Gordillo v. Noem et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Britney Esmeralda Perez Gordillo,
Petitioner,
v.
Kristi Noem, et al.,
Respondents.
No. CV-26-01866-PHX-JCH (DMF)
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN C. HINDERAKER, UNITED STATES DISTRICT
JUDGE:
This matter is on referral to the undersigned for further proceedings and a report and
recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure
(Doc. 4 at 2).1
I. BACKGROUND AND PROCEDURAL POSTURE
Through counsel, Petitioner Britney Esmeralda Perez Gordillo (“Petitioner” and/or
“Gordillo”) initiated these proceedings by filing a Petition for Writ of Habeas Corpus under
28 U.S.C. § 2241 challenging her immigration detention (“Petition”) (Doc. 1). In the Order
screening the Petition, the Court recounted:
Petitioner alleges as follows: Petitioner, a citizen of Mexico, entered the
1 Citation to the record as “Doc.” indicates documents as displayed in the official Court
electronic document filing system maintained by the District of Arizona under Case No.
CV-26-01866-PHX-JCH (DMF).
Case 2:26-cv-01866-JCH Document 7 Filed 06/04/26 Page 1 of 10

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United States on August 3, 2023, to seek asylum. (Doc. 1 ¶¶ 1, 33.) On
August 10, 2023, after a short period of detention, Petitioner was released on
humanitarian parole, valid for one year. (Id. ¶ 34.) Upon release, Petitioner
was added to her mother’s pending application for asylum, withholding of
removal, and protection under the Convention Against Torture. (Id. ¶ 35.)
On July 14, 2025, Petitioner was re-detained by Immigration and Customs
Enforcement officials without notice or a pre-deprivation hearing. (Id. ¶¶
37–40.) Petitioner asserts that her re-detention without a hearing violates her
Fifth Amendment due process rights. She seeks release from custody, or in
the alternative, a bond hearing.
(Doc. 4 at 1). The Court ordered Respondents to answer the Petition and allowed Petitioner
10 days from the date of service of Respondents’ answer to file a reply (Id. at 2). On April
21, 2026, Respondents filed an Answer to Petition for Writ of Habeas Corpus (“Answer”)
(Doc. 6). Petitioner has not filed a reply.2
The parties agree that Petitioner is a native and citizen of Mexico who entered the
United States on August 3, 2023 (Doc. 1 at 8; Doc. 6 at 1; Doc. 6-1 at 1). According to the
Record of Deportable/Inadmissible Alien Form I-213 attached to Respondents’ Answer, a
United States Border Patrol agent encountered Petitioner on August 3, 2023, near the
border in Sasabe, Arizona and determined that Petitioner unlawfully entered the United
States (Doc. 6-1 at 2). Petitioner was arrested and placed into expedited removal
proceedings (Id. at 3).
The parties also agree that on August 10, 2023, Petitioner was paroled into the
United States under 8 U.S.C. § 1182(d)(5) (Doc. 1 at 8; Doc. 6 at 1). The letter dated
August 10, 2023, and attached as Exhibit A to the Petition (Doc. 1-1) reflects that
Petitioner’s parole was “valid for one year beginning from the date on this notice” and
would “automatically terminate upon [Petitioner’s] departure or removal from the United
States or at the end of the one-year period unless ICE provides [Petitioner] with an
extension at its discretion” (Id. at 2).3 Petitioner avers that she remained in the United
2 Despite Respondents’ error in the Answer’s certificate of service regarding the identity
of Petitioner’s counsel (Doc. 6 at 7-8), the Court’s electronic filing system reflects proper
electronic service to Petitioner’s counsel through the system.
3 Petitioner acknowledges that her § 1182(d)(5) parole was “issued as valid for one year,
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States throughout the duration of her parole (Doc. 1 at 9). On July 14, 2025, Petitioner was
re-detained and has remained in custody since that date (Doc. 1 at 8; Doc. 6 at 1-2). Based
on the publicly available ICE Online Detainee Locator System, Petitioner remains in
custody at the Eloy Detention Center.4
Respondents represent that Petitioner was ordered removed on October 16, 2025,
and her appeal of the removal order remains pending before the Board of Immigration
Appeals (Doc. 6 at 2). Petitioner states that her removal proceedings remain ongoing but
does not specify whether she has been ordered removed (see Doc. 1).
In her Petition, Petitioner argues that her continued detention violates the Due
Process Clause of the Fifth Amendment and the Administrative Procedure Act (“APA”)
(Doc. 1 at 16-17). Specifically, Petitioner argues that Petitioner has a protected liberty
interest in freedom from imprisonment and in her “continued liberty” under Morrissey v.
