The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 EDGAR ANTONIO TOVAR (A- Case No. 1:26-cv-1626-DC-JDP
Number: 073-965-673),
12
Petitioner,
13 FINDINGS AND RECOMMENDATIONS
v.
14
WARDEN OF THE CALIFORNIA CITY
15 DETENTION FACILITY,
16 Respondent.
17
18 Petitioner Edgar Antonio Tovar entered the United States without inspection and after
19 serving a prison sentence for possessing a controlled substance while carrying a loaded firearm,
20 he was arrested and detained by ICE in December 2024. Petitioner seeks a writ of habeas corpus
21 under 28 U.S.C. § 2241, claiming that his detention, without a bond hearing, violates the Fifth
22 Amendment. For the reasons outlined below, I recommend that the petition for writ of habeas
23 corpus be granted.
24 Background
25 Petitioner, a citizen of El Salvador, entered the United States on an unknown date without
26 being inspected, admitted, or paroled by an immigration officer.1 ECF No. 9-1 at 203. On March
27
28 1 Petitioner states that he has resided in the United States since 1991. ECF No. 1 at 6.
1 7, 2022, U.S. Citizenship and Immigration Services approved petitioner’s application for
2 permanent resident status. Id. at 2. However, petitioner was convicted June 12, 2024, of
3 California Health and Safety Code section 11370.1(a) (possession of a controlled substance with
4 a firearm).2 ECF No. 9-2 at 3. In light of that conviction, and upon petitioner’s release from state
5 custody, petitioner was detained by ICE on December 16, 2024. ECF No. 9-1 at 2. An
6 Immigration Judge ordered petitioner’s removal on June 13, 2025.3 ECF No. 9-3 at 7. Petitioner
7 appealed that order on September 12, 2025, and the appeal remains pending. Id. at 11.
8 Legal Standard
9 A federal court may grant habeas relief when a petitioner shows that his custody violates
10 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75
11 (2000). “The essence of habeas corpus is an attack by a person in custody upon the legality of
12 that custody, and . . . the traditional function of the writ is to secure release from illegal custody.”
13 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus may be granted to a
14 petitioner who demonstrates that he is in custody in violation of the Constitution or federal law.
15 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has served as a means of
16 reviewing the legality of Executive detention, and it is in that context that its protections have
17 been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s habeas jurisdiction
18 includes challenges to immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
19 Analysis
20 Petitioner claims that his detention absent a bond hearing violates his Fifth Amendment
21 Due Process rights. ECF No. 1 at 17. Respondent counters that the petition should be dismissed
22 because petitioner is subject to mandatory detention under 8 U.S.C. § 1226(c), which allows the
23
2 Petitioner also suffered the following convictions: June 2, 1999, convicted of reckless
24 driving in violation of California Vehicle Code section 23103; February 29, 2000, convicted of
driving under the influence in violation of California Vehicle Code section 23152(B); February 8,
25
2005, convicted of carrying a loaded firearm in violation of California Vehicle Code section
12031(B); and September 8, 2023, convicted of driving under the influence in violation of
26
California Vehicle Code section 23152(A).
27 3 In the order, the Immigration Judge noted that petitioner’s asylum application,
withholding of removal under INA § 241(b)(3), and deferral of removal under the convention
28 against torture were all denied. ECF No. 9-3 at 7.
1 Attorney General to detain and then remove any noncitizen who has committed certain qualifying
2 crimes. ECF No. 9 at 1.
3 Under section 1226(c)(1)(B), the attorney general “shall take into custody” any noncitizen
4 who “has been convicted of a violation of (or a conspiracy or attempt to violate) any law or
5 regulation of a State, the United States, or a foreign country relating to a controlled substance (as
6 defined in section 802 of Title 21), other than a single offense involving possession for one’s own
7 use of 30 grams or less of marijuana.”4 8 U.S.C. § 1227(A)(2)(B)(i). As noted, petitioner was
8 convicted of possession of a controlled substance with a firearm. See ECF No. 9-2 at 3; Cal.
9 Health & Safety Code § 11370.1(a). Consequently, petitioner is subject to mandatory detention
10 under section 1226(c)(1)(B).
