Opinion

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10 UNITED STATES DISTRICT COURT

11 EASTERN DISTRICT OF CALIFORNIA

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13 THIERNO K., No. 1:25-cv-01694-TLN-DMC

14 Petitioner, A # 088-976-575

15 v.

ORDER

16 GOLDEN STATE ANNEX DETENTION

FACILITY, et. al.,

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Respondents.

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20 Petitioner, an immigration detainee proceeding with counsel, brings this Petition for Writ

21 of Habeas Corpus under 28 U.S.C. § 2241. The matter was referred to a United States Magistrate

22 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

23 On April 3, 2026, the magistrate judge filed findings and recommendations herein which

24 were served on the parties, and which contained notice that the parties may file objections within

25 seven days. (ECF No. 21.) Petitioner filed objections past the seven-day deadline. (ECF No.

26 22.) Though untimely, the Court has considered the objections herein.

27 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the

28 Court conducted a de novo review of this case. Having carefully reviewed the entire file, the

1 Court declines to adopt the magistrate judge’s findings and recommendations.

2 Upon review of the case file, it appears the magistrate judge was incorrect to find

3 Petitioner was ordered removed on August 13, 2025. (ECF No. 21 at 5 (citing ECF No. 19-4 at

4 3).) The magistrate judge’s finding cites to the Notice to Appear included in the government’s

5 records. (Id.) However, the Notice to Appear only reflects the U.S. Department of Homeland

6 Security’s initiation of removal proceedings against Petitioner. (ECF No. 19-4 at 3 (“On the basis

7 of the foregoing, it is charged that you are subject to removal” (emphasis added).) It is not an

8 order by an immigration judge ordering Petitioner removed from the United States to his country

9 of citizenship or elsewhere. The record contains no information indicating Petitioner has been

10 ordered removed, and it appears instead that his removal proceedings are currently pending. (See

11 ECF Nos. 19-1, 19-4.) Thus, while the Court does not necessarily disagree with the magistrate

12 judge’s analysis based on the facts as presented in the findings and recommendations, because

13 that presentation contained a significant error, the analysis that followed invoking a post-removal

14 period framework no longer stands correct. The Court otherwise adopts and incorporates the

15 background section of the findings and recommendation. (ECF No. 21 at 1–3.) The Court now

16 turns to the merits of Petitioner’s habeas petition.

17 I. STANDARD OF LAW

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

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

20 (citing U.S. Const., art. I, § 9, cl. 2). “[T]he essence of habeas corpus is an attack by a person in

21 custody upon the legality of that custody, and . . . the traditional function of the writ is to secure

22 release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas

23 corpus may be granted to a petitioner who demonstrates that he is in custody in violation of the

24 Constitution or federal law. 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has

25 served as a means of reviewing the legality of Executive detention, and it is in that context that its

26 protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). Accordingly, a

27 district court’s habeas jurisdiction includes challenges to immigration detention. See Zadvydas v.

28 Davis, 533 U.S. 678, 687 (2001).

1 II. ANALYSIS

2 Petitioner claims his detention without a bond hearing under 8 U.S.C. § 1226(c)

3 (“§ 1226(c)”) has become unconstitutionally prolonged. (ECF No. 20 at 1–2.) Petitioner argues

4 his detention since August 13, 2025, has far exceeded the period contemplated in Demore v. Kim,

5 538 U.S. 510 (2003), removal proceedings remain pending, and there is no foreseeable conclusion

6 date. (Id.) Respondents argue Petitioner is properly detained under § 1226(c), and mandatory

7 detention under the statue is facially constitutional. (ECF No. 19 at 3–5.) Respondents argue

8 Petitioner’s contention that he will not be removed in the foreseeable future is premised on the

9 incorrect notion that he is subject to third-country removal. (Id. at 5.)