Brewer, 408 U.S. 471 (1972) (Id. at 9-11). Petitioner contends that her re-detention violates
due process because she was re-detained without written notice and a meaningful
opportunity to be heard by a neutral decisionmaker before her re-detention (Id. at 12-14).
In support of her argument, Petitioner cites several district court decisions concluding that
an alien released on § 1182(d)(5) parole is entitled to a pre-deprivation hearing (Id. at 12,
13). Petitioner also asserts under the APA that “Respondents’ refusal to release Petitioner
is arbitrary, capricious, and not in accordance with the law” (Id. at 15). For relief, Petitioner
asks the Court to order her immediate release from custody or in the alternative order an
individualized bond hearing, award Petitioner attorney’s fees and costs under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and grant any other and further relief
the Court deems proper (Id. at 16-17).
In their Answer, Respondents contend that Petitioner is lawfully detained and ICE’s
decision to revoke her parole is not reviewable by this Court (Doc. 6 at 2-4). Respondents
until on or about August 9, 2024” (Doc. 1 at 8).
4 See https://locator.ice.gov/odls/#/search (last accessed June 4, 2026).
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assert that Petitioner was apprehended shortly after entering the United States without
inspection and therefore did not effect an entry into the United States (Id. at 4).
Respondents distinguish this Court’s holding in Echevarria v. Bondi, No. CV-25-03252-
PHX-DWL (ESW), 2025 WL 2821282, at *24 (D. Ariz. Oct. 3, 2025), reasoning that the
petitioner there was present in the United States for 24 years whereas here “Petitioner had
been present for a matter of hours or perhaps minutes at the time of h[er] inspection” (Doc.
6 at 4). Respondents thus argue that § 1225(b) governs Petitioner’s detention (Id.).
Respondents also argue that Petitioner has no protected liberty interest in her
§ 1182(d)(5) parole (Doc. 6 at 4-6). Respondents first argue that Petitioner has only the
procedural rights granted by Congress (Id. at 5). Respondents next argue that the Ninth
Circuit in Wong v. Immigr. & Naturalization Serv., 373 F.3d 952, 968 (9th Cir. 2004),
abrogated on other grounds, Pettibone v. Russell, 59 F.4th 449, 452-53 (9th Cir. 2023),
determined that an alien has no liberty interest in temporary parole status (Id. at 6).
Respondents thus assert that Petitioner’s due process argument fails (Id.). Respondents ask
the Court to deny the Petition (Id.).
II. DISCUSSION
A. Jurisdiction
A federal district court is authorized to grant a writ of habeas corpus under 28 U.S.C.
§ 2241 where the petitioner is “in custody under or by color of the authority of the United
States . . . in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(1), (3). Generally, “challenges to the statutory framework that permits
the alien’s detention without bail,” Jennings v. Rodriguez, 583 U.S. 281, 295 (2018),
“questions of law” raised in the application or interpretation of detention statutes, Leonardo
v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011), and “[c]laims that the discretionary bond
process itself was constitutionally flawed are cognizable in federal court on habeas because
they fit comfortably within the scope of § 2241.” Hernandez v. Sessions, 872 F.3d 976,
987 (9th Cir. 2017) (quoting Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011)). Thus,
this Court has jurisdiction over the Petition.
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B. Petitioner’s Detention
1. Petitioner’s Initial Detention Was Governed by 8 U.S.C. § 1225(b)
Undersigned agrees with Respondents’ assertion that Petitioner’s initial detention
was governed by 8 U.S.C. § 1225(b). As relevant here, “[a]n alien present in the United
States who has not been admitted or who arrives in the United States (whether or not at a
designated port of arrival) . . . shall be deemed for purposes of this chapter an applicant for
admission.” 8 U.S.C. § 1225(a). Applicants for admission must be inspected by
immigration officers to “ensure that they may be admitted into the country consistent with
U.S. immigration law.” Jennings, 583 U.S. at 287. Under § 1225(b)(1)(A)(i) certain
inadmissible applicants for admission are “normally ordered removed ‘without further
hearing or review’ pursuant to an expedited removal process.” Jennings, 583 U.S. at 287
(quoting 8 U.S.C. § 1225(b)(1)(A)(i)). If the alien indicates either an intention to apply for
asylum or a fear of persecution, that alien is referred for an asylum interview and “shall be
detained for further consideration of the application for asylum.” Id. (quoting 8 U.S.C.
§ 1225(b)(1)(B)(ii)).
