and nationality); Daniels-Hall v. National Edu. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010) (“It
is appropriate to take judicial notice of this information, as it was made publicly available by government
27 entities ... and neither party disputes the authenticity of the web sites or the accuracy of the information
displayed [ ] therein.”); Argueta v. Walgreens Co., 760 F. Supp. 3d 1028, 1034 (E.D. Cal. 2024) (taking
28 judicial notice of information on federal government agency’s website).
1 detention” in ICE custody).
2 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226)
3 Two statutes govern the detention and removal of inadmissible noncitizens from the United
4 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district
5 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal.
6 Sept 12, 2025), which the undersigned adopts herein:
7 1. Full Removal Proceedings and Discretionary Detention
(§ 1226)
8
The “usual removal process” involves an evidentiary hearing before
9 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591
U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C.
10 § 1229(a), also known as “full removal,” by filing a Notice to Appear
with the Immigration Court. Matter of E-R-M- & L-R-M-, 25 I. & N.
11 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while
removal proceedings are pending, a noncitizen “may be arrested and
12 detained” and that the government “may release the alien on ...
conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at
13 108 (during removal proceedings, applicant may either be “detained”
or “allowed to reside in this country”). When a person is apprehended
14 under § 1226(a), an ICE officer makes the initial custody
determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022)
15 (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
16 would not pose a danger to property or persons, and that the alien is
likely to appear for any future proceeding.” Id. (citing 8 C.F.R.
17 § 236.1(c)(8)).

18 “Federal regulations provide that aliens detained under § 1226(a)
receive bond hearings at the outset of detention.” Jennings v.
19 Rodriguez, 583 U.S. 281, 306 (2018) (citing 8 CFR §§ 236.1(d)(1)).
If, at this hearing, the detainee demonstrates by the preponderance of
20 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
21 poor bail risk,” the IJ will order his or his release. Diaz, 53 F.4th at
1197 (citing Matter of Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006)).
22 Once released, the noncitizen’s bond is subject to revocation. Under
8 U.S.C. § 1226(b), “the DHS has authority to revoke a noncitizen’s
23 bond or parole ‘at any time,’ even if that individual has previously
been released.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 968 (N.D.
24 Cal. 2019). However, if an immigration judge has determined the
noncitizen should be released, the DHS may not re-arrest that
25 noncitizen absent a change in circumstance. See Panosyan v.
Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release
26 decision was made by a DHS officer, not an immigration judge, the
Government’s practice has been to require a showing of changed
27 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp.
3d 1168, 1197 (N.D. Cal. 2017).
28
1 ///
2. Expedited Removal and Mandatory Detention (§ 1225)
2

While “§ 1226 applies to aliens already present in the United States,”
3
U.S. immigration law also “authorizes the Government to detain
certain aliens seeking admission into the country under
4
§§ 1225(b)(1) and (b)(2),” a process that provides for expedited
removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a
5
noncitizen “who has not been admitted or who arrives in the United
States” is considered “an applicant for admission.” 8 U.S.C.
6
§ 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225
authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides
7
that:

8
“If an immigration officer determines that an alien
(other than an alien described in subparagraph (F))
9
who is arriving in the United States or is described in
clause (iii) is inadmissible under section
10
212(a)(6)(C) or 212(a)(7) [8 U.S.C. § 1182(a)(6)(C)
or 1182(a)(7)], the officer shall order the alien
11
removed from the United States without further
hearing or review unless the alien indicates either an
12
intention to apply for asylum under section 208 [8
USCS § 1158] or a fear of persecution.”
13

Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer
14
to noncitizens who are inadmissible due to misrepresentation or
failure to meet document requirements. Clause (iii) of § 1225(b)(1)
15
allows the Attorney General (who has since delegated the
responsibility to the Department of Homeland Security Secretary) to
16
designate for expedited removal noncitizens “who ha[ve] not been
admitted or paroled into the United States, and who ha[ve] not
17
affirmatively shown, to the satisfaction of an immigration officer,
that the alien has been physically present in the United States
18
continuously for the 2-year period immediately prior to the date of
the determination of inadmissibility under this subparagraph.”
19
§ 1225(b)(1)(A)(iii)(II).
20
To summarize, under § 1225(b)(1), two groups of noncitizens are
21 subject to expedited removal. First, there are “arriving” noncitizens
who are inadmissible due to misrepresentation or failure to meet
22 document requirements. The implementing agency regulations
define “arriving alien” as applicants for admission “coming or
23 attempting to come into the United States at a port-of-entry.” 8
C.F.R. § 1.2. The second group –designated noncitizens –includes
24 noncitizens who meet all of the following criteria: (1) they are
inadmissible due to lack of a valid entry document or
25 misrepresentation; (2) they have not “been physically present in the
United States continuously for the 2-year period immediately prior
26 to the date of the determination of inadmissibility”; and (3) they are
among those whom the Secretary of Homeland Security has
27 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; §
1225(b)(1).
28
1 “Initially, DHS’s predecessor agency did not make any designation
[under (3)], thereby limiting expedited removal only to ‘arriving
2 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
3 169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS
extended by designation expedited removal to noncitizens who arrive
4 by sea and who have been present for fewer than two years, and to
noncitizens apprehended within 100 air miles of any U.S.