11 However, while petitioner’s detention is mandated by statute, that does not resolve his
12 claim that his detention violates the Fifth Amendment.5 See ECF No. 1 at 17. Respondent does
13 not address petitioner’s due process claim. See ECF No. 13. At present, there is no binding
14 authority that squarely resolves this claim. In Zadvydas, the Supreme Court addressed a
15 challenge to prolonged detention in a different context—under 8 U.S.C. § 1231(a)(6)—and held:
16 We do have reason to believe, however, that Congress previously
doubted the constitutionality of detention for more than six months.
17 Consequently, for the sake of uniform administration in the federal
courts, we recognize that period. After this 6–month period, once
18 the alien provides good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future, the
19 Government must respond with evidence sufficient to rebut that
showing.
20
21 533 U.S. at 701 (internal quotation marks and citation omitted).
22 However, in Demore v. Kim, the Supreme Court rejected a due process challenge to
23
4 This statutory provision also requires that the noncitizen be “inadmissible” under 8
24 U.S.C. §§ 1182(a)(6)(A), (6)(C), or (7). 8 U.S.C. § 1226(c)(1)(E)(i). Because petitioner is
“present in the United States without being admitted or paroled,” he is “inadmissible” under
25
§ 1182(a)(6)(A). See 8 U.S.C. § 1182(a)(6)(A)(i).
5 Respondent does not contest that petitioner has a protected liberty interest under the Due
26
Process Clause. In light of this apparent concession and the fact that many courts in this Circuit
27 have found that noncitizens acquire a liberty interest in their continued release, I find it
unnecessary to address this issue. See, e.g., Labrador-Prato v. Noem, 1:25-cv-1598-DC-SCR,
28 2025 WL 3458802, at *4 (E.D. Cal. Dec. 2, 2025).
1 section 1226(c) and distinguished Zadvydas because, unlike indefinite detention pending removal
2 under section 1231(a)(6), mandatory detention under section 1226(c) has a “definite termination
3 point,” i.e., the conclusion of removal proceedings. 538 U.S. 510, 529 (2003). The Court held
4 that “[d]etention during removal proceedings is a constitutionally permissible part of that
5 process.” Id. at 531.
6 After Demore, the Court of Appeals held that mandatory detention under section 1226(c)
7 has an implicit six-month limit, at which time the government must justify continued detention by
8 clear and convincing evidence at a bond hearing. Rodriguez v. Robbins, 804 F.3d 1060, 1078-81
9 (9th Cir. 2015). But the Supreme Court reversed, finding that this statutory provision cannot
10 reasonably be read to limit detention to six months. Jennings v. Rodriguez, 583 U.S. 281, 303-
11 306 (2018). As the Court of Appeals noted on remand, however, the Supreme Court “declined to
12 reach the constitutional question” and “instead chose to answer only the question whether the
13 statutory text itself included a limit on prolonged detention or a requirement of individual bond
14 hearings.” Rodriguez v. Marin, 909 F.3d 252, 255 (9th Cir. 2018). “Since the Rodriguez remand,
15 there has been a dearth of guidance regarding the point at which an individual’s continued
16 mandatory detention under Section 1226(c) becomes unconstitutional.” Lopez v. Garland, 631 F.
17 Supp. 3d 870, 876 (E.D. Cal. 2022) (internal quotation marks and citation omitted).
18 Because neither the Court of Appeals nor the Supreme Court have provided guidance
19 explaining when a noncitizen’s mandatory detention under section 1226(c) becomes
20 unconstitutional, courts in this Circuit have used varied tests to determine whether due process
21 requires a bond hearing. The three main tests are: (1) the general due process assessment under