Section 1225(b)(2), on the other hand, is a broader “catchall provision that applies
to all applicants for admission not covered by § 1225(b)(1).” Jennings, 583 U.S. at 287
(quoting 8 U.S.C. §§ 1225(b)(2)(A), (B)). Section 1225(b)(2)(A) provides that if an
“immigration officer determines that an alien seeking admission is not clearly and beyond
a doubt entitled to be admitted, the alien shall be detained for a proceeding under section
1229a of this title.” 8 U.S.C. § 1225(b)(2)(A).
Here, a United States Border Patrol agent encountered Petitioner near the border
and determined that Petitioner unlawfully entered the United States. Petitioner was
arrested and placed into expedited removal proceedings. Thus, under § 1225(a) Petitioner
is deemed an arriving alien and Petitioner’s initial detention was governed by § 1225(b).
Moreover, undersigned agrees with Respondents’ argument that Echevarria is
distinguishable because Petitioner was not present in the United States for years before her
arrest but was initially apprehended shortly after crossing the border.
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2. Petitioner’s Liberty Interest
Several days after Petitioner’s initial arrest and detention, Petitioner was granted
parole under § 1182(d)(5). The parties contest whether Petitioner has a protected liberty
interest such that Petitioner is entitled to heightened procedural protections before any re-
detention.
The Fifth Amendment guarantees that “[n]o person shall be . . . deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. “[T]he Due
Process Clause applies to all ‘persons’ within the United States, including aliens, whether
their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533
U.S. 678, 693 (2001). “[I]t is well established that the Fifth Amendment entitles aliens to
due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993).
The Due Process Clause generally “requires some kind of a hearing before the State
deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127 (1990).
While the initial decision to detain or release an individual may be within the
government’s discretion, the government’s decision to release an individual from custody
creates “an implicit promise,” upon which that individual may rely, that their liberty will
be revoked only if the individual fails to live up to the conditions of release. Morrissey,
408 U.S. at 482. “Thus, even when ICE has the initial discretion to detain or release a
noncitizen pending removal proceedings, after that individual is released from custody she
has a protected liberty interest in remaining out of custody.” Pinchi v. Noem, No. 5:25-cv-
05632-PCP, 2025 WL 2084921, at *3 (N.D. Cal. July 24, 2025) (citing Romero v. Kaiser,
No. 22-cv-02508, 2022 WL 1443250, at *2 (N.D. Cal. May 6, 2022)); see also Noori v.
Larose, No. 25-cv-1328-GPC-MSB, 2025 WL 2800149, *9-10 (S.D. Cal. Oct. 1, 2025);
Rosado v. Figueroa, No. CV 25-02157 PHX DLR (CDB), 2025 WL 2337099 (D. Ariz.
Aug. 11, 2025), report and recommendation adopted, No. CV-25-02157-PHX-DLR
(CDB), 2025 WL 2349133 (D. Ariz. Aug. 13, 2025); Ramirez Tesara v. Wamsley, No.
2:25-cv-01723-MJP-TLF, 2025 WL 2637663, at *3 (W.D. Wash. Sep. 12, 2025).
Furthermore, undersigned finds Respondents’ reliance on Wong misplaced. In
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Wong, the court noted that “[the petitioner’s] briefing before this court has not clarified the
legal basis for her allegation that the parole revocation . . . violated the Due Process
Clause.” Wong, 373 F.3d at 967. The Ninth Circuit thus dismissed the petitioner’s due
process claim because “[t]he INA does not create any liberty interest in temporary parole
that is protected by the Fifth Amendment. Rather, the statute makes clear that whether and
for how long temporary parole is granted are matters entirely within the discretion of the
Attorney General.” Id. at 968. Here, Petitioner does not assert a liberty interest in the
temporary parole itself but argues that under Morrissey v. Brewer, 408 U.S. 471 (1972),
Petitioner has an interest in her continued liberty after the Government exercises its initial
discretion in granting parole. Yet Respondents do not address Morrissey in their Answer.
Thus, undersigned concludes—consistent with Morrissey and the above cases from district
courts in this circuit—that Petitioner has a protected liberty interest in remaining out of
custody.
Undersigned further concludes that Petitioner’s liberty interest in remaining out of
custody did not expire at the time her temporary parole expired. Respondents’ note in the
factual background section of their Answer that Petitioner’s parole expired on August 10,
2024, but do not address the legal effect, if any, of such expiration in their argument (see
Doc. 6 at 1, 2-6). Moreover, “recent caselaw confirms that an immigration detainee
released on parole retains a liberty interest in his release and that ‘liberty interest [does] not
expire along with his parole.’” Urinboev v. Rivas, No. CV-26-00488-PHX-AMM (MTM),
2026 WL 1450042, at *2 (D. Ariz. May 22, 2026) (string cite omitted). Consistent with
Urinboev and because Respondents did not address the issue in their briefing, undersigned
concludes that Petitioner has a liberty interest in remaining out of custody even though her
temporary parole expired on August 10, 2024.5
3. Mathews Factors Favor a Pre-Deprivation Hearing
Because Petitioner has a protected liberty interest, the Due Process Clause requires
5 Respondents also do not address if or how the October 16, 2025, order of removal
currently on appeal to the BIA affects the due process analysis (see Doc. 6 at 2-6).