5 international land border who entered within the last 14 days. Id. This
was the status quo until January 2025, when the Department of
6 Homeland Security revised its § 1225 designation to “apply
expedited removal to the fullest extent authorized by statute.”
7 Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan.
24, 2025). Under this designation, expedited removal applies to
8 noncitizens encountered anywhere within the United States, who
have been in the United States for less than two years and are
9 inadmissible for lack of valid documentation or misrepresentation. In
short, expedited removal was expanded to apply for the first time to
10 vast numbers of noncitizens present in the interior of the United
States.
11
Under the expedited removal statute § 1225(b)(1), if an applicant
12 “indicates either an intention to apply for asylum” or “a fear of
persecution,” the immigration officer “shall refer the alien for an
13 interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the
asylum officer determines that the applicant has a “credible fear,” the
14 applicant “receive[s] ‘full consideration’ of his asylum claim in a
standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the
15 officer determines there is no “credible fear,” the officer “shall order
the alien removed from the United States without further hearing or
16 review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may
be appealed by the applicant to an immigration judge, who must
17 conduct the review “to the maximum extent practicable within 24
hours, but in no case later than 7 days after the date of the
18 determination.” Id. Detention under § 1225(b)(1) is “mandatory”
“pending a final determination of credible fear of persecution and if
19 found not to have such a fear, until removed.” Id. (citing
§ 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under
20 this clause shall be detained pending a final determination of credible
fear of persecution and, if found not to have such a fear, until
21 removed.”)

22 [Section] 1225 also contains a provision that applies to applicants for
admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287.
23 This provision, 1225(b)(2), states that, subject to statutory
exceptions, “in the case of an alien who is an applicant for admission,
24 if the examining immigration officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to be admitted,
25 the alien shall be detained for a proceeding under section 1229a [full
removal proceedings] of this title.” § 1225(b)(2). In other words,
26 noncitizens subject to 1225(b)(2) are not eligible for expedited
removal but are subject to mandatory detention while their full
27 removal proceedings are pending. This is in contrast to the default
detention regime under § 1226(a), which allows for discretionary
28 release and review of detention through a bond hearing.
1
3. The Government’s Recent Change in Position
2
Until this year, the DHS has applied § 1226(a) and its discretionary
3 release and review of detention to the vast majority of noncitizens
allegedly in this country without valid documentation. This practice
4 was codified by regulation. The regulations implementing the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
5 (“IIRIRA”) state that “Despite being applicants for admission, aliens
who are present without having been admitted or paroled (formerly
6 referred to as aliens who entered without inspection) will be eligible
for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323
7 (Mar. 6, 1997). In fact, the government has conceded in other
contexts that “DHS’s long-standing interpretation has been that
8 1226(a) [discretionary detention] applies to those who have crossed
the border between ports of entry and are shortly thereafter
9 apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of
Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785
10 (2022) (No. 21-954)) . . .

11 In 2025, however, the Government’s policy changed dramatically.
The DHS revised its § 1225 designation to “apply expedited removal
12 to the fullest extent authorized by statute.” Designating Aliens for
Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis
13 added). The Secretary of Homeland Security memorandum directed
federal immigration officers to “consider ... whether to apply
14 expedited removal” to “any alien DHS is aware of who is amenable
to expedited removal but to whom expedited removal has not been
15 applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps
to terminate any ongoing removal proceeding and/or any active
16 parole status.” Id. The memorandum states that DHS shall take the
actions contemplated by the memorandum “in a manner that takes
17 account of legitimate reliance interests,” but states that “the
expedited removal process includes asylum screening, which is
18 sufficient to protect the reliance interests of any alien who has
applied for asylum or planned to do so in a timely manner.” Huffman
19 Memorandum (Jan. 23, 2025).

20 Since mid-May of 2025, the Department of Homeland Security has
made a practice of appearing at regular removal proceedings in
21 immigration court, moving to dismiss the proceedings, and then re-
arresting the individual in order to place them in expedited removal
22 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does
not dismiss the full removal proceedings, ICE still makes an arrest,
23 apparently in reliance on § 1225(b)(2)’s detention provision.

24
Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted).
25
C. Parole Revocation
26
In Y-Z-H-L v. Bostock, 792 F. Supp. 3d 1123 (D. Or. 2025), the court explained the parole
27
process in immigration cases and noted that before parole may be revoked, the parolee must be
28
1 given written notice of the impending revocation, which must include a cogent description of the
2 reasons supporting the revocation decision. The court held:
3 Section 1182 . . . has a subsection titled “Temporary admission of
nonimmigrants,” which allows noncitizens, even those in required
4 detention, to be “paroled” into the United States. This provision, at
issue in this case, states:
5 The Secretary of Homeland Security may, except as
provided in subparagraph (B) or in section 1184(f) of this
6 title, in his discretion parole into the United States
temporarily under such conditions as he may prescribe
7 only on a case-by-case basis for urgent humanitarian
reasons or significant public benefit any alien applying
8 for admission to the United States, but such parole of
such alien shall not be regarded as an admission of the
9 alien and when the purposes of such parole shall, in
the opinion of the Secretary of Homeland Security,
10 have been served the alien shall forthwith return or
be returned to the custody from which he was paroled
11 and thereafter his case shall continue to be dealt with
in the same manner as that of any other applicant for
12 admission to the United States.