10 As this Court and other across the Circuit have held, prolonged detention without a bond

11 hearing under 8 U.S.C. § 1226(c) may violate due process as applied, even for noncitizens with

12 severe convictions. See Marco Antonio B.R. v. Warden, No. 1:26-CV-00810-TLN-CSK, 2026

13 WL 1091489, at *3 (E.D. Cal. Apr. 22, 2026); see also Yang v. Chestnut, No. 1:26-CV-01902-

14 DJC-EFB, 2026 WL 915018, at *2 (E.D. Cal. Apr. 3, 2026) (collecting cases). To determine

15 whether Petitioner’s due process rights have been violated, the Court considers two questions:

16 whether there exists a protected liberty interest under the Due Process Clause, and what

17 procedures are necessary to ensure any deprivation of that protected liberty interest accords with

18 the Constitution. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989);

19 Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“Once it is determined that due process applies,

20 the question remains what process is due.”).

21 A. Liberty Interest

22 The Court finds Petitioner has a protectable liberty interest. Petitioner entered the United

23 States lawfully on August 7, 2013. (ECF No. 19-1 at 2.) In 2017, U.S. Citizenship and

24 Immigration Services (“USCIS”) approved Petitioner’s application for a Special Immigrant visa.

25 (Id.) In 2018, USCIS approved Petitioner’s application for lawful permanent resident (“LPR”)

26 status. (Id.) Based on this series of events, the Court finds Petitioner gained an interest in

27 remaining at liberty pending resolution of his immigration proceedings when the government

28 granted him entry, and that interest was strengthened over time. See Bui v. Warden, No. 1:26-

1 CV-3993-DC-JDP, 2026 WL 1999113, at *2 (E.D. Cal. July 10, 2026) (noting “an LPR has a

2 protected liberty interest in not being detained by ICE” and collecting cases).

3 Although Petitioner’s liberty interest may have been diminished by his criminal

4 convictions in 2022 and additional charges in 2025, he nonetheless maintains an interest in his

5 liberty protected by the Due Process Clause. See Carballo v. Andrews, No. 1:25-CV-00978-KES-

6 EPG, 2025 WL 2381464, at *5 (E.D. Cal. Aug. 15, 2025) (“Even when a statute authorizes

7 detention without a hearing, a protected liberty interest under the Due Process Clause may entitle

8 the individual to procedural protections not found in the statute.”) (citing Morrissey, 408 U.S. at

9 482; Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Young v. Harper, 520 U.S. 143, 147–49

10 (1997)); see also Rico-Tapia v. Smith, No. CV 25-00379 SASP-KJM, 2025 WL 2950089, at *8

11 (D. Haw. Oct. 10, 2025) (noting “[e]ven where the revocation of a person’s freedom is authorized

12 by statute, that person may retain a protected liberty interest under the Due Process Clause”).

13 B. Process Required

14 To determine whether Petitioner’s detention without a bond hearing under § 1226(c) has

15 become unconstitutionally prolonged, the Court applies the test set forth in Lopez v. Garland, 631

16 F. Supp. 3d 870, 879 (E.D. Cal. 2022).1 Under Lopez, the Court considers three factors: “[1] the

17 total length of detention to date, [2] the likely duration of future detention, and [3] the delays in

18 the removal proceedings caused by the petitioner and the government.” 631 F. Supp. 3d at 879.

19 The first factor favors Petitioner. He has now been detained without a bond hearing for

20 approximately eleven months. (ECF No. 22 at 2.) Court have routinely found detentions without

21 bond hearings for similar lengths of time to be unreasonable. See Yang v. Chestnut, No. 1:26-

22 CV-01902-DJC-EFB, 2026 WL 915018, at *3 (E.D. Cal. Apr. 3, 2026) (finding detention over

23 eleven months unreasonable and collecting cases); Rash v. LaRose, 823 F. Supp. 3d 1174, 1181

24 (S.D. Cal. 2026) (finding detention over fourteen months unreasonable and collecting cases).

25 1 In other due process challenges to civil immigration detention, this Court has found the

appropriate test to be the one set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See,

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e.g., Daniel P.V. v. Warden, California City Corr. Ctr., No. 2:26-CV-01372-TLN-CKD, 2026 WL

27 1846736, at *4 (E.D. Cal. June 26, 2026). However, as the instant case specifically challenges

Petitioner’s detention under § 1226(c) without a bond hearing as being unreasonably prolonged,

28 the Court finds the analysis from Lopez, 631 F. Supp. 3d at 878, to be more appropriate here.

