Opinion

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6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

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9 ALFONSO GALLARDO-MORENO, No. 1:26-cv-01151-KES-FJS (HC)

10 Petitioner, FINDINGS AND RECOMMENDATION TO

GRANT PETITION FOR WRIT OF HABEAS

11 v. CORPUS

12 (ECF No. 1)

WARDEN, GOLDEN STATE ANNEX, et

13 al., [10-DAY OBJECTION DEADLINE]

14 Respondents.

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16 Petitioner Alfonso Gallardo-Moreno is an immigration detainee proceeding with a petition

17 for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

18 On February 9, 2026, Petitioner filed the instant petition for writ of habeas corpus. (ECF

19 No. 1.) Petitioner states that an immigration judge ordered his release on a $10,000 bond on

20 January 12, 2026, pursuant to an 8 U.S.C § 1226(a) bond hearing. (ECF Nos. 1 at 3; 7-1 at 3.) He

21 claims Respondent then violated his due process rights by invoking an automatic stay that

22 operated to deny him bond, without individualized findings, without a perfected appeal, and

23 without any meaningful process. (ECF No. 1 at 1.) The Petition recites a request for a temporary

24 restraining order (ECF No. 1 at 5), but Petitioner did not separately move for a temporary

25 restraining order until April 2, 2026 (ECF No. 12). By April 2, the circumstances of Petitioner’s

26 detention had changed.

27 On February 11, 2026, the court issued an order directing Respondent to show cause why

28 the petition should not be granted. (ECF No. 6.) On March 12, 2026, Respondent filed a response

1 to the order to show cause arguing first, that Petitioner’s detention is mandatory under 8 U.S.C.

2 § 1225(b)(2), and second, that the automatic stay did not violate Petitioner’s due process rights.

3 (ECF No. 7.) On March 14, 2026, Petitioner filed a reply arguing Petitioner should be released

4 pursuant to the immigration judge’s order. (ECF No. 8.) After the parties submitted briefing, on

5 March 18, 2026, Respondent advised the court that the Board of Immigration Appeals (“Board”)

6 had granted the government’s motion for stay of the immigration judge’s bond decision. (ECF

7 Nos. 9, 9-1.) The Board requested the parties to file further briefs by April 8, 2026, and the matter

8 is now pending before the Board on appeal. (ECF No. 9-2.) As noted above, Petitioner filed a

9 motion for restraining order on April 2, 2026. (ECF No. 12.)

10 On April 30, 2026, the court held a hearing on the status of Petitioner’s immigration

11 proceedings. (ECF No. 15.) Petitioner and Respondents appeared at the hearing. Key points

12 agreed to at the April 30 hearing include: (1) that Petitioner is now being detained under the

13 Board’s discretionary stay authority of 8 C.F.R. § 1003.19(i)(1), (2) that the argument on which

14 the Board based its detention decision is effectively the same as that presented in Respondent’s

15 memorandum in support of their appeal from the immigration judge’s decision (ECF No. 7-1 at

16 16-44), and (3) that Petitioner was not offered an opportunity to address the Board before the

17 discretionary stay decision and, in fact, did not address the Board before that decision was made.

18 April 30, 2026, Hrg. Tr. 8:1-9, 10:4-11:10. The matter is now before the court for findings and

19 recommendation.

20 I. JURISDICTION

21 The Constitution guarantees the availability of the writ of habeas corpus “to every

22 individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)

23 (citing U.S. Const., Art I, § 9, cl. 2). A district court may grant a writ of habeas corpus when the

24 Petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.”

25 28 U.S.C. § 2241(c)(3). “[D]istrict courts retain jurisdiction under 28 U.S.C. § 2241 to consider

26 habeas challenges to immigration detention that are sufficiently independent of the merits of [a]

27 removal order.” Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) (citing Singh v.

28 Holder, 638 F.3d 1196, 1211–12 (9th Cir. 2011)).

1 II. DISCUSSION

2 A. Detention Authority

3 Respondents first argue that Petitioner is subject to mandatory detention under 8 U.S.C.

4 § 1225(b)(2). Yet the immigration judge determined that Petitioner was subject to § 1226(a) and

5 granted release on bond. (ECF No. 7-1 at 18.) Specifically, the immigration judge rejected the

6 government’s argument that Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) controlled

7 and that Petitioner was subject to mandatory detention under § 1225(b); instead, the immigration

8 judge determined that Petitioner was eligible for bond release pursuant to the Central District of

9 California’s decision in Maldonado Bautista v. Santacruz, et al., No. 25-1873, 2025 WL 3288403

10 (C.D. Cal. Nov. 25, 2025). (ECF No. 7-1 at 3 (“[Petitioner] deemed to be detained under section

11 236(a) of the Immigration & Nationality Act (“Act”), rather than section 235(b)(2) of the Act”.))

12 In Maldonado Bautista, the court broadly certified a “Bond Eligible Class” consisting of:

13 All noncitizens in the United States without lawful status who (1) have entered or

will enter the United States without inspection; (2) were not or will not be

14 apprehended upon arrival; and (3) are not or will not be subject to detention under

8 U.S.C. § 1226(c), § 1225(b)(1), or § 1231 at the time the Department of

15 Homeland Security makes an initial custody determination.

16 Id. at 9. The Maldonado Bautista court determined that noncitizens, such as Petitioner here, were

17 subject to discretionary detention authority pursuant to section 1226(a).

18 Respondents acknowledged the immigration judge’s section 1226(a) determination but

19 argued it was erroneous. (ECF No. 7 at 2-3.) There is, to be sure, a split among the district courts

20 as to whether section 1226 or section 1225 applies to aliens like Petitioner here. Compare Lepe v.

21 Andrews, 801 F. Supp. 3d 1104, 1118 (E.D. Cal. 2025), with Alonzo v. Noem, No. 25-cv-01519

22 WBS SCR, 809 F. Supp. 3d 1069, 1073-74 (E.D. Cal. 2025). Here, the district court judge

23 assigned to this case has repeatedly embraced the former view (as have most district court judges

24 to address the question). See Lepe, 801 F. Supp. 3d at 1118; Crispin M.C. v. Noem, No. 1:25-CV-

25 01487-KES-HBK (HC), 2026 WL 70553 (E.D. Cal. Jan. 8, 2026). This court recommends that

26 Petitioner be treated the same as similarly situated aliens whose claims the district court judge

27 assigned to this case previously adjudicated. Hence, section 1226(a) and not section 1225(b)(2)

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1 applies to Petitioner.1

2 Having determined that Petitioner was subject to discretionary detention under section

3 1226(a), the Court now turns to the continued detention of Petitioner following the immigration

4 judge’s determination of bond.

5 B. The Stay of the Bond Determination

6 As previously noted, on January 12, 2026, the immigration judge granted Petitioner’s

7 release on bond. (ECF No. 7-1 at 3.) On the same date, the government filed its notice of intent to

8 appeal to the Board. (ECF No. 7-1 at 5.) The notice further invoked an automatic stay of the

9 immigration judge’s decision pursuant to 8 C.F.R. § 1003.19(i)(2). (ECF No. 7-1 at 5.) The

10 Petition in this case was filed while the automatic stay was in place. (ECF No. 1 ¶¶ 16-21).

11 Subsequently, on March 18, 2026, the Board granted the government’s motion for stay.

12 (ECF No. 9-1 at 2.) In doing so, authority for the stay shifted to the Board pursuant to section

13 1003.19(i)(1), which provides:

14 General discretionary stay authority. The Board of Immigration Appeals (Board)

has the authority to stay the order of an immigration judge redetermining the

15 conditions of custody of an alien when the Department of Homeland Security

appeals the custody decision or on its own motion. DHS is entitled to seek a

16 discretionary stay (whether or not on an emergency basis) from the Board in

connection with such an appeal at any time.

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18 8 C.F.R. § 1003.19(i)(1). Petitioner moved for a temporary restraining order on April 2, 2026.

19 (ECF No. 12.)

20 The court previously held that continued detention pursuant to the automatic stay

21 regulation of a noncitizen who was granted release on parole violates the noncitizen’s procedural

22 due process rights. Otilio B.F. v. Andrews, et al., 809 F.Supp.3d 1038 (E.D. Cal. Nov. 11, 2025).

23 Here, however, Petitioner was no longer detained pursuant to the automatic stay provision by the

24 time he filed his motion for a temporary restraining order. The parties agree that propriety of

25 detention is evaluated under section 1003.19(i)(1), not section 1003.19(i)(2). April 30, 2026, Hrg.

26 Tr. 8:1-9. The court will, therefore, evaluate the propriety of Petitioner’s continued detention

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1 As discussed infra, the government’s authority to detain under § 1226(a) ceased once the

28 immigration judge granted release on bond.

1 under the Board’s discretionary stay.

2 As a matter of regulatory interpretation, the discretionary stay terminates when the Board

3 rules on Respondents’ substantive appeal of the immigration judge’s decision. This natural

4 termination of the discretionary stay places Petitioner’s continued detention more in the category

5 of 8 U.S.C. §§ 1225(b)(1) and 1225(b)(2) than 8 U.S.C. § 1231(a)(6). Cf. Jennings v. Rodriguez,

6 138 S. Ct. 830, 843-44 (2018) (distinguishing Zadvydas v. Davis, 533 U.S. 678 (2001)). Hence,

7 application of the canon of constitutional avoidance to impose a periodic bond requirement on 8

8 C.F.R. § 1003.19(i)(1) is “not plausible.” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1200 (9th

9 Cir. 2022). Instead, the court must evaluate the constitutionality of Petitioner’s stay under the Due

10 Process Clause. Cf. Jennings, 138 S. Ct. at 851; Rodriguez Diaz, 53 F.4th at 1201-03.

11 1. Mathews Test

12 To determine whether “detention violates procedural due process, courts apply” the

13 Mathews factors. Herrera, 798 F.Supp.3d at 1199. Those factors are:

14 [T]he private interest that will be affected by the official action; second, the risk of

an erroneous deprivation of such interest through the procedures used, and the

15 probable value, if any, of additional or substitute procedural safeguards; and

finally, the Government's interest, including the function involved and the fiscal

16 and administrative burdens that the additional or substitute procedural requirement

would entail.

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18 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

19 a. Private Interest

20 Petitioner’s private interest is his freedom from detention. That interest “lies at the heart of

21 the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. “In our society

22 liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

23 United States v. Salerno, 481 U.S. 739, 755 (1987). Here, Petitioner is detained pursuant to the

24 Board’s discretionary stay regulation and unable to return to his normal life, even though a

25 neutral decisionmaker had already found that there were sufficient conditions that sufficiently

26 mitigated the risks of flight or danger to justify release. And although the present length of

27 detention to date can be considered brief or limited, see Demore, 538 U.S. at 529 (noting the

28 relative brevity of detention under section 1226(c) that lasts roughly a month and a half in 85% of

1 cases), the “potential length of detention” is a factor that adds weight to Petitioner’s liberty

2 interest. See Hernandez-Lara v. Lyons, 10 F.4th 19, 30 (1st Cir. 2021) (noting in the context of

3 section 1226(a) that “[d]etention . . . is frequently prolonged because it continues until all

4 proceedings and appeals are concluded ... even where an individual has prevailed and the

5 Government appeals.”) (quoting Velasco Lopez v. Decker, 978 F.3d 842, 852 (2nd Cir. 2020)).

6 This private interest to be released here is substantial.

7 b. Risk of Erroneous Deprivation

8 As to the second factor, the court finds that there are insufficient agency procedures to

9 safeguard Petitioner’s liberty interest and mitigate the risk of erroneous deprivation. Respondents’

10 submission to the Board focuses exclusively on applicability of section 1225 to Petitioner. April

11 30, 2026, Hrg. Tr. 9:9-10:13. The Board was presented with no evidence of risks of flight or

12 danger to justify the discretionary stay. April 30, 2026, Hrg. Tr. 14:13-15:5. Given that the

13 immigration judge in this case, most of the judges in the district courts, and the district court

14 judge assigned to this case have already rejected application of section 1225 to aliens like

15 Petitioner, supra Part II.A (citing Lepe, 801 F. Supp. 3d at 1118, and Crispin M.C., 2026 WL

16 70553), the likelihood of an erroneous deprivation is high. And the fact that Petitioner was

17 afforded no opportunity to respond to Respondents’ request for a discretionary stay, April 30,

18 2026, Hrg. Tr. 10:15-11:4, exacerbates that risk.

19 These facts distinguish this case from the procedural due process analysis in Rodriguez

20 Diaz. There, the alien had a right to seek an additional bond hearing and was denied bond in a

21 prior detention hearing. 53 F.4th at 1209. Those safeguards do not apply to either the automatic

22 stay or the discretionary stay at issue here. Hence, where the decision to detain in Rodriguez Diaz

23 was “subject to numerous levels of review, each offering [the alien] the opportunity to be heard

24 by a neutral decisionmaker,” id. at 1210, Petitioner here already was determined eligible for

25 release and the administrative processes invoked to thwart that order do not offer him an

26 opportunity to be heard. These features distinguish Petitioner’s case from the analysis of the

27 second Mathews factor in Rodriguez Diaz. The second factor thus weighs in Petitioner’s favor.

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1 c. Government Interest

2 The government’s interests in “protecting the public from dangerous criminal” noncitizens

3 and preventing noncitizens from fleeing are “interests of the highest order.” Rodriguez Diaz v.

4 Garland, 53 F.4th 1189, 1208 (9th Cir. 2022). But here, a neutral decision maker has already

5 evaluated whether Petitioner presents those risks and determined that there were conditions that

6 sufficiently mitigated those risks to justify release. The Government’s interests are thus

7 adequately protected.2

8 Thus, the three Mathews factors show that Petitioner’s current detention pursuant to the

9 stay provision violated his procedural due process rights. The Court recommends he should be

10 released pursuant to the order by the immigration judge.

11 RECOMMENDATION

12 Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas

13 corpus be GRANTED and Respondent be ORDERED TO RELEASE Petitioner subject to the

14 conditions imposed by the immigration judge.

15 These findings and recommendation are submitted to the United States district court judge

16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

17 Local Rules of Practice for the United States District Court, Eastern District of California. Within

18 ten (10) days after being served with a copy of these findings and recommendation, a party may

19 file written objections with the court and serve a copy on all parties. Id. The document should be

20 captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall not

21 exceed fifteen (15) pages, except by leave of court with good cause shown. The court will not

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23 2 The government invoked section 1226(c)(1)(a) as an alternative ground for detention based on

an older conviction of a misdemeanor. April 30, 2026, Hrg. Tr. 13:12-14:7. The parties disagree

24 as to whether this prior misdemeanor conviction was sufficiently weighty to give rise to section

1226(c)(1)(a)’s application. Compare April 30, 2026, Hrg. Tr. 15:21-16:9, with April 30, 2026,

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Hrg. Tr. 16:11-22. It is undisputed, however, that the Board was not presented with a section

1226(c)(1)(a) argument when it issued its discretionary stay. April 30, 2026, Hrg. Tr. 10:4-13,

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14:13-15:5. The court, therefore, declines to evaluate whether the Board’s hypothetical exercise

27 of its discretionary stay authority based on an alternative justification that the Board was not

asked to consider and that Petitioner has had no opportunity to oppose would have violated

28 Petitioner’s due process rights.

1 | consider exhibits attached to the objections. To the extent a party wishes to refer to any exhibit(s),

2 | the party should reference the exhibit in the record by its CM/ECF document and page number,

3 | when possible, or otherwise reference the exhibit with specificity. The district judge may

4 | disregard any pages filed in excess of the fifteen (15) page limitation. The parties are advised that

5 | failure to file objections within the specified time may result in the waiver of rights on appeal.

6 | Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).

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g IT IS SO ORDERED. Nyy 2 7

9 | Dated: _ May 11, 2026

0 UNITED STATESMAGISTRA TE JUDGE

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