13 8 U.S.C. § 1182(d)(5)(A).
14 Id. at 1133 (emphasis added). Y-Z-H-L determined that under the Administrative Procedure Act,
15 immigration parolees are entitled to determinations related to their parole revocations that are not
16 arbitrary, capricious or an abuse of discretion. Id. at 1146-47. An agency acts arbitrarily and
17 capriciously by failing to make a reasoned determination or where the agency fails to “articulate[]
18 a satisfactory explanation for its action including a rational connection between the facts found and
19 the choice made.” Id. at 1144 (footnote and citation omitted). Parole revocations in the context of
20 the INA must occur on a case-by-case basis and may occur “when the purposes of such parole shall,
21 in the opinion of the Secretary of Homeland Security, have been served the alien shall forthwith
22 return or be returned to the custody from which he was paroled.” Id. at 1133 (quoting 8 C.F.R.
23 § 212.5(e)). 8 C.F.R. § 212.5(e) requires written notice of the termination of parole except where
24 the immigrant has departed or when the specified period of parole has expired.
25 Applying Y-Z-H-L and § 212.5(e), in Mata Velasquez v. Kurzdorfer, 794 F. Supp. 3d 128
26 (W.D.N.Y. 2025), the court found that the INA requires a case-by-case analysis as to the decision
27 to revoke humanitarian parole:

28 This Court agrees that both common sense and the words of the
1 statute require parole revocation to be analyzed on a case-by-case
basis and that a decision to revoke parole “must attend to the reasons
2 an individual [noncitizen] received parole.” See id. There is no
indication in the record that the government conducted any such
3 analysis here. On the contrary, the letter Mata Velasquez received
merely stated summarily that DHS had “revoked [his] parole.”
4 Docket Item 62-1 at 5. Thus, there is no indication that—as required
by the statute and regulations—an official with authority made a
5 determination specific to Mata Velasquez that either “the purpose for
which [his] parole was authorized” has been “accomplish[ed]” or that
6 “neither humanitarian reasons nor public benefit warrants [his]
continued presence...in the United States.” See 8 C.F.R.
7 § 212.5(e)(2)(i). As a result, DHS's revocation of Mata Velasquez’s
parole violated his rights under the statute and regulations. See Y-Z-
8 L-H, 2025 WL 1898025, at *13.
9 Id. at 146. And in Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025), the court reached
10 a similar conclusion relying on the Due Process Clause:

11 . . . even when ICE has the initial discretion to detain or release
a noncitizen pending removal proceedings, after that individual
12 is released from custody she has a protected liberty interest in
remaining out of custody. See Romero v. Kaiser, No. 22-cv-02508,
13 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022) (“[T]his Court
joins other courts of this district facing facts similar to the present
14 case and finds Petitioner raised serious questions going to the merits
of his claim that due process requires a hearing before an IJ prior to
15 re-detention.”); Jorge M. F. v. Wilkinson, No. 21-cv-01434, 2021
WL 783561, at *2 (N.D. Cal. Mar. 1, 2021); Ortiz Vargas v.
16 Jennings, No. 20-cv-5785, 2020 WL 5074312, at *3 (N.D. Cal. Aug.
23, 2020); Ortega, 415 F. Supp. 3d at 969 (“Just as people on
17 preparole, parole, and probation status have a liberty interest, so too
does [a noncitizen released from immigration detention] have a
18 liberty interest in remaining out of custody on bond.”).
19 Id. (emphasis added). Other courts, including this Court, have held similarly. See Doe v. Becerra,
20 787 F. Supp. 3d 1083, 1093 (E.D. Cal. 2025); see also Padilla v. U.S. Immigr. & Customs Enf’t,
21 704 F. Supp. 3d 1163, 1172 (W.D. Wash. 2023) (“The Supreme Court has consistently held that
22 non-punitive detention violates the Constitution unless it is strictly limited, and, typically,
23 accompanied by a prompt individualized hearing before a neutral decisionmaker to ensure that the
24 imprisonment serves the government’s legitimate goals.”).
25 III. Exhaustion
26 A. Governing Authority
27 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before
28
1 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing
2 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires
3 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative
4 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United
5 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is
6 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been
7 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)).
8 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it
9 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.”
10 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d
11 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although
12 courts have discretion to waive the exhaustion requirement when it is prudentially required, this
13 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion
14 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v.
15 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring
16 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly
17 to be disregarded.”).
18 B. Analysis
19 Neither Petitioner nor Respondents address exhaustion in their filings. See (Docs. 1, 7).
20 The Court finds that the prudential exhaustion requirement should be waived as it would be futile
21 to seek release by administrative means given Respondents’ position that Petitioner is subject to
22 mandatory detention under § 1225(b). See (Doc. 7); Jennings v. Rodriguez, 583 U.S. 281, 282
23 (2018) (“§§ 1225(b) … do[e]s not give detained aliens the right to periodic bond hearings during
24 the course of their detention.”); Rodriguez Diaz v. Garland, 53 F. 4th 1189, 1201 (9th Cir. 2022).