22 Mathews v. Eldridge, 424 U.S. 319 (1976); (2) the test announced in Banda v. McAleenan, 385 F.
23 Supp. 3d 1099, 1118 (W.D. Wash. 2019); and (3) the test announced in Lopez, 631 F. Supp. 3d at
24 879, where the court determined whether prolonged mandatory detention under section 1226(c)
25 violates the Due Process Clause by considering three factors: “the total length of detention to
26 date, the likely duration of future detention, and the delays in the removal proceedings caused by
27
28
1 the petitioner and the government.”6
2 Petitioner does not address the various tests and instead defaults to an assessment under
3 Mathews. See ECF No. 1 at 11-12. In the absence of binding authority instructing the court
4 which test to employ, I analyze petitioner’s claim under the Lopez test because that case dealt
5 with the same statutory authority under which petitioner is detained.7 Moreover, “[w]hile the
6 Mathews factors may be well-suited to determining whether due process requires a second bond
7 hearing, they are not particularly probative of whether prolonged mandatory detention has
8 become unreasonable in a particular case.” Banda, 385 F. Supp. 3d at 1118. Similarly, the two
9 factors employed in Banda but not Lopez—the conditions of detention and the likelihood that the
10 removal proceedings will result in a final order of removal—“are not particularly suited to
11 assisting the Court in determining whether detention has become unreasonable and due process
12 requires a bond hearing.” Lopez, 631 F. Supp. 3d at 879. Accordingly, petitioner’s claim is
13 analyzed under the three factors articulated in Lopez: (1) the total length of detention to date;
14 (2) the likely duration of future detention; and (3) the delays in proceedings caused by petitioner
15 and the government. I consider each factor in turn.
16 I. Total Length of Detention
17 Courts have found that this factor weighs in the petitioner’s favor where detention has
18 lasted at least one year. See, e.g., Baishymyrov v. Warden of Golden State Annex Det. Facility,
19 No. 1:25-cv-1658-DMC, 2026 WL 145644, at *7 (E.D. Cal. Jan. 20, 2026). “In general, as
20 detention continues past a year, courts become extremely wary of permitting continued custody
21 absent a bond hearing.” Gonzalez v. Bonnar, No. 18-cv-5321-JSC, 2019 WL 330906, at *3 (N.D.
22 Cal. Jan. 25, 2019) (collecting cases) (cleaned up).
23
6 The Lopez test utilizes three factors from the Banda test. Lopez, 631 F. Supp. 3d at 877-
24 79. In Banda, to determine whether prolonged mandatory detention under section 1225(b)
violates the Due Process Clause, the court also considered “the conditions of detention” and “the
25
likelihood that the removal proceedings will result in a final order of removal.” Banda, 385 F.
Supp. 3d at 1118 (quoting Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858-59 (D. Minn. 2019)).
26
7 If I analyzed petitioner’s claim under Mathews, I still would conclude that petitioner is
27 entitled to a bond hearing because: (1) he has a significant private interest that is affected by
detention; (2) the risk of an erroneous deprivation is high without a bond hearing; and (3) the
28 government’s interest in withholding a bond hearing is relatively low. See 424 U.S. at 335.
1 Here, petitioner has been detained for fifteen months. Accordingly, because petitioner has
2 been detained for more than one year, this factor weighs squarely in petitioner’s favor.
3 II. Likely Duration of Future Detention
4 The court must next determine “how long the detention is likely to continue absent
5 judicial intervention; in other words, the anticipated duration of all removal proceedings—
6 including administrative and judicial appeals.” Banda, 385 F. Supp. 3d at 1119 (cleaned up).
7 Though petitioner does not raise the issue, some courts have found that the possibility of an
8 appeal warrants weighing this factor in the petitioner’s favor. See Arido-Sorro v. Garland, No.
9 23-cv-0842-PHX-JAT, 2024 WL 4393264, at *4 (D. Ariz. Sept. 5, 2024), report and
10 recommendation adopted, 2024 WL 4834413 (“Courts have recognized that the possibility of
11 prolonged appeals weighs in favor of finding that continued detention without a bond hearing
12 violates due process.”); Loba L.M. v. Andrews, No. 1:25-cv-00611-JLT-SAB-HC, 2025 WL
13 2939178, at *6 (E.D. Cal. Oct. 16, 2025), report and recommendation adopted, No. 1:25-cv-
14 00611-JLT-SAB, 2025 WL 3187577 (E.D. Cal. Nov. 14, 2025) (finding that “[a]lthough future
15 events are difficult to predict, the Court nevertheless finds that the pending appeal before the BIA
16 and possible remand to the immigration court for further proceedings or possible judicial review
17 by the Ninth Circuit will be sufficiently lengthy such that this factor weighs in favor of
18 Petitioner”); Bojorge-Sequeira v. Geo Grp. Inc., No. 2:25-cv-01807-KKE-GJL, 2026 WL
19 288378, at *5 (W.D. Wash. Jan. 15, 2026), report and recommendation adopted, No. 2:25-cv-
20 01807-KKE-GJL, 2026 WL 285657 (W.D. Wash. Feb. 3, 2026) (finding this factor weighed in
21 favor of the petitioner who had appealed the Immigration Judge’s decision to the BIA).