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procedural protections before Petitioner can be deprived of that interest. See Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). To determine which procedures are constitutionally
sufficient to satisfy the Due Process Clause, courts must consider: (1) “the private interest
that will be affected by the official action”; (2) “the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards”; and (3) “the Government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” Id. Here, all three factors support a finding that
Petitioner’s re-detention without adequate notification, reasoning as to any change in
individualized facts or circumstances, or a meaningful opportunity to be heard denied
Petitioner of her due process rights.
First, Petitioner has a significant liberty interest in remaining out of custody.
Indeed, “[f]reedom from imprisonment—from government custody, detention, or other
forms of physical restraint—lies at the heart of the liberty [the Due Process Clause]
protects.” Zadvydas, 533 U.S. at 690. Second, the risk of an erroneous deprivation of such
interest is high as Petitioner was re-detained without an individualized reason. Petitioner
was also given no opportunity to be heard regarding her re-detention. Moreover,
Petitioner’s original release required a finding that Petitioner posed neither a security risk
nor a risk of absconding. See 8 C.F.R. § 212.5(b). Third, the Government’s interest in
detaining Petitioner without notice, reasoning, and a hearing is “low.” See Pinchi, 2025
WL 2084921, at *5; Ortega v. Bonnar, 415 F. Supp. 3d 963, 970 (N.D. Cal. Nov. 22, 2019)
(“If the government wishes to re-arrest [Petitioner] at any point, it has the power to take
steps toward doing so; but its interest in doing so without a hearing is low.”). Respondents
fail to point to any burdens on the Government if it were to have provided proper notice,
individualized reasoning, and a pre-deprivation hearing.
Because Petitioner was re-detained in violation of her due process rights,
undersigned recommends that the Petition be granted and that Petitioner be released subject
to the same conditions and other requirements which preceded her recent immigration
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detention in July 2025.
C. Petitioner’s Administrative Procedure Act (“APA”) Claim
Petitioner argues that “Respondents’ refusal to release Petitioner is arbitrary,
capricious, and not in accordance with the law” (Doc. 1 at 15). Because undersigned
recommends granting habeas relief based on violation of the Due Process Clause of the
United States Constitution as discussed above, the Court need not address Petitioner’s APA
claim.
III. EQUAL ACCESS TO JUSTICE ACT (“EAJA”), 28 U.S.C. § 2412,
ATTORNEY’S FEES AND COSTS
In her Petition, Petitioner asserts that she is entitled to payment of attorney’s fees,
related expenses, and costs under EAJA (Doc. 1 at 15). Petitioner asks the Court for an
award of EAJA fees without specifying the amount sought or providing evidence of fees
and costs expended (Id. at 16). Thus, undersigned recommends that Petitioner’s request
for EAJA fees be denied without prejudice to Petitioner filing an appropriate application
for fees.
IV. CONCLUSION
As discussed above, Petitioner’s re-detention without adequate notice,
individualized justification, or consideration of Petitioner’s particular circumstances
violates the Due Process Clause of the Fifth Amendment of the United States Constitution.
Accordingly,
IT IS RECOMMENDED that the Petition (Doc. 1) be granted in part and denied
in part as set forth herein.
IT IS FURTHER RECOMMENDED that Petitioner be ordered immediately
released from immigration custody subject to appropriate conditions of release.
IT IS FURTHER RECOMMENDED that the Court order Respondents to provide
a notice of compliance within two (2) business days of Petitioner’s release.
IT IS FURTHER RECOMMENDED that Petitioner’s request for EAJA fees be
denied without prejudice.
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This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal
Rules of Appellate Procedure should not be filed until entry of the District Court’s
judgment. The parties shall have fourteen days from the date of service of a copy of this
recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which
to file responses to any objections. Failure to file timely objections to the Magistrate
Judge’s Report and Recommendation may result in the acceptance of the Report and
Recommendation by the District Court without further review. See United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual
determination of the Magistrate Judge may be considered a waiver of a party’s right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. In addition, LRCiv 7.2(e)(3)
provides that “[u]nless otherwise permitted by the Court, an objection to a Report and
Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated this 4th day of June, 2026.
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