25 Further, the BIA has held that all noncitizens present within the country without admission are
26 seeking admission pursuant to § 1225, rendering any administrative relief futile. See J.A.C.P. v.
27 Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at *7 n.9 (E.D. Cal. Oct. 27,
28 2025) (“In addition, pursuit of administrative remedies would almost certainly be futile given the
1 BIA’s recent holding that all noncitizens present in the United States without admission are
2 ‘seeking admission’ for purposes of 8 U.S.C. § 1225(b)(2)(A) and must be detained.”) (citing
3 Matter of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)).
4 For these reasons and because Respondents do not argue Petitioner should be required to
5 exhaust administrative remedies, the undersigned recommends that the prudential exhaustion
6 requirement be waived for Petitioner’s claim for habeas corpus relief. See, e.g., Chavez v. Noem,
7 No. 3:25-cv-02325-CAB-SBC, 2025 WL 2730228, at *3 (S.D. Cal. Sept. 24, 2025) (waiving
8 prudential exhaustion requirement because the BIA “already applied its expertise in deciding and
9 designating” Hurtado as precedential, pursuant to which detainees are subject to mandatory
10 detention without bond under § 1225(b)(2)); Rodriguez v. Bostock, 779 F. Supp. 3d 1239, 1253
11 (W.D. Wash. 2025) (“The Ninth Circuit has recognized ‘the irreparable harms imposed on anyone
12 subject to immigration detention.’”) (citing Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir.
13 2017)); J.A.C.P., 2025 WL 3013328, at *7 n.9.
14 IV. Discussion
15 Petitioner asserts two causes of action in his petition: violation of the Immigration and
16 Nationality Act (“INA”) and violation of procedural due process under the Fifth Amendment to the
17 U.S. Constitution. (Doc. 1 at 13-14).
18 A. Statutory Scheme: 8 U.S.C. § 1226(a) Applies
19 Petitioner contends that he remains in custody in violation of the INA, specifically that the
20 “mandatory detention provision at 8 U.S.C. § 1225(b)(2) does not apply to all noncitizens residing
21 in the United States who are subject to the grounds of inadmissibility,” and “it does not apply to
22 those who previously entered the country and have been residing in the United States prior to being
23 apprehended and placed in removal proceedings by Respondents,” with such detainment being
24 “under § 1226(a), unless they are subject to § 1225(b)(1), § 1226(c), or § 1231.” (Doc. 1 ¶ 46).
25 Respondents assert that Petitioner is an “applicant for admission” subject to mandatory detention
26 under § 1225(b)(2), and that “Petitioner’s prior release in the discretion of DHS does not have the
27 effect of having converted petitioner’s presence in the United States into an ‘admission.’” (Doc. 7
28 at 2-3). Respondents contend that this action is “factually distinct from the cases the Court cited in
1 its minute order [Doc. 6] in that Petitioner has been ordered removed (even though the order of
2 removal is not yet final) while it appears the aliens in those cases have not been ordered removed.”
3 Id. at 3 (citing Bekler v. Noem, No. 1:25-cv-01974-CDB, 2026 WL 234949 (E.D. Cal. Jan. 29,
4 2026); Singh v. Albarran, No. 1:25-cv-01788-CDB, 2025 WL 3751819 (E.D. Cal. Dec. 29, 2025)).
5 Section 1225 governs the detention of noncitizens “seeking admission” into the United
6 States. See Jennings v. Rodriguez, 583 U.S. 281, 289 (2018); see id. at 282 (“§§ 1225(b) … do[e]s
7 not give detained aliens the right to periodic bond hearings during the course of their detention.”).
8 In contrast, § 1226 sets forth a “default rule” for noncitizens already present within the United
9 States. Id. at 288. Relevant here, § 1225(b)(1) applies to aliens “arriving in the United States” or
10 aliens who have “not been admitted or paroled into the United States” and have not “affirmatively
11 shown, to the satisfaction of an immigration officer, that the alien has been physically present in
12 the United States continuously for the [two]-year period immediately prior to the date of the
13 determination of inadmissibility.” 8 U.S.C. § 1225(b)1)(A)(i), (iii)(II).
14 Section 1225(b)(2)(A) provides that “in the case of an alien who is an applicant for
15 admission, if the examining immigration officer determines that an alien seeking admission is not
16 clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding
17 under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). For § 1225(b)(2)(A) to apply, an
18 examining immigration officer must determine that the individual is (1) an “applicant for
19 admission,” (2) “seeking admission,” and (3) “not clearly and beyond a doubt entitled to be
20 admitted.” See Lepe v. Andrews, 801 F. Supp. 3d 1104, 1113 (E.D. Cal. 2025) (citing Martinez v.