22 While there is no evidence in the record to determine how long such process would take,
23 petitioner is entitled to some deference based on the prospect of an appeal increasing the length of
24 the removal proceedings. Accordingly, I find that the second factor weighs in favor of petitioner,
25 although only slightly given the lack of argument presented by petitioner.
26 III. Delays in Proceedings Caused by Petitioner and the Government
27 Lastly, the court must consider the nature and extent of delays caused by petitioner and
28 the government. Because there is no information in the record regarding any delays in
1 petitioner’s proceedings, this factor is neutral.
2 Overall, while the third factor is neutral, the total length of detention, “which is the most
3 important factor,” Banda, 385 F. Supp. 3d at 1118, and the likely duration of future detention
4 weigh strongly in petitioner’s favor. Accordingly, a weighing of the Lopez factors supports a
5 finding that petitioner’s detention, absent a bond hearing, violates his Fifth Amendment Due
6 Process rights. Given this finding, I must determine the appropriate relief.
7 Petitioner requests a bond hearing, and respondent argues that “the only proper relief is a
8 bond hearing.” See ECF No. 1 at 18; ECF No. 9 at 6. I agree with other courts to have addressed
9 this issue that, where mandatory detention has become prolonged, “the appropriate remedy is a
10 bond hearing before an immigration judge rather than immediate release.” See Lopez, 631 F.
11 Supp. 3d at 882.
12 Respondent argues that, at petitioner’s bond hearing, “the Constitution does not require
13 the government to bear the burden of proving that the noncitizen will be a flight risk or danger—
14 much less that the government be subject to a clear-and-convincing-evidence standard—to justify
15 temporary detention pending removal proceedings.” ECF No. 9 at 6. I disagree. In Martinez v.
16 Clark, the petitioner was subject to mandatory detention under section 1226(c) and, after he filed
17 a habeas petition, the district court ordered that petitioner receive a bond hearing where the
18 government must “show by clear and convincing evidence that [he] presents a flight risk or a
19 danger to the community.” 124 F.4th 775, 780 (9th Cir. 2024). On appeal, the petitioner claimed
20 that the Board of Immigration Appeals (“BIA”) had applied the wrong burden of proof. Id. at
21 785. The Court of Appeals, however, held that “the BIA properly noted that the government bore
22 the burden to establish by clear and convincing evidence that [petitioner] is a danger to the
23 community.” Id. In the wake of Martinez, district courts in this Circuit have held that “the
24 government must prove by clear and convincing evidence that an alien is a flight risk or a danger
25 to the community to justify denial of bond.” See Lopez, 631 F. Supp. at 882 n.9 (collecting
26 cases). Accordingly, the government shall bear the burden of proof at petitioner’s bond hearing.
27 Conclusion
28 Based on the foregoing, I recommend that petitioner’s writ of habeas corpus be granted.
] Accordingly, it is hereby RECOMMENDED that:
2 1. The petition for writ of habeas corpus, ECF No. 1, be GRANTED.
3 2. Petitioner (A-Number: 073-965-673) be provided a bond hearing within five days of
4 | the date of the court’s order. At this hearing, the government shall bear the burden of
5 | establishing, by clear and convincing evidence, that petitioner poses a danger to the community or
6 | arisk of flight, and petitioner shall be allowed to have counsel present.
7 3. Respondent be ordered to file a status report, within five days of the bond hearing,
8 | confirming that the hearing occurred.
9 4. The Clerk of Court be ordered to enter judgment accordingly and close this case.
10 These findings and recommendations are submitted to the United States District Judge
11 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven days of
12 || service of these findings and recommendations, any party may file written objections with the
13 | court and serve a copy on all parties. Any such document should be captioned “Objections to
14 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed
15 | within seven days of service of the objections. The parties are advised that failure to file
16 | objections within the specified time may waive the right to appeal the District Court’s order. See
17 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Y/st, 951 F.2d 1153 (9th Cir.
18 | 1991).
19
30 IT IS SO ORDERED.
Dated: _ April 10, 2026 QH———
22 JEREMY D. PETERSON
73 UNITED STATES MAGISTRATE JUDGE
24
25
26
27
28