1 The second factor also favors Petitioner. The likely duration of future detention is unclear

2 but could plausibly extend for several years. Petitioner’s removal proceedings are currently

3 pending, and even if Petitioner is ultimately ordered removed, he could face several more months

4 or even years of detention during adjudication of appeals to the Board of Immigration Appeals

5 and the Ninth Circuit. See Banda v. McAleenan, 385 F. Supp. 3d 1099, 1119 (W.D. Wash. 2019)

6 (noting the appeal process for an immigration judge’s removal order “may take up to two years or

7 longer.”).

8 Finally, the third factor is neutral as the record is devoid of information about Petitioner’s

9 ongoing removal proceedings. (See generally ECF Nos. 19-1–19-6.) Apart from the Notice to

10 Appear initiating removal proceedings against Petitioner on August 13, 2025, neither party has

11 provided an update on the status of Petitioner’s immigration case since then.

12 In consideration of the Lopez factors, the Court finds Petitioner’s continued detention has

13 become unreasonable. Due process requires that Petitioner be provided a bond hearing.2

14 III. CONCLUSION

15 Accordingly, IT IS HEREBY ORDERED as follows:

16 1. The Court DECLINES to adopt the findings and recommendations filed April 3,

17 2026 (ECF No. 21).

18 2. The Petition for Writ of Habeas Corpus (ECF No. 1) is GRANTED.

19 3. Respondents are ENJOINED and RESTRAINED from continuing to detain

20 Petitioner Thierno K. (A # 088-976-575) for more than seven (7) days from the date of this Order

21 (unless Petitioner seeks additional time to prepare) without a bond hearing before a neutral

22 factfinder at which the government bears the burden to justify Petitioner’s ongoing detention

23 through a showing by clear and convincing evidence that Petitioner poses a danger to the

24 community or a flight risk. The factfinder must consider Petitioner’s financial circumstances for

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2 Although the magistrate judge granted Petitioner’s habeas petition in part as to his third-

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country removal claim (ECF No. 21 at 6–8), the Court declines to consider the claim as this time.

27 As the Court finds habeas relief is warranted based on Petitioner’s prolonged detention claim,

consideration of Petitioner’s additional claims is not necessary. Further, since Petitioner has not

28 been ordered removed, any claim as to the possibility of removal to a third country is not yet ripe.

1 | bond and alternative conditions of release. At any such hearing, Petitioner shall be allowed to

2 | have counsel present. If the government fails to meet its burden, Respondents must immediately

3 | release Petitioner. Respondents may impose any restrictions or conditions determined to be

4 | necessary by the factfinder at the hearing.

5 4. Within two (2) court days from the date of the bond hearing, Respondents must

6 | file a notice of compliance with this Court’s Order confirming that the hearing occurred, the date

7 | of the hearing, the outcome of the hearing, and Petitioner’s custody status.

8 5. If Petitioner is released, Respondents are further ENJOINED and RESTRAINED

9 | from re-arresting or re-detaining Petitioner absent compliance with constitutional protections,

10 | including seven-days’ notice and a pre-deprivation hearing before a neutral factfinder where the

11 || government bears the burden to show by clear and convincing evidence that material changed

12 || circumstances demonstrate: (a) a significant likelihood of Petitioner’s removal in the reasonably

13 | foreseeable future, or (b) the government’s interest in protecting the public and/or ensuring

14 | Petitioner appears at future immigration proceedings outweighs Petitioner’s constitutionally

15 | protected interest in remaining free from detention. At any such hearing, Petitioner shall be

16 | allowed to have counsel present.

17 6. The Clerk of the Court shall enter judgment in favor of Petitioner and close this

18 || case.

19 IT IS SO ORDERED.

20 | Date: July 16, 2026

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23 TROY L. NUNLEY

CHIEF UNITED STATES DISTRICT JUDGE

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