21 Hyde, 792 F. Supp. 3d 211, 214 (D. Mass. 2025)).
22 Here, at the time of his re-arrest in October 2025, Petitioner already was present in the
23 United States following his initial arrest and detention by DHS in 2022 and release under DHS
24 supervision. Based on these facts, the plain language of § 1225(b) demonstrates that it is
25 inapplicable to Petitioner because he is not “arriving” in the United States but rather arrived here
26 more than three years prior to his recent re-arrest by ICE in October 2025. Further, Respondents
27 have not shown that an examining immigration officer made any determination under §
28 1225(b)(2)(A) that Petitioner is “seeking admission” and “not clearly and beyond a doubt entitled
1 to be admitted.” See Lepe, 801 F. Supp. 3d at 1113. Nor do Respondents argue that Petitioner
2 properly is subject to mandatory detention under some other qualifying detention provision.
3 Additionally, Respondents’ contention that the facts of this action are materially
4 distinguishable from the Court’s prior rulings in Bekler v. Noem and Singh v. Albarran, because
5 here Petitioner has been ordered removed, is unavailing. Under the INA, a removal order becomes
6 final upon the earlier of either (1) a determination of the BIA affirming such order or (2) the
7 expiration of the period in which a petitioner is permitted to seek review of the order by the BIA.
8 Padilla-Ramirez v. Bible, 882 F.3d 826, 831 (9th Cir. 2017). Section 1226 applies “pending a
9 decision on whether the alien is to be removed from the United States.” Id. at 830 (citing § 1226(a)).
10 Respondents concede that Petitioner’s order of removal is not final given the pendency of an appeal
11 to the BIA, which operates to stay the removal order. (Doc. 7 at 3; id. at 6 ¶ 11). Thus, the fact
12 that Petitioner is the subject of a pending, nonfinal order of removal does not materially distinguish
13 this action from the Court’s prior rulings in Bekler v. Noem and Singh v. Albarran.
14 Under these circumstances, and having determined that the mandatory detention framework
15 under § 1225(b) does not apply to Petitioner, the undersigned finds that § 1226(a) provides the
16 proper framework for noncitizens already residing in the United States. See, e.g., Esquivel Pacheco
17 v. LaRose, -- F. Supp. 3d --, No. 3:25-cv-2421-JO-AHG, 2026 WL 242300, at *1 (S.D. Cal. Jan.
18 29, 2026). In Esquivel Pacheco, the petitioner, a citizen of Mexico, presented at the San Ysidro
19 Port of Entry in March 2019 and requested asylum. DHS determined the petitioner was
20 inadmissible, initiated removal proceedings, and released him on parole. The petitioner
21 subsequently filed an application for asylum and lived and worked in the United States for the next
22 six years. An immigration judge ordered his removal to Mexico in September 2020 and the
23 petitioner appealed to the BIA in October 2020. Almost five years later, ICE arrested the petitioner
24 at work – while the petitioner’s appeal to the BIA remained pending and his parole status was
25 unchanged. On his petition for writ of habeas corpus, the court rejected the respondents’
26 interpretation of § 1225(b)(2) and, noting that the petitioner was a longtime resident of this country
27 at the time of his detention, he was not “seeking admission” when apprehended which was six years
28 after he had entered the country. Thus, the court found that petitioner was subject to the
1 discretionary detention framework of § 1226 and that the respondents’ detention of him violated
2 his procedural due process rights under the Fifth Amendment to the U.S. Constitution. See id. at
3 *1, 5.
4 Other courts likewise have found that the text of sections 1225 and 1226, coupled with
5 application of commonly used canons of statutory interpretation, legislative history, and ICE’s
6 historical practices predating DHS’s recent shift in policy, weigh in favor of finding that section
7 1226(a)’s discretionary framework governs the detention of noncitizens who, like Petitioner, are
8 already in the country when encountered by immigration authorities. See Rodriguez v. Bostock,
9 802 F. Supp. 3d 1297, 1336 (W.D. Wash. 2025); Otero v. Robbins, et al., No. 1:25-cv-1790 CSK,
10 2025 WL 3704453, at *5 (E.D. Cal. Dec. 22, 2025) (collecting cases, adopting the reasoning of the
11 Lepe court, and finding that “[t]his Court agrees with and joins the majority of courts nationwide,
12 including the Eastern District of California, in rejecting respondents’ interpretation of Sections
13 1225 and 1226”); Morales-Flores v. Lyons, No. 1:25-cv-01640-TLN-EFB, 2025 WL 3552841, at
14 *3 (E.D. Cal. Dec. 11, 2025) (collecting cases and noting “Courts nationwide, including this one,
15 have overwhelmingly rejected respondents’ arguments and found DHS’s new policy unlawful”);
16 J.Y.L.C. v. Bostock, No. 3:25-cv-02083-AB, 2025 WL 3169865, at *2 (D. Or. Nov. 12, 2025) (citing
17 cases and noting that this conclusion is “consistent with the holdings of dozens of district courts
18 across the country”); Barco Mercado v. Francis, -- F. Supp. 3d --, 2025 WL 3295903, at *4
19 (S.D.N.Y. Nov. 26, 2025) (noting that this statutory interpretation “has been challenged in at least
20 362 cases in federal district courts,” with the challengers having prevailed “either on a preliminary
21 or final basis, in 350 of those cases decided by over 160 different judges sitting in about fifty
22 different courts”).
23 Next, the Court will address Petitioner’s claims regarding violation of procedural due
24 process under the Fifth Amendment.
