The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 ANTHONY DENILSON DURAN, Case No. 1:26-cv-02020-JLT-CDB (HC)
12 Petitioner, FINDINGS AND RECOMMENDATIONS TO
DENY PETITION FOR WRIT OF HABEAS
13 v. CORPUS (A-Number 218-147-608)
14 CHRISTOPHER CHESTNUT, et al., (Doc. 1)
15 Respondents. 14-Day Objection Period
16
17 Petitioner Anthony Denilson Duran (“Petitioner”), a federal immigration detainee
18 proceeding pro se, initiated this action on March 13, 2026, with the filing of a petition for writ of
19 habeas corpus under 28 U.S.C. § 2241 and a motion for temporary restraining order that was denied.
20 (Docs. 1, 3, 6). Petitioner is in custody of Immigration and Customs Enforcement (“ICE”) at the
21 California City ICE Processing Center, located in California City, California. (Doc. 1 at 2).
22 Respondents are Christopher Chestnut (Warden of the Golden State Annex Detention Facility), the
23 current or acting San Francisco ICE Field Office Director, the current or acting Secretary of
24 Homeland Security, and the current or acting United States Attorney General (collectively,
25 “Respondents”). Id. at 1.
26 For the reasons set forth herein, the undersigned recommends that Petitioner’s petition for
27 writ of habeas corpus be denied.
28 ///
1 I. Relevant Background
2 The relevant facts are taken from the parties’ respective briefings. See (Docs. 1, 3, 8).
3 Petitioner is a citizen and native of Guatemala who unlawfully entered the United States at an
4 unknown location on an unknown date. See (Doc. 8 at 1); (Doc. 8-1, “Ex. 1” at 2); cf. Ex. 1 at 4
5 (“[Petitioner] last entered the United States on May 11[], 2006, at the age of [five].”).
6 On May 26, 2022, Petitioner was convicted of shooting at a dwelling or a vehicle in
7 violation of California Penal Code § 246 and was sentenced to a three-year term of incarceration.
8 (Doc. 8 at 1-2); see Ex. 1 at 4. After Petitioner was released from custody, he was placed in removal
9 proceedings and detained under 8 U.S.C. § 1226(a) and ordered removed by an immigration judge
10 on August 1, 2023. (Doc. 8 at 2); see Ex. 1 at 2 (“On March 15[], 2023, [DHS] … initiated removal
11 proceedings against [Petitioner], by filing a Notice to Appear [(“NTA”)] … with the Van Nuys
12 immigration court. … [T]he Department charged [Petitioner] with inadmissibility under Section
13 212(a)(6)(A)(i) of the Immigration and Nationality Act [(“INA”).]”).
14 On May 30, 2024, Petitioner received a bond hearing under § 1226(a) and was denied bond.
15 Id. The BIA affirmed the denial on October 2, 2024. Id; see (Doc. 8-4, “Ex. 4”) (October 2, 2024,
16 BIA opinion dismissing Petitioner’s appeal of May 30, 2024, order denying bond).
17 Petitioner appealed the removal order to the Board of Immigration Appeals (“BIA”), the
18 BIA affirmed Petitioner’s order of removal. (Doc. 8 at 2); see (Doc. 8-2, “Ex. 2”) (March 18, 2025,
19 BIA opinion dismissing Petitioner’s appeal of August 1, 2023, removal order). Petitioner thereafter
20 filed a petition for review (“PFR”) of the BIA decision with the Ninth Circuit and was granted a
21 stay of removal on June 16, 2025. Id.; see (Doc. 8-3, “Ex. 3”) (June 16, 2025, order of the Ninth
22 Circuit). On April 3, 2026, the Ninth Circuit issued an order submitting Petitioner’s PFR “on the
23 briefs and record without oral argument” which remains pending. Id.; see (Doc. 8-5, “Ex. 5”). On
24 April 23, 2026, the Ninth Circuit entered an unpublished memorandum decision affirming the
25 BIA’s finding that Petitioner is ineligible for withholding of removal. See Duran v. Blanche, No.
26 25-2086 (9th Cir. Apr. 23, 2026).
27 Petitioner alleges that he “has lived in the United States since childhood, has deep
28 community and family ties, [] has not committed any new offenses” and “has complied with past
1 obligations and has taken responsibility for his past mistakes.” (Doc. 1 at 3). He alleges that he
2 does not pose a danger or a flight risk and that “[l]ess restrictive alternatives to detention are
3 available and would be effective.” Id.
4 II. Governing Authority
5 A. The Writ of Habeas Corpus
6 Writ of habeas corpus relief extends to a person in custody under the authority of the United
7 States. See 28 U.S.C. § 2241. A district court considering an application for a writ of habeas corpus
8 shall “award the writ or issue an order directing the respondent to show cause why the writ should
9 not be granted, unless it appears from the application that the applicant or person detained is not
10 entitled thereto.” 28 U.S.C. § 2243.
11 Relevant here, “in cases that do not involve a final order of removal, federal habeas corpus
12 jurisdiction remains in the district court” pursuant to 28 U.S.C. § 2241 where the petitioner
13 “challenges his confinement on statutory and constitutional grounds.” Nadaraja v. Gonzales, 443
14 F.3d 1069, 1075-76 (9th Cir. 2006); accord Flores-Torres v. Mukasey, 548 F.3d 708, 713 (9th Cir.
15 2008) (holding “the district court has jurisdiction over Torres’s habeas petition challenging his
16 detention” in ICE custody).
17 B. Statutory Immigration Framework (8 U.S.C. § 1225 and § 1226)
18 Two statutes govern the detention and removal of inadmissible noncitizens from the United
19 States: 8 U.S.C. § 1226 and § 1225. Relevant here is the legal background presented by the district
20 court in Salcedo Aceros v. Kaiser, No. 25-cv-06924-EMC (EMC), 2025 WL 2637503 (N.D. Cal.
21 Sept 12, 2025), which the undersigned adopts herein:
22 1. Full Removal Proceedings and Discretionary Detention
(§ 1226)
23
The “usual removal process” involves an evidentiary hearing before
24 an immigration judge. Dep’t of Homeland Sec. v. Thuraissigiam, 591
U.S. 103, 108 (2020). Proceedings are initiated under 8 U.S.C.
25 § 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.
26 Dec. 520, 520 (BIA 2011). Section § 1226 provides that while
removal proceedings are pending, a noncitizen “may be arrested and
27 detained” and that the government “may release the alien on ...
conditional parole.” § 1226(a)(2); accord Thuraissigiam, 591 U.S. at
28
1 108 (during removal proceedings, applicant may either be “detained”
or “allowed to reside in this country”). When a person is apprehended
2 under § 1226(a), an ICE officer makes the initial custody
determination. Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022)
3 (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
4 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.
5 § 236.1(c)(8)).
6 “Federal regulations provide that aliens detained under § 1226(a)
receive bond hearings at the outset of detention.” Jennings v.
7 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
8 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
9 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)).
10 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
11 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.
12 Cal. 2019). However, if an immigration judge has determined the
noncitizen should be released, the DHS may not re-arrest that
13 noncitizen absent a change in circumstance. See Panosyan v.
Mayorkas, 854 F. App’x 787, 788 (9th Cir. 2021). Where the release
14 decision was made by a DHS officer, not an immigration judge, the
Government’s practice has been to require a showing of changed
15 circumstances before re-arrest. See Saravia v. Sessions, 280 F. Supp.
3d 1168, 1197 (N.D. Cal. 2017).
16
2. Expedited Removal and Mandatory Detention (§ 1225)
17
While “§ 1226 applies to aliens already present in the United States,”
18 U.S. immigration law also “authorizes the Government to detain
certain aliens seeking admission into the country under
19 §§ 1225(b)(1) and (b)(2),” a process that provides for expedited
removal. Jennings, 583 U.S. at 303 (2018). Under § 1225, a
20 noncitizen “who has not been admitted or who arrives in the United
States” is considered “an applicant for admission.” 8 U.S.C.
21 § 1225(a)(1). For certain applicants for admission, 8 U.S.C. § 1225
authorizes “expedited removal.” § 1225(b)(1). § 1225(b)(1) provides
22 that:
23 “If an immigration officer determines that an alien
(other than an alien described in subparagraph (F))
24 who is arriving in the United States or is described in
clause (iii) is inadmissible under section
25 212(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
26 removed from the United States without further
hearing or review unless the alien indicates either an
27 intention to apply for asylum under section 208 [8
USCS § 1158] or a fear of persecution.”
28
1 Sections 8 U.S.C. § 1182(a)(6)(C) and 1182(a)(7) respectively refer
to noncitizens who are inadmissible due to misrepresentation or
2 failure to meet document requirements. Clause (iii) of § 1225(b)(1)
allows the Attorney General (who has since delegated the
3 responsibility to the Department of Homeland Security Secretary) to
designate for expedited removal noncitizens “who ha[ve] not been
4 admitted or paroled into the United States, and who ha[ve] not
affirmatively shown, to the satisfaction of an immigration officer,
5 that the alien has been physically present in the United States
continuously for the 2-year period immediately prior to the date of
6 the determination of inadmissibility under this subparagraph.”
§ 1225(b)(1)(A)(iii)(II).
7
To summarize, under § 1225(b)(1), two groups of noncitizens are
8 subject to expedited removal. First, there are “arriving” noncitizens
who are inadmissible due to misrepresentation or failure to meet
9 document requirements. The implementing agency regulations
define “arriving alien” as applicants for admission “coming or
10 attempting to come into the United States at a port-of-entry.” 8
C.F.R. § 1.2. The second group –designated noncitizens –includes
11 noncitizens who meet all of the following criteria: (1) they are
inadmissible due to lack of a valid entry document or
12 misrepresentation; (2) they have not “been physically present in the
United States continuously for the 2-year period immediately prior
13 to the date of the determination of inadmissibility”; and (3) they are
among those whom the Secretary of Homeland Security has
14 designated for expedited removal. Thuraissigiam, 591 U.S. at 109; §
1225(b)(1).
15
“Initially, DHS’s predecessor agency did not make any designation
16 [under (3)], thereby limiting expedited removal only to ‘arriving
aliens,’” that is, noncitizens encountered at ports of entry. Make the
17 Rd. N.Y. v. Noem, No. 25-cv-190 (JMC), 2025 U.S. Dist. LEXIS
169432, at *14 (D.D.C. Aug. 29, 2025). In the following years, DHS
18 extended by designation expedited removal to noncitizens who arrive
by sea and who have been present for fewer than two years, and to
19 noncitizens apprehended within 100 air miles of any U.S.
international land border who entered within the last 14 days. Id. This
20 was the status quo until January 2025, when the Department of
Homeland Security revised its § 1225 designation to “apply
21 expedited removal to the fullest extent authorized by statute.”
Designating Aliens for Expedited Removal, 90 Fed. Reg. 8139 (Jan.
22 24, 2025). Under this designation, expedited removal applies to
noncitizens encountered anywhere within the United States, who
23 have been in the United States for less than two years and are
inadmissible for lack of valid documentation or misrepresentation. In
24 short, expedited removal was expanded to apply for the first time to
vast numbers of noncitizens present in the interior of the United
25 States.
26 Under the expedited removal statute § 1225(b)(1), if an applicant
“indicates either an intention to apply for asylum” or “a fear of
27 persecution,” the immigration officer “shall refer the alien for an
interview by an asylum officer.” §§ 1225(b)(1)(A)(i)–(ii). If the
28 asylum officer determines that the applicant has a “credible fear,” the
1 applicant “receive[s] ‘full consideration’ of his asylum claim in a
standard removal hearing.” Thuraissigiam, 591 U.S. at 110. If the
2 officer determines there is no “credible fear,” the officer “shall order
the alien removed from the United States without further hearing or
3 review.” § 1225(b)(1)(B)(iii). However, the officer’s decision may
be appealed by the applicant to an immigration judge, who must
4 conduct the review “to the maximum extent practicable within 24
hours, but in no case later than 7 days after the date of the
5 determination.” Id. Detention under § 1225(b)(1) is “mandatory”
“pending a final determination of credible fear of persecution and if
6 found not to have such a fear, until removed.” Id. (citing
§ 1225(b)(1)(B)(iii)(IV) (“Any alien subject to the procedures under
7 this clause shall be detained pending a final determination of credible
fear of persecution and, if found not to have such a fear, until
8 removed.”)
9 [Section] 1225 also contains a provision that applies to applicants for
admission not covered by § 1225(b)(1). Jennings, 583 U.S. at 287.
10 This provision, 1225(b)(2), states that, subject to statutory
exceptions, “in the case of an alien who is an applicant for admission,
11 if the examining immigration officer determines that an alien seeking
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
release and review of detention to the vast majority of noncitizens
18 allegedly in this country without valid documentation. This practice
was codified by regulation. The regulations implementing the Illegal
19 Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) state that “Despite being applicants for admission, aliens
20 who are present without having been admitted or paroled (formerly
referred to as aliens who entered without inspection) will be eligible
21 for bond and bond redetermination.” 62 Fed. Reg. 10312, 10323
(Mar. 6, 1997). In fact, the government has conceded in other
22 contexts that “DHS’s long-standing interpretation has been that
1226(a) [discretionary detention] applies to those who have crossed
23 the border between ports of entry and are shortly thereafter
apprehended.” Dkt. No. 17 (citing Solicitor General, Transcript of
24 Oral Argument at 44:24–45:2, Biden v. Texas, 597 U.S. 785
(2022) (No. 21-954)) . . .
25
In 2025, however, the Government’s policy changed dramatically.
26 The DHS revised its § 1225 designation to “apply expedited removal
to the fullest extent authorized by statute.” Designating Aliens for
27 Expedited Removal, 90 Fed. Reg. 8139 (Jan. 24, 2025) (emphasis
added). The Secretary of Homeland Security memorandum directed
28 federal immigration officers to “consider ... whether to apply
1 expedited removal” to “any alien DHS is aware of who is amenable
to expedited removal but to whom expedited removal has not been
2 applied.” Dkt. No. 1 at ¶ 33. Officers are encouraged to “take steps
to terminate any ongoing removal proceeding and/or any active
3 parole status.” Id. The memorandum states that DHS shall take the
actions contemplated by the memorandum “in a manner that takes
4 account of legitimate reliance interests,” but states that “the
expedited removal process includes asylum screening, which is
5 sufficient to protect the reliance interests of any alien who has
applied for asylum or planned to do so in a timely manner.” Huffman
6 Memorandum (Jan. 23, 2025).
7 Since mid-May of 2025, the Department of Homeland Security has
made a practice of appearing at regular removal proceedings in
8 immigration court, moving to dismiss the proceedings, and then re-
arresting the individual in order to place them in expedited removal
9 proceedings. Dkt. No. 1 at ¶¶ 35–40. If the immigration judge does
not dismiss the full removal proceedings, ICE still makes an arrest,
10 apparently in reliance on § 1225(b)(2)’s detention provision.
11 Salcedo Aceros, 2025 WL 2637503 at *1-4 (internal footnotes omitted).
12 III. Exhaustion
13 A. Governing Authority
14 “Section 2241 … ‘does not specifically require petitioners to exhaust direct appeals before
15 filing petitions for habeas corpus.’” Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing
16 Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001)). The Ninth Circuit, however, requires
17 that, “as a prudential matter, that habeas petitioners exhaust available judicial and administrative
18 remedies before seeking relief under § 2241.” Castro-Cortez, 239 F.3d at 1047 (citing United
19 States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)). “Under the doctrine of exhaustion, ‘no one is
20 entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been
21 exhausted.’” Laing, 370 F.3d at 997-98 (citing McKart v. United States, 395 U.S. 185, 193 (1969)).
22 “Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it
23 may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement.”
24 Id. at 998 (citing El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d
25 742, 746 (9th Cir. 1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir. 1981)). “Although
26 courts have discretion to waive the exhaustion requirement when it is prudentially required, this
27 discretion is not unfettered…. Lower courts … [must] first determin[e whether] the exhaustion
28 requirement has been satisfied or properly waived.” Id. (internal citations omitted); see Murillo v.
1 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the application of the rule requiring
2 exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly
3 to be disregarded.”).
4 B. Analysis
5 The Court finds that the prudential exhaustion requirement should be waived as it would be
6 futile to seek release by administrative means given Respondents’ position that Petitioner is subject
7 to mandatory detention under 8 U.S.C. § 1226(a) and § 1226(c), and Petitioner must remain
8 incarcerated under that framework without individualized process. Petitioner therefore lacks
9 recourse through statutory or administrative means. See Avilez v. Garland, 69 F.4th 525, 533-34
10 (9th Cir. 2023) (citing Jennings v. Rodriguez, 583 U.S. 281, 303, 305-06 (2018) (“We hold that §
11 1226(c) mandates detention of any alien falling within its scope and that detention may end prior
12 to the conclusion of removal proceedings ‘only if’ the alien is released for witness-protection
13 purposes” and “§ 1226(c) makes clear that detention of aliens within its scope must continue
14 ‘pending a decision on whether the alien is to be removed from the United States.’”)); Hernandez
15 v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017) (“[A] court may waive the prudential exhaustion
16 requirement if ‘administrative remedies are inadequate or not efficacious, pursuit of administrative
17 remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings
18 would be void.’”) (quoting Laing, 370 F.3d at 1000); Chavez v. Noem, -- F. Supp. 3d. --, 2025 WL
19 2730228, at *4 (S.D. Cal. Sept. 24, 2025) (“The Court therefore finds the prudential exhaustion
20 requirements waived for futility. Because Petitioners need to show only one of the Laing factors
21 applies, … the Court need not address the other factors.”) (internal citation omitted).
22 For these reasons and because Respondents do not argue Petitioner should be required to
23 exhaust administrative remedies, waiver of the prudential exhaustion requirement for Petitioner’s
24 claim for habeas corpus relief is appropriate. See, e.g., Rodriguez v. Bostock, 779 F. Supp. 3d 1239,
25 1253 (W.D. Wash. 2025) (waiving exhaustion requirement; “The Ninth Circuit has recognized ‘the
26 irreparable harms imposed on anyone subject to immigration detention.’”) (citing Hernandez v.
27 Sessions, 872 F.3d 976, 995 (9th Cir. 2017)); Marroquin Ambriz v. Barr, 420 F. Supp. 3d 953, 962
28 (N.D. Cal. 2019) (same); Cortez v. Sessions, 318 F. Supp. 1134, 1138-39 (N.D. Cal. 2018) (same);
1 Carmelo Beltran v. Kristi Noem, No. 25cv2650-LL-DEB, 2025 WL 3078837, at *4 (S.D. Cal. Nov.
2 4, 2025) (same); J.A.C.P. v. Wofford, No. 1:25-cv-01354-KES-SKO (HC), 2025 WL 3013328, at
3 *7, n.9 (E.D. Cal. Oct. 27, 2025) (same); Kuzmenko v. Phillips, No. 25-cv-00663-DJC-AC, 2025
4 WL 779743, at *4 (E.D. Cal. Mar. 10, 2025) (same)).
5 IV. Discussion
6 Petitioner asserts a single cause of action in his petition for violation of procedural due
7 process under the Fifth Amendment to the U.S. Constitution. See (Doc. 1 at 3).
8 A. Procedural Due Process
9 1. Governing Authority
10 “The Due Process Clause of the Fifth Amendment mandates that ‘[n]o person shall ... be
11 deprived of life, liberty, or property, without due process of law.’” United States v. Quintero, 995
12 F.3d 1044, 1051 (9th Cir. 2021) (citing U.S. Const. amend. V). “The Due Process Clause ‘protects
13 individuals against two types of government action’: violations of substantive due process and
14 procedural due process.” Id. (citing United States v. Salerno, 481 U.S. 739, 746 (1987)).
15 “Procedural due process imposes constraints on governmental decisions which deprive
16 individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the
17 Fifth … Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “[F]reedom from
18 imprisonment—from government custody, detention, or other forms of physical restraint—lies at
19 the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
20 “Procedural due process requires that, even where a deprivation of liberty survives substantive due
21 process scrutiny, the action ‘be implemented in a fair manner.’” Quintero, 995 F.3d at 1051-52
22 (citing Salerno, 481 U.S. at 746). “The ‘right to be heard before being condemned to suffer
23 grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal
24 conviction, is a principle basic to our society.’” Mathews, 424 U.S. at 902 (citation omitted). “The
25 fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in
26 a meaningful manner.’” Id. (citing Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). “[D]ue process
27 is flexible and calls for such procedural protections as the particular situation demands.” Morrissey
28 v. Brewer, 408 U.S. 471, 481 (1972).
1 “[T]he Due Process Clause applies to all ‘persons’ within the United States, including
2 aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533
3 U.S. at 693 (citations omitted); see Hernandez, 872 F.3d at 990 (“[I]t is well-established that the
4 Due Process Clause stands as a significant constraint on the manner in which the political branches
5 may exercise their plenary authority.”). “In the context of immigration detention, it is well-settled
6 that ‘due process requires adequate procedural protections to ensure that the government’s asserted
7 justification for physical confinement outweighs the individual's constitutionally protected interest
8 in avoiding physical restraint.’” Hernandez, 872 F.3d at 990 (quoting Singh v. Holder, 638 F.3d
9 1196, 1203 (9th Cir. 2011)).
10 2. Analysis – Relevant Statutory Detention Authority
11 Respondents assert that Petitioner is subject to detention under § 1226(a) and § 1226(c).
12 See (Doc. 8 at 2).
13 Another judge of this Court has addressed and applied the holdings of the key Supreme
14 Court and Ninth Circuit rulings applicable here, and the undersigned adopts that analysis herein
15 (see Kakkar v. Chestnut, No. 1:25-CV-1627 JLT SAB, 2025 WL 3638298, at *4-5 (E.D. Cal. Dec.
16 15, 2025)):
17
Under 8 U.S.C. § 1226(a)(2), DHS “may continue to detain” or “may release the
18 alien” on bond or conditional parole, “pending a decision on whether the alien is to
be removed from the United States.” Such conditional release, however, may be
19 revoked by DHS “at any time.” 8 U.S.C. § 1226(b). The Board of Immigration
Appeals (“BIA”) has placed the following limitation on this authority: “where a
20 previous bond determination has been made by an immigration judge, no change
should be made by [the DHS] absent a change of circumstance.” Matter of Sugay,
21
17 I&N Dec. 637, 640 (BIA 1981).
22
Alternatively, under Section 1226(c), DHS “shall take into custody any alien who
23 is deportable by reason of having committed any offense covered in section
1227(a)(2)(A)(iii) of this title.” 8 U.S.C. § 1226(c). This includes any “alien who
24 is convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). Under this
provision, non-citizens may be released “only if the Attorney General decides ...
25
that release ... is necessary to provide protection to a witness, a potential witness, a
26 person cooperating with an investigation ... and the alien will not pose a danger to
the safety of other[s] ... and is likely to appear for any scheduled proceeding.” Id.
27 at § 1226(c)(4). Thus, noncitizens detained under this category are not entitled to
bond hearings as those detained under § 1226(a) are. See Jennings v. Rodriguez,
28
1 583 U.S. 281, 303–304 (2018) (“By expressly stating that the covered aliens may
be released ‘only if’ certain conditions are met, § 1226(c)(2), the statute expressly
2
and unequivocally imposes an affirmative prohibition on releasing detained aliens
under any other conditions.”) (emphasis in original).
3
4 Section 1226(c)’s mandatory detention requirement applies even if the government
does not immediately detain a criminal non-citizen upon immediate release from a
5 correctional facility. See Nielsen v. Preap, 586 U.S. 392, 396 (2019) (finding that
the Ninth Circuit's interpretation—namely, that criminal aliens not arrested
6
immediately upon release from criminal custody are exempt from § 1226(c)’s
7 mandatory detention and thus entitled to a bond hearing—is wrong). However, the
Supreme Court expressly noted that its decision, “on the meaning of that statutory
8 provision[,] does not foreclose as-applied challenges—that is, constitutional
challenges to applications of the statute.” Id. at 420. Courts routinely review as-
9 applied constitutional challenges to § 1226(c) detention. See e.g., Perera v.
Jennings, No. 21-cv-04136-BLF, 2021 WL 2400981, at *4 (N.D. Cal. June 11,
10
2021); Pham v. Becerra, No. 23-cv-01288-CRB, 2023 WL 2744397, at *5 (N.D.
11 Cal. March 31, 2023); Carballo v. Andrews, No. 1:25-cv-00978-KES-EPG, 2025
WL 2381464, at *4 (E.D. Cal. Aug. 15, 2025).
12
13 Here, in the August 1, 2023, removal order, the immigration judge (“IJ”) found that
14 Petitioner’s May 26, 2022, conviction for a shooting at a dwelling or a vehicle in violation of
15 California Penal Code § 246 “is not an aggravated felony, so it does not per se bar [Petitioner] from
16 asylum or either form of withholding of removal” but that the conviction is “a particularly serious
17 crime, based on the individual circumstances of the crime, as well as the nature of the offense, and
18 the sentence involved.” Ex. 1 at 4. The IJ found that Petitioner’s conviction “constitutes a
19 particularly serious crime, and that it indicates that [he] is a danger to the community” such that the
20 IJ denied Petitioner’s applications for asylum and for withholding from removal. Id. at 6.
21 Under § 1226(c), detention is mandatory where a noncitizen “is deportable by reason of
22 having committed any offense covered” in § 1227(a)(2)(C). 8 U.S.C. § 1226(c)(1)(B). Section
23 1227(a)(2)(C) provides that “[a]ny alien who at any time after admission is convicted under any
24 law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or
25 of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry,
26 any weapon, part, or accessory which is a firearm or destructive … in violation of any law is
27 deportable.” 8 U.S.C. § 1227(a)(2)(C). Under California Penal Code § 246, “[a]ny person who
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1 shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied
2 building, [or] occupied motor vehicle … is guilty of a felony[.]” Cal. Pen. Code § 246.
3 Petitioner’s § 246 conviction following his guilty plea to the charge of “discharging a
4 firearm at an occupied motor vehicle” (see Ex. 1 at 5) qualifies as an offense covered under §
5 1227(a)(2)(C) such that he is subject to mandatory detention under § 1226(c). Notwithstanding
6 Respondents contend that “Petitioner remains detained under the mandatory provisions of [] §
7 1226(a)” while appearing to argue that his detention is authorized under § 1226(c) (see Doc. 8 at
8 2), because the record shows that Petitioner is subject to mandatory detention under § 1226(c) based
9 on his conviction for violations of § 246, under the statutory framework above, Petitioner is subject
10 to § 1226(c)(4)’s release provision and therefore is not entitled to bond hearings in the same fashion
11 as those detained under § 1226(a).
12 Notwithstanding the undersigned’s finding that Petitioner is subject to mandatory detention
13 under § 1226(c), here, Petitioner raises a due process argument that his “continued detention
14 without a [bond] hearing violates due process.” (Doc. 1 at 3). As explained in the statutory scheme
15 above, Preap “does not foreclose as-applied challenges … to applications of [§ 1226(c)].” Preap,
16 586 U.S. at 420; Kakkar, 2025 WL 3638298 at *5.
17 Therefore, the undersigned considers Petitioner’s as-applied challenge to his re-detention
18 raised in his due process claim.
19 3. Analysis – Procedural Due Process
20 On Petitioner’s as-applied procedural due process challenge to his continuing detention by
21 immigration authorities, the undersigned considers (1) “whether there exists a protected liberty
22 interest under the Due Process Clause, and … [(2)] the procedures necessary to ensure any
23 deprivation of that protected liberty interest accords with the Constitution.” Garcia v. Andrews,
24 No. 2:25-cv-01884-TLN-SCR, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing Kentucky
25 Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)).
26 “There is … a meaningful distinction between a challenge to an initial period of
27 detention, … and a challenge to re-detention after a court has previously granted release on bond
28 pending immigration proceedings.” Carballo v. Andrews, et. al, No. 1:25-cv-00978-KES-EPG, at
1 2025 WL 2381464, at *7 (E.D. Cal. Aug. 15, 2025) (emphasis in original). “‘[T]he liberty interests
2 of [an individual] who is re-arrested differ from the liberty interests of a detained person.’” Id.
3 (quoting Guillermo M.R. v. Kaiser, No. 25-cv-05436-RFL, 2025 WL 1810076, at *1 (N.D. Cal.
4 June 30, 2025)). “In the former situation, where ICE detains an individual upon their release from
5 a correctional facility, without any substantial intervening period of release, that individual has no
6 opportunity ‘to form the [] enduring attachments of normal life.’” Id. (quoting Morrissey, 408 U.S.
7 at 482).
8 If Petitioner had been released from custody following service of his prison sentence and,
9 sometime later, arrested by ICE and detained pending removal proceedings, Petitioner could argue
10 he has a liberty interest in release and be entitled to a bond hearing. But that does not appear to be
11 the case here. As noted above, Petitioner entered the United States at an unknown location on an
12 unknown date, and there is no record that Petitioner was ever initially apprehended by immigration
13 authorities and released into the United States on parole or supervision. The record shows
14 Petitioner was first apprehended by immigration authorities following his release from state
15 custody. See Ex. 1. Although Petitioner’s detention is justified under § 1226(c), on May 30, 2024,
16 he received a bond hearing under § 1226(a) where an IJ determined Petitioner “did not meet his
17 burden of proof to establish that he would not present a danger to the community if released from
18 custody[,]” a decision affirmed by the BIA on October 2, 2024. See Ex. 4 at 3-4. Thus, in this
19 case, Petitioner does not have a protected liberty interest in his release, and due process does not
20 require a further bond hearing.
21 Even were the undersigned to find that Petitioner has a liberty interest, Petitioner fails to
22 show he is entitled to any relief under Mathews. As to the first factor, Petitioner has not shown that
23 he has a significant private interest to a second bond hearing given he was provided a § 1226(a)
24 bond hearing, was determined by an IJ to be a danger to the community, and unsuccessfully
25 appealed that decision before the BIA. Notwithstanding Petitioner’s denial of bond, the
26 undersigned acknowledges that his detention “for over three years” (Doc. 8 at 1) is lengthy such
27 that it may implicate due process concerns. Doe, 787 F. Supp. 3d at 1093-94 (“Freedom from
28 imprisonment is at the core of the Due Process Clause[.]”).
1 As to the second factor, the risk of an erroneous deprivation of Petitioner’s liberty interest
2 is low as Petitioner received a bond hearing pursuant to § 1226(a) and Petitioner failed to meet his
3 burden to establish that he is not a danger to the community, and the BAI affirmed the IJ’s denial
4 of bond on October 2, 2024. See Ex. 1; Rodriguez Diaz, 53 F.4th at 1210 (“[T]he agency’s decision
5 to detain [Petitioner] was subject to numerous levels of review, each offering [Petitioner] the
6 opportunity to be heard by a neutral decisionmaker. These procedures ensured that the risk of
7 erroneous deprivation would be ‘relatively small.’”) (citing Yagman v. Garcetti, 852 F.3d 859, 865
8 (9th Cir. 2017)). Further, Petitioner does not establish “the probable value, if any” of a subsequent
9 bond hearing, such as any changed circumstances or additional evidence that would change the
10 outcome of Petitioner’s bond determination. See Mathews, 424 U.S. at 334; cf. Doe, 787 F. Supp.
11 at 1094 (“[G]iven that Petitioner was previously found to not be a danger or risk of flight and the
12 unresolved questions about the timing and reliability of the new information, the risk of erroneous
13 deprivation remains high.”). Therefore, this factor weighs against granting a subsequent bond
14 hearing.
15 Third, the government has a clear interest in detaining Petitioner to “’protect[] the public
16 from dangerous criminal aliens.’” Rodriguez Diaz, 53 F.4th at 1208 (citation omitted); see id. (“The
17 longer detention lasts and the longer the challenges to an IJ's order of removal take, the more
18 resources the government devotes to securing an alien's ultimate removal.”). Therefore, this factor
19 weighs against Petitioner.
20 In sum, the undersigned finds that even where Petitioner has established a liberty interest,
21 under Mathews, Petitioner is not entitled to a subsequent bond hearing. Accordingly, the
22 undersigned will recommend that Petitioner’s petition be denied.
23 V. Conclusion and Recommendation
24 Accordingly, IT IS HEREBY RECOMMENDED that:
25 1. The petition for writ of habeas corpus (Doc. 1) be DENIED.
26 2. The Clerk of the Court be DIRECTED to enter judgment in favor for Respondents and
27 to close this case.
28 These findings and recommendations will be submitted to the United States District Judge
1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after
2 | being served with these findings and recommendations, the parties may file written objections with
3 | the Court. Any objections filed should be captioned, “Objections to Magistrate Judge’s Findings
4 | and Recommendations” and shall not exceed 15 pages without leave of Court and good cause
5 | shown. The Court will not consider exhibits attached to the Objections. To the extent a party
6 | wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF
7 | document and page number, when possible, or otherwise reference the exhibit with specificity.
8 | Any pages filed in excess of the 15-page limitation may be disregarded by the District Judge when
9 | reviewing these findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
10 The parties are advised that failure to file objections within the specified time may result in
11 | the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
12 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
13 | ITIS SO ORDERED.
Dated: _ May 18, 2026 | hrnnrD bo
15 UNITED STATES MAGISTRATE JUDGE
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