25 B. Procedural Due Process
26 1. Governing Authority
27 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be
28 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995
1 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects
2 individuals against two types of government action’: violations of substantive due process and
3 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)).
4 “Procedural due process imposes constraints on governmental decisions which deprive
5 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the
6 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from
7 imprisonment—from government custody, detention, or other forms of physical restraint—lies at
8 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
9 “Procedural due process requires that, even where a deprivation of liberty survives substantive due
10 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52
11 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer
12 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal
13 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The
14 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in
15 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process
16 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey
17 v. Brewer, 408 U.S. 471, 481 (1972).
18 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including
19 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533
20 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the
21 Due Process Clause stands as a significant constraint on the manner in which the political branches
22 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled
23 that ‘due process requires adequate procedural protections to ensure that the government’s asserted
24 justification for physical confinement outweighs the individual's constitutionally protected interest
25 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d
26 1196, 1203 (9th Cir. 2011)).
27 2. Analysis
28 On Petitioner’s as-applied procedural due process challenge to his continuing detention by
1 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty
2 interest under the Due Process Clause, and …[(2)] the procedures necessary to ensure any
3 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews,
4 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky
5 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)).
6 Petitioner has an underlying, continuing liberty interest in being free from re-detention.
7 Specifically, Petitioner was released on discretion of DHS more than, at least, three years prior to
8 his re-arrest. (Doc. 1 ¶¶ 14-16, 19-20). By releasing Petitioner in their discretion, immigration
9 officials necessarily determined that Petitioner did not present a risk of flight or danger to the
10 community. See 8 C.F.R. § 1236.1(c)(8) (“Any officer authorized to issue a warrant of arrest may,
11 in the officer’s discretion, release an alien not described in section 236(c)(1) of the Act, under the
12 conditions at section 236(a)(2) and (3) of the Act; provided that the alien must demonstrate to the
13 satisfaction of the officer that such release would not pose a danger to property or persons, and that
14 the alien is likely to appear for any future proceeding.”). Accord Rodriguez Diaz, 53 F.4th at 1196.
15 Petitioner remained released from immigration detention for a significant amount of time. (Doc. 1
16 ¶¶ 14-16, 19-20). Respondents do not assert that Petitioner failed to comply with the conditions of
17 his release, nor do they proffer facts to suggest Petitioner is a danger to the public or a flight risk.
18 See (Doc. 7).
19 The undersigned agrees with other courts and other judges of this Court that noncitizens
20 released from immigration custody on general orders of supervision or on their own recognizance
21 have a liberty interest in their freedom that implicates protections under principles of procedural
22 due process. See Guillermo M.R. v. Kaiser, 791 F. Supp. 3d 1021, 1031 (N.D. Cal. 2025) (“The
23 fact that Petitioner is subject to discretionary conditions of release likewise does not mean he lacks
24 a protectable liberty interest and can be re-detained without process.”); see id. (“[E]ven if
25 immigration detainees must wait months before a periodic re-review of their detention, those
26 already released on immigration bond possess an interest in their continued liberty, which grows
27 over time, and a due process right to a hearing before being re-detained.”); Nak Kim Chhoeun v.
28 Marin, 442 F. Supp. 3d 1233, 1245 (C.D. Cal. 2020). Accord Doe, 787 F. Supp. 3d at 1099
1 (considering in connection with a petitioner’s procedural due process claim that “[t]he lengthy
2 duration of his conditional release as well as the meaningful connections Petitioner seems to have
3 made with his community during that time create a powerful interest for Petitioner in his continued
4 liberty”); Ramazan M. v. Andrews, No. 1:25-cv-01356-KES-SKO (HC), 2025 WL 3145562, at *5-
5 6 (E.D. Cal. Nov. 10, 2025) (“Even when a statute allows the government to arrest and detain an
6 individual, a protected liberty interest under the Due Process Clause may entitle the individual to
7 procedural protections not found in the statute”). Cf. Daley v. Andrews, No. 1:25-cv-00922-KES-
8 CDB, 2026 WL 101840, at *9-10 (E.D. Cal. Jan. 14, 2026) (finding a petitioner mandatorily
9 detained pursuant to § 1226(c) did not have a protectible liberty interest because he had remained
10 in continuous custody and never released on supervision).
11 Respondents assert that Petitioner is an “applicant for admission” and is “subject to
12 mandatory detention by ICE under 8 U.S.C. § 1225(b)(2).” (Doc. 7 at 2; citing Alonzo v. Noem,
13 No. 1:25-cv-01519 WBS SCR, 2025 WL 3208284 (E.D. Cal. Nov. 17, 2025)). The petitioners’
14 circumstances in Alonzo are factually dissimilar from those presented here, as another judge of this
15 Court has explained: Petitioner here was detained by DHS and released, and immigration
16 proceedings have remained pending for a significant period of time with an order of removal
17 pending appeal. See Garcia v. Chesnut, No. 1:25-cv-01907-JLT-CDB, 2025 WL 3771348, at *8
18 (E.D. Cal. Dec. 31, 2025) (“However, unlike here, the petitioners in Valencia and Alonzo had never
19 been encountered, let alone processed, by immigration officials, and had not been released on
20 recognizance pending completion of Section 240 removal proceedings.”).
21 Additionally, other judges of this Court, as well as many other courts, have considered and
22 rejected the government’s arguments, finding that Section 1226(a), not Section 1225(b)(2),
23 provides the appropriate framework for noncitizens released following their initial encounter with
24 immigration authorities and have resided in the United States for a significant period, like Petitioner
25 here. See, e.g., H.J.G.G. v. Wofford, No. 1:25-cv-01718-JLT-EPG-HC, 2025 WL 3761803, at *4
26 (E.D. Cal. Dec. 30, 2025) (citing Castillo v. Wofford, No. 1:25-cv-01586-JLT-HBK, 2025 WL
27 3466064, at *8 (E.D. Cal. Dec. 2, 2025)); accord Valencia Zapata v. Kaiser, 801 F. Supp. 3d 919,
28 935-37 (N.D. Cal. 2025), appeal filed, No. 25-7472 (9th Cir. Nov. 26, 2025). Under such
1 circumstances, “the government cannot switch tracks” and subject Petitioner to mandatory
2 detention now under section 1225(b)(2) “after it previously released him on his own recognizance
3 under section 1226(a).” Valencia Zapata, 801 F. Supp. 3d at 936; accord Souza v. Robbins, No.
4 1:25-cv-01597-DJC-JDP, 2025 WL 3263897, at *2 (E.D. Cal. Nov. 23, 2025).
5 Because Petitioner has shown he has a protected liberty interest to remain free from re-
6 detention based on his discretionary release in April 2022, the undersigned must determine what
7 process is due before the government may terminate that liberty interest. To determine this, the
8 undersigned considers the following factors articulated in Mathews: “[(1)] the private interest that
9 will be affected by the official action; [(2)] the risk of an erroneous deprivation of such interest
10 through the procedures used, and the probable value, if any, of additional or substitute procedural
11 safeguards; and [(3)] the Government’s interest, including the function involved and the fiscal and
12 administrative burdens that the additional or substitute procedural requirement would entail.”
13 Mathews, 424 U.S. at 335; see Hernandez, 872 F.3d at 993-94 (applying Mathews test in
14 immigration detention context); id. at 993 (“The appropriateness of the requirement that ICE and
15 IJs consider financial circumstances and alternative conditions of release is confirmed by the
16 balance of factors under Mathews[.]”).
17 As to the first factor, Petitioner has shown he has a significant private interest in remaining
18 on release from detention. He had been released from immigration custody for approximately
19 three-and-a-half years prior to his re-detention. Respondents do not assert that he failed to comply
20 with the conditions of his release nor that he committed any crimes. See (Doc. 7). Petitioner’s
21 continued liberty interest in remaining on release is undermined by his re-detention without a bond
22 hearing. Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from imprisonment is at the core of the Due
23 Process Clause…. The lengthy duration of his conditional release as well as the meaningful
24 connections [he] seems to have made with his community during that time create a powerful interest
25 for [him] in his continued liberty.”).
26 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest
27 is considerable here where he has not received any bond or custody redetermination. Id. at 1094;
28 A.E. v. Andrews, No. 1:25-cv-00107-KES-SKO, 2025 WL 1424382, at *5 (E.D. Cal. May 16,
1 2025). Because there were no procedural safeguards to determine if Petitioner’s re-detention was
2 justified, and Respondents present no facts indicating any change in circumstances while Petitioner
3 was on release sufficient to justify Petitioner’s re-detention, the probable value of the additional
4 procedural safeguard of a bond hearing to determine whether Petitioner is a flight risk or a danger
5 to the community is high such that this factor weighs in favor of granting a bond hearing. See Doe,
6 787 F. Supp. at 1094 (“[G]iven that Petitioner was previously found to not be a danger or risk of
7 flight and the unresolved questions about the timing and reliability of the new information, the risk
8 of erroneous deprivation remains high.”); A.E., 2025 WL 1424382 at *5; Ramazan, 2025 WL
9 3145562, at *6. Therefore, this factor weighs in favor of granting a bond hearing.
10 Third, the government’s interest in detaining Petitioner without a bond hearing is low,
11 particularly given that Petitioner remained out of custody and was successfully supervised by
12 immigration authorities prior to his re-arrest and detention. Doe, 787 F. Supp. 3d at 1094 (citation
13 omitted); Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. 2019)); Diaz v. Kaiser, No. 3:25-
14 cv-05071, 2025 WL 1676854, at *3 (N.D. Cal. June 14, 2025) (“And, like other Courts in this
15 district, the Court concludes that the government’s interest in re-detaining Petitioner-[] without a
16 hearing is ‘low,’ particularly in light of the fact that Petitioner[] has long complied with his
17 reporting requirements.”). “The effort and cost to provide Petitioner with [a bond hearing] is
18 minimal[.]” Doe, 787 F. Supp. 3d at 1094. Therefore, any additional burden from requiring the
19 government to seek a bond hearing before it may re-detain Petitioner does not outweigh his liberty
20 interest and the risk of erroneous deprivation. Accordingly, this factor weighs in favor of granting
21 a bond hearing.
22 In sum, the undersigned finds that, under Mathews, Respondents have violated Petitioner’s
23 procedural due process rights under the Fifth Amendment to the U.S. Constitution through his arrest
24 in October 2025 and continuing detention thereafter.
25 C. Remedy
26 Respondents do not assert that Petitioner is a flight risk or a danger to the community. As
27 § 1225(b) does not apply to Petitioner, the government may not detain him pursuant to § 1225(b)(1)
28 and his detention violates his procedural due process rights. And because Respondents do not
1 provide any other basis to detain Petitioner and do not assert any risk of flight or danger to the
2 community, the appropriate remedy is Petitioner’s immediate release.
3 Further, the undersigned will recommend that in the event the government seeks to re-detain
4 Petitioner, the government must provide notice to Petitioner a minimum of seven (7) days in
5 advance and must hold a bond hearing before a neutral arbiter pursuant to § 1226(a) and applicable
6 regulations, at which Petitioner’s eligibility for bond must be considered. Ordinarily, the Petitioner
7 bears the burden of demonstrating by a preponderance of the evidence at a bond hearing that he is
8 neither a flight risk nor a danger to the community. Rodriguez Diaz, 53 F.4th at 1197. But as set
9 forth above, the BIA has held that all noncitizens within the country without admission are subject
10 to mandatory detention under § 1225(b)(1). See J.A.C.P., 2025 WL 3013328, at *7 (citing Matter
11 of Yajure Hurtado, 29 I&N Dec. 216 (B.I.A. 2025)).
12 Accordingly, the undersigned will recommend adopting the prevailing view endorsed by
13 judges of this Court that, under the circumstances presented here, if Respondents seek to re-detain
14 Petitioner, Respondents be compelled to provide Petitioner a bond redetermination hearing at which
15 the government will bear the burden of establishing, by clear and convincing evidence, that
16 Petitioner poses a danger to the community or a risk of flight. “Doing so is logical” because “the
17 immigrant’s initial release reflected a determination by the government that the noncitizen is not a
18 danger to the community or a flight risk. Since it is the government that initiated re-detention, it
19 follows that the government should be required to bear the burden of providing a justification for
20 the re-detention.” M.R.R. v. Chestnut, No. 1:25-cv-01517-JLT-SKO, 2025 WL 3265446, at *14
21 (E.D. Cal. Nov. 24, 2025) (relying on Pinchi, 792 F. Supp. 3d at 1034, 1038); accord Omer G. G.
22 v. Kaiser, No. 1:25-cv-01471-KES-SAB, 2025 WL 3254999, at *8-9 (E.D. Cal. Nov. 22, 2025).
23 D. Respondents’ Reference to Ninth Circuit Appeals
24 Separately, Respondents assert that there are matters pending appeal before the Ninth
25 Circuit that bear on the issues presented in this case. (Doc. 7 at 2 n.3, 4; citing, inter alia, Rodriguez
26 v. Bostock, No. 25-6842). Having found that Petitioner’s re-arrest without a bond determination
27 and continuous detention for a considerable length of time violates the U.S. Constitution, the
28 undersigned will not recommend holding the matter in abeyance pending said appeals. See
1 Zadvydas, 533 U.S. at 690 (reaffirming that “freedom from imprisonment—from government
2 custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due
3 Process] Clause protects.”)
4 V. Conclusion and Recommendation
5 Accordingly, IT IS HEREBY RECOMMENDED that:
6 1. The petition for writ of habeas corpus (Doc. 1) be GRANTED.
7 2. Respondents be ORDERED to release Petitioner immediately.
8 3. Respondents be ENJOINED and RESTRAINED from re-detaining Petitioner unless
9 the government provides notice to Petitioner a minimum of seven (7) days in advance
10 and holds a bond hearing before a neutral arbiter pursuant to section 1226(a) and
11 applicable regulations, at which Petitioner’s eligibility for bond must be considered,
12 and where the government must demonstrate by clear and convincing evidence that
13 Petitioner is a flight risk or danger to the community, such that physical custody is
14 legally justified.
15 4. The Clerk of the Court be DIRECTED to enter judgment for Petitioner and to close this
16 case.
17 These findings and recommendations will be submitted to the United States District Judge
18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven (7) days
19 after being served with these findings and recommendations, the parties may file written objections
20 with the Court. Although this objection period is shorter than provided by Local Rule, such an
21 adjustment is warranted given the nature of Petitioner’s harm, the finding of a violation of the U.S.
22 Constitution by Respondents, and the fact that the parties have extensively briefed the issues
23 involved. See United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978) (per curiam) (“The court
24 may require a response within a shorter period if exigencies of the calendar require.”). Any
25 objections filed should be captioned, “Objections to Magistrate Judge’s Findings and
26 Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown.
27 The Court will not consider exhibits attached to the Objections. To the extent a party wishes to
28 refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document
1 | and page number, when possible, or otherwise reference the exhibit with specificity. Any pages
2 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing
3 | these findings and recommendations under 28 U.S.C. § 636(b)(I)(C).
4 The parties are advised that failure to file objections within the specified time may result in
5 | the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
6 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
7 | ITISSO ORDERED.
Dated: _ March 13, 2026 | bo
9 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11377151. Public record. Not